      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),                                FILED
      this Memorandum Decision shall not be                             Dec 16 2016, 9:03 am
      regarded as precedent or cited before any
                                                                            CLERK
      court except for the purpose of establishing                      Indiana Supreme Court
                                                                           Court of Appeals
      the defense of res judicata, collateral                                and Tax Court

      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
      Sally Skodinski                                         Gregory F. Zoeller
      South Bend, Indiana                                     Attorney General

                                                              Caryn N. Szyper
                                                              Deputy Attorney General
                                                              Indianapolis, Indiana


                                                IN THE
          COURT OF APPEALS OF INDIANA

      Javier A. Simental,                                     December 16, 2016
      Appellant-Defendant,                                    Court of Appeals Case No.
                                                              71A04-1606-CR-1240
              v.                                              Appeal from the St. Joseph
                                                              Superior Court
      State of Indiana,                                       The Honorable John M.
      Appellee-Plaintiff                                      Marnocha, Judge
                                                              Trial Court Cause No.
                                                              71D02-1503-F6-131



      Crone, Judge.



[1]   A jury found Javier A. Simental guilty of level 6 felony domestic battery, and he

      argues that the evidence is insufficient to support his conviction. We affirm.
      Court of Appeals of Indiana | Memorandum Decision 71A04-1606-CR-1240 | December 16, 2016   Page 1 of 4
[2]   In reviewing a claim of insufficient evidence, we do not reweigh the evidence or

      judge the credibility of witnesses, and we consider only the evidence–even if

      conflicting–that supports the conviction and the reasonable inferences arising

      therefrom. Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009). “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. The uncorroborated testimony of a single witness is sufficient to

      sustain a conviction, even when that witness is the victim. Id.


[3]   To convict Simental of level 6 felony domestic battery as charged, the State was

      required to prove beyond a reasonable doubt that he knowingly touched a

      person with whom he has a child in common in a rude, insolent, or angry

      manner resulting in bodily injury to that person in the physical presence of a

      child less than sixteen years of age, knowing the child was present and might be

      able to see or hear the offense. Ind. Code § 35-42-2-1.3(a), -(b)(2); Appellant’s

      App. at 10. Simental claims that the evidence was insufficient to show that he

      knowingly struck the victim. “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.


[4]   The facts most favorable to the verdict show that in November 2014, Simental

      and his girlfriend Liliana Victoria argued over whether their two-year-old child

      should go to church with Victoria or stay home with Simental. Victoria took

      the child to her bedroom to dress her. Simental grabbed Victoria by the hair

      and pulled her out in the hallway with his hand around her neck. In the

      Court of Appeals of Indiana | Memorandum Decision 71A04-1606-CR-1240 | December 16, 2016   Page 2 of 4
      kitchen, Victoria tried to get her cell phone out of her handbag to call 911.

      Victoria and Simental struggled over the phone. Simental “smacked” Victoria

      on the head, which hurt “a lot” and “knocked her to the ground.” Tr. at 109,

      172. Simental held Victoria on the floor and kicked her. The child followed

      them into the kitchen to find Victoria crying. Victoria and the child, who was

      also crying, hid behind a furnace and called 911. On the 911 call, Victoria

      reported that Simental “had smacked [her] really hard and [she] thought [she]

      was going to pass out.” Id. at 112. Police officers arrived at the scene, but

      Simental was gone. The police observed that Victoria appeared distraught, was

      shaking and red in the face, and had been crying. Victoria had bruises and

      marks on her neck and experienced head pain for a few days following the

      incident.


[5]   Simental asserts that he accidentally struck Victoria and that he so testified at

      trial. See id. at 172 (“I didn’t mean to, but I did smack her one time.”). He

      observes that although the State charged him with two counts–level 6 felony

      strangulation and level 6 felony domestic battery–the jury found him guilty only

      on the battery count. According to Simental, the jury must not have given any

      weight to Victoria’s testimony regarding the strangulation count, and therefore

      the verdict must have been based on what he admitted in his testimony.

      Simental’s argument is without merit. “‘The jurors are the triers of fact, and in

      performing this function, they may attach whatever weight and credibility to the

      evidence as they believe is warranted.’” Parks v. State, 734 N.E.2d 694, 700

      (Ind. Ct. App. 2000) (quoting Hicks v. State, 426 N.E.2d 411, 414 (Ind. 1981)).


      Court of Appeals of Indiana | Memorandum Decision 71A04-1606-CR-1240 | December 16, 2016   Page 3 of 4
      The jury is free to believe some portions and disbelieve other portions of a

      witness’s testimony. Id. Simental’s argument is an invitation to reweigh the

      evidence, which we must decline. We conclude that the evidence is sufficient

      to show that Simental knowingly struck Victoria, and therefore we affirm his

      conviction.


[6]   Affirmed.


      Riley, J., and Altice, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 71A04-1606-CR-1240 | December 16, 2016   Page 4 of 4
