MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                              Aug 24 2015, 9:15 am
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
Darren Bedwell                                           Gregory F. Zoeller
Marion County Public Defender                            Attorney General of Indiana
Indianapolis, Indiana
                                                         Jesse R. Drum
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

James Johnson,                                           August 24, 2015
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1412-CR-838
        v.
                                                         Appeal from the Marion Superior
State of Indiana,                                        Court
Appellee-Plaintiff                                       The Honorable Marc Rothenberg,
                                                         Judge
                                                         Trial Court Cause No.
                                                         49G02-1405-FB-26606



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-838 | August 24, 2015     Page 1 of 7
                                Case Summary and Issue
[1]   James Johnson was convicted of battery resulting in serious bodily injury, a

      Class C felony, following a bench trial. At sentencing, the trial court

      determined that Johnson committed a crime of domestic violence. The

      domestic violence determination does not lengthen a defendant’s sentence.

      Rather, a person who has been convicted of a crime of domestic violence may

      not possess a firearm unless his or her right to do so has been restored. Ind.

      Code § 35-47-4-7.


[2]   Johnson now appeals, raising one issue for our review: whether the evidence

      presented at trial was sufficient to support the trial court’s determination that

      Johnson committed a crime of domestic violence. Concluding that the State

      presented sufficient evidence to support the domestic violence determination,

      we affirm.



                            Facts and Procedural History
[3]   On May 3, 2014, Johnson celebrated his birthday with Christy Doerflein and

      Shonda Cain-Avant, his girlfriend of eleven months. Johnson, Doerflein, and

      Cain-Avant gathered at Cain-Avant’s home to “party.” Transcript at 14. Later

      in the evening, an argument erupted between Johnson and Cain-Avant, during

      which Johnson pulled Cain-Avant’s hair and pushed her down. Johnson

      eventually left the residence, but Doerflein remained with Cain-Avant.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-838 | August 24, 2015   Page 2 of 7
[4]   When Cain-Avant and Doerflein went to a friend’s house, Johnson reappeared

      and tried to enter the house, yelling “he knew that bitch was in the hou[se].”

      Id. at 17. Cain-Avant and Doerflein eventually left and went to a nearby store.

      As Cain-Avant was walking home from the store, she again saw Johnson.

      Johnson shouted her name, but Cain-Avant kept walking and did not stop.

      Johnson followed Cain-Avant back to her home and kicked the door. He

      returned several times that night, but Cain-Avant never invited him inside.


[5]   Sometime after midnight, Cain-Avant and Doerflein fell asleep in Cain-Avant’s

      living room. While they were sleeping, Johnson returned and climbed through

      a living room window. Johnson proceeded to hit Cain-Avant with closed fists

      on her face, head, and body. She eventually escaped to her front porch, where

      a neighbor who had overheard the attack and called the police was waiting.

      When the police arrived, Johnson was gone. Cain-Avant suffered head injuries

      and was transported to the hospital. When she was released from the hospital,

      Cain-Avant went to stay with her daughter because Johnson knew where Cain-

      Avant lived. She called the police the evening after the attack to report

      threatening phone calls and text messages she had received from Johnson

      following the incident. The responding officer testified at trial that Cain-Avant

      seemed genuinely scared for her safety.


[6]   Johnson was subsequently charged with burglary, a Class B felony, and battery

      resulting in serious bodily injury, a Class C felony. Prior to trial, the State

      dismissed the burglary charge and filed the habitual offender enhancement.

      Johnson was convicted of battery resulting in serious bodily injury following a

      Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-838 | August 24, 2015   Page 3 of 7
      bench trial. At sentencing, Johnson admitted to being an habitual offender, and

      the trial court determined that Johnson committed a crime of domestic

      violence. The trial court sentenced Johnson to an aggregate sentence of nine

      years in the Department of Correction, with one year suspended to probation,

      and ordered Johnson to pay Cain-Avant restitution for her medical expenses.

      This appeal followed.



                                 Discussion and Decision
                                       I. Standard of Review
[7]   Indiana Code section 35-38-1-7.7 requires a trial court to determine, at

      sentencing, whether the defendant has committed a crime of domestic violence.

      Indiana Code section 35-31.5-2-78 defines a “crime of domestic violence” as

      follows:


              “Crime of domestic violence”. . . means an offense or the attempt
              to commit an offense that:
              (1) has as an element the:
                       (A) use of physical force; or
                       (B) threatened use of a deadly weapon; and
              (2) is committed against a:
                       (A) current or former spouse, parent, or guardian of the
                       defendant;
                       (B) person with whom the defendant shared a child in
                       common;
                       (C) person who was cohabiting with or had cohabited with
                       the defendant as a spouse, parent, or guardian; or

      Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-838 | August 24, 2015   Page 4 of 7
                        (D) person who was or had been similarly situated to a
                        spouse, parent, or guardian of the defendant.1
      The statute does not require a conviction for an offense that explicitly contains

      a domestic violence element. Kazmier v. State, 863 N.E.2d 912, 916 (Ind. Ct.

      App. 2007). Instead, the determination is based upon the factual evidence

      supporting the underlying conviction, whether introduced at trial or provided as

      a factual basis for a guilty plea. Id. (citing Ind. Code § 35-38-1-7.7(b)).


[8]   Johnson contends that the evidence presented at trial was insufficient to support

      the trial court’s determination that he committed a crime of domestic violence.

      Our standard of review for sufficiency of evidence is well-settled. We neither

      reweigh the evidence nor judge the credibility of witnesses. Willis v. State, 27

      N.E.3d 1065, 1066 (Ind. 2015). We consider conflicting evidence most

      favorably to the trial court’s ruling and will affirm the judgment if there is

      substantial evidence of probative value to support it. Id. at 1066-67.


                                      II. Sufficiency of Evidence
[9]   At the time of the attack, Johnson and Cain-Avant had never been married, did

      not live together, and did not share a child in common. See Ind. Code § 35-

      31.5-2-78(2)(A)-(C). Nonetheless, the State presented evidence sufficient to




      1
       Indiana Code section 35-31.5-2-78 tracks the language of its federal counterpart. See 18 U.S.C. §
      921(a)(33)(A) (defining “crime of domestic violence”); see also 18 U.S.C. § 922(g) (prohibiting firearm
      possession by individuals with felony and misdemeanor domestic violence convictions).

      Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-838 | August 24, 2015               Page 5 of 7
       support a determination that Cain-Avant “was or had been similarly situated”

       to Johnson’s spouse. Id. § 35-31.5-2-78(2)(D).


[10]   Johnson and Cain-Avant had been dating for almost a year, and both

       characterized the relationship as “exclusive.” Tr. at 13, 81. Cain-Avant had

       purchased a cell phone for Johnson, cared for his disabled mother, and kept

       personal belongings at the house where Johnson lived with his mother.

       Moreover, Cain-Avant had been pregnant with Johnson’s child. At the time of

       the attack, Johnson believed Cain-Avant was still pregnant and was not aware

       that she had a miscarriage. He had taken Cain-Avant to all of her doctor’s

       appointments and attempted to avoid hitting her abdomen during the attack.

       Johnson testified, “It wasn’t like I was trying to hit like a man because I knew

       she was pregnant.” Id. at 94.


[11]   Furthermore, Johnson’s behavior the day of the attack and the following day

       demonstrates “the heightened passions that accompany intimate romantic

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

       Johnson returned to Cain-Avant’s home multiple times after the initial

       argument and even followed her to a friend’s house. After violently beating

       her,2 Johnson continued to threaten Cain-Avant with phone calls and text

       messages. As we stated in Staples v. State, 959 N.E.2d 323, 325 (Ind. Ct. App.




       2
        Cain-Avant required five stitches on her face and three staples in her head. At the time of trial, over a year
       after the attack, she still suffered from blurry vision.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-838 | August 24, 2015                Page 6 of 7
       2011), “casual acquaintances do not normally resort to the kind of violence

       involved here when resolving their disputes.”



                                               Conclusion
[12]   The evidence presented at trial was sufficient to support a finding that Cain-

       Avant “was or had been similarly situated” to Johnson’s spouse. Ind. Code §

       35-31.5-2-78(2)(D). We therefore affirm the trial court’s determination that

       Johnson committed a crime of domestic violence.


[13]   Affirmed.


       Vaidik, C.J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-838 | August 24, 2015   Page 7 of 7
