MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                          FILED
this Memorandum Decision shall not be                                      Jan 30 2018, 9:52 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Timothy J. Burns                                         Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         Jesse R. Drum
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Gregory Fisher,                                          January 30, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A04-1708-CR-1856
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Christina R.
Appellee-Plaintiff.                                      Klineman, Judge
                                                         Trial Court Cause No.
                                                         49G17-1707-CM-24454



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1708-CR-1856 | January 30, 2018             Page 1 of 5
                                       Statement of the Case
[1]   Gregory Fisher appeals his convictions for domestic battery, as a Class A

      misdemeanor, and battery, as a Class A misdemeanor, following a bench trial.

      Fisher raises a single issue for our review, namely, whether the State presented

      sufficient evidence to support his convictions. We also consider the following

      issue: whether Fisher’s two convictions for the same act violate Indiana’s

      prohibitions against double jeopardy.


[2]   We affirm in part, reverse in part, and remand with instructions.


                                 Facts and Procedural History
[3]   In July of 2017, Fisher and Christine Thomas lived together in Indianapolis and

      were in a relationship. Thomas had lived with Fisher “[o]n and off for about a

      year.” Tr. Vol. 2 at 7. On July 3, Fisher, Thomas, and Thomas’s daughter,

      Lorrie, had dinner at a restaurant. There, Fisher became belligerent and began

      yelling at Thomas and Lorrie and calling them vulgar names. Thomas and

      Lorrie left the restaurant and returned to Thomas’ residence.


[4]   About an hour later, Fisher arrived. He “was beating on the door, calling us

      names, threatening us, [and] . . . being . . . belligerent.” Id. at 10. Thomas

      refused to let Fisher in the residence and instead called the police. The police

      arrived thereafter and told Fisher that she “had every right to stay behind that

      door until [she] felt safe.” Id. The police then left.




      Court of Appeals of Indiana | Memorandum Decision 49A04-1708-CR-1856 | January 30, 2018   Page 2 of 5
[5]   An hour after the police left, Fisher climbed into the residence through a living

      room window. Inside, Fisher again screamed at Thomas and Lorrie. He then

      threw an ashtray at Thomas and hit her, which left a bruise on her leg. He also

      grabbed Thomas by her arm, which caused her pain, redness, and bruising.

      Thomas grabbed a nearby golf club and hit Fisher with it. Fisher then “ran out

      the door” and told Thomas she “was going to go to jail.” Id.


[6]   Thomas called the police, who thereafter arrived and arrested Fisher. The State

      charged Fisher, in relevant part, with one count of domestic battery, as a Class

      A misdemeanor, and one count of battery, as a Class A misdemeanor.

      Specifically, the State charged Fisher with domestic battery for “grabbing and

      squeezing Christina Thomas’ arm,” and the State charged Fisher with battery

      for “grabbing and squeezing Christina Thomas’ arm.” Appellant’s App. Vol. II

      at 17. After a bench trial, the court found Fisher guilty on those two counts.

      The court entered its judgment of conviction and sentenced Fisher accordingly.

      This appeal ensued.


                                     Discussion and Decision
                                Issue One: Sufficiency of the Evidence

[7]   Fisher asserts on appeal that the State failed to present sufficient evidence to

      support his convictions. “Our standard of review is deferential to the factfinder:

      ‘we consider only the evidence and reasonable inferences most favorable to the

      convictions, neither reweighing evidence nor reassessing witness credibility.’”

      Taylor v. State, 86 N.E.3d 157, 163 (Ind. 2017) (quoting Griffith v. State, 59


      Court of Appeals of Indiana | Memorandum Decision 49A04-1708-CR-1856 | January 30, 2018   Page 3 of 5
      N.E.3d 947, 958 (Ind. 2016)). “We will reverse only if no reasonable factfinder

      could find [the defendant] guilty.” Id. at 163-64.


[8]   According to Fisher: “[t]here was an insufficient amount of evidence to support

      these convictions for Domestic Battery and Battery to Christine Thomas where

      she was the actual batterer.” Appellant’s Br. at 6. Fisher continues: “the

      elements of the crime[s] . . . pertain equally to the actions of” Fisher and

      Thomas. Id. at 7. Fisher further asserts that “this house was [his] and he had

      every right to be there and should not be prevented from going into his own

      house.” Id. at 8. That is, Fisher says that “[h]e is the true victim . . . .” Id.


[9]   We reject Fisher’s arguments on appeal. The evidence most favorable to the

      trial court’s judgment demonstrates that Fisher committed domestic battery, as

      a Class A misdemeanor, when he knowingly or intentionally grabbed Thomas,

      who was a household member, in a rude, insolent, or angry manner. See Ind.

      Code § 35-42-2-1.3(a)(1) (2017). The evidence further shows that Fisher

      committed battery, as a Class A misdemeanor, when he knowingly or

      intentionally grabbed Thomas in a rude, insolent, or angry manner, which

      resulted in bodily injury to Thomas in the form of pain and bruising. See I.C. §

      35-42-2-1(c)(1), (d)(1); see also I.C. § 35-31.5-2-29 (“Bodily injury” includes

      “physical pain”). Fisher’s arguments on appeal simply seek to have this Court

      disregard the evidence most favorable to the trial court’s judgment and, in the

      place of that evidence, rely on evidence Fisher prefers, which we cannot do.

      Accordingly, the State presented sufficient evidence to support Fisher’s

      convictions.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1708-CR-1856 | January 30, 2018   Page 4 of 5
                                       Issue Two: Double Jeopardy

[10]   Indiana has “long adhered to a series of rules of statutory construction and

       common law that are often described as double jeopardy, but are not governed

       by the constitutional test[s] set forth” under the Fifth Amendment to the United

       States Constitution or Article 1, Section 14 of the Indiana Constitution. Guyton

       v. State, 771 N.E.2d 1141, 1143 (Ind. 2002). One of those categories prohibits

       “[c]onviction and punishment for a crime which consists of the very same act as

       another crime for which the defendant has been convicted and punished.” Id.

       (quoting Richardson v. State, 717 N.E.2d 32, 56 (Ind. 1999) (Sullivan, J.,

       concurring)). For example, our Supreme Court has prohibited “a battery

       conviction” where “the information showed that the identical touching was the

       basis of a second battery conviction.” Id. (discussing Richardson, 717 N.E.2d at

       56 (Sullivan, J., concurring)).


[11]   Here, the information shows that the same touching was the basis for both

       Fisher’s conviction for domestic battery and his conviction for battery.

       Accordingly, he may not be convicted on both charges. Id. We reverse his

       conviction for battery, as a Class A misdemeanor, and remand with instructions

       for the trial court to vacate that conviction.


[12]   Affirmed in part, reversed in part, and remanded with instructions.


       Mathias, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1708-CR-1856 | January 30, 2018   Page 5 of 5
