MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                           FILED
this Memorandum Decision shall not be                                       Jan 04 2018, 10:27 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
Jeffery Haupt                                            Curtis T. Hill, Jr
Law Office of Jeffery Haupt                              Attorney General of Indiana
South Bend, Indiana
                                                         Henry A. Flores, Jr.
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Robert Fitzsimmons,                                      January 4, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         71A03-1707-CR-1629
        v.                                               Appeal from the St. Joseph
                                                         Superior Court
State of Indiana,                                        The Honorable Keith Doi,
Appellee-Plaintiff.                                      Magistrate
                                                         The Honorable Jeffrey Sanford,
                                                         Judge
                                                         Trial Court Cause No.
                                                         71D03-1602-CM-945



Barnes, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A03-1707-CR-1629 |January 4, 2018                Page 1 of 5
                                             Case Summary
[1]   Robert Fitzsimmons appeals his conviction, following a bench trial, for Class A

      misdemeanor domestic battery. We affirm.


                                                     Issue
[2]   The sole issue before us is whether there is sufficient evidence to sustain

      Fitzsimmons’s conviction.


                                                     Facts
[3]   In February 2016, Fitzsimmons and A.W. were in a romantic relationship and

      living together in a house that they leased jointly in Mishawaka. For “a couple

      of days” before February 25, 2016, tensions were high in the pair’s relationship

      because A.W. refused to perform a certain sex act. Tr. Vol. II p. 4. On

      February 25, 2016, with A.W.’s children upstairs and the pair’s roommate in

      his room, Fitzsimmons stood over A.W. as she was seated on a sofa and “kept

      getting more aggressive and more aggressive[.]” Id. at 5. He “was really mad

      and he was yelling.” Id. at 6. His body language gave A.W. the impression

      that she “was going to get hurt.” Id. She “wanted to leave and [he] didn’t want

      [her] to leave.” Id. at 7. For “probably half an hour,” Fitzsimmons stood over

      A.W. with “his finger pointing in [her] face.” Id. He “poked” her and “busted

      [her] lip,” hurting her. Id. at 16, 17. Fitzsimmons “stop[ped] [A.W.] from

      calling the police.” Id. at 25. Afterwards, as her children were crying upstairs,

      Fitzsimmons retrieved a washrag for A.W., “telling [her] to clean [her bloodied

      lip] up.” Id. at 8.

      Court of Appeals of Indiana | Memorandum Decision 71A03-1707-CR-1629 |January 4, 2018   Page 2 of 5
[4]   A.W. “got her kids downstairs” and “out the back door,” but when she “went

      to follow,” Fitzsimmons “stopped [her] from following them.” Id. at 10. There

      was a struggle as A.W. tried to exit the house; Fitzsimmons “put his arm out,”

      and A.W. “ended up getting knocked down into some plants.” Id. She placed

      her children into her vehicle and called 911. Officer Joseph Makowski of the

      Mishawaka Police Department responded to the scene. When he arrived,

      A.W. was in a car behind the house. “She was crying. She was disheveled.

      She had what looked like dried blood on her mouth and [was] very nervous,

      shaking.” Id. at 28. Office Makowski placed Fitzsimmons under arrest.


[5]   On February 26, 2016, the State charged Fitzsimmons with Class A

      misdemeanor domestic battery of A.W. He was tried to the bench on February

      28, 2017. A.W. testified to the foregoing facts. Officer Makowski testified as

      follows under direct examination:


              [A.W.] had told me that she and her boyfriend had gotten into an
              argument the night before and they had been basically arguing
              the whole night. And on that particular day she was trying to
              leave and he would not allow her to leave. She went into the
              house to get her keys, I believe, went back up to the bathroom.
              He would not allow her to leave. She tried to get past him and in
              doing so he kept pushing her face and that’s how she got the
              injury to her lip.


      Id. at 31. Fitzsimmons testified that he did not punch, slap, kick, or hit A.W.

      When asked if he had any “idea how [A.W.]’s lip ended up bloody,”

      Fitzsimmons responded, “No.” Id. at 61. The trial court found Fitzsimmons

      guilty as charged; he now appeals.


      Court of Appeals of Indiana | Memorandum Decision 71A03-1707-CR-1629 |January 4, 2018   Page 3 of 5
                                                  Analysis
[6]   Fitzsimmons claims there is insufficient evidence to sustain his conviction.

      When analyzing a claim of insufficient evidence to support a conviction, we

      must consider only the probative evidence and reasonable inferences supporting

      the judgment. Sallee v. State, 51 N.E.3d 130, 133 (Ind. 2016). “It is the

      factfinder’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.” Id. The evidence does not have to overcome every reasonable

      hypothesis of innocence, and it is sufficient if an inference may reasonably be

      drawn to support the conviction. Id.


[7]   To convict Fitzsimmons of Class A misdemeanor domestic battery as charged,

      the State was required to prove that he knowingly or intentionally touched

      A.W. in a rude, insolent, or angry manner resulting in bodily injury, and that

      A.W. was living with Fitzsimmons as if she were his spouse. Ind. Code § 35-

      42-2-1.3. Fitzsimmons’s only argument on appeal is that there was insufficient

      evidence of his intent to commit the charged offense.


[8]   The evidence most favorable to the conviction is that Fitzsimmons—frustrated

      and angry with A.W. for rebuffing his advances—stood over her and shouted at

      her aggressively with his index finger pointed at her face over a thirty-minute

      period; he eventually jabbed her lip, bloodying it. When she tried to leave with

      her children, Fitzsimmons thrust out his arm in a manner that knocked her

      down. The above-stated testimony is sufficient to support the reasonable


      Court of Appeals of Indiana | Memorandum Decision 71A03-1707-CR-1629 |January 4, 2018   Page 4 of 5
      inference that Fitzsimmons knowingly and intentionally battered A.W.1 We

      regard Fitzsimmons’s contentions on appeal as asking us to weigh the evidence

      and assess witness credibility, which we cannot do. See Sallee, 51 N.E.3d at

      133.


                                                  Conclusion
[9]   There is sufficient evidence to sustain Fitzsimmons’s conviction for Class A

      misdemeanor domestic battery. We affirm.


      Affirmed.


      Najam, J., and Mathias, J., concur.




      1
       Fitzsimmons does not challenge the sufficiency of the evidence regarding any of the other elements of
      domestic battery.


      Court of Appeals of Indiana | Memorandum Decision 71A03-1707-CR-1629 |January 4, 2018            Page 5 of 5
