MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                              Sep 17 2015, 8:41 am
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
Kimmerly A. Klee                                         Gregory F. Zoeller
Greenwood, Indiana                                       Attorney General of Indiana

                                                         Cynthia L. Ploughe
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jon Donovan,                                             September 17, 2015
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A05-1503-CR-86
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Christina R.
Appellee-Plaintiff                                       Klineman, Judge
                                                         Trial Court Cause No.
                                                         49G17-1411-F6-50373



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A05-1503-CR-86 | September 17, 2015    Page 1 of 6
                                             Case Summary
[1]   Jon Donovan appeals his conviction for level six felony domestic battery,

      following a bench trial. The sole issue raised for our review is whether the State

      presented sufficient evidence to support the conviction. Finding the evidence

      sufficient, we affirm.


                                 Facts and Procedural History
[2]   The facts most favorable to the conviction indicate that, at the time of the

      incident in question, Donovan and Lindsey Kinnard had been in a romantic

      relationship for approximately eight years. In October 2014, the couple resided

      together in an apartment in Marion County. At approximately 5:30 a.m. on

      October 31, Kinnard awoke and went into the kitchen to get something to

      drink. The noise caused Donovan, who had fallen asleep on a loveseat in the

      living room, to also wake up. As Kinnard walked back to the bedroom,

      Donovan followed her. He was angry at her for failing to wake him to come to

      bed the previous night, so he began yelling at her. He placed his hand over her

      mouth as he yelled. He then grabbed her by the wrists and told her to “get the

      eff out.” Tr. at 27. Kinnard’s wrists were “kind of tangled up and [she] was

      fighting a little bit, and it hurt and … [she] fell to the ground.” Id. at 27-28.

      Donovan then picked her up and pushed her. Kinnard hit the doorjamb and

      fell into the hallway. Kinnard suffered pain and bruises. On November 1,

      2014, Kinnard called police to report the incident. Donovan was subsequently

      arrested.



      Court of Appeals of Indiana | Memorandum Decision 49A05-1503-CR-86 | September 17, 2015   Page 2 of 6
[3]   The State charged Donovan with level 6 felony strangulation, class A

      misdemeanor domestic battery, level 6 felony criminal confinement, and class

      A misdemeanor battery resulting in bodily injury. The State dismissed the

      strangulation and criminal confinement charges prior to trial. A bench trial was

      held on January 15, 2015. The trial court found Donovan guilty of battery and

      domestic battery. Thereafter, in exchange for the dismissal of the battery

      charge, Donovan agreed to the enhancement of the domestic battery to a level 6

      felony based upon his prior conviction for domestic battery. Consequently, the

      trial court entered judgment of conviction for one count of domestic battery as a

      level 6 felony. This appeal followed.


                                     Discussion and Decision
[4]   Donovan challenges the sufficiency of the evidence to support his conviction for

      level 6 felony domestic battery. When reviewing the sufficiency of the evidence

      to support a conviction, we examine only the probative evidence and

      reasonable inferences that support the conviction. Morgan v. State, 22 N.E.3d

      570, 573 (Ind. 2014). We do not assess witness credibility or reweigh evidence.

      Id. Rather, we consider only the evidence most favorable to the trial court’s

      ruling and will affirm the conviction unless no reasonable factfinder could find

      the elements of the crime proven beyond a reasonable doubt. Id. The evidence

      will be deemed sufficient if an inference may reasonably be drawn from it to

      support the conviction. Drane v. State, 867 N.E.2d 144, 147 (Ind. 2007).




      Court of Appeals of Indiana | Memorandum Decision 49A05-1503-CR-86 | September 17, 2015   Page 3 of 6
[5]   Indiana Code Section 35-42-2-1.3(a)(2) provides that a person who knowingly

      or intentionally touches an individual who is or was living as if a spouse of the

      other person, in a rude, insolent, or angry manner that results in bodily injury to

      the individual, commits domestic battery, a class A misdemeanor. The offense

      becomes a level 6 felony if the person who committed the offense has a

      previous, unrelated conviction under this section. Ind. Code § 35-42-2-1.3(b).

      In considering whether a person “is or was living as a spouse of another

      individual for purposes of subsection (a)(2),” the court shall review:

              (1) the duration of the relationship;
              (2) the frequency of the contact;
              (3) the financial independence;
              (4) whether the two (2) individuals are raising children together;
              (5) whether the two (2) individuals have engaged in tasks directed
              toward maintaining a common household; and
              (6) other factors the court considers relevant.


      Ind. Code § 35-42-2-1.3(c).


[6]   Here, Donovan asserts that the evidence was insufficient to establish that he

      and Kinnard were living as if spouses or that Kinnard suffered bodily injury as a

      result of the battery. The facts most favorable to the conviction indicate that

      Kinnard and Donovan had been in a romantic relationship for approximately

      eight years. Kinnard testified that the couple had always resided together

      during that eight-year period except for when Donovan was incarcerated and

      during very brief periods when they broke up. Kinnard testified that any of

      their separations were “not for very long” and they definitely lived together


      Court of Appeals of Indiana | Memorandum Decision 49A05-1503-CR-86 | September 17, 2015   Page 4 of 6
      “more often than not.” Tr. at 17. Kinnard testified that on the date of the

      battery, she and Donovan lived together in an apartment in Marion County.

      She stated that the apartment was the couple’s “only residence” and that they

      lived in the apartment along with their pet of over two years, a dog named

      “Max.” Tr. at 19.


[7]   We have held that the factors listed in Indiana Code Section 35-42-2-1.3(c) do

      not serve as a litmus test, and that the “character of the relationship” is the

      decisive consideration in determining whether the domestic battery statute

      applies. Williams v. State, 798 N.E.2d 457, 461 (Ind. Ct. App. 2003). Indeed

      where, as here, the couple is cohabiting and engaged in an ongoing romantic

      relationship, “a court would not need undertake further analysis.” See id. The

      State presented sufficient evidence to support the trial court’s conclusion that

      Kinnard was living “as if a spouse” of Donovan for purposes of Indiana Code

      Section 35-42-2-1.3(a)(2).


[8]   Regarding bodily injury, pursuant to statute it includes “any impairment of

      physical condition, including physical pain.” Ind. Code § 35-31.5-2-29. No

      particular level of pain is required, as physical pain is, in and of itself, an

      impairment of physical condition. Bailey v. State, 979 N.E.2d 133, 138 (Ind.

      2012). Kinnard testified that Donovan followed her into the bedroom and

      began to yell at her. She described how he grabbed her by the wrists, that “it

      hurt,” and that she fell to the ground. Tr. at 27-28. She stated that Donovan

      then picked her back up and pushed her out the bedroom door. She hit the

      doorjamb and landed in the hallway. Kinnard testified that, as a result of the

      Court of Appeals of Indiana | Memorandum Decision 49A05-1503-CR-86 | September 17, 2015   Page 5 of 6
       incident, she suffered pain and bruising on her hip, her legs, and especially her

       shoulder. The investigating police officer also testified that he personally

       observed bruises on Kinnard. This evidence is sufficient to establish that

       Donovan knowingly or intentionally touched Kinnard in a rude, insolent, or

       angry manner that resulted in bodily injury to her.


[9]    Donovan’s sole argument on appeal is that there was “conflicting” evidence

       regarding the couple’s relationship and whether Kinnard suffered any bodily

       injury as a result of the battery. Appellant’s Br. at 9. Donovan merely invites

       us to assess witness credibility and reweigh the evidence in his favor, which we

       may not do. The State presented sufficient evidence to support Donovan’s

       domestic battery conviction. Therefore, we affirm.


[10]   Affirmed.


       May, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1503-CR-86 | September 17, 2015   Page 6 of 6
