MEMORANDUM DECISION Apr 24 2015, 8:38 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Ann M. Sutton Gregory F. Zoeller Marion County Public Defender Agency, Attorney General of Indiana Appellate Division Karl M. Scharnberg Indianapolis, Indiana Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Raymond Welch, April 24, 2015
Appellant-Defendant, Court of Appeals Case No. 49A04-1409-CR-432 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Helen Marchal, Judge Appellee-Plaintiff. Cause No. 49G16-1407-CM-34351
Brown, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A04-1409-CR-432 | April 24, 2015 Page 1 of 8 [1] Raymond Welch appeals his conviction for battery as a class A misdemeanor.
Welch raises one issue, which we revise and restate as whether the evidence is
sufficient to sustain his conviction. We affirm.
Facts and Procedural History
[2] On June 30, 2014, Nicole Heady and Welch were dating and had been staying
at the home of Welch’s brother for two days. Heady phoned her mother asking
if she could meet her with some clean clothes at a market a few blocks from the
home, and her mother agreed. Welch and Heady had been fighting earlier that
afternoon, and when Heady left the home on foot Welch followed and yelled
things “like ‘oh you don’t never listen’ and ‘all you are worried about is your
phone’ and ‘you are worthless. You are a b----. You are a c--- . . . .” Transcript
at 7. Welch was “angry, very angry.” Id. Heady at first did not respond,
instead listening to music playing on her phone and walking while Welch
followed from behind, and Welch then “come up from behind out of nowhere”
and “snatched [her] phone . . . .” Id. at 8. Heady asked him repeatedly not to
“smash [her] phone,” and after “begging and pleading about five or six times to
give it back he actually gave it back.” Id. at 8-9. At that time, Welch told
Heady: “all you are worried about is Facebook. All your [sic] worried about is
this phone. I am not nothing. You are a b----.” Id. at 9. Heady observed that
Welch was “even more angrier,” noting that his jawbone was clenched, he was
gritting his teeth together, and he had his fists clenched. Id.
[3] After Heady received her phone back from Welch, she “stuck it in between
[her] breasts so that that way maybe he couldn’t get it again,” and she kept Court of Appeals of Indiana | Memorandum Decision 49A04-1409-CR-432 | April 24, 2015 Page 2 of 8 walking to meet her mother. Id. at 10. At this time, Heady’s phone
inadvertently called her “aunt and uncle’s house” and the call “went to voice
mail.” Id. at 17. As she walked, Welch continued to yell profanities, and she
responded in a “normal way” by stating: “‘[O]kay yeah I’m stupid. Yea I am a
b----.’ Just pretty much agreeing with him.” Id. at 10. While she continued to
walk towards the market she heard “footsteps come up from out of nowhere
behind [her] and that is when he hit the side of [her] face out of nowhere,”
which felt like a “hammer hitting [her] head” and caused physical pain in the
form of “a throbbing sensation.” Id. at 11-12. Heady continued to walk and
“was crossing the street to try and get away from him, back and forth, back and
forth,” Welch followed and continued to yell, and he came from behind and
“grabbed [her] hair and pushed [her] straight out in front of a four door silver
car,” which caused pain. Id. at 13. The car stopped and asked Heady if she
needed help, Heady replied that she did need help, she entered the car, and the
driver drove her to the market where she met her mother.
[4] Heady’s mother arrived at the market and noticed that “the left side of
[Heady’s] face was all red” and that Heady was scared and was crying. Id. at
39. The two women went to Heady’s aunt and uncle’s home and called the
police. While there, Heady discovered that her phone had called her aunt and
uncle’s number and that audio of the altercation between her and Welch had
been recorded on the number’s voicemail system.
[5] On July 10, 2014, the State charged Wells with Count I, battery as a class A
misdemeanor; and Count II, criminal recklessness as a class B misdemeanor.
Court of Appeals of Indiana | Memorandum Decision 49A04-1409-CR-432 | April 24, 2015 Page 3 of 8 On August 26, 2014, the court held a bench trial at which evidence consistent
with the foregoing was presented. The audio recording, as well as two pictures
of Heady’s face taken the day of the altercation, were admitted into evidence.
At the conclusion of the State’s case-in-chief, Welch moved for involuntary
dismissal under Ind. Trial Rule 41(b) of Count II, the State did not oppose the
motion, and the court granted the motion. The court found Welch guilty on
Count I and sentenced him to 365 days suspended to probation and ordered
that he receive twenty-six weeks of domestic violence counseling.
Discussion
[6] The issue is whether the evidence is sufficient to sustain Welch’s conviction for
battery as a class A misdemeanor. When reviewing the sufficiency of the
evidence to support a conviction, we must consider only the probative evidence
and reasonable inferences supporting the verdict. Drane v. State, 867 N.E.2d
144, 146 (Ind. 2007). We do not assess witness credibility or reweigh the
evidence. Id. We consider conflicting evidence most favorably to the trial
court’s ruling. Id. We affirm the conviction unless “no reasonable fact-finder
could find the elements of the crime proven beyond a reasonable doubt.” Id.
(quoting Jenkins v. State, 726 N.E.2d 268, 270 (Ind. 2000)). It is not necessary
that the evidence overcome every reasonable hypothesis of innocence. Id. at
147. The evidence is sufficient if an inference may reasonably be drawn from it
to support the verdict. Id.
[7] The offense of battery is governed by Ind. Code § 35-42-2-1 which at the time of
the offense provided in relevant part: “(a) A person who knowingly or Court of Appeals of Indiana | Memorandum Decision 49A04-1409-CR-432 | April 24, 2015 Page 4 of 8 intentionally touches another person in a rude, insolent, or angry manner
commits battery, a Class B misdemeanor. However, the offense is: (1) a Class
A misdemeanor if: (A) it results in bodily injury to any other person . . . .”
(Supp. 2012) (subsequently amended by Pub. L. No. 158-2013, § 420 (eff. July
1, 2014); Pub L. No. 147-2014, § 2 (eff. July 1, 2014)). The charging
information alleged that “[o]n or about June 30, 2014, Raymond Welch did
knowingly touch Nicole Heady, another person, in a rude, insolent, or angry
manner, resulting in bodily injury, specifically pain . . . .” Appellant’s
Appendix at 16 (capital letters omitted). Thus, to convict Welch of battery as a
class A misdemeanor, the State needed to prove that Welch touched Heady in a
rude, insolent, or angry manner, causing her pain.
[8] Welch argues that “[l]istening to the tape is very telling,” noting that “[o]n the
recording, she tells him he hit her.
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MEMORANDUM DECISION Apr 24 2015, 8:38 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Ann M. Sutton Gregory F. Zoeller Marion County Public Defender Agency, Attorney General of Indiana Appellate Division Karl M. Scharnberg Indianapolis, Indiana Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Raymond Welch, April 24, 2015
Appellant-Defendant, Court of Appeals Case No. 49A04-1409-CR-432 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Helen Marchal, Judge Appellee-Plaintiff. Cause No. 49G16-1407-CM-34351
Brown, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A04-1409-CR-432 | April 24, 2015 Page 1 of 8 [1] Raymond Welch appeals his conviction for battery as a class A misdemeanor.
Welch raises one issue, which we revise and restate as whether the evidence is
sufficient to sustain his conviction. We affirm.
Facts and Procedural History
[2] On June 30, 2014, Nicole Heady and Welch were dating and had been staying
at the home of Welch’s brother for two days. Heady phoned her mother asking
if she could meet her with some clean clothes at a market a few blocks from the
home, and her mother agreed. Welch and Heady had been fighting earlier that
afternoon, and when Heady left the home on foot Welch followed and yelled
things “like ‘oh you don’t never listen’ and ‘all you are worried about is your
phone’ and ‘you are worthless. You are a b----. You are a c--- . . . .” Transcript
at 7. Welch was “angry, very angry.” Id. Heady at first did not respond,
instead listening to music playing on her phone and walking while Welch
followed from behind, and Welch then “come up from behind out of nowhere”
and “snatched [her] phone . . . .” Id. at 8. Heady asked him repeatedly not to
“smash [her] phone,” and after “begging and pleading about five or six times to
give it back he actually gave it back.” Id. at 8-9. At that time, Welch told
Heady: “all you are worried about is Facebook. All your [sic] worried about is
this phone. I am not nothing. You are a b----.” Id. at 9. Heady observed that
Welch was “even more angrier,” noting that his jawbone was clenched, he was
gritting his teeth together, and he had his fists clenched. Id.
[3] After Heady received her phone back from Welch, she “stuck it in between
[her] breasts so that that way maybe he couldn’t get it again,” and she kept Court of Appeals of Indiana | Memorandum Decision 49A04-1409-CR-432 | April 24, 2015 Page 2 of 8 walking to meet her mother. Id. at 10. At this time, Heady’s phone
inadvertently called her “aunt and uncle’s house” and the call “went to voice
mail.” Id. at 17. As she walked, Welch continued to yell profanities, and she
responded in a “normal way” by stating: “‘[O]kay yeah I’m stupid. Yea I am a
b----.’ Just pretty much agreeing with him.” Id. at 10. While she continued to
walk towards the market she heard “footsteps come up from out of nowhere
behind [her] and that is when he hit the side of [her] face out of nowhere,”
which felt like a “hammer hitting [her] head” and caused physical pain in the
form of “a throbbing sensation.” Id. at 11-12. Heady continued to walk and
“was crossing the street to try and get away from him, back and forth, back and
forth,” Welch followed and continued to yell, and he came from behind and
“grabbed [her] hair and pushed [her] straight out in front of a four door silver
car,” which caused pain. Id. at 13. The car stopped and asked Heady if she
needed help, Heady replied that she did need help, she entered the car, and the
driver drove her to the market where she met her mother.
[4] Heady’s mother arrived at the market and noticed that “the left side of
[Heady’s] face was all red” and that Heady was scared and was crying. Id. at
39. The two women went to Heady’s aunt and uncle’s home and called the
police. While there, Heady discovered that her phone had called her aunt and
uncle’s number and that audio of the altercation between her and Welch had
been recorded on the number’s voicemail system.
[5] On July 10, 2014, the State charged Wells with Count I, battery as a class A
misdemeanor; and Count II, criminal recklessness as a class B misdemeanor.
Court of Appeals of Indiana | Memorandum Decision 49A04-1409-CR-432 | April 24, 2015 Page 3 of 8 On August 26, 2014, the court held a bench trial at which evidence consistent
with the foregoing was presented. The audio recording, as well as two pictures
of Heady’s face taken the day of the altercation, were admitted into evidence.
At the conclusion of the State’s case-in-chief, Welch moved for involuntary
dismissal under Ind. Trial Rule 41(b) of Count II, the State did not oppose the
motion, and the court granted the motion. The court found Welch guilty on
Count I and sentenced him to 365 days suspended to probation and ordered
that he receive twenty-six weeks of domestic violence counseling.
Discussion
[6] The issue is whether the evidence is sufficient to sustain Welch’s conviction for
battery as a class A misdemeanor. When reviewing the sufficiency of the
evidence to support a conviction, we must consider only the probative evidence
and reasonable inferences supporting the verdict. Drane v. State, 867 N.E.2d
144, 146 (Ind. 2007). We do not assess witness credibility or reweigh the
evidence. Id. We consider conflicting evidence most favorably to the trial
court’s ruling. Id. We affirm the conviction unless “no reasonable fact-finder
could find the elements of the crime proven beyond a reasonable doubt.” Id.
(quoting Jenkins v. State, 726 N.E.2d 268, 270 (Ind. 2000)). It is not necessary
that the evidence overcome every reasonable hypothesis of innocence. Id. at
147. The evidence is sufficient if an inference may reasonably be drawn from it
to support the verdict. Id.
[7] The offense of battery is governed by Ind. Code § 35-42-2-1 which at the time of
the offense provided in relevant part: “(a) A person who knowingly or Court of Appeals of Indiana | Memorandum Decision 49A04-1409-CR-432 | April 24, 2015 Page 4 of 8 intentionally touches another person in a rude, insolent, or angry manner
commits battery, a Class B misdemeanor. However, the offense is: (1) a Class
A misdemeanor if: (A) it results in bodily injury to any other person . . . .”
(Supp. 2012) (subsequently amended by Pub. L. No. 158-2013, § 420 (eff. July
1, 2014); Pub L. No. 147-2014, § 2 (eff. July 1, 2014)). The charging
information alleged that “[o]n or about June 30, 2014, Raymond Welch did
knowingly touch Nicole Heady, another person, in a rude, insolent, or angry
manner, resulting in bodily injury, specifically pain . . . .” Appellant’s
Appendix at 16 (capital letters omitted). Thus, to convict Welch of battery as a
class A misdemeanor, the State needed to prove that Welch touched Heady in a
rude, insolent, or angry manner, causing her pain.
[8] Welch argues that “[l]istening to the tape is very telling,” noting that “[o]n the
recording, she tells him he hit her. If he hit her intentionally, it would seem he
would already know that fact.” Appellant’s Brief at 4-5. Welch asserts that
Heady “also says, ‘all the redness,’” and that “[w]ithout a mirror or someone to
point it out, it is hard to imagine why [she] would say there was redness.” Id. at
5. Welch states that Heady “testified that though she and [Welch] were
engaged in a verbal disagreement, he ‘came out of nowhere’ and hit her in the
head,” and also suggests that “there exists at least an inference that the
recording may not have been as accidental as asserted by” Heady. Id. at 4-5.
Welch also contends that the pictures admitted into evidence do not “show any
definitive redness as this Court may well view,” and that although Heady
Court of Appeals of Indiana | Memorandum Decision 49A04-1409-CR-432 | April 24, 2015 Page 5 of 8 testified that he “pushed her in front of a car,” a review of the tape reveals that
he told “her to get out of the street.” Id. at 5-6.
[9] The State asserts that Welch “suggests to this Court that the recording was not
accidental and presumably . . . urges this Court to conclude that [Heady] was
attempting to frame” Welch, and it argues that “[t]his would be a clear example
of the Court viewing the evidence in a manner least favorable to the verdict,
which would be directly contrary to the standard of review.” Appellee’s Brief at
5. The State notes the following regarding what is revealed on the audio
recording:
When the Court listens to State’s Exhibit 3, it will hear at the 1:34 mark, [Heady] tell [Welch], “that’s where you’re wrong.” Immediately following that statement, there is a loud rustling sound, followed by [Heady] screaming, “Oh my god!” [Welch] can then be heard saying, “f------ (indecipherable) bitch.” From 2:35 until 2:39, [Welch’s] voice can be heard faintly in the background saying something to [Heady]. [Heady] responds at 2:40, “But yet you just hit me in the head. You just punched me in the head.” [Welch] says something that is presumably a protestation of innocence, which prompts [Heady] to respond, “Yes, you did.” [Welch] then says something and [she] responds, “All the redness?” At the 3:06 mark, [Welch] can be heard saying something to [Heady] which causes [her] to say, “No, I don’t want you fucking around me. I’m scared to death.” [Welch] can be heard shouting at her angrily, then [she] is heard screaming, “Stop! Don’t! Stop!” and then she is screaming. [Welch] can be heard shouting “(Indecipherable) dumb ass b----! Get the f--- out of the street!” The next voice heard is [Heady] explaining – presumably to the motorist who stopped to help her – “No, he’s trying to hit me and I’m trying to [find?] my mom.”
Id. at 5-6 (internal citations omitted).
Court of Appeals of Indiana | Memorandum Decision 49A04-1409-CR-432 | April 24, 2015 Page 6 of 8 [10] The facts favorable to the conviction reveal that Heady left the home of Welch’s
brother’s home to meet her mother and obtain clean clothes at a market a few
blocks away, and Welch, who was very angry, followed her and yelled
profanities at her. Welch approached Heady from behind and took her phone,
eventually giving the phone back. Heady stuck the phone between her breasts,
as she did she inadvertently called her aunt and uncle’s house, and the call went
to voice mail and made an audio recording of the ensuing events.
[11] Heady continued walking towards the market while Welch continued to yell
profanities. She then heard footsteps behind her and Welch hit the side of her
face which caused physical, throbbing pain. Soon after, Welch grabbed Heady
by her hair and pushed her in front of a car, which again caused pain. The
driver of the car transported her to the market, and when Heady met her
mother, her mother observed that “the left side of [Heady’s] face was all red”
and that Heady was scared and was crying. Id. at 39.
[12] To the extent Welch suggests that the audio recording supports a not guilty
verdict, we observe that the recording appears to begin with an argument
between Heady and Welch in which Heady tells Welch twice “I’m cool” and,
on four occasions, Heady states: “That’s where you’re wrong,” and Welch
responds by asking: “What?” State’s Exhibit 3 at 1:20-1:34. After the fourth
time, there is a commotion in which Heady screams and shouts something and
Welch can be heard stating “f------ (inaudible) b----.” Id. at 1:34-1:37.
Thereafter, no one speaks for about thirty seconds and it sounds as though
Heady is walking. Id. at 1:38-2:03. Words between the two are exchanged
Court of Appeals of Indiana | Memorandum Decision 49A04-1409-CR-432 | April 24, 2015 Page 7 of 8 which are mostly inaudible, and at one point Heady states: “Well yea you just
hit me in the head. You just punched me in my head. Yes you did. All the
redness.” Id. at 2:39-2:48. It sounds as though Welch is also speaking during
this time, but his speech is inaudible. Welch soon after says something, and
Heady responds: “No I don’t want you f------ around me. I’m scared to death of
you.” Id. at 3:07-3:11. After, Heady again starts screaming and protesting with
repeated shouts of “Stop!” and Welch can be heard shouting and stating:
“What the f---. How (inaudible) you feel this b----,” followed by “Get the f---
out of the street.” Id. at 3:12-3:19. Soon after, Heady can be heard explaining
to someone “No, he’s trying to hit me and I’m trying to (inaudible) my mom.”
Id. at 3:32-3:34. We cannot say that our review of the recording leads to a
conclusion that “no reasonable fact-finder could find the elements of the crime
proven beyond a reasonable doubt.” Drane, 867 N.E.2d at 146.
[13] Based on the record, we conclude that the State presented evidence of a
probative nature from which a reasonable trier of fact could have found that
Welch was guilty of battery as a class A misdemeanor.
Conclusion
[14] For the foregoing reasons, we affirm Welch’s conviction for battery as a class A
misdemeanor.
[15] Affirmed.
Crone, J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A04-1409-CR-432 | April 24, 2015 Page 8 of 8