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
