                                                        FILED
                                                      Feb 25 2013, 9:41 am

FOR PUBLICATION
                                                             CLERK
                                                           of the supreme court,
                                                           court of appeals and
                                                                  tax court



ATTORNEY FOR APPELLANT:                      ATTORNEYS FOR APPELLEE:

PETER D. TODD                                GREGORY F. ZOELLER
Elkhart, Indiana                             Attorney General of Indiana

                                             IAN MCLEAN
                                             Deputy Attorney General
                                             Indianapolis, Indiana




                             IN THE
                   COURT OF APPEALS OF INDIANA


JOSE MALDONADO-MORALES,                      )
                                             )
      Appellant-Defendant,                   )
                                             )
             vs.                             )    No. 20A05-1205-CR-255
                                             )
STATE OF INDIANA,                            )
                                             )
      Appellee-Plaintiff.                    )



                   APPEAL FROM THE ELKHART SUPERIOR COURT
                         The Honorable Evan S. Roberts, Judge
                          Cause No. 20D01-0911-FD-000246




                                  February 25, 2013

                             OPINION - FOR PUBLICATION

SHARPNACK, Senior Judge
                               STATEMENT OF THE CASE

       Jose Maldonado-Morales appeals his conviction of domestic battery in the

presence of a child, a Class D felony. Ind. Code § 35-42-2-1.3 (2006).

       We affirm.

                                           ISSUE

       The sole issue in this appeal is whether the trial court abused its discretion when it

instructed the jury on the doctrine of transferred intent.

                         FACTS AND PROCEDURAL HISTORY

       In November 2009, Maldonado-Morales was involved in an altercation with his

ex-wife and mother of his child, Ana Justo, and Justo’s boyfriend, Victor Ortega. Late in

the evening, Maldonado-Morales went to Justo’s apartment and left a note on her truck.

Thinking Maldonado-Morales had gone, Justo and Ortega went outside to retrieve the

note; however, Maldonado-Morales had not gone but had remained in the parking lot.

Maldonado-Morales and Ortega began arguing. When Justo saw the two men approach

each other, she stepped in between them. Ortega and Maldonado-Morales began to hit

one another, and Maldonado-Morales punched Justo, causing her to fall to the ground and

cut her ankle. The toddler daughter of Maldonado-Morales and Justo was present for the

entire altercation.

       Based upon this incident, Maldonado-Morales was charged with domestic battery

in the presence of a child as a Class D felony. At Maldonado-Morales’ jury trial, the

court instructed the jury on transferred intent.       Maldonado-Morales objected to the

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instruction, but the trial court overruled the objection. The jury returned a verdict of

guilty, and Maldonado-Morales was sentenced to two years with all but 116 days

suspended. It is from this conviction that he appeals.

                              DISCUSSION AND DECISION

       Maldonado-Morales contends that the trial court erroneously instructed the jury as

to transferred intent. We review the trial court’s decisions on instruction of the jury for

an abuse of discretion. Treadway v. State, 924 N.E.2d 621, 636 (Ind. 2010). When

determining whether a trial court erroneously gave or refused to give a tendered

instruction, we consider the following: (1) whether the tendered instruction correctly

states the law; (2) whether there was evidence presented at trial to support the giving of

the instruction; and (3) whether the substance of the tendered instruction was covered by

other instructions that were given. Mayes v. State, 744 N.E.2d 390, 394 (Ind. 2001). We

will reverse a conviction only if the appellant demonstrates that the instructional error

prejudices his substantial rights. Treadway, 924 N.E.2d at 636.

       Maldonado-Morales’ claim of error with regard to the transferred intent instruction

is that the instruction incorrectly stated the law. The instruction stated, in relevant part:

              If one intends to injure a person and by mistake or inadvertence
       injures another person, his intent is transferred from the person to whom it
       was directed to the person actually injured and he may be found guilty of
       domestic battery.

Appellant’s App. p. 27. In a muddled argument, Maldonado-Morales appears to claim

that the transferred intent instruction was improper in this case because domestic battery


                                               3
(the offense he committed by hitting Justo) and battery (the offense he would have

committed had he hit Ortega) are distinct offenses that require a different mens rea such

that transferred intent cannot apply.

       Maldonado-Morales’ assertion is similar to the claim raised by the respondent in

D.H. v. State, 932 N.E.2d 236 (Ind. Ct. App. 2010). In that case, D.H., a juvenile,

engaged in an altercation with another student at school. When D.H. attempted to punch

the other student, he struck a teacher instead.      The juvenile court found that D.H.

committed an act that would be a D felony battery if committed by an adult. On appeal,

D.H. asserted that the doctrine of transferred intent should not apply in his case because

striking the other student would have amounted to a Class A or Class B misdemeanor,

while striking the teacher elevated the offense to a Class D felony.

       In D.H., this Court noted that Indiana Code section 35-41-2-2(d) (1977) provides

that the level of culpability required for the commission of an offense is required with

respect to “every material element of the prohibited conduct” and that the terms

“prohibited conduct” and “element” are not synonymous. D.H., 932 N.E.2d at 238.

Therefore, the culpability requirement applies only to that conduct which is prohibited by

the statute. Id. (citing Markley v. State, 421 N.E.2d 20, 21-22 (Ind. Ct. App. 1981)).

Thus, the Court held that, with respect to the battery statute, the culpability requirement

of “knowingly or intentionally” applies only to the prohibited conduct elements of

touching another in a rude, angry, or insolent manner. Id. The Court further held that

aggravating circumstances that increase the penalty for the crime, such as bodily injury to

                                             4
a school employee in the course of her duties, must be proved beyond a reasonable doubt

but do not require separate proof of culpability. Id. Therefore, the State was required to

prove beyond a reasonable doubt that D.H. knowingly or intentionally struck a person in

a rude, insolent, or angry manner. Then, in order to elevate the act to a Class D felony,

the State was required to prove beyond a reasonable doubt that the person that was struck

was a school employee in the course of her duties. Id. at 239.

       Turning to the instant case, we apply the reasoning in D.H. to the facts before us.

Both the offense of battery, as set forth in Indiana Code section 35-42-2-1 (2009), and the

offense of domestic battery, as set forth in Indiana Code section 35-42-2-1.3, prohibit

touching another in a rude, insolent, or angry manner.        In addition, the culpability

requirement in both statutes is the same: knowing or intentional. See Ind. Code §§ 35-

42-2-1, -1.3. Pursuant to Indiana Code section 35-41-2-2(d) and the holding in D.H., the

required culpability in both statutes (i.e., knowingly or intentionally) applies only to the

prohibited conduct elements of touching another in a rude, insolent, or angry manner.

Thus, here, the State was required to prove beyond a reasonable doubt that Maldonado-

Morales knowingly or intentionally touched a person in a rude, insolent, or angry manner.

       The element in the present case that sets domestic battery apart from a general

battery is the requirement that the person touched (1) is or was a spouse of the other

person, (2) is or was living as if a spouse of the other person, or (3) has a child in

common with the other person. See Ind. Code § 35-42-2-1.3(a). This is an additional

element akin to the aggravating circumstances discussed in D.H. 932 N.E.2d at 239. A

                                             5
second additional element present in this case is the commission of the offense in the

presence of a child. See Ind. Code § 35-42-2-1.3(b)(2); see also Appellant’s App. 72.

This element is an aggravating circumstance of domestic battery that increases the

penalty for the crime to a D felony. See Ind. Code § 35-42-2-1.3(b)(2). Both of these

additional elements require proof beyond a reasonable doubt but do not require proof that

Maldonado-Morales acted knowingly or intentionally with regard to these facts. In

summary then, the State was required to prove beyond a reasonable doubt that

Maldonado-Morales knowingly or intentionally struck a person, and then prove beyond a

reasonable doubt that the person that was struck is or was the spouse of Maldonado-

Morales and that Maldonado-Morales committed the offense in the presence of a child.

       Thus, the two offenses of battery and domestic battery do not require a different

mens rea as suggested by Maldonado-Morales; rather, both offenses require a showing

beyond a reasonable doubt of a “knowing or intentional” touching in a rude, insolent, or

angry manner. The additional elements are facts that the State must prove beyond a

reasonable doubt; however, there is no requirement that the state prove that Maldonado-

Morales acted knowingly or intentionally as to the status of the victim or the presence of

a child.

                                       CONCLUSION

       For the reasons stated, we conclude that the trial court did not abuse its discretion

by instructing the jury as to the doctrine of transferred intent.

       Affirmed.

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NAJAM, J., and CRONE, J., concur.




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