      MEMORANDUM DECISION
                                                                   Oct 07 2015, 9:37 am
      Pursuant to Ind. Appellate Rule 65(D), this
      Memorandum Decision shall not be 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 APPELLEES
      Sergey Grechukhin                                      Gregory F. Zoeller
      Kirtley, Taylor, Sims, Chadd & Minnette,               Attorney General of Indiana
      P.C.
                                                             Richard C. Webster
      Lebanon, Indiana
                                                             Deputy Attorney General
                                                             Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Antionne Lamar Brewster,                                   October 7, 2015

      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 06A01-1502-CR-66

              v.                                                 Appeal from the Boone Superior
                                                                 Court
                                                                 The Honorable Matthew C. Kincaid,
      State of Indiana,                                          Judge
      Appellee-Plaintiff.                                        Trial Court Cause No. 06D01-1411-
                                                                 F6-183




      Bradford, Judge.



                                            Case Summary
[1]   Appellant-Defendant Antionne Brewster and J.P had been romantically

      involved for approximately four years as of November of 2014. On November

      Court of Appeals of Indiana | Memorandum Decision 06A01-1502-CR-66 | October 7, 2015    Page 1 of 6
      12, 2014, Brewster and J.P. argued over a telephone call J.P. received from a

      male coworker. When J.P. locked herself and her three children in a bedroom,

      Brewster broke the door open and proceeded to push, smack, choke, and bite

      J.P. J.P.’s children were in the “next room” when Brewster’s assault on J.P.

      occurred. Appellee-Plaintiff the State of Indiana eventually charged Brewster

      with two counts of Level 6 felony domestic battery, Level 6 felony

      strangulation, and Class A misdemeanor domestic battery. The trial court

      found Brewster guilty as charged and sentenced him to two and one-half years

      each for Level 6 felony domestic battery and Level 6 felony strangulation, both

      sentences to be served consecutively. Brewster contends that the State

      produced insufficient evidence to sustain his conviction for Level 6 felony

      domestic battery. Concluding that the State produced sufficient evidence to

      sustain the challenged conviction, we affirm.



                            Facts and Procedural History
[2]   By November of 2014, Brewster and J.P. had been romantically involved for

      approximately four years, were living together, and considered themselves to be

      husband and wife. (Tr. 29). At the time, J.P. had three children, all of whom

      were under the age of thirteen and none of whom were biologically Brewster’s.

      During the morning of November 12, 2014, Brewster and J.P. began arguing

      after J.P. received a telephone call from a male coworker. (Tr. 39). Brewster

      accused J.P. of “sleep[ing] around” and called her “[a] ho.” Tr. pp. 30, 31.




      Court of Appeals of Indiana | Memorandum Decision 06A01-1502-CR-66 | October 7, 2015   Page 2 of 6
[3]   Later, J.P. locked herself and her children in a bedroom, but Brewster “was not

      pleased with the door being locked and busted it in.” Tr. p. 31. Brewster

      pushed, smacked, and choked J.P. and “bit [her] on the face.” Tr. p. 32.

      During the attack, J.P.’s children “were in the next room.” Tr. p. 32.


[4]   On November 13, 2014, the State charged Brewster with Level 6 felony

      strangulation and Level 6 felony domestic battery. (Appellant's App. 37). On

      December 29, 2014, the State amended the charging information to add Count

      III, Class A misdemeanor domestic battery and Count IV, Level 6 felony

      domestic battery. (Appellant's App. 26-27). On January 12, 2015, the trial

      court conducted a bench trial, after which it found Brewster guilty as charged.

      (Appellant's App. 74-75). On February 5, 2015, the trial court entered

      judgment of conviction for one count of Level 6 felony domestic battery and

      Level 6 felony strangulation. (Tr. 101). That day, the trial court sentenced

      Brewster to two and one-half years of incarceration for each conviction, both

      sentences to be served consecutively. (Tr. 101-02).


                                 Discussion and Decision
            Whether the State Produced Sufficient Evidence to
            Sustain Brewster’s Conviction for Level 6 Felony
                            Domestic Battery
[5]   Brewster contends that the State produced insufficient evidence to sustain his

      Level 6 felony domestic battery conviction. When reviewing the sufficiency of

      the evidence, we neither reweigh the evidence nor resolve questions of


      Court of Appeals of Indiana | Memorandum Decision 06A01-1502-CR-66 | October 7, 2015   Page 3 of 6
      credibility. Jordan v. State, 656 N.E.2d 816, 817 (Ind. 1995). We look only to

      the evidence of probative value and the reasonable inferences to be drawn

      therefrom which support the verdict. Id. If from that viewpoint there is

      evidence of probative value from which a reasonable trier of fact could conclude

      that the defendant was guilty beyond a reasonable doubt, we will affirm the

      conviction. Spangler v. State, 607 N.E.2d 720, 724 (Ind. 1993).


[6]   Brewster challenges only the sufficiency of the State’s evidence to establish that

      he committed his battery of J.P. within the physical presence of her three

      children, which raises his domestic battery from a misdemeanor to a Level 6

      felony. Indiana Code section 35-42-2-1.3 provides, in part, as follows:


              (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); or
                      …
              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 Level 6 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.

[7]   Indiana Code section 35-42-2-1.3 requires only “the possibility that [the

      children] ‘might’ see or hear [the domestic battery].” True v. State, 954 N.E.2d

      Court of Appeals of Indiana | Memorandum Decision 06A01-1502-CR-66 | October 7, 2015   Page 4 of 6
      1105, 1111 (Ind. Ct. App. 2011). “‘Presence’ is defined as knowingly being

      within either the possible sight or hearing of a child.” Id. (emphasis omitted).


[8]   We conclude that the State proved that Brewster committed his domestic

      battery of J.P. in the physical presence of her three children. Brewster testified

      that he was aware that the children were present when the argument began, and

      the trial court was free to infer that he saw them again when he knocked in

      J.P.’s door directly before battering her. J.P. testified that as Brewster pushed,

      hit, choked, and bit her, her children were “in the next room.” Tr. p. 32.

      Brewster argues that J.P.’s testimony is unclear regarding whether the children

      were in the next room when he bit J.P., but we believe that a fair reading of the

      testimony in question indicates otherwise:

              Q.     How did he touch you?
              A.     He was pushing me, smacking me, he choked me out and
              bit me on my face?
              Q.     When you say he choked you out, what part of his body
              did he put on what part of your body?
              A.     He was laying on top of me and his hands were around my
              throat.
              Q.     Were you able to breathe while that was happening?
              A.     For the most part.
              Q.     Did you have trouble breathing?
              A.     Yes.
              Q.     Did you have any trouble speaking or saying anything at
              that time?
              A.     Yes.
              Q.     Where were the children when that was going on?
              A.     They were in the next room.

      Tr. p. 32.

      Court of Appeals of Indiana | Memorandum Decision 06A01-1502-CR-66 | October 7, 2015   Page 5 of 6
      We conclude that the State produced sufficient evidence to sustain a finding

      that the children were in the next room during Brewster’s battery of J.P., clearly

      within possible sight or hearing of the attack. Brewster’s argument amounts to

      an invitation to reweigh the evidence, which we will not do. Jordan, 656

      N.E.2d at 817.


[9]   The judgment of the trial court is affirmed.


      May, J., and Crone, J., concur.




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