MEMORANDUM DECISION                                                      FILED
                                                                    Aug 03 2018, 7:46 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as                             CLERK
                                                                     Indiana Supreme Court
precedent or cited before any court except for the                      Court of Appeals
                                                                          and Tax Court
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Frederick Vaiana                                          Curtis T. Hill, Jr.
Voyles Vaiana Lukemeyer Baldwin &                         Attorney General of Indiana
Webb
Indianapolis, Indiana                                     Henry A. Flores, Jr.
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                             IN THE
    COURT OF APPEALS OF INDIANA

Jonathon Andrew Moore,                                   August 3, 2018

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-40
        v.                                               Appeal from the Marion Superior
                                                         Court

State of Indiana,                                        The Honorable Amy J. Barbar,
Appellee-Plaintiff.                                      Magistrate

                                                         Trial Court Cause No.
                                                         49G02-1608-F5-32542



Darden, Senior Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-40 | August 3, 2018                 Page 1 of 7
                                              Statement of the Case
[1]   Jonathon Andrew Moore appeals his conviction of battery by a person at least

      eighteen years of age resulting in bodily injury to a person under fourteen years
                                          1
      of age, a Level 5 felony. We affirm.


                                                      Issue
[2]   Moore raises one issue, which we restate as: whether the evidence is sufficient

      to sustain Moore’s conviction.


                                   Facts and Procedural History
[3]   On Sunday, August 7, 2016, Moore took his children, eleven-year-old G.M.

      and six-year-old N.M., to a birthday party. At one point, N.M. was eating food

      outside when a bee flew near her. She became scared and swatted at it, but it

      landed in her food and attempted to land on her. N.M. then swatted at it again,

      crying in fear. Moore walked over to her. He was upset and told her to stop

      swatting at the bee.


[4]   Next, Moore put G.M. and N.M. in his car, preparing to take G.M. back to his

      mother’s home. Both children sat in the back seat, with G.M. sitting behind the

      driver’s seat and N.M. sitting behind the front passenger seat. Moore turned

      toward N.M. He was “mad.” Tr. Vol. II, pp. 27, 43. Moore told N.M., “I told

      you to . . . stop swatting at that bee.” Id. at 42. He then slapped N.M. in the



      1
          Ind. Code § 35-42-2-1 (2016).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-40 | August 3, 2018   Page 2 of 7
      face and on her arm several times. Moore hit N.M. “hard,” causing her to cry.

      Id. at 26. Next, he drove G.M. home, dropped him off, and took N.M. back to

      the party.


[5]   On Monday, August 8, N.M. went to school. N.M.’s teacher noticed a mark

      on the side of her face and a welt on her forehead. N.M. did not have the

      marks on her face the previous Friday. The teacher alerted her principal and

      called the Department of Child Services. She also called N.M.’s mother,

      Latasha Colvin.


[6]   Colvin had not seen N.M. since the previous Friday because Moore had

      exercised parenting time with N.M. that weekend. Colvin went to N.M.’s

      school and, upon seeing N.M., noticed a mark on the right side of her face and

      a welt on her forehead.


[7]   Next, Colvin checked N.M. out of school, called the police, and took N.M. to a

      hospital. A forensic nurse examined N.M. and saw a red mark on the right side

      of her face. The nurse opined that the mark was consistent with being struck by

      a hand.


[8]   On August 10, 2016, forensic interviewers spoke with N.M. about her injury. A

      detective observed the interview and also noted a bruise on the right side of

      N.M.’s face. The bruise resembled a handprint. The detective also interviewed

      Moore, who denied striking N.M. He instead claimed N.M. must have been

      accidentally struck by another child while playing at the party.



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-40 | August 3, 2018   Page 3 of 7
[9]    On August 22, 2016, the State charged Moore with battery by a person eighteen

       years of age resulting in bodily injury to a person less than fourteen years of age,

       a Level 5 felony. Moore waived his right to a jury trial, and the case was tried

       to the bench. Moore testified that after he put G.M. and N.M. in the car, she

       screamed that there was a bee in the car. He further claimed that he

       accidentally hit N.M. while attempting to get the insect out of the car. The trial

       court determined Moore was guilty, stating as follows:


               Well the court finds there was remarkable consistence [sic] in the
               testimony of these two children who haven’t seen each other in a
               year. And particularly in regard to the details of when the child
               was struck. Even children know the difference, as they showed
               by their testimony between somebody swatting a bee and an
               angry father, and the most inconsistent testimony in this case was
               from the defendant. And the statements he gave to the detective
               beforehand. Based upon all the evidence the court has seen, the
               court finds the state did prove beyond a reasonable doubt that the
               defendant committed a battery on a child less than fourteen years
               of age, and so will enter judgment of conviction as to count one,
               a level five felony.

       Tr. Vol. II, p. 96. The trial court subsequently held a sentencing hearing and

       imposed a sentence. This appeal followed.


                                    Discussion and Decision
[10]   Moore argues the evidence is insufficient to support his conviction. Our

       standard of review for sufficiency of the evidence is well-settled. We do not

       reweigh the evidence or assess the credibility of witnesses. Bell v. State, 31

       N.E.3d 495, 499 (Ind. 2015). We consider only the probative evidence and


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-40 | August 3, 2018   Page 4 of 7
       reasonable inferences supporting the judgment. Perryman v. State, 80 N.E.3d

       234, 250 (Ind. Ct. App. 2017). We will affirm the trial court if the probative

       evidence and reasonable inferences drawn from the evidence could have

       allowed a reasonable trier of fact to find the defendant guilty beyond a

       reasonable doubt. Tobar v. State, 740 N.E.2d 109, 111-12 (Ind. 2000).


[11]   To convict Moore as charged, the State was required to prove beyond a

       reasonable doubt that (1) Moore, (2) who was more than eighteen years of age,

       (3) knowingly or intentionally (4) touched N.M., (5) who was less than fourteen

       years of age, (6) in a rude, insolent, or angry manner, (7) resulting in bodily

       injury to N.M. Ind. Code § 35-42-2-1. The key question is whether Moore

       knowingly or intentionally struck N.M. He claims the mark on N.M.’s face

       was the result of “accidental contact.” Appellant’s Br. p. 10.


[12]   As the General Assembly has stated:


               (a) A person engages in conduct ‘intentionally’ if, when he
               engages in the conduct, it is his conscious objective to do so.
               (b) 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 (1977). Because knowledge is a mental state of the actor,

       it may be proved by circumstantial evidence and inferred from the

       circumstances and facts of each case. Smith v. State, 963 N.E.2d 1110, 1113

       (Ind. 2012).




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-40 | August 3, 2018   Page 5 of 7
[13]   Both children testified that Moore placed them in his car and was “mad.” They

       further testified that Moore turned to N.M. and, after reminding her that he had

       told her to stop swatting at the bee, slapped her several times on her face and

       arm. N.M. cried because Moore struck her “hard,” but he simply told her to

       stop crying. One of Moore’s slaps left a red handprint on the right side of her

       face.


[14]   When a detective interviewed Moore about the incident several days later, he

       denied touching N.M. and stated that she must have been struck by another

       child at the party. However, at trial he contradicted himself, testifying that he

       accidentally hit her while trying to get an insect out of his car. This evidence is

       sufficient to establish beyond a reasonable doubt that Moore knowingly or

       intentionally struck N.M.; and, that he did so in a rude, insolent, or angry

       manner. See Cooper v. State, 831 N.E.2d 1247, 1251 (Ind. Ct. App. 2005) (State

       presented sufficient evidence to disprove Cooper’s claim that she accidentally

       struck child victim; Cooper was angry and struck the child repeatedly, with

       force), trans. denied. Moore’s citation to his own testimony is a request to

       reweigh the evidence, which our standard of review forbids.


[15]   Moore further raises a defense of parental privilege, claiming he cannot be held

       criminally liable for striking N.M. because it was a reasonable use of force that

       was necessary to discipline his child. Moore did not present this defense to the

       trial court. Instead, he argued at trial that he struck N.M. by accident. Moore

       is thus raising the defense of parental privilege for the first time on appeal and



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-40 | August 3, 2018   Page 6 of 7
       has procedurally defaulted it. See Benson v. State, 762 N.E.2d 748, 755-56 (Ind.

       2002) (claims not presented to trial court could not be considered on appeal).


                                                Conclusion
[16]   For the reasons stated above, we affirm the judgment of the trial court.


[17]   Affirmed.


       Bailey, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-40 | August 3, 2018   Page 7 of 7
