Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
                                                                      Aug 11 2014, 10:47 am
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:

SEAN P. HILGENDORF                               GREGORY F. ZOELLER
South Bend, Indiana                              Attorney General of Indiana

                                                 JOSEPH Y. HO
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

CHRISTOPHER WOODBURN,                            )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )      No. 71A05-1312-CR-638
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                    APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
                         The Honorable Elizabeth C. Hurley, Judge
                             Cause No. 71D08-1303-FD-266


                                      August 11, 2014

               MEMORANDUM DECISION - NOT FOR PUBLICATION

BROWN, Judge
       Christopher Woodburn appeals his conviction for domestic battery as a class D

felony. Woodburn raises one issue, which we revise and restate as whether the evidence

is sufficient to sustain his conviction. We affirm.

                         FACTS AND PROCEDURAL HISTORY

       The facts most favorable to the conviction reveal that in March of 2013,

Woodburn was living with his girlfriend Michelle Murray and her daughters R. and P. in

South Bend, Indiana. On March 27, 2013, Woodburn and Murray argued “off and on”

during the day, and in the afternoon Woodburn grabbed Murray’s purse, which contained

Woodburn’s wallet and keys, and took the purse into the upstairs bathroom and tried to

obtain his wallet and keys from the purse. Transcript at 16. Murray had previously taken

Woodburn’s wallet and keys because she was looking for a woman’s phone number that

she believed Woodburn had in his possession. R. and P. followed Murray upstairs and

stood in the hallway near the entrance to their bedrooms as Murray and Woodburn

argued. Murray attempted to enter the bathroom to retrieve her purse, Woodburn tried to

close the door on her, Murray stuck her right arm into the doorway and grabbed the

doorknob with her other hand, and Woodburn bit Murray on her right forearm which

caused her to scream. P. ran to a neighbor’s home and asked for help, and the neighbor

called the police. Murray exited the home, showed R. the bruise on her arm, and told R.

that Woodburn bit her.

       South Bend Police Officer Kayla Dawson responded to the scene and spoke with

Murray around 5:15 p.m. At one point, Murray began to cry and informed Officer

                                             2
Dawson that Woodburn bit her on the right forearm, and Officer Dawson observed

bruising and a bite mark consistent with Murray’s account of the biting incident on

Murray’s arm. Officer Dawson photographed the injuries.1 Murray also told Officer

Dawson that Woodburn threatened to “post nude photographs of [her] if [she] told the

police” what had occurred. Id. at 37. Officer Dawson made the decision to arrest

Woodburn and read him his Miranda rights, and afterward Woodburn admitted that he

and Murray had been arguing and “that it had gotten physical” but did not want to speak

further about the incident. Id. at 126.

       On March 28, 2013, the State charged Woodburn with domestic battery as a class

D felony. On October 17, 2013, the court commenced a jury trial in which evidence

consistent with the foregoing was presented. The State called Murray to the stand, who

indicated at the outset that she did not want to be in court that day because she was not

feeling well and wanted the charge against Woodburn dismissed. When first asked by

the prosecutor about her attempt to enter the bathroom to retrieve her purse, Murray

testified:

       I didn’t go all the way into the bathroom. I reached into the bathroom door.
       . . . I reached in his coat pocket and I wound up – how I did it I don’t
       know, but I had ahold of the doorknob on the bathroom door and I wound
       up pulling the door closed a little bit, and I scrapped [sic] my arm on the
       door.

Id. at 18. The prosecutor asked if she reported this to the police, Murray replied “[u]h-

huh,” the prosecutor asked what else happened, and Murray testified: “Well, this is kind

       1
           We note that an exhibits volume is not contained in the record on appeal.
                                                     3
of embarrassing to say but we made up and had sex.” Id. After asking Murray more

questions about the timeline of events and where her children were when she and Murray

had sex, the prosecutor asked if it was her testimony that she reported to Officer Dawson

that she closed the door on her arm, Murray responded affirmatively, and the prosecutor

asked: “Isn’t it true that when you actually got into Officer Dawson’s car, you started

crying and told her that [Woodburn] bit you?” Id. at 21. Woodburn’s counsel objected to

the question as leading, the prosecutor replied that it was an impeachment question, and

the court overruled the objection.

       Soon after, the prosecutor asked the court if the jury could be excused, and at

sidebar explained that she wanted to warn Murray about the penalties of perjury. After

some discussion between the prosecutor, Woodburn’s counsel, and the court, the court

agreed to excuse the jury and advised Murray “that if the State believes you’ve perjured

yourself or that you’re lying under oath . . . they can file charges.” Id. at 27. After the

jury was brought back into the courtroom, the following exchange took place between the

prosecutor and Murray:

       Q      [Murray], you indicated you did tell Officer Dawson that
              [Woodburn] bit you.

       A      Yes.

       Q      Explain to me when that happened.

       A      Well, when we were arguing.

       Q      What location in the house did that occur?


                                            4
       A      The bathroom.

       Q      Where at in the bathroom?

       A      I was on the outside of the bathroom, he was on the inside of the
              bathroom, I stuck my arm in the door.

       Q      Where were your kids at that time?

       A      [P.] was in her room and [R.] was in her room.

       Q      Where did [Woodburn] bite you?

       A      In the arm.

       Q      What happened after he bit you?

       A      [P.] went downstairs and ran into the neighbor’s house and . . . I
              went right behind her.

Id. at 29.

       P., who was eleven years old at the time of trial, testified that on March 27, 2013,

she observed Murray and Woodburn arguing and screaming and that Woodburn took

Murray’s purse and keys. P. testified regarding the bathroom incident that she did not see

Woodburn bite Murray but that she “kind of [] saw his head move back up” and that “his

head was right by [Murray’s] arm.” Id. at 66, 71. P. testified that immediately after she

witnessed this Murray said “ouch really loud.” Id. at 71. P. also testified that she

observed Murray’s arm later in the day and “there was a bruise and like a bite mark.” Id.

at 72. R., who was fifteen years old, testified that she saw Murray’s arm following the

incident and observed “a little bruise mark” which was caused when Woodburn “bit her.”

Id. at 93. Following an objection which was overruled, R. testified, over objection, that

                                            5
she knew the bruise was caused by a bite from Woodburn because after Murray “talked

to the cops, she came and talked to us and then she showed us what happened and told

us.” Id. at 95.

       Following R.’s testimony, the court recessed for the day and reconvened the next

day, October 18, 2013. Officer Dawson testified that when she came upon the scene and

encountered Murray, Murray “appeared to be upset, looked like she had been crying, her

face was red, her eyes were glossy.” Id. at 118. Officer Dawson also indicated that

Murray did not claim at that time that the bite occurred during a sexual encounter. The

State rested, and defense counsel recalled Murray to the stand who testified that the bite

occurred during sex, and she indicated that it was not “done in a rude, insolent or angry

manner during the course of sex . . . .” Id. at 137. She testified that she changed her

testimony from the day before because she felt “like [she had] been coerced so to speak

threatened” by “[s]everal people” including her mother, her daughter, and the prosecutor,

who “makes [her] nervous.”        Id. at 138.    Murray also acknowledged on cross-

examination that she had spoken with the prosecutor’s office “several times” after giving

her statement to Officer Dawson regarding the incident, but she did not claim that the bite

had been sexual in nature “until after [she] had been subpoenaed for trial . . . .” Id. at

164-165.

       The jury found Woodburn guilty as charged. On December 9, 2013, the court held

a sentencing hearing and sentenced Woodburn to one year suspended to probation.



                                            6
                                            DISCUSSION

      The issue is whether the evidence is sufficient to sustain Woodburn’s conviction

for domestic battery as a class D felony. When reviewing claims of insufficiency of the

evidence, we do not reweigh the evidence or judge the credibility of witnesses. Jordan v.

State, 656 N.E.2d 816, 817 (Ind. 1995), reh’g denied. Rather, we look to the evidence

and the reasonable inferences therefrom that support the verdict. Id. We will affirm the

conviction if there exists evidence of probative value from which a reasonable trier of

fact could find the defendant guilty beyond a reasonable doubt. Id.

      The offense of domestic battery is governed by Ind. Code § 35-42-2-1.3, which at

the time of the offense provided:

      (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);[2] . . .

      2
          At the time of the offense, Ind. Code § 35-42-2-1.3(c) provided:

      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

                                                     7
       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.

       (b)     However, the offense under subsection (a) is a Class D felony if the
               person who committed the offense:

                                               *****

       (2)     committed the offense in the physical presence of a child less than
               sixteen (16) 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 (Supp. 2012) (subsequently amended by Pub. L. No. 158-2013,

§ 421 (eff. July 1, 2014)).

       Woodburn acknowledges that the State “proved that Murray and Woodburn were

living as if spouses, that Woodburn knowingly touched Murray, and that there were two

children under sixteen (16) years of age present when the touching occurred,” and he

contends that “the State failed to prove [] that the touching was done in a rude, insolent,

or angry manner.” Appellant’s Brief at 4-5. Woodburn argues that “Murray’s sworn

testimony at trial” contradicted the theory of the State’s case that Woodburn bit Murray

during the incident in the bathroom when Murray testified that the bite occurred “prior to

their arguing at the bathroom door,” was “not rude, insolent or angry” and “was done

during consensual sex.” Id. at 5. Woodburn also argues that “[t]he State impeached

Murray by [asking] her if she had told Officer Dawson that [he] had bitten her during the


               (6)     other factors the court considers relevant.

(Supp. 2012) (subsequently amended by Pub. L. No. 158-2013, § 421 (eff. July 1, 2014)).
                                                   8
argument at the bathroom door,” that “this testimony was impeachment testimony and

not direct substantive evidence” and that “evidence admitted only for impeachment may

not be used as substantive evidence.” Id. The State asserts that Woodburn’s argument is

an invitation to reweigh the evidence.

      The record reveals that Woodburn and Murray had been arguing during the day of

March 27, 2013, when at one point Woodburn grabbed Murray’s purse and took it into

the upstairs bathroom. While Murray struggled to enter the bathroom, Woodburn bit her

on the right forearm, causing Murray to scream. P. observed the incident and, although

she did not specifically see Woodburn bite Murray, she did observe Woodburn’s head

“move back up” and that “his head was right by [Murray’s] arm.” Transcript at 66, 71.

Bruising and bite marks were noticeable on Murray’s arm and were photographed by

Officer Dawson.     Murray told Officer Dawson that Woodburn bit her on the right

forearm. As testified to by R., Murray’s fifteen year old daughter, Murray showed the

children the bite mark and told them that Woodburn had bitten her.

      To the extent that Woodburn suggests that impeachment evidence was offered for

the truth of the matter asserted and that he was convicted thereon, he is mistaken. As

noted above, following Murray’s initial testimony that she scraped her arm on the door

and then that the bite was the result of consensual sex, the prosecutor asked Murray an

impeachment question regarding her initial statement to Officer Dawson. Soon after, the

prosecutor asked that the jury be excused and that Murray be advised of her duty to tell

the truth or face a potential charge of perjury. When the trial recommenced, Murray

                                           9
testified specifically that Woodburn bit her “[i]n the arm” when she stuck her arm in the

door while she was standing outside of the bathroom. Id. at 29. Based upon the record,

we conclude that the State presented evidence of a probative nature from which a

reasonable jury could have found Woodburn guilty of domestic battery as a class D

felony.

                                    CONCLUSION

       For the foregoing reasons, we affirm Woodburn’s conviction of domestic battery

as a class D felony.

       Affirmed.

BARNES, J., and BRADFORD, J., concur.




                                           10
