MEMORANDUM DECISION
                                                                    Dec 22 2015, 8:54 am
Pursuant to Ind. Appellate Rule 65(D),
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
Ana M. Quirk                                            Gregory F. Zoeller
Public Defender                                         Attorney General of Indiana
Muncie, Indiana
                                                        Michael Gene Worden
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Joseph B. Sabetti,                                      December 22, 2015
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A05-1505-CR-448
        v.                                              Appeal from the Delaware Circuit
                                                        Court
State of Indiana,                                       The Honorable Thomas A.
Appellee-Plaintiff.                                     Cannon, Jr., Judge
                                                        Trial Court Cause No.
                                                        18C05-1406-FD-57



Bradford, Judge.



                                    Case Summary

Court of Appeals of Indiana | Memorandum Decision 18A05-1505-CR-448 | December 22, 2015    Page 1 of 9
[1]   On the evening of March 30, 2014, Appellant-Defendant Joseph B. Sabetti

      argued with his then-girlfriend, A.B. At the time of this argument, A.B. resided

      with Sabetti in his apartment. The argument became physical, with Sabetti

      choking A.B. until she lost consciousness. Sabetti was subsequently convicted

      of Class A misdemeanor domestic battery in violation of Indiana Code section

      35-42-2-1.3.


[2]   On appeal, Sabetti challenges the constitutionality of Indiana Code section 35-

      42-2-1.3, as it was applied to him. Alternatively, Sabetti argues that the

      evidence is insufficient to sustain his conviction. Concluding that Sabetti has

      failed to prove that Indiana Code section 35-42-2-1.3 was unconstitutional as

      applied to Sabetti and that the evidence is sufficient to sustain Sabetti’s

      conviction, we affirm.



                            Facts and Procedural History
[3]   In 2013, Sabetti and A.B. were both graduate students at Ball State University.

      While enrolled at Ball State, both Sabetti and A.B. resided in Muncie. After

      being introduced by a mutual friend, Sabetti and A.B. entered into a “boyfriend

      and girlfriend” relationship in July of 2013. Tr. p. 288. A.B. described this

      relationship as a monogamous, intimate relationship. This relationship

      continued while A.B. completed an internship in Fishers during the months of

      August, September, and October. After completing her internship, A.B.

      returned to Muncie in the beginning of November.



      Court of Appeals of Indiana | Memorandum Decision 18A05-1505-CR-448 | December 22, 2015   Page 2 of 9
[4]   Upon returning to Muncie, A.B. began residing with Sabetti in his apartment.

      A.B. moved all of the belongings which she needed to live into Sabetti’s

      apartment. While residing in the apartment with Sabetti, A.B. helped with

      domestic functions such as cooking and cleaning. A.B. and Sabetti shared the

      same bed and engaged in sexual relations. A.B. also completed a change of

      address and listed Sabetti’s address as the address on her driver’s license.


[5]   A.B. continued to reside with Sabetti in his apartment until she temporarily

      relocated to Houston for an internship in January of 2014. Sabetti and A.B.

      planned to again cohabitate after A.B. returned from her internship in Houston.


[6]   A.B. and Sabetti began to encounter problems with their relationship while

      A.B. was temporarily in Houston. A.B. attributed these problems, at least in

      part, to the distance between them. In March of 2014, Sabetti flew to Houston

      to help A.B. drive back to Muncie. Once in Houston, Sabetti and A.B. began to

      argue and at one point “broke[] up.” Tr. p. 294. They then drove back to

      Muncie together.


[7]   Once back in Muncie, A.B. and Sabetti continued to argue. As a result of the

      continuing argument, A.B. decided to move out of Sabetti’s apartment.

      However, before she did so, during the evening hours of March 30, 2014,

      Sabetti became physical with A.B.


[8]   Sabetti, who outweighed A.B. by approximately fifty to sixty pounds, grabbed

      A.B., read a text on A.B.’s cellular phone from A.B.’s mother, and “threw

      [A.B.] down onto the bed.” Tr. pp. 314-15. Sabetti told A.B. “if you want to

      Court of Appeals of Indiana | Memorandum Decision 18A05-1505-CR-448 | December 22, 2015   Page 3 of 9
       fight, we’ll fight.” Tr. p. 315. Sabetti then straddled A.B., who began trying to

       get away from Sabetti. Sabetti placed his hands around A.B.’s neck. A.B.

       placed her hands on Sabetti’s wrists and, in an attempt to get him to stop,

       “squeeze[ed] his arms, sticking [her] nails into him.” Tr. p. 317. A.B. was

       unable to free herself from Sabetti.


[9]    During their struggle, A.B. pleaded with Sabetti to stop, telling him that he was

       hurting her. A.B. became scared after Sabetti indicated that he “was going to

       kill” her. Tr. p. 318. Sabetti continued choking A.B. until she lost

       consciousness.


[10]   After regaining consciousness, A.B. fled Sabetti’s apartment. A.B. made her

       way to a nearby apartment. The resident of that apartment notified the police

       who came to the scene and documented A.B.’s demeanor and injuries. A.B.

       was subsequently transported away from the scene by police.


[11]   On June 13, 2014, Appellee-Plaintiff the State of Indiana (the “State”) charged

       Sabetti with Class D felony strangulation, Class A misdemeanor domestic

       battery, and Class D felony criminal confinement. Following a three-day jury

       trial, the jury found Sabetti guilty of Class A misdemeanor domestic battery and

       not guilty of Class D felony strangulation and Class D felony criminal

       confinement. The trial court subsequently imposed a six-month suspended

       sentence. This appeal follows.



                                 Discussion and Decision

       Court of Appeals of Indiana | Memorandum Decision 18A05-1505-CR-448 | December 22, 2015   Page 4 of 9
                I. Whether the Domestic Battery Statute is
               Unconstitutionally Vague As Applied to Sabetti
[12]   Sabetti contends that Indiana Code section 35-42-2-1.3 is unconstitutionally

       vague as it applies to him because it is unclear what conduct is necessary to

       prove that two individuals were “living as if a spouse of the other person.”

       Sabetti’s entire contention in this regard is supported by the prior decision of

       this court in Vaughn v. State, 782 N.E.2d 417 (Ind. Ct. App. 2003). Sabetti’s

       reliance on Vaughn, however, is unavailing, because the Vaughn decision is no

       longer good law as it has been superseded by statute. See generally, Williams v.

       State, 798 N.E.2d 457, 460 n.3 (Ind. Ct. App. 2003) (noting that in an apparent

       response to Vaughn, in 2003, the legislature amended Indiana Code section 35-

       42-2-1.3 to include factors to be reviewed when determining if a person is or

       was living “as if a spouse” of another). Sabetti makes no claim that the statute,

       as amended, is unconstitutionally vague. Sabetti’s challenge in this regard

       therefore fails.


          II. Whether the Evidence is Sufficient to Sustain
       Sabetti’s Conviction for Class A Misdemeanor Domestic
                                Battery
[13]   Sabetti also contends that the evidence is insufficient to sustain his conviction

       for Class A misdemeanor domestic battery. The Indiana Supreme Court has

       held that “[i]t is the fact-finder’s role, not that of appellate courts, to assess

       witness credibility and weigh the evidence to determine whether it is sufficient



       Court of Appeals of Indiana | Memorandum Decision 18A05-1505-CR-448 | December 22, 2015   Page 5 of 9
       to support a conviction.” Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). As

       such,

               [w]hen reviewing a challenge to the sufficiency of the evidence
               underlying a criminal conviction, we neither reweigh the
               evidence nor assess the credibility of witnesses. Wright v. State,
               828 N.E.2d 904, 905-06 (Ind. 2005). The evidence—even if
               conflicting—and all reasonable inferences drawn from it are
               viewed in a light most favorable to the conviction. Rohr v. State,
               866 N.E.2d 242, 248 (Ind. 2007). “[W]e affirm if there is
               substantial evidence of probative value supporting each element
               of the crime from which a reasonable trier of fact could have
               found the defendant guilty beyond a reasonable doubt.” Davis v.
               State, 813 N.E.2d 1176, 1178 (Ind. 2004).


       Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012) (first set of brackets added,

       second set of brackets in original).


[14]   It is not necessary that the evidence overcome every reasonable hypothesis of

       innocence. Drane, 867 N.E.2d at 147. “The evidence is sufficient if an

       inference may reasonably be drawn from it to support the verdict.” Id. “In

       essence, we assess only whether the verdict could be reached based on

       reasonable inferences that may be drawn from the evidence presented.” Baker v.

       State, 968 N.E.2d 227, 229 (Ind. 2012) (emphasis in original). Further, a

       conviction can be sustained on only the uncorroborated testimony of a single

       witness, even when that witness is the victim. Bailey, 979 N.E.2d at 135 (citing

       Ferrell v. State, 565 N.E.2d 1070, 1072-73 (Ind. 1991)). The jury, acting as the

       trier-of-fact, is “‘free to believe whomever they wish.’” Klaff v. State, 884



       Court of Appeals of Indiana | Memorandum Decision 18A05-1505-CR-448 | December 22, 2015   Page 6 of 9
       N.E.2d 272, 274 (Ind. Ct. App. 2008) (quoting McClendon v. State, 671 N.E.2d

       486, 488 (Ind. Ct. App. 1996)).


[15]   The version of Indiana Code section 35-42-2-1.3 that was in effect on the date

       Sabetti committed the underlying acts provided, in relevant part, as follows:


               (a) A person who knowingly or intentionally touches an
               individual who:
                                                  ****
                       (2) is or was living as if a spouse of the other person
                       as provided in subsection (c) …
               in a rude, insolent, or angry manner that results in bodily injury
               to the person described in subdivision (1), (2), or (3) commits
               domestic battery, a Class A misdemeanor.
                                                  ****
               (c) 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 contact;
                       (3) the financial interdependence;
                       (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.




[16]   In challenging the sufficiency of the evidence to sustain his conviction for Class

       A misdemeanor domestic battery, Sabetti claims that the State failed to prove

       that he was living “as if the spouse” of A.B. We have previously concluded

       that when reviewing the sufficiency of the evidence relating to whether a

       Court of Appeals of Indiana | Memorandum Decision 18A05-1505-CR-448 | December 22, 2015   Page 7 of 9
       defendant was “living as if a spouse of” their victim, we focus on “the

       defendant’s past or present relationship with the victim and whether said

       relationship was domestic as defined by statute.” Bowling v. State, 995 N.E.2d

       715, 719 (Ind. Ct. App. 2013). Here, the evidence supports the inference that

       such a relationship exists.


[17]   The record reveals that Sabetti and A.B., both students at Ball State University,

       had resided together in Sabetti’s apartment for nearly three months before A.B.

       temporarily relocated to Houston for an internship. They had engaged in a

       “boyfriend and girlfriend” relationship for several months before residing

       together. Tr. p. 288. While residing together in Sabetti’s apartment, A.B.

       moved her belongings into the apartment and helped with domestic functions

       such as cooking and cleaning. In addition, A.B. and Sabetti shared the same

       bed and engaged in sexual relations. A.B. also completed a change of address

       and listed Sabetti’s address as the address on her driver’s license. Sabetti and

       A.B. also planned to cohabitate after A.B. returned from her internship in

       Houston.


[18]   The above-stated facts indicate that Sabetti and A.B. maintained frequent

       contact with one another and engaged in tasks directed toward maintaining a

       common household. Further, although A.B. had threatened to move out of

       Sabetti’s apartment during the course of the arguments leading up to the

       physical altercation between A.B. and Sabetti, A.B. had yet to do so. As such,

       we conclude that the above-stated facts are sufficient to support the inference

       that Sabetti and A.B. were “living as if a spouse of the other.” Sabetti’s claim to

       Court of Appeals of Indiana | Memorandum Decision 18A05-1505-CR-448 | December 22, 2015   Page 8 of 9
       the contrary amounts to nothing more than an invitation for this court to

       reweigh the evidence, which we will not do. See Bailey, 979 N.E.2d at 135. We

       therefore conclude that the State presented sufficient evidence to sustain

       Sabetti’s conviction for Class A misdemeanor domestic battery.


[19]   The judgment of the trial court is affirmed.


       Baker, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A05-1505-CR-448 | December 22, 2015   Page 9 of 9
