MEMORANDUM DECISION
                                                                     Apr 24 2015, 8:38 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 APPELLEE
Ann M. Sutton                                             Gregory F. Zoeller
Marion County Public Defender Agency,                     Attorney General of Indiana
Appellate Division
                                                          Karl M. Scharnberg
Indianapolis, Indiana
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Raymond Welch,                                            April 24, 2015

Appellant-Defendant,                                      Court of Appeals Case No.
                                                          49A04-1409-CR-432
        v.                                                Appeal from the Marion Superior
                                                          Court
State of Indiana,                                         The Honorable Helen Marchal,
                                                          Judge
Appellee-Plaintiff.
                                                          Cause No. 49G16-1407-CM-34351




Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1409-CR-432 | April 24, 2015        Page 1 of 8
[1]   Raymond Welch appeals his conviction for battery as a class A misdemeanor.

      Welch raises one issue, which we revise and restate as whether the evidence is

      sufficient to sustain his conviction. We affirm.


                                      Facts and Procedural History

[2]   On June 30, 2014, Nicole Heady and Welch were dating and had been staying

      at the home of Welch’s brother for two days. Heady phoned her mother asking

      if she could meet her with some clean clothes at a market a few blocks from the

      home, and her mother agreed. Welch and Heady had been fighting earlier that

      afternoon, and when Heady left the home on foot Welch followed and yelled

      things “like ‘oh you don’t never listen’ and ‘all you are worried about is your

      phone’ and ‘you are worthless. You are a b----. You are a c--- . . . .” Transcript

      at 7. Welch was “angry, very angry.” Id. Heady at first did not respond,

      instead listening to music playing on her phone and walking while Welch

      followed from behind, and Welch then “come up from behind out of nowhere”

      and “snatched [her] phone . . . .” Id. at 8. Heady asked him repeatedly not to

      “smash [her] phone,” and after “begging and pleading about five or six times to

      give it back he actually gave it back.” Id. at 8-9. At that time, Welch told

      Heady: “all you are worried about is Facebook. All your [sic] worried about is

      this phone. I am not nothing. You are a b----.” Id. at 9. Heady observed that

      Welch was “even more angrier,” noting that his jawbone was clenched, he was

      gritting his teeth together, and he had his fists clenched. Id.


[3]   After Heady received her phone back from Welch, she “stuck it in between

      [her] breasts so that that way maybe he couldn’t get it again,” and she kept
      Court of Appeals of Indiana | Memorandum Decision 49A04-1409-CR-432 | April 24, 2015   Page 2 of 8
      walking to meet her mother. Id. at 10. At this time, Heady’s phone

      inadvertently called her “aunt and uncle’s house” and the call “went to voice

      mail.” Id. at 17. As she walked, Welch continued to yell profanities, and she

      responded in a “normal way” by stating: “‘[O]kay yeah I’m stupid. Yea I am a

      b----.’ Just pretty much agreeing with him.” Id. at 10. While she continued to

      walk towards the market she heard “footsteps come up from out of nowhere

      behind [her] and that is when he hit the side of [her] face out of nowhere,”

      which felt like a “hammer hitting [her] head” and caused physical pain in the

      form of “a throbbing sensation.” Id. at 11-12. Heady continued to walk and

      “was crossing the street to try and get away from him, back and forth, back and

      forth,” Welch followed and continued to yell, and he came from behind and

      “grabbed [her] hair and pushed [her] straight out in front of a four door silver

      car,” which caused pain. Id. at 13. The car stopped and asked Heady if she

      needed help, Heady replied that she did need help, she entered the car, and the

      driver drove her to the market where she met her mother.


[4]   Heady’s mother arrived at the market and noticed that “the left side of

      [Heady’s] face was all red” and that Heady was scared and was crying. Id. at

      39. The two women went to Heady’s aunt and uncle’s home and called the

      police. While there, Heady discovered that her phone had called her aunt and

      uncle’s number and that audio of the altercation between her and Welch had

      been recorded on the number’s voicemail system.


[5]   On July 10, 2014, the State charged Wells with Count I, battery as a class A

      misdemeanor; and Count II, criminal recklessness as a class B misdemeanor.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1409-CR-432 | April 24, 2015   Page 3 of 8
      On August 26, 2014, the court held a bench trial at which evidence consistent

      with the foregoing was presented. The audio recording, as well as two pictures

      of Heady’s face taken the day of the altercation, were admitted into evidence.

      At the conclusion of the State’s case-in-chief, Welch moved for involuntary

      dismissal under Ind. Trial Rule 41(b) of Count II, the State did not oppose the

      motion, and the court granted the motion. The court found Welch guilty on

      Count I and sentenced him to 365 days suspended to probation and ordered

      that he receive twenty-six weeks of domestic violence counseling.


                                                   Discussion

[6]   The issue is whether the evidence is sufficient to sustain Welch’s conviction for

      battery as a class A misdemeanor. When reviewing the sufficiency of the

      evidence to support a conviction, we must consider only the probative evidence

      and reasonable inferences supporting the verdict. Drane v. State, 867 N.E.2d

      144, 146 (Ind. 2007). We do not assess witness credibility or reweigh the

      evidence. Id. We consider conflicting evidence most favorably to the trial

      court’s ruling. Id. We affirm the conviction unless “no reasonable fact-finder

      could find the elements of the crime proven beyond a reasonable doubt.” Id.

      (quoting Jenkins v. State, 726 N.E.2d 268, 270 (Ind. 2000)). It is not necessary

      that the evidence overcome every reasonable hypothesis of innocence. Id. at

      147. The evidence is sufficient if an inference may reasonably be drawn from it

      to support the verdict. Id.


[7]   The offense of battery is governed by Ind. Code § 35-42-2-1 which at the time of

      the offense provided in relevant part: “(a) A person who knowingly or
      Court of Appeals of Indiana | Memorandum Decision 49A04-1409-CR-432 | April 24, 2015   Page 4 of 8
      intentionally touches another person in a rude, insolent, or angry manner

      commits battery, a Class B misdemeanor. However, the offense is: (1) a Class

      A misdemeanor if: (A) it results in bodily injury to any other person . . . .”

      (Supp. 2012) (subsequently amended by Pub. L. No. 158-2013, § 420 (eff. July

      1, 2014); Pub L. No. 147-2014, § 2 (eff. July 1, 2014)). The charging

      information alleged that “[o]n or about June 30, 2014, Raymond Welch did

      knowingly touch Nicole Heady, another person, in a rude, insolent, or angry

      manner, resulting in bodily injury, specifically pain . . . .” Appellant’s

      Appendix at 16 (capital letters omitted). Thus, to convict Welch of battery as a

      class A misdemeanor, the State needed to prove that Welch touched Heady in a

      rude, insolent, or angry manner, causing her pain.


[8]   Welch argues that “[l]istening to the tape is very telling,” noting that “[o]n the

      recording, she tells him he hit her. If he hit her intentionally, it would seem he

      would already know that fact.” Appellant’s Brief at 4-5. Welch asserts that

      Heady “also says, ‘all the redness,’” and that “[w]ithout a mirror or someone to

      point it out, it is hard to imagine why [she] would say there was redness.” Id. at

      5. Welch states that Heady “testified that though she and [Welch] were

      engaged in a verbal disagreement, he ‘came out of nowhere’ and hit her in the

      head,” and also suggests that “there exists at least an inference that the

      recording may not have been as accidental as asserted by” Heady. Id. at 4-5.

      Welch also contends that the pictures admitted into evidence do not “show any

      definitive redness as this Court may well view,” and that although Heady




      Court of Appeals of Indiana | Memorandum Decision 49A04-1409-CR-432 | April 24, 2015   Page 5 of 8
      testified that he “pushed her in front of a car,” a review of the tape reveals that

      he told “her to get out of the street.” Id. at 5-6.


[9]   The State asserts that Welch “suggests to this Court that the recording was not

      accidental and presumably . . . urges this Court to conclude that [Heady] was

      attempting to frame” Welch, and it argues that “[t]his would be a clear example

      of the Court viewing the evidence in a manner least favorable to the verdict,

      which would be directly contrary to the standard of review.” Appellee’s Brief at

      5. The State notes the following regarding what is revealed on the audio

      recording:

              When the Court listens to State’s Exhibit 3, it will hear at the 1:34
              mark, [Heady] tell [Welch], “that’s where you’re wrong.”
              Immediately following that statement, there is a loud rustling sound,
              followed by [Heady] screaming, “Oh my god!” [Welch] can then be
              heard saying, “f------ (indecipherable) bitch.” From 2:35 until 2:39,
              [Welch’s] voice can be heard faintly in the background saying
              something to [Heady]. [Heady] responds at 2:40, “But yet you just hit
              me in the head. You just punched me in the head.” [Welch] says
              something that is presumably a protestation of innocence, which
              prompts [Heady] to respond, “Yes, you did.” [Welch] then says
              something and [she] responds, “All the redness?” At the 3:06 mark,
              [Welch] can be heard saying something to [Heady] which causes [her]
              to say, “No, I don’t want you fucking around me. I’m scared to
              death.” [Welch] can be heard shouting at her angrily, then [she] is
              heard screaming, “Stop! Don’t! Stop!” and then she is screaming.
              [Welch] can be heard shouting “(Indecipherable) dumb ass b----! Get
              the f--- out of the street!” The next voice heard is [Heady] explaining –
              presumably to the motorist who stopped to help her – “No, he’s trying
              to hit me and I’m trying to [find?] my mom.”


      Id. at 5-6 (internal citations omitted).


      Court of Appeals of Indiana | Memorandum Decision 49A04-1409-CR-432 | April 24, 2015   Page 6 of 8
[10]   The facts favorable to the conviction reveal that Heady left the home of Welch’s

       brother’s home to meet her mother and obtain clean clothes at a market a few

       blocks away, and Welch, who was very angry, followed her and yelled

       profanities at her. Welch approached Heady from behind and took her phone,

       eventually giving the phone back. Heady stuck the phone between her breasts,

       as she did she inadvertently called her aunt and uncle’s house, and the call went

       to voice mail and made an audio recording of the ensuing events.


[11]   Heady continued walking towards the market while Welch continued to yell

       profanities. She then heard footsteps behind her and Welch hit the side of her

       face which caused physical, throbbing pain. Soon after, Welch grabbed Heady

       by her hair and pushed her in front of a car, which again caused pain. The

       driver of the car transported her to the market, and when Heady met her

       mother, her mother observed that “the left side of [Heady’s] face was all red”

       and that Heady was scared and was crying. Id. at 39.


[12]   To the extent Welch suggests that the audio recording supports a not guilty

       verdict, we observe that the recording appears to begin with an argument

       between Heady and Welch in which Heady tells Welch twice “I’m cool” and,

       on four occasions, Heady states: “That’s where you’re wrong,” and Welch

       responds by asking: “What?” State’s Exhibit 3 at 1:20-1:34. After the fourth

       time, there is a commotion in which Heady screams and shouts something and

       Welch can be heard stating “f------ (inaudible) b----.” Id. at 1:34-1:37.

       Thereafter, no one speaks for about thirty seconds and it sounds as though

       Heady is walking. Id. at 1:38-2:03. Words between the two are exchanged

       Court of Appeals of Indiana | Memorandum Decision 49A04-1409-CR-432 | April 24, 2015   Page 7 of 8
       which are mostly inaudible, and at one point Heady states: “Well yea you just

       hit me in the head. You just punched me in my head. Yes you did. All the

       redness.” Id. at 2:39-2:48. It sounds as though Welch is also speaking during

       this time, but his speech is inaudible. Welch soon after says something, and

       Heady responds: “No I don’t want you f------ around me. I’m scared to death of

       you.” Id. at 3:07-3:11. After, Heady again starts screaming and protesting with

       repeated shouts of “Stop!” and Welch can be heard shouting and stating:

       “What the f---. How (inaudible) you feel this b----,” followed by “Get the f---

       out of the street.” Id. at 3:12-3:19. Soon after, Heady can be heard explaining

       to someone “No, he’s trying to hit me and I’m trying to (inaudible) my mom.”

       Id. at 3:32-3:34.      We cannot say that our review of the recording leads to a

       conclusion that “no reasonable fact-finder could find the elements of the crime

       proven beyond a reasonable doubt.” Drane, 867 N.E.2d at 146.


[13]   Based on the record, we conclude that the State presented evidence of a

       probative nature from which a reasonable trier of fact could have found that

       Welch was guilty of battery as a class A misdemeanor.


                                                    Conclusion

[14]   For the foregoing reasons, we affirm Welch’s conviction for battery as a class A

       misdemeanor.


[15]   Affirmed.


       Crone, J., and Pyle, J., concur.


       Court of Appeals of Indiana | Memorandum Decision 49A04-1409-CR-432 | April 24, 2015   Page 8 of 8
