Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                   Dec 18 2014, 10:12 am
regarded as precedent or cited before                              Dec 18 2014, 10:12 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:

STEVEN KNECHT                                      GREGORY F. ZOELLER
Vonderheide & Knecht, P.C.                         Attorney General of Indiana
Lafayette, Indiana
                                                   JODI KATHRYN STEIN
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

LANDON HARBERT,                                    )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )       No. 79A05-1312-CR-634
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                     APPEAL FROM THE TIPPECANOE SUPERIOR COURT
                             The Honorable Les A. Meade, Judge
                                Cause No. 79D05-1301-FD-2


                                       December 18, 2014

                MEMORANDUM DECISION - NOT FOR PUBLICATION

PYLE, Judge
                                 STATEMENT OF THE CASE

       Landon Harbert (“Harbert”) appeals his conviction, after a jury trial, for Class D

felony domestic battery.1 On appeal, Harbert claims that the State failed to prove that the

battery occurred in the presence of children under the age of sixteen. Concluding that the

altercation occurred at a place where children were present and might have seen or heard

it, we affirm Harbert’s conviction.

       We affirm.

                                               ISSUE

             Whether sufficient evidence supports Harbert’s conviction.

                                              FACTS

       On December 30, 2012, Officer Adam Ferguson (“Officer Ferguson”) of the West

Lafayette Police Department responded to a domestic disturbance in progress. When he

arrived, he saw Kristin Harbert (“Kristin”) on the ground with Harbert, her husband,

standing over her and screaming at her. Megan Simpson (“Simpson”) was also standing

a short distance away. All three people were located near the front door of the house.

       As Officer Ferguson approached, he ordered Harbert to stop. Harbert stopped

yelling and went inside the house. With Simpson’s help, Kristin stood up. However,

Kristin did not want to tell Officer Ferguson anything about the incident. He observed

that Kristin was “very red,” crying, covered in snow, and appeared to be afraid. (Tr. 56).

Simpson would later tell an officer that Harbert had hit Kristin.


1
 IND. CODE § 35-42-2-1.3(b)(2) (2012). We note that, effective July 1, 2014, a new version of this
domestic battery statute was enacted and that Class D felony domestic battery is now a Level 6 felony.
Because Harbert committed this offense in 2012, we will apply the statute in effect at that time.
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          Officer Ferguson went to the door, knocked loudly, and asked for Harbert to come

out and talk to him. The officer heard movement in the house, but Harbert did not come

to the door. In the meantime, Officer Jeffrey Dunscomb (“Officer Dunscomb”) arrived at

the residence and waited with Kristin and Simpson while Officer Ferguson attempted to

make contact with Harbert. Officer Dunscomb spoke with Kristin and observed that “she

was shaking, [and was] visibly very, very upset.” (Tr. 78). He also observed that Kristin

had a bloody upper lip, a fat lower lip, a mark under her right eye, and swelling on the

left side of her forehead. Officer Dunscomb learned that children were in the house, and

the officers began to focus on getting them out safely. The children ranged in age from

seven to eighteen. A SWAT team eventually went into the home and got the children out

safely.     Afterward, the officers again attempted to contact Harbert but received no

response. Officers eventually went inside, located Harbert in a locked bedroom, and took

him into custody.

          On January 2, 2013, the State charged Harbert with domestic battery, a Class D

felony, alleging that the battery occurred in the presence of a child less than sixteen years

of age; domestic battery, a Class A misdemeanor; interference with reporting of a crime,

a Class A misdemeanor; and criminal mischief, a class A misdemeanor.

          On October 22, 2013, a jury trial was conducted, and the jury found Harbert guilty

of felony and misdemeanor domestic battery and criminal mischief. At sentencing, the

trial court merged the domestic battery convictions and sentenced Harbert to two and one

half (2 ½) years executed on the domestic battery conviction and one (1) year on the

criminal mischief conviction.       The trial court ordered the convictions to be served

                                              3
concurrently in the Department of Correction. Harbert now appeals his conviction for

felony domestic battery. We will provide additional facts as necessary.

                                        DECISION

       Harbert argues that insufficient evidence supports his conviction for felony

domestic battery. Harbert does not dispute that he hit Kristin; he only argues that the

State did not present sufficient evidence proving that the battery occurred in the presence

of a child sixteen (16) years of age or younger.

               When reviewing the sufficiency of the evidence to support a
       conviction, appellate courts must consider only the probative evidence and
       reasonable inferences supporting the verdict. It 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 to support a conviction. To preserve
       this structure, when appellate courts are confronted with conflicting
       evidence, they must consider it most favorably to the trial court’s ruling.
       Appellate courts affirm the conviction unless no reasonable fact-finder
       could find the elements of the crime proven beyond a reasonable doubt. It
       is therefore not necessary that the evidence overcome every reasonable
       hypothesis of innocence. The evidence is sufficient if an inference may
       reasonably be drawn from it to support the verdict.

Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (internal quotation marks and

citations omitted).

       To convict Harbert of Class D felony domestic battery, the State had to prove that

he knowingly or intentionally battered and injured Kristin “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.” I.C. § 35-42-2-1.3(b)(2). It is well established under

INDIANA CODE § 35-42-2-1.3(b)(2) that “none of the children had to actually sense the

battery; there only needed be the possibility that they ‘might’ see or hear it.” True v.


                                             4
State, 954 N.E.2d 1105, 1111 (Ind. Ct. App. 2011) (citing Boyd v. State, 889 N.E.2d 321,

325 (Ind. Ct. App. 2008), trans. denied).

       Here, Harbert argues that insufficient evidence supports his conviction because the

battery took place outside of the house while the children were inside. He further relies

on Kristin’s testimony that the house was long and that the children were inside asleep to

support his claim that the children did not see or hear the altercation. However, as we

noted in True, the children here did not have to sense the battery. Id. The possibility that

they might have seen or heard it is sufficient. Id. Officer Ferguson testified that he

observed Harbert yelling at Kristin while standing over her. Further, the altercation

occurred close to the front door of the house. It was not unreasonable for the jury to

conclude that it was possible that the children might have heard or seen the altercation.

Accordingly, sufficient evidence supports the jury’s verdict, and we affirm Harbert’s

conviction for Class D felony domestic battery.

       We affirm.

NAJAM, J., and BAILEY, J., concur.




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