MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                               FILED
regarded as precedent or cited before any                      Jun 09 2017, 9:39 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Ernest P. Galos                                          Curtis T. Hill, Jr.
Public Defender                                          Attorney General
South Bend, Indiana
                                                         Christina D. Pace
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Cecil Alexander Hall,                                    June 9, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         71A03-1610-CR-2281
        v.                                               Appeal from the St. Joseph
                                                         Superior Court
State of Indiana,                                        The Honorable Elizabeth C.
Appellee-Plaintiff                                       Hurley, Judge
                                                         Trial Court Cause No.
                                                         71D08-1512-F6-958



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A03-1610-CR-2281 | June 9, 2017     Page 1 of 8
                                             Case Summary
[1]   Cecil Alexander Hall appeals his conviction, following a bench trial, for level 6

      felony domestic battery and level 6 felony criminal confinement. He asserts

      that the State presented insufficient evidence to support his convictions.

      Finding the evidence sufficient, we affirm.


                                 Facts and Procedural History
[2]   Hall and R.R. have two children together. Hall did not live with R.R. or his

      children, but occasionally went to R.R.’s residence to visit or babysit. R.R.

      lived in an apartment complex in Mishawaka. On the morning of December 7,

      2015, Hall was at R.R.’s residence babysitting his children and R.R.’s two-year-

      old son. R.R. had left work early to take her mother to work. R.R. returned to

      the residence and informed Hall that she was leaving again. Hall protested and

      said “no” because he was going to leave instead. To prevent R.R. from leaving,

      Hall took her purse and phone. Nevertheless, R.R. left and took their children

      to school. When R.R. returned this time, Hall was waiting in the yard. An

      argument ensued outside the residence and later continued inside. R.R. went

      upstairs to her bedroom, and Hall followed. R.R.’s son remained downstairs

      sitting on the living room couch.


[3]   Hall asked R.R. when he would be able to see his children again. She replied

      that he would need to go through the court system to determine the next

      visitation. At this response, Hall became angry. Hall pushed R.R. onto the

      bed, got on top of her, and berated her, saying that “she was no better than all

      Court of Appeals of Indiana | Memorandum Decision 71A03-1610-CR-2281 | June 9, 2017   Page 2 of 8
      of the other bitches.” State’s Ex. 3. He then punched her in the eye and finally

      dragged her off the bed by her clothes. State’s Ex. 2, 3.


[4]   R.R. ran downstairs and tried to leave through the front door. Hall closed the

      front door and placed his foot in front of it. State’s Ex. 3. Subsequently, R.R.

      ran toward the back door and threw an aquarium stand at Hall. Hall managed

      to block the back door by standing in front of it. Id. R.R. returned to the

      kitchen and struck Hall with a baking sheet. Hall told R.R. that she could not

      leave with her son and that she needed to sit and calm down, so as not to alarm

      the neighbors. R.R. pleaded with Hall to hand over her son so she could leave.

      Her son stood on the couch, and Hall commanded him to sit back down

      because he was not going anywhere. R.R. threw a chair at Hall, which caused

      him to lose his balance. R.R. was then able to leave the residence without her

      son. She went directly to the apartment complex office to seek help.


[5]   An apartment complex employee called 911 at R.R.’s behest. R.R. spoke with

      the 911 operator, declaring, “I finally just broke out of the house and then I just

      walked here to call. But he punched me in my eye and everything.” State’s Ex.

      2. Officers of the Mishawaka Police Department arrived at the scene and

      interviewed her. Officer Michael Robinson observed that R.R. “was very

      distraught and upset.” Tr. 08-04-16 at 8. Additionally, Officer Robinson

      noticed that “[R.R.] had a swollen eye and she had a scratch on her arm.” Id.

      at 13. Officer Robert Ashburn took several pictures of R.R.’s injuries and

      observed that “she was crying and visibly shaken.” Id. at 17.



      Court of Appeals of Indiana | Memorandum Decision 71A03-1610-CR-2281 | June 9, 2017   Page 3 of 8
[6]   On December 11, Detective Jason Koski of the St. Joseph County Police

      Department interviewed R.R. He noticed during the interview that “her right

      eye was blackened underneath her eye and the whites of her eye [were] red.”

      Id. at 23. On December 14, Detective Koski interviewed Hall. During the

      interview, Hall admitted to being at the residence on the day of the altercation,

      pushing R.R. onto the bed, getting on top of her, accidentally poking her in the

      eye, dragging her off the bed by her clothes, and preventing her from leaving,

      and he also indicated that R.R.’s son was on the couch. Id. at 27-28.

      Consequently, Hall was arrested and charged with level 6 felony domestic

      battery and level 6 felony criminal confinement.


[7]   A bench trial was held in August 2016. R.R. did not testify. The three police

      officers mentioned above offered testimony. The trial court found Hall guilty as

      charged and sentenced him to two years for each count to run concurrently.

      Hall now appeals.


                                     Discussion and Decision

       Section 1 – The State presented sufficient evidence to support
                    Hall’s domestic battery conviction.
[8]   On appeal, Hall contends that the State failed to present sufficient evidence to

      support his domestic battery conviction. The standard of review for sufficiency

      of the evidence is well settled. We neither reweigh the evidence nor assess the

      credibility of witnesses. Bell v. State, 31 N.E.3d 495, 499 (Ind. 2015). Rather,

      we look to the evidence and reasonable inferences drawn therefrom that support

      Court of Appeals of Indiana | Memorandum Decision 71A03-1610-CR-2281 | June 9, 2017   Page 4 of 8
       the conviction. Id. We will affirm if there is probative evidence from which a

       reasonable factfinder could have found the defendant guilty beyond a

       reasonable doubt. Id. In sum, the reviewing court will not disturb the

       conviction when the testimony believed by the trier of fact is sufficient to

       support it. Id. at 500.


[9]    To convict Hall of level 6 felony domestic battery, the State was required to

       prove that he had a child in common with R.R., knowingly or intentionally

       touched her in a rude, insolent, or angry manner that resulted in bodily injury,

       and committed this 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. Ind. Code § 35-42-2-1.3(a), -(b)(2) (2015). Hall contends that

       there is insufficient evidence that he committed domestic battery because R.R.

       failed to testify, specifically about any bodily injury, and the State failed to

       prove that he committed the offense in the “physical presence” of a child.

       Appellant’s Br. at 10-11.


[10]   “Bodily injury” is defined as “any impairment of physical condition, including

       physical pain.” Ind. Code § 35-31.5-2-29. This Court has held “all that is

       required to establish bodily injury is that the victim experience any physical pain

       as a result of the defendant’s actions.” Toney v. State, 961 N.E.2d 57, 60 (Ind.

       Ct. App. 2012) (emphasis added). There is no statutory requirement that the


       Court of Appeals of Indiana | Memorandum Decision 71A03-1610-CR-2281 | June 9, 2017   Page 5 of 8
       pain be of any particular severity, nor that it endure for any particular duration.

       Id. at 59. It must simply be physical pain. Id.


[11]   R.R. told the 911 operator that Hall “punched” her in the eye. State’s Ex. 2.

       Hall concedes that he pushed R.R. onto the bed, got on top of her, poked her in

       the eye, and dragged her off the bed by her clothes. State’s Ex. 3. The photos

       of R.R. taken after the incident show a swollen eye, redness from broken blood

       vessels, and a healing scratch on her right forearm. State’s Exs. 4-9. The police

       officers testified that they observed the same injuries and that R.R. was “very

       distraught and upset” as well as “crying and visibly shaken.” Tr. 08-04-16 at 8,

       17. Based on these facts, the trier of fact could reasonably infer that R.R.

       suffered at least a modicum of physical pain. Therefore, the State presented

       sufficient evidence that R.R. suffered bodily injury at the hands of Hall.


[12]   As for whether he committed domestic battery in the “physical presence” of a

       child, Hall argues that the child’s location downstairs on the living room couch

       was too remote for the child to see or hear the offense because the major

       portion of the altercation took place in an upstairs bedroom. However, “the

       critical question 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).




       Court of Appeals of Indiana | Memorandum Decision 71A03-1610-CR-2281 | June 9, 2017   Page 6 of 8
[13]   Here, a reasonable person could conclude that R.R.’s son might have heard

       R.R. being dragged to the floor by her clothes and might have heard words or

       sounds related to Hall touching R.R. The record shows that R.R.’s son stood

       on the couch when R.R. was pleading with Hall to give her the boy so she

       could leave. This detail is indicative of a two-year-old boy who is responsive to

       the sights and sounds of his surroundings. While it is not necessary that the

       child “actually sense the battery,” Boyd v. State, 889 N.E.2d 321, 325 (Ind. Ct.

       App. 2008), trans. denied, the record supports the conclusion that the child had

       the possibility to see or hear it. Therefore, we affirm Hall’s level 6 felony

       domestic battery conviction.


        Section 2 – The State presented sufficient evidence to support
                   Hall’s criminal confinement conviction.
[14]   Hall next asserts that the State failed to present sufficient evidence to support

       his criminal confinement conviction. To convict Hall of level 6 felony criminal

       confinement, the State was required to prove that he knowingly or intentionally

       confined R.R. without her consent. Ind. Code § 35-42-3-3(a). The term

       “‘confine’ means to substantially interfere with the liberty of a person.” Ind.

       Code § 35-42-3-1.


[15]   Hall argues that he did not substantially interfere with R.R.’s liberty because he

       only briefly impeded her departure twice in order to allow her to calm down.

       Hall cites no authority for the proposition that a person may substantially

       interfere with another person’s liberty to allow that person to calm down. The

       evidence most favorable to the conviction demonstrates that Hall closed the

       Court of Appeals of Indiana | Memorandum Decision 71A03-1610-CR-2281 | June 9, 2017   Page 7 of 8
       front door and placed his foot in front of it, blocked R.R.’s departure from the

       back door by standing in front of it, and told R.R. that she was not free to leave

       with her son until she calmed down. State’s Ex. 3. It is also reasonable to infer

       that R.R’s purpose in throwing several objects at Hall was to escape her

       physical confinement. Significantly, it was not until R.R. threw a chair and

       Hall lost his balance that she was able to leave the residence. And R.R. told the

       911 operator, “I finally just broke out of the house.” State’s Ex. 2. All of this

       could readily lead a reasonable factfinder to conclude that Hall substantially

       interfered with R.R.’s liberty. The State presented sufficient evidence to

       support Hall’s conviction for level 6 felony criminal confinement. Therefore,

       we affirm it.


[16]   Affirmed.

       Baker, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1610-CR-2281 | June 9, 2017   Page 8 of 8
