MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                         FILED
regarded as precedent or cited before any                            Nov 13 2017, 5:36 am

court except for the purpose of establishing                             CLERK
                                                                     Indiana Supreme Court
the defense of res judicata, collateral                                 Court of Appeals
                                                                          and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Ellen M. O’Connor                                       Curtis T. Hill, Jr.
Marion County Public Defender Agency                    Attorney General of Indiana
Indianapolis, Indiana
                                                        Christina D. Pace
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Robert Lawrence II,                                     November 13, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        49A02-1705-CR-906
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Lisa F. Borges,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        49G04-1611-F5-45644



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1705-CR-906 | November 13, 2017      Page 1 of 8
                                          Statement of the Case
[1]   Robert Lawrence II appeals his convictions, following a jury trial, for domestic

      battery, as a Level 5 felony, and domestic battery, as a level 6 felony.1

      Lawrence raises one issue on appeal, namely, whether the State presented

      sufficient evidence to support his convictions.


[2]   We affirm.


                                    Facts and Procedural History
[3]   On November 22, 2016, Lawrence and H.C. were living together with their

      four-year-old son in an apartment in Indianapolis and had been dating for

      approximately eight and a half years. On that date, Lawrence and H.C. had a

      heated argument. The argument began in their son’s bedroom but moved to

      other areas of the apartment, including the bathroom and the kitchen. The

      argument was loud enough that it woke up Quentin Moore, their neighbor.

      Moore heard a loud bang on the wall that his apartment shared with Lawrence

      and H.C.’s apartment, and he heard a child crying. He opened his door to see

      what was happening. Moore watched H.C. walk out of her apartment, but then

      he saw a hand grab her shoulder and “nudge” her back inside the apartment

      before the door slammed shut. Tr. Vol. II at 51. At that point, Moore called 9-

      1-1. Moore told the operator that he heard a “little kid crying” in his neighbor’s

      apartment, and he heard H.C. yell “get off me.” State’s Ex. 1. H.C. also called



      1
          Lawrence does not challenge his conviction for resisting law enforcement, as a Class A misdemeanor.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1705-CR-906 | November 13, 2017          Page 2 of 8
      9-1-1 and told the operator that Lawrence “put his hands on me” and that she

      was “scared.” Id.


[4]   Officers with the Indianapolis Metropolitan Police Department responded to

      the 9-1-1 call and observed Lawrence sitting on the porch outside the

      apartment. Officer Michael Pflum interviewed H.C. and noticed red marks on

      H.C.’s neck and hands. Officers placed Lawrence in handcuffs and took him to

      the Marion County Jail. In the early hours of the next morning, Lawrence

      called H.C. twice from the jail. During one of these phone calls, H.C. asked

      Lawrence “why did you feel the need to make it physical?” State’s Ex. 8.


[5]   On November 28, 2016, the State charged Lawrence with two counts of

      domestic battery, as Level 5 felonies (Counts I and II); two counts of domestic

      battery, as Level 6 felonies (Counts III and IV); and one count of resisting law

      enforcement, as a Class A misdemeanor (Count V). On March 9, 2017, the

      State filed a habitual offender sentencing enhancement.


[6]   On March 16, the trial court held a bifurcated jury trial. The jury found

      Lawrence guilty of Count I, Count III, and Count V but not guilty of Count II

      or Count IV. The trial court proceeded to the second phase of the trial the same

      day. During the second phase, Lawrence admitted that he had previously been

      convicted of domestic battery against H.C., and he admitted that he was a

      habitual offender. The trial judge entered judgment of conviction accordingly.

      On May 1, the trial court sentenced Lawrence to five years in the Indiana

      Department of Correction for Count I. The trial court also sentenced Lawrence


      Court of Appeals of Indiana | Memorandum Decision 49A02-1705-CR-906 | November 13, 2017   Page 3 of 8
      to an aggregate sentence of four years for Count III and one year for Count V,

      to run concurrent with the sentence for Count I. This appeal ensued.


                                     Discussion and Decision
[7]   Lawrence contends that the State failed to present sufficient evidence to support

      his convictions. Our standard of review on a claim of insufficient evidence is

      well settled:


              For a sufficiency of the evidence claim, we look only at the
              probative evidence and reasonable inferences supporting the
              verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do
              not assess the credibility of witnesses or reweigh the evidence. Id.
              We will affirm the conviction unless no reasonable fact-finder
              could find the elements of the crime proven beyond a reasonable
              doubt. Id.


      Love v. State, 73 N.E.3d 693, 696 (Ind. 2017).


                          Count I – Domestic Battery as a Level 5 Felony

[8]   Lawrence first contends that the State failed to present sufficient evidence to

      support his conviction for domestic battery, as a Level 5 felony. To convict

      Lawrence of domestic battery, as a Level 5 felony, the State was required to

      prove that Lawrence knowingly or intentionally touched H.C., a family or

      household member, in a rude, insolent, or angry manner and that Lawrence

      had a previous conviction for a battery offense against H.C. See Ind. Code § 35-

      42-2-1.3(c)(4)(A) (2017). Here, the parties only dispute whether the evidence

      shows that Lawrence touched H.C. in a rude, insolent, or angry manner.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1705-CR-906 | November 13, 2017   Page 4 of 8
[9]    Lawrence contends that the State did not present sufficient evidence because

       “under oath, [H.C.] asserted he did not batter her, but took her hand just to

       plead with her to talk.” Appellant’s Br. at 9. He further stated that “[i]n this

       case, [H.C.] denied most of the allegations the State put forth to support its

       domestic battery charges.” Id. at 11. And “[w]hat she admitted did not support

       a rude, insolent, or angry touching.” Id. In support of his contention,

       Lawrence relied on H.C.’s testimony during trial. H.C. testified that Lawrence

       grabbed her hand “in a pleading way.” Tr. Vol. II at 126. She further testified

       that he did not hit her or squeeze her hand. And she stated that her hands are

       “always red” because she works in the kitchen for Indianapolis Public Schools

       and her hands are “constantly in bleach all day long.” Id. at 127.


[10]   But we agree with the State that a reasonable fact-finder could have determined

       from the evidence that Lawrence touched H.C. in a rude, insolent, or angry

       manner. The State presented the two 9-1-1 calls, the calls between Lawrence

       and H.C. while Lawrence was in jail, and the testimony of several witnesses.

       During H.C.’s 9-1-1 call, she told the operator that Lawrence “put his hands on

       me” and that she was “scared.” State’s Ex. 1. And Moore told the 9-1-1

       operator that he heard H.C. say “get off me.” Id. Additionally, during one of

       the phone calls with H.C. while Lawrence was in jail, H.C. asked Lawrence

       “why did you feel the need to make it physical?” State’s Ex. 8.


[11]   During trial, Moore testified that, before he called 9-1-1, he heard H.C. yell

       “‘Stop it.’ Get off of me.’ ‘You’re hurting me.’ ‘You’re grabbing my hand.’

       ‘My hand hurt.’ You’re hurting my hand.’” Tr. Vol. II at 52. Moore further

       Court of Appeals of Indiana | Memorandum Decision 49A02-1705-CR-906 | November 13, 2017   Page 5 of 8
       testified that, at some point after the police arrived, H.C. showed him her hand

       and it was “red and her . . . finger was kind of like a little misformed.” Id. at

       57-58. Similarly, Officer Pflum testified that H.C. “had a red mark around the

       neck area . . . and she also had red marks and scratches on her hand.” Id. at 82.


[12]   The evidence most favorable to the judgment shows that Lawrence touched

       H.C. in a rude, angry, or insolent manner. Accordingly, we affirm his

       conviction for domestic battery, as a Level 5 felony.


                          Count III – Domestic Battery as a Level 6 Felony

[13]   Lawrence also contends that the State failed to present sufficient evidence to

       support his conviction for domestic battery, as a Level 6 felony. To convict

       Lawrence of domestic battery, as a Level 6 felony, the State was required to

       show that Lawrence knowingly or intentionally touched H.C., a family or

       household member, in a rude, insolent, or angry manner, and that he

       committed the offense in the physical presence of a child less than sixteen years

       of age, knowing that the child was present and might be able to see or hear the

       offense. See Ind. Code § 35-42-2-1.3(b)(2). Lawrence maintains that the

       evidence is insufficient to prove that he committed the offense in the physical

       presence of his four-year-old son.


[14]   Lawrence contends that, despite the fact that his four-year-old son was in the

       living room during the offenses, there is insufficient evidence “regarding what

       [the child] might have seen or heard while his parents were in the bedroom,

       bathroom, or kitchen.” Appellant’s Br. at 13. However, “the critical question


       Court of Appeals of Indiana | Memorandum Decision 49A02-1705-CR-906 | November 13, 2017   Page 6 of 8
       in determining whether a child is ‘present’ for purposes of the statute is whether

       a reasonable person would conclude that the child might see or hear the offense; not

       whether the child is in the same room as where the offense is taking place.”

       Manuel v. State, 971 N.E.2d 1262, 1270 (Ind. Ct. App. 2012) (emphasis added).


[15]   We agree with the State that a reasonable fact-finder could have determined

       that Lawrence touched H.C. in a rude, insolent, or angry manner in the

       presence of a child less than sixteen years of age. When Moore called 9-1-1, he

       told the operator that he heard “a little kid crying.” State’s Ex. 1. And during

       trial, Moore testified that he saw “Mr. Robert Lawrence, [H.C.], and their son”

       in the apartment. Tr. Vol. II at 65. Similarly, Officer Pflum testified that a

       child was present in the apartment and that the child “was frightened.” Id. at

       84. And H.C. testified at trial that her son “was at my house.” Id. at 129. She

       further testified that “in the beginning he was in the room with us, and then he

       had went [sic] into the living room to play on his tablet.” Id.


[16]   Here, the record shows that Lawrence’s four-year-old son was in the same room

       as Lawrence and H.C. when they started to argue, but that the child went to the

       living room. Further, the record indicates that the argument was loud enough

       to wake up Moore, who was asleep in a neighboring apartment. While there is

       no direct evidence that the child saw or heard the battery, the evidence supports

       a reasonable inference that the child might have seen or heard it. See I.C. § 35-

       42-2-1.3(b)(2); Manuel, 971 N.E.2d at 1270. Therefore, the evidence most

       favorable to the judgment shows that Lawrence touched H.C. in a rude,

       insolent, or angry manner while in the physical presence of a child less than

       Court of Appeals of Indiana | Memorandum Decision 49A02-1705-CR-906 | November 13, 2017   Page 7 of 8
       sixteen years of age. As such, we affirm his conviction for domestic battery, as

       a Level 6 felony.


[17]   In sum, the evidence most favorable to the judgment supports Lawrence’s

       convictions for domestic battery, as a Level 5 felony, and domestic battery, as a

       Level 6 felony. Lawrence’s contentions on appeal are simply requests that we

       reweigh the evidence, which we cannot do. We affirm Lawrence’s convictions.


[18]   Affirmed.


       Kirsch, J., and Brown, J., concur.




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