Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be                                         Aug 14 2013, 5:34 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:

MICHELLE F. KRAUS                               GREGORY F. ZOELLER
Fort Wayne, Indiana                             Attorney General of Indiana

                                                RICHARD C. WEBSTER
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

WILLIE DREW,                                    )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )       No. 02A03-1212-CR-523
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                     APPEAL FROM THE ALLEN SUPERIOR COURT
                          The Honorable Frances C. Gull, Judge
                             Cause No. 02D06-1202-FC-62



                                      August 14, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


BROWN, Judge
       Willie Drew appeals his convictions for battery as a class C felony and domestic

battery as a class D felony. Drew raises one issue, which we restate as whether the

evidence is sufficient to sustain his convictions. We affirm.

                        FACTS AND PROCEDURAL HISTORY

       In November 2011, Joyce Carwile and her daughter, P.C., who was eleven years

old, lived in a house in Fort Wayne, Indiana. Carwile had a relationship with Drew, and

at some point Drew and his son, W.D., who was also eleven years old, moved in and

resided with Carwile in her house.

       On Thanksgiving Day, November 24, 2011, Carwile was preparing Thanksgiving

dinner in the kitchen, which included a baked ham, ribs, and chicken gumbo, while P.C.

was watching television in her bedroom and Drew was in the living room. At some

point, Carwile observed W.D. “in [her] bedroom taking money” from a jug she kept in

her closet, and, when Carwile brought it to Drew’s attention, he “blew it off like it was

nothing.” Transcript at 38. Carwile attempted to ask W.D. why he was in her bedroom,

and W.D. would not answer her. Drew then told Carwile to leave W.D. alone and that

W.D. did not do anything wrong, and Carwile told W.D. to stay out of her bedroom.

Drew went into Carwile’s bedroom and called W.D. into the bedroom, and Carwile said

that she had told W.D. to stay out of her bedroom. Drew was insistent that he was going

to talk to W.D. in the bedroom and told Carwile “to get out” of the bedroom. Id. at 41.

Carwile refused to leave, and Drew approached her and shoved her, causing her to strike

her right eye on the window sill, slicing her right eyebrow open. Carwile saw that she

was bleeding, and Drew went into the living room.


                                             2
         Carwile followed Drew and told him that he had to leave and that, if he did not,

she would call 911. Drew refused to leave, and Carwile, who could not find her phone,

started to walk to her neighbor’s house to use the phone. Drew “kept calling [Carwile]

back” saying “please let[’]s talk,” and Carwile returned to the house. Id. at 43.

         The argument between Drew and Carwile “really got escalated as far as verbally”

and “got really loud,” and Carwile closed the door to P.C.’s bedroom. Id. at 44. Carwile

repeatedly told Drew that he needed to leave the house, but Drew would not leave. At

some point, Carwile discovered her cell phone under Drew’s pillow in the bedroom, and

Drew took the phone away from her. Carwile asked Drew to leave again. Drew stated he

“hadn’t eaten and was gonna eat,” and Carwile told Drew that he could not eat there. Id.

at 45.

         Drew grabbed a plate and told W.D. to come into the kitchen because they were

going to eat. Carwile took the plate and told Drew that he was not eating in her house

and that he needed to leave. Drew picked up the ham, which was in a roasting bag, stated

“well how do you like this,” and “shoved it into [Carwile’s] face.” Id. at 46-47. Drew

then pushed Carwile backward and “started pounding” on her. Id. at 47. Drew took the

chicken gumbo, which was boiling hot, and threw it on Carwile, causing pain and severe

burns on her left arm and side. He took the pans in which the ham and the ribs had been

cooked and beat Carwile with them. Carwile was on the floor, and Drew “was over the

top of [her] and . . . was pounding [her] profusely and repeatedly over and over again.”

Id. at 48. Carwile then “blacked out” and lost consciousness. Id. at 49.




                                             3
        When Carwile regained consciousness, she was on the floor and it was dark

outside.1 Carwile tried to stand up, but slipped and fell because of the blood and food

that was on the floor. Carwile crawled out of the blood and food, stood up, and went to

check on P.C., who was in her bedroom. Carwile noticed there “was blood [and] food

everywhere” and that there was food on the ceilings, walls, and floor. Id. at 53. In

excruciating pain, Carwile went to the bathroom and noticed that two of her teeth had

been knocked out and that other teeth were loose, that her eyes were black and blue, that

her right eye was closed tight, and that her neck was black and blue. She called 911 and

was taken to the hospital by ambulance.

        Carwile suffered multiple bruises and cuts, a second degree burn with blistering on

her left arm, a fractured jaw bone, a large bruise on the right side of her head, and other

extensive bruising and swelling. She also suffered a severe laceration on the back of her

head and two puncture wounds in her forehead which required treatment. The emergency

room physician who treated Carwile ordered morphine to address her pain. Carwile’s

burn injuries were consistent with hot food being thrown on her, and her other injuries

were consistent with trauma and assault and being hit with objects or fists.

        On February 20, 2012, the State charged Drew with Count I, battery as a class C

felony;2 and Count II, domestic battery as a class D felony.3 On March 30, 2012, the


        1
          Carwile testified that it “was daylight more or less when he was beating on me and when I woke
up it was dark out.” Transcript at 49.
        2
           Count I alleged that Drew “did knowingly or intentionally touch another person to wit: Joyce
Carwile in a rude, insolent, or angry manner, said act resulting in serious bodily injury to Joyce Carwile,
to wit: loss of consciousness and/or extreme pain . . . .” Appellant’s Appendix at 12.
        3
          Count II alleged that Drew “did knowingly or intentionally touch Joyce Carwile, who is or was
living as if a spouse of [Drew], in a rude, insolent or angry manner resulting in bodily injury to wit:
                                                    4
State alleged that Drew was an habitual offender. A jury trial was held on October 30

and 31, 2012, at which the court admitted as exhibits photographs of Carwile and her

various injuries, the various rooms of her house, the food that Drew threw on her, and the

pans which Drew used to beat her.              The jury heard testimony from Carwile, the

emergency room physician and other medical personnel who provided care for Carwile,

and a child who lived next door to Carwile and observed part of the incident in Carwile’s

house.    Carwile testified that Drew was the person who attacked and beat her on

November 24, 2011. The child who lived next door testified that he heard banging noises

coming from Carwile’s house, that he “saw somebody bangin’ somethin on the ground,”

that he “saw the top half of his body,” and that the person was Drew. Id. at 126-127. On

cross-examination, when asked if it was Drew he was able to see, the child responded: “I

don’t know if it was somebody else that related to him.” Id. at 133. The jury found Drew

guilty as charged on Counts I and II and that he was an habitual offender. The court

found Drew’s juvenile and adult criminal history, which included sixteen misdemeanor

and six felony convictions as an adult, the fact that he has been on parole and received the

benefit of alcohol counseling and drug treatment, and the nature of the crime to be

aggravating circumstances. The court sentenced Drew to eight years for his conviction

under Count I, which was enhanced by twelve years due to the habitual offender

adjudication, and to three years for his conviction under Count II, to be served




physical pain and/or visible injury 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 . . . .” Appellant’s
Appendix at 13.
                                                  5
consecutive to the sentence under Count I, for an aggregate sentence of twenty-three

years.4

                                             DISCUSSION

          The issue is whether the evidence is sufficient to sustain Drew’s convictions for

battery as a class C felony and domestic battery as a class D felony. When reviewing the

sufficiency of the evidence needed to support a criminal conviction, we neither reweigh

evidence nor judge witness credibility. Bailey v. State, 907 N.E.2d 1003, 1005 (Ind.

2009). “We consider only the evidence supporting the judgment and any reasonable

inferences that can be drawn from such evidence.” Id. We will affirm if there is

substantial evidence of probative value such that a reasonable trier of fact could have

concluded the defendant was guilty beyond a reasonable doubt. Id. It is well established

that “circumstantial evidence will be deemed sufficient if inferences may reasonably be

drawn that enable the trier of fact to find the defendant guilty beyond a reasonable

doubt.” Pratt v. State, 744 N.E.2d 434, 437 (Ind. 2001).

A.        Battery

          The offense of battery is governed by Ind. Code § 35-42-2-2, which provides in

part that “[a] person who knowingly or intentionally touches another person in a rude,


          4
           Drew does not raise the possible issues that his convictions violate double jeopardy or the
continuing crime doctrine. In this regard, we observe that, during closing arguments, the prosecutor
argued that the evidence showed that P.C. and W.D. may have been able to see or hear the initially battery
in Carwile’s bedroom, and that Carwile suffered serious bodily injury as a result of the battery which
occurred in the kitchen. In addition, at the request of Drew’s counsel, the court instructed the jury that “as
you deliberate [] in the jury room, you must agree amongst yourselves unanimously [] what acts you’re
attributing to which charge. So which acts the defendant is charged with . . . relate to which charge
whether it’s the D Felony charge or the C Felony charge.” Transcript at 292. At sentencing, the trial
court found that Count II was a separate and distinct act from Count I.

                                                      6
insolent, or angry manner commits battery, a Class B misdemeanor” and that “[h]owever,

the offense is . . . a Class C felony if it results in serious bodily injury to any other person

or if it is committed by means of a deadly weapon.” A person engages in conduct

“intentionally” if, when he engages in the conduct, it is his conscious objective to do so.

Ind. Code § 35-41-2-2(a). A person engages in conduct “knowingly” if, when he engages

in the conduct, he is aware of a high probability that he is doing so. Ind. Code § 35-41-2-

2(b). To convict Drew of battery as a class C felony, the State needed to prove that he

knowingly or intentionally touched Carwile in a rude, insolent, or angry manner which

resulted in serious bodily injury to her.

       At the time of the offense, Ind. Code 35-41-1-25 provided:

       “Serious bodily injury” means bodily injury that creates a substantial risk of
       death or that causes:

              (1)     serious permanent disfigurement;

              (2)     unconsciousness;

              (3)     extreme pain;

              (4)     permanent or protracted loss or impairment of the
                      function of a bodily member or organ; or

              (5)     loss of a fetus.

(Currently codified at Ind. Code § 35-31.5-2-292 (eff. Jul. 1, 2012)).

       Drew acknowledges that Carwile sustained serious injuries but contends that

“[w]hat is at question is who inflicted the injuries and how that occurred.” Appellant’s

Brief at 7. Drew asserts that Carwile testified that she crawled across the bed while she

was bleeding and that there “was no physical evidence admitted to corroborate this story

and the lack of evidence raises serious doubts about the truthfulness of the story.” Id.
                                           7
Drew argues that an investigating officer did not recall seeing any blood on the bed and

that, had he seen blood on the bedroom wall or window sill, it would have been important

to document that finding. Drew further argues that there was no substantial evidence

presented that pots and pans were used to inflict the injuries. Drew also argues that the

child who lived next door to Carwile stated on direct examination that Drew was in

Carwile’s house on the day of the offense but then on cross-examination stated he was

not sure who he observed.

       The State maintains that ample evidence supports Drew’s conviction for class C

felony battery, that Drew pushed Carwile backward, began “pounding” on her, threw a

pot of boiling chicken gumbo on her, and then used two pans to beat her. Appellee’s

Brief at 8. The State argues that Carwile suffered excruciating pain and severe burns and

that she lost consciousness and remained unconscious for a significant period of time.

The State asserts that Drew “attacks the credibility of the witnesses and what he perceives

as gaps in the evidence” and that his arguments are merely an invitation for this court to

reweigh the evidence and assess the credibility of the witnesses. Id. at 9.

       We note that identity may be established entirely by circumstantial evidence and

the logical inferences drawn therefrom. Bustamante v. State, 557 N.E.2d 1313, 1317

(Ind. 1990). Inconsistencies in identification testimony impact only the weight of that

testimony, because it is the jury’s task to weigh the evidence and determine the

credibility of the witnesses. Gleaves v. State, 859 N.E.2d 766, 770 (Ind. Ct. App. 2007).

As with other sufficiency matters, we will not weigh the evidence or resolve questions of

credibility when determining whether the identification evidence is sufficient to sustain a


                                             8
conviction.   Id.   Rather, we examine the evidence and the reasonable inferences

therefrom that support the verdict. Id.

       The evidence most favorable to Drew’s conviction reveals that he was the person

who severely beat Carwile, rendering her unconscious and resulting in her extreme pain.

The record reveals that Carwile testified that Drew was the person who shoved her in the

bedroom and later attacked her in the kitchen, throwing hot food on her and beating her

on the floor. Testimony and evidence was presented of Carwile’s injuries and that the

injuries and the evidence found at Carwile’s house were consistent with her testimony

regarding the incident. Carwile testified that Drew was the person who attacked and beat

her on November 24, 2011.

       To the extent Drew argues there is a conflict between the testimony of the child

who lived next door on direct examination as to his identity as the person who committed

the battery against Carwile, and the child’s testimony on cross-examination or between

the child’s testimony and Carwile’s testimony that Drew was the person who beat her, we

note that it is the jury’s task to weigh the evidence and determine the credibility of the

witnesses and that inconsistencies in identification testimony impact the weight of the

testimony. See Gleaves, 859 N.E.2d at 770. In addition, to the extent Drew argues that

no substantive evidence shows that the pans were used to inflict the injuries, we note that

battery is a class C felony under Ind. Code § 35-42-2-2 if it results “in serious bodily

injury to any other person or if it is committed by means of a deadly weapon” (emphasis

added). We also note that “serious bodily injury” means bodily injury that causes, among

other things, unconsciousness or extreme pain and that the State alleged “in the charging

information that Drew committed battery as class C felony which resulted in serious
                                        9
bodily injury to [] Carwile, to wit: loss of consciousness and/or extreme pain . . . .”

Appellant’s Appendix at 12. Thus, the State was required to show that the battery

committed by Drew resulted in the serious bodily injury of Carwile and not that Drew

committed the battery by means of a deadly weapon. Carwile testified that she “blacked

out” and experienced a loss of consciousness and excruciating pain, and the emergency

room physician who treated Carwile indicated that she suffered a second degree burn

with blistering on her left arm, which is painful, and a host of other injuries, including a

fractured jaw and extensive bruising and abrasions, and that he ordered morphine for her

pain. Transcript at 49.

       The jury was able to consider the evidence and testimony presented by the State

regarding Drew’s involvement in beating Carwile, the extent and severity of Carwile’s

injuries, and all of the evidence related to these issues. Based upon our review of the

evidence as set forth in the record and discussed above, we conclude that sufficient

evidence exists from which the jury could find Drew guilty beyond a reasonable doubt of

battery as a class C felony. See Wilder v. State, 716 N.E.2d 403, 405 (Ind. 1999) (noting

that it is the duty of the fact-finder to assess the credibility of witness testimony and

finding that the State presented evidence of the defendant’s identity as the perpetrator

involved in the offense).

B.     Domestic Battery

       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:

                                         *****
                                           10
                 (2)     is or was living as if a spouse of the other person as
                         provided in subsection (c);[5] . . .

                 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.

(2006) (Subsequently amended by Pub. L. No. 6-2012, § 225 (eff. Feb. 22, 2012)). To

convict Drew of domestic battery as a class D felony, the State needed to prove that he

knowingly or intentionally touched Carwile, who was living as if a spouse of his, in a

rude, insolent, or angry manner which resulted in bodily injury in the physical presence




       5
           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 in
       subsection (a)(2), the court shall review the following:

       (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.

(2006) (subsequently amended by Pub. L. No. 6-2012, § 225 (eff. Feb. 22, 2012)).
                                                      11
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.

       Drew asserts that the evidence is not sufficient to show that he committed

domestic battery in the presence of a child less than sixteen years of age. He argues that

Carwile’s daughter, P.C., was in her room watching television when the first altercation

took place, that there was no testimony about whether P.C. could hear the altercation, and

that Carwile closed the door to P.C.’s bedroom after the first altercation. Drew also

argues that, while W.D. was present in the house, Carwile did not testify about where he

was during any of the altercations. The State argues that Drew called W.D. to the

bedroom, told Carwile to leave, and then, when she refused, shoved Carwile into the

window, and that the jury could reasonably infer that W.D. was still in the bedroom when

Drew pushed Carwile, or that he was near enough that he was able to hear the crime. The

State further argues that, at the time of the initial battery in Carwile’s bedroom, P.C. was

in an adjoining bedroom with the door open and that Carwile testified that, even if P.C.

was in her bedroom with the door closed, she would still be able to hear a loud argument

or altercation in the house.

       In Manuel v. State, this court concluded that “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.” 971 N.E.2d 1262, 1270 (Ind. Ct.

App. 2012) (citing Boyd v. State, 889 N.E.2d 321, 325 (Ind. Ct. App. 2008) (holding that

I.C. § 35-42-2-1.3(b)(2) does not require that a child actually sense the battery but that it

is sufficient that the child might see or hear the battery), trans. denied). In True v. State,
                                              12
this court found that “presence” for purposes of Ind. Code § 35-42-2-1.3(b)(2) is “defined

as knowingly being within either the possible sight or hearing of a child.” 954 N.E.2d

1105, 1111 (Ind. Ct. App. 2011).

       The record reveals that P.C. was in her bedroom watching television and that the

door was open when Drew went into Carwile’s bedroom, called W.D. to come to him,

and told Carwile to leave. Carwile refused to leave the bedroom, and Drew shoved her,

causing her to strike her right eye on the window sill. Carwile testified that her house

was “a ranch type [] home” and, when asked whether, even with the door to P.C.’s

bedroom closed, P.C. would be able to hear a loud altercation, Carwile responded

affirmatively. Transcript at 65. Also, W.D. was confronted by Carwile in the living

room, was called into Carwile’s bedroom by Drew prior to Drew shoving Carwile, and

was in the house during the time Drew struck and beat Carwile in the kitchen. A

reasonable jury could infer, based upon the evidence, that either W.D. or P.C. might see

or hear the offense. See Manuel, 971 N.E.2d at 1270 (concluding that the State produced

sufficient evidence that the defendant committed domestic battery as a Class D felony in

the presence of children where the children were in their bedroom and supposedly asleep,

much of the parents’ argument occurred in the hallway outside of their room, and the

defendant was aware that the children might hear him). Therefore, we conclude that the

evidence was sufficient to prove beyond a reasonable doubt that Drew committed

domestic battery as a class D felony.

                                        CONCLUSION

       For the foregoing reasons, we affirm Drew’s convictions for battery as a class C

felony and domestic battery as a class D felony.
                                            13
     Affirmed.

NAJAM, J., and MATHIAS, J., concur.




                                      14
