MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Jun 30 2015, 7:31 am 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 Timothy J. Burns Gregory F. Zoeller Indianapolis, Indiana Attorney General of Indiana
Jesse R. Drum Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Richard Lebron, June 30, 2015
Appellant-Defendant, Court of Appeals Case No. 49A04-1409-CR-451 v. Appeal from the Marion Superior Court; The Honorable Clayton Graham, Judge; State of Indiana, 49G17-1305-CM-32857 Appellee-Plaintiff.
May, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A04-1409-CR-451 | June 30, 2015 Page 1 of 7 [1] Richard Lebron appeals his convictions of Class A misdemeanor domestic
battery 1 and Class A misdemeanor criminal mischief. 2 As there was sufficient
evidence to support his convictions, we affirm.
Facts and Procedural History [2] On May 19, 2013, Lebron and Lelis Arevalo had been dating and living
together for five years and Arevalo was six months pregnant with their second
child. Lebron came home drunk in the early morning. He jumped on Arevalo
and started tickling her. When Arevalo did not respond positively, Lebron
yelled at her, pulled her by her legs, picked her up from the bed, and threw her
against the TV stand. Arevalo was injured when her back hit the corner of the
stand. Arevalo tried to run downstairs to leave, but Lebron followed her
outside. Lebron then went to Arevalo’s car, pulled out a car battery from the
trunk and slammed it down on the rear window of the car, shattering the
window. Arevalo went to a neighbor’s house and called the police.
[3] Officer Michael Hegg, an Indianapolis Metropolitan Police Officer, was
dispatched to Lebron and Arevalo’s apartment in the Spanish Hill apartment
complex at 10378 Governours Lane. Officer Hegg photographed Arevalo’s
injuries and the damage to her car. One of the photographs shows the license
plate on Arevalo’s car, which contains county code 49 for Marion County.
1 Ind. Code § 35-42-2-1.3 (2012). 2 Ind. Code § 35-43-2-1 (2007).
Court of Appeals of Indiana | Memorandum Decision 49A04-1409-CR-451 | June 30, 2015 Page 2 of 7 [4] The State charged Lebron with Class A misdemeanor domestic battery, Class A
misdemeanor battery, 3 and Class A misdemeanor criminal mischief. The day
before Lebron’s trial, he drove Arevalo to work and pressured her to change her
story. When Arevalo stated that she did not “want to change up the story
because it didn’t make . . . sense,” (Tr. at 54), Lebron started punching the
steering wheel. That scared Arevalo, and she thought she had to change her
story to stay safe. When she spoke to Lebron’s attorney later that day, she told
him nothing had happened on May 19, 2013.
[5] Following a bench trial at which Arevalo testified about the events of May 19,
2013, the court found Lebron guilty of all three crimes. The court merged the
battery finding into the domestic battery and entered convictions of Class A
misdemeanor domestic battery and Class A misdemeanor criminal mischief.
Discussion and Decision [6] When reviewing the sufficiency of the evidence to support a conviction, we
consider only the probative evidence and reasonable inferences supporting the
trial court’s decision. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). It is the
fact-finder’s role, and not ours, to assess witness credibility and weigh the
evidence to determine whether it is sufficient to support a conviction. Id. To
preserve this structure, when we are confronted with conflicting evidence, we
consider it most favorably to the trial court’s ruling. Id. We affirm a conviction
3 Ind. Code § 35-42-2-1 (2009).
Court of Appeals of Indiana | Memorandum Decision 49A04-1409-CR-451 | June 30, 2015 Page 3 of 7 unless no reasonable fact-finder could find the elements of the crime proven
beyond a reasonable doubt. Id. It is therefore not necessary that the evidence
overcome every reasonable hypothesis of innocence; rather, the evidence is
sufficient if an inference reasonably may be drawn from it to support the trial
court’s decision. Id. at 147.
Venue
[7] Lebron challenges the sufficiency of the evidence to establish the venue of the
incident. To try Lebron in Marion County, the State had to prove by a
preponderance of the evidence that Lebron committed his crimes in Marion
County. See Smith v. State, 835 N.E.2d 1072, 1074 (Ind. Ct. App. 2005) (State is
required to prove venue by a preponderance of the evidence).
[8] Officer Hegg testified he was dispatched to the Spanish Hill apartment complex
at 10378 Governours Lane, where he met Arevalo. The trial court could take
judicial notice that Governours Lane is in Marion County. See Orman v. State,
332 N.E.2d 818, 819 (Ind. Ct. App. 1975) (court permitted to take notice that
address is within county); see also Ind. Evid. R. 201 (the court may judicially
notice a fact that can be accurately and readily determined from sources whose
accuracy cannot reasonably be questioned). Officer Hegg took photographs of
Arevalo’s injuries and one of the photos showed Arevalo’s license plate, which
contains the county number 49 for Marion County. This evidence
demonstrates by a preponderance of the evidence that the crimes occurred in
Marion County.
Court of Appeals of Indiana | Memorandum Decision 49A04-1409-CR-451 | June 30, 2015 Page 4 of 7 Domestic Battery
[9] To convict Lebron of Class A misdemeanor domestic battery, the State had to
prove he and Arevalo had a child in common and he knowingly or intentionally
touched Arevalo in a rude, insolent or angry manner. Ind. Code § 35-42-2-
1.3(a) (2012). Lebron argues the evidence is insufficient to support his
conviction because Arevalo told Lebron’s counsel the day before trial that
nothing had happened between her and Lebron on May 19, 2013. However,
Arevalo testified she changed her story when talking to Lebron’s counsel
because Lebron pressured her and started punching the steering wheel when she
did not agree to change her story. The trier of fact is the sole judge of the
credibility of the witnesses and we cannot second-guess its decision to find
Arevalo credible. See Drane, 867 N.E.2d at 146 (appellate court cannot judge
credibility of witnesses).
[10] The trial court heard evidence that Arevalo and Lebron had lived together for
five years and have a child together. Lebron pulled Arevalo by her legs, picked
her up and threw her against the TV stand. Photographs taken by Officer Hegg
showed injuries to Arevalo’s neck and back. That was evidence from which the
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Jun 30 2015, 7:31 am 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 Timothy J. Burns Gregory F. Zoeller Indianapolis, Indiana Attorney General of Indiana
Jesse R. Drum Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Richard Lebron, June 30, 2015
Appellant-Defendant, Court of Appeals Case No. 49A04-1409-CR-451 v. Appeal from the Marion Superior Court; The Honorable Clayton Graham, Judge; State of Indiana, 49G17-1305-CM-32857 Appellee-Plaintiff.
May, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A04-1409-CR-451 | June 30, 2015 Page 1 of 7 [1] Richard Lebron appeals his convictions of Class A misdemeanor domestic
battery 1 and Class A misdemeanor criminal mischief. 2 As there was sufficient
evidence to support his convictions, we affirm.
Facts and Procedural History [2] On May 19, 2013, Lebron and Lelis Arevalo had been dating and living
together for five years and Arevalo was six months pregnant with their second
child. Lebron came home drunk in the early morning. He jumped on Arevalo
and started tickling her. When Arevalo did not respond positively, Lebron
yelled at her, pulled her by her legs, picked her up from the bed, and threw her
against the TV stand. Arevalo was injured when her back hit the corner of the
stand. Arevalo tried to run downstairs to leave, but Lebron followed her
outside. Lebron then went to Arevalo’s car, pulled out a car battery from the
trunk and slammed it down on the rear window of the car, shattering the
window. Arevalo went to a neighbor’s house and called the police.
[3] Officer Michael Hegg, an Indianapolis Metropolitan Police Officer, was
dispatched to Lebron and Arevalo’s apartment in the Spanish Hill apartment
complex at 10378 Governours Lane. Officer Hegg photographed Arevalo’s
injuries and the damage to her car. One of the photographs shows the license
plate on Arevalo’s car, which contains county code 49 for Marion County.
1 Ind. Code § 35-42-2-1.3 (2012). 2 Ind. Code § 35-43-2-1 (2007).
Court of Appeals of Indiana | Memorandum Decision 49A04-1409-CR-451 | June 30, 2015 Page 2 of 7 [4] The State charged Lebron with Class A misdemeanor domestic battery, Class A
misdemeanor battery, 3 and Class A misdemeanor criminal mischief. The day
before Lebron’s trial, he drove Arevalo to work and pressured her to change her
story. When Arevalo stated that she did not “want to change up the story
because it didn’t make . . . sense,” (Tr. at 54), Lebron started punching the
steering wheel. That scared Arevalo, and she thought she had to change her
story to stay safe. When she spoke to Lebron’s attorney later that day, she told
him nothing had happened on May 19, 2013.
[5] Following a bench trial at which Arevalo testified about the events of May 19,
2013, the court found Lebron guilty of all three crimes. The court merged the
battery finding into the domestic battery and entered convictions of Class A
misdemeanor domestic battery and Class A misdemeanor criminal mischief.
Discussion and Decision [6] When reviewing the sufficiency of the evidence to support a conviction, we
consider only the probative evidence and reasonable inferences supporting the
trial court’s decision. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). It is the
fact-finder’s role, and not ours, to assess witness credibility and weigh the
evidence to determine whether it is sufficient to support a conviction. Id. To
preserve this structure, when we are confronted with conflicting evidence, we
consider it most favorably to the trial court’s ruling. Id. We affirm a conviction
3 Ind. Code § 35-42-2-1 (2009).
Court of Appeals of Indiana | Memorandum Decision 49A04-1409-CR-451 | June 30, 2015 Page 3 of 7 unless no reasonable fact-finder could find the elements of the crime proven
beyond a reasonable doubt. Id. It is therefore not necessary that the evidence
overcome every reasonable hypothesis of innocence; rather, the evidence is
sufficient if an inference reasonably may be drawn from it to support the trial
court’s decision. Id. at 147.
Venue
[7] Lebron challenges the sufficiency of the evidence to establish the venue of the
incident. To try Lebron in Marion County, the State had to prove by a
preponderance of the evidence that Lebron committed his crimes in Marion
County. See Smith v. State, 835 N.E.2d 1072, 1074 (Ind. Ct. App. 2005) (State is
required to prove venue by a preponderance of the evidence).
[8] Officer Hegg testified he was dispatched to the Spanish Hill apartment complex
at 10378 Governours Lane, where he met Arevalo. The trial court could take
judicial notice that Governours Lane is in Marion County. See Orman v. State,
332 N.E.2d 818, 819 (Ind. Ct. App. 1975) (court permitted to take notice that
address is within county); see also Ind. Evid. R. 201 (the court may judicially
notice a fact that can be accurately and readily determined from sources whose
accuracy cannot reasonably be questioned). Officer Hegg took photographs of
Arevalo’s injuries and one of the photos showed Arevalo’s license plate, which
contains the county number 49 for Marion County. This evidence
demonstrates by a preponderance of the evidence that the crimes occurred in
Marion County.
Court of Appeals of Indiana | Memorandum Decision 49A04-1409-CR-451 | June 30, 2015 Page 4 of 7 Domestic Battery
[9] To convict Lebron of Class A misdemeanor domestic battery, the State had to
prove he and Arevalo had a child in common and he knowingly or intentionally
touched Arevalo in a rude, insolent or angry manner. Ind. Code § 35-42-2-
1.3(a) (2012). Lebron argues the evidence is insufficient to support his
conviction because Arevalo told Lebron’s counsel the day before trial that
nothing had happened between her and Lebron on May 19, 2013. However,
Arevalo testified she changed her story when talking to Lebron’s counsel
because Lebron pressured her and started punching the steering wheel when she
did not agree to change her story. The trier of fact is the sole judge of the
credibility of the witnesses and we cannot second-guess its decision to find
Arevalo credible. See Drane, 867 N.E.2d at 146 (appellate court cannot judge
credibility of witnesses).
[10] The trial court heard evidence that Arevalo and Lebron had lived together for
five years and have a child together. Lebron pulled Arevalo by her legs, picked
her up and threw her against the TV stand. Photographs taken by Officer Hegg
showed injuries to Arevalo’s neck and back. That was evidence from which the
court could infer Lebron acted knowingly or intentionally in a rude, insolent, or
angry manner. There is sufficient evidence to support Lebron’s domestic
battery conviction. See Williams v. State, 798 N.E.2d 457, 459 (Ind. Ct. App.
2003) (testimony of victim sufficient to support conviction of domestic battery).
Court of Appeals of Indiana | Memorandum Decision 49A04-1409-CR-451 | June 30, 2015 Page 5 of 7 Criminal Mischief
[11] To convict Lebron of Class A misdemeanor criminal mischief, the State had to
prove he recklessly, knowingly or intentionally broke Arevalo’s car window
without her consent. See Ind. Code § 35-43-1-2 (2007) (person who recklessly,
knowingly, or intentionally damages or defaces property of another person
without the other person’s consent commits criminal mischief).
[12] Lebron again argues the evidence is insufficient to support his conviction of
criminal mischief in light of Arevalo’s changed story; however, we again
decline to second-guess the trier of fact’s decision to find Arevalo credible. See
Drane, 867 N.E.2d at 146 (appellate court cannot judge credibility of witnesses).
[13] Arevalo testified Lebron pulled a car battery from her trunk and used it to break
the rear window. Officer Hegg photographed the damage to the rear window of
Arevalo’s car. The court could infer from that evidence that Lebron knowingly
and intentionally broke Arevalo’s car window without her consent. See Gaerte v.
State, 808 N.E.2d 164, 166 (Ind. Ct. App. 2004) (evidence Gaerte broke a
window by head-butting it sufficient to support conviction of criminal mischief).
[14] Finally, Lebron challenges the entry of his criminal mischief conviction as a
Class A misdemeanor, rather than as a Class B misdemeanor. When Lebron
committed the offense, criminal mischief was a Class A misdemeanor if there
was pecuniary loss of at least $250.00 but less than $2,500.00. Ind. Code § 35-
43-1-2 (2007). The court had entered a restitution order pursuant to an
agreement to withhold prosecution that Lebron entered with the State on
Court of Appeals of Indiana | Memorandum Decision 49A04-1409-CR-451 | June 30, 2015 Page 6 of 7 August 27, 2013. The restitution order indicated Lebron had to pay Arevalo
$337.00. The court was permitted to take notice of its own case file as it
determined whether that element had been proven. See Ind. Evid. R. 201 (the
court may judicially notice court records). There is sufficient evidence to
support Lebron’s conviction of Class A misdemeanor criminal mischief.
Conclusion
[15] Evidence of Arevalo’s Marion County license plate and the address where the
incident occurred was sufficient to permit venue in Marion County, and there
was sufficient evidence Lebron knowingly or intentionally touched Arevalo in a
rude, insolent or angry manner and caused over $250 in damage to Arevalo’s
car window. We accordingly affirm.
[16] Affirmed.
Robb, J., and Mathias, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A04-1409-CR-451 | June 30, 2015 Page 7 of 7