MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                        FILED
this Memorandum Decision shall not be
                                                                         Jun 14 2018, 7:01 am
regarded as precedent or cited before any
court except for the purpose of establishing                                  CLERK
                                                                          Indiana Supreme Court
the defense of res judicata, collateral                                      Court of Appeals
                                                                               and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Andrew R. Falk                                           Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Lee M. Stoy, Jr.
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Kochelle Stumpf,                                         June 14, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         32A05-1712-CR-2940
        v.                                               Appeal from the Hendricks
                                                         Superior Court
State of Indiana,                                        The Honorable Stephenie LeMay-
Appellee-Plaintiff.                                      Luken, Judge
                                                         Trial Court Cause No.
                                                         32D05-1609-F5-117



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 32A05-1712-CR-2940 | June 14, 2018              Page 1 of 8
                          STATEMENT OF THE CASE
Appellant-Defendant, Kochelle Stumpf (Stumpf), appeals her conviction for

battery, a Level 5 felony, Ind. Code § 35-42-2-1(c)(1).


We affirm.


                                              ISSUE
Stumpf presents this court with one issue on appeal, which we restate as:

Whether the State presented sufficient evidence to sustain Stumpf’s conviction

for battery beyond a reasonable doubt.


                FACTS AND PROCEDURAL HISTORY
On September 6, 2016, Madison Wyland collected her ten-month-old daughter,

K.P., at ABC Childcare, located in Plainfield, Indiana. When Wyland changed

her daughter’s clothes later that day, she noticed scratches and nail marks

underneath the child’s arms. The following day, Wyland contacted the owner

of ABC Childcare, Tamela Hunt-Stephey (Stephey), to complain about her

daughter’s injuries and requested Stephey to review the surveillance footage.

Upon talking with the daycare workers, Wyland took her daughter to the

Plainfield Police Department to report the scratches and nail marks. Detective

Alison Riter (Detective Riter) was assigned to the investigation and went to

ABC Childcare to speak with the daycare workers and Stephey.


When Detective Riter arrived at ABC Childcare, she was shown surveillance

video footage of three different children, K.P., E.B., and J.P-R., who were all

Court of Appeals of Indiana | Memorandum Decision 32A05-1712-CR-2940 | June 14, 2018   Page 2 of 8
being supervised by the same daycare worker, Stumpf. Stumpf typically takes

care of children between the ages of three and five-years-old. However, toward

the end of the day on September 6, 2017, Stumpf was asked to relieve another

teacher and to cover a room with children between the ages of infant and three-

year-old. The first video excerpt, State’s Exh. A-IMG 2054, depicts Stumpf as

the main caregiver in the room, with an assistant sitting on a chair in the back

of the room. Stumpf is changing children’s diapers at the changing station with

several children sitting nearby. At a certain point, Stumpf walks to the back of

the room, and when she returns towards the changing station, she grabs two

children—who were seemingly underneath the changing table—one of which is

two-year-old E.B. As she turns around and has her back to the surveillance

camera, she appears to toss E.B. to the ground. During this entire encounter,

the assistant, who was new and shadowing Stumpf, never left her chair nor

helped Stumpf.


The second surveillance video excerpt, State’s Exh. A-IMG 2055, shows

Stumpf putting a sweatshirt and shoes on eleven-month-old, J.P-R. She takes

J.P-R out of the high chair and places him on the edge of a table. While Stumpf

is putting on his shoes, she twice pulls her arm away when J.P-R tries to grab it

to balance himself. She eventually forces J.P-R to lay down on the table by

pushing him down by the chest.


In the third surveillance video excerpt, State’s Exh. A-IMG 2056, Stumpf takes

K.P. out of a playpen and places her in a bouncy chair. She grabs K.P.’s bottle

and, when she returns to the bouncy chair, aggressively pushes K.P. back into

Court of Appeals of Indiana | Memorandum Decision 32A05-1712-CR-2940 | June 14, 2018   Page 3 of 8
the bouncy chair by pushing K.P.’s forehead, and forces the bottle into K.P.’s

mouth.


On September 29, 2016, the State filed an Information, charging Stumpf with

three Counts of battery, Level 5 felonies. On September 11 and 12, 2017, the

trial court conducted a jury trial. At the close of the evidence, the jury found

Stumpf guilty of battery involving E.B., and not guilty in the incidents involving

J.P-R and K.P. On November 15, 2018, the trial court held a sentencing

hearing and sentenced Stumpf to an executed sentence of 730 days, with 729

days suspended to probation.


Stumpf now appeals. Additional facts will be provided as necessary.


                        DISCUSSION AND DECISION
Stumpf contends that the State failed to present sufficient evidence to support

her conviction for battery beyond a reasonable doubt. When reviewing the

sufficiency of the evidence needed to support a criminal conviction, we neither

reweigh the evidence nor judge witness credibility. Bailey v. State, 907 N.E.2d

1005, 1005 (Ind. 2009). “We consider only the evidence supporting the

judgment and any reasonable inferences that can be drawn from such

evidence.” Id. 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 evidence need not be so

overwhelming as to overcome every reasonable hypothesis of innocence. Drane

v. Scott, 867 N.E.2d 144, 147 (Ind. 2007). The jury, as the trier of fact, is

Court of Appeals of Indiana | Memorandum Decision 32A05-1712-CR-2940 | June 14, 2018   Page 4 of 8
entitled to determine which version of the incident to credit and is the sole

judge of the effect that any discrepancies or contradictions might have on the

outcome of the case. Scott v. State, 867 N.E.2d 690, 695 (Ind. Ct. App. 2007),

trans. denied; Murray v. State, 761 N.E.2d 406, 409 (Ind. 2002).


To convict Stumpf of battery as a Level 5 felony, the State was required to

establish that Stumpf, a person of at least eighteen years of age, knowingly or

intentionally touched E.B., who was younger than fourteen years of age, in a

rude, insolent, or angry manner, which resulted in bodily injury. See I.C. § 35-

42-2-1. Stumpf’s argument contesting her conviction is two-fold: (1) she did

not touch E.B. in a rude, insolent, or angry manner; and (2) she did not cause

E.B.’s injury. We will address each contention in turn.


                              I. Rude, Insolent, or Angry Manner


Focusing on the lack of witnesses, Stumpf claims that “[t]he only testimony

regarding [her] manner came from those who watched the video without any

audio and who only saw the video at two-times the actual speed, which looked

worse than it would in real time.” (Appellant’s Br. p. 12). She references,

among others, E.B.’s father’s testimony on cross-examination who, after

viewing the surveillance video twice, admitted that he could not tell whether

E.B. “tripped over the little blonde girl’s feet[.]” (Transcript Vol. II, p. 255).


Resolution of this issue turns, in part, on the interpretation of the video

evidence in this case. When reviewing video evidence, “we give the trial court’s

decision great deference.” Love v. State, 73 N.E.3d 693, 698 (Ind. 2017).

Court of Appeals of Indiana | Memorandum Decision 32A05-1712-CR-2940 | June 14, 2018   Page 5 of 8
        But in those instances, where the video evidence indisputably
        contradicts the trial court’s findings, relying on such evidence
        and reversing the trial court’s findings does not constitute
        reweighing. To be clear, in order that the video evidence
        indisputably contradicts the trial court’s findings, it must be such
        that no reasonable person could view the video and conclude
        otherwise. When determining whether the video evidence is
        indisputable, a court should assess the video quality including
        whether the video is grainy or otherwise obscured, the lighting,
        the angle, the audio and whether the video is a complete
        depiction of the events at issue, among other things. In cases
        where the video evidence is somehow not clear or complete or is
        subject to different interpretation, we defer to the trial court’s
        interpretation.


Id. at 699-700.


The surveillance video submitted into evidence as State’s Exhibit A-IMG 2054

was clear and had proper lighting, but lacked audio and was taken at such an

angle that made the events difficult to see. Because Stumpf had her back turned

towards the camera and held the children in front of her, we only discern the

end result, i.e., Stumpf tossing E.B. onto the floor. Furthermore, the jury, who

viewed the surveillance video “anywhere between ten, twenty times” during

trial and again during their deliberations, was well aware of the speed of the

video. (Tr. Vol. III, p. 114).


In addition to the video evidence, the jury saw and heard Stumpf testify that on

September 6, 2016, she was caring for ten toddlers and six infants, one of whom

had a feeding tube. She was not getting the help that she was supposed to be

receiving from her assistant. Although Stumpf denied being frustrated, she

Court of Appeals of Indiana | Memorandum Decision 32A05-1712-CR-2940 | June 14, 2018   Page 6 of 8
explained that she had a lot to do during the time she was in that particular

room, [c]hanging diapers, feeding bottles.” (Tr. Vol. III, p. 21).


Based on all the evidence before it, the jury could reasonably conclude that

Stumpf touched E.B. in a rude, angry or insolent manner. This is not a case

where the video evidence indisputably contradicts the testimony deduced at

trial. As such, we decline to reweigh the evidence and we defer to the trier of

fact’s conclusion.


                                         II. E.B.’s Injury


Next, Stumpf challenges the jury’s conclusion that she caused E.B.’s bodily

injury. She maintains that “[i]n the absence of any video evidence that

[Stumpf] injured E.B., with no credible evidence that E.B. was injured at all

until approximately 48 hours later, and with the reasonable possibility that E.B.

was injured by his brother or in his mother’s home at another time, a reasonable

person could not have found beyond a reasonable doubt that [Stumpf] injured

E.B.” (Appellant’s Br. p. 15).


Again, Stumpf is asking us to invade the province of the jury and to reweigh the

evidence and credibility of the witnesses. Nevertheless, looking at the evidence

most favorable to the judgment, we note that the jury could reasonably have

inferred from all the evidence before it that Stumpf was responsible for E.B.’s

injury. First, the video evidence appears to indicate that E.B. fell with his head

on the floor and bounced back up onto his arms, causing Detective Riter to

testify at trial that E.B. “was hit [] and fell back[,] bounced his head off the

Court of Appeals of Indiana | Memorandum Decision 32A05-1712-CR-2940 | June 14, 2018   Page 7 of 8
floor.” (Tr. p. Vol. II, 159). Although E.B.’s mother did not initially observe

any injuries on E.B., E.B.’s father discovered a “minor bruise” on E.B.’s head

that was scabbed over the next day when he took E.B. to the barber and the

barber noticed the knot and bruising. (Tr. Vol. II, p. 247). Although E.B.’s

father offered an alternative explanation of E.B. being injured by his older

brother at E.B.’s mother’s house, the jury, as the trier of fact, is entitled to

determine which version of the incident to credit. See Scott, 867 N.E.2d at 695.

Accordingly, we find the evidence presented at trial was sufficient to sustain

Stumpf’s conviction for battery beyond a reasonable doubt.


                                      CONCLUSION
Based on the foregoing, we conclude that the State presented sufficient evidence

to support Stumpf’s conviction for battery as a Level 5 felony beyond a

reasonable doubt.


Affirmed.


May, J. and Mathias, J. concur




Court of Appeals of Indiana | Memorandum Decision 32A05-1712-CR-2940 | June 14, 2018   Page 8 of 8
