 Pursuant to Ind.Appellate Rule 65(D),
 this Memorandum Decision shall not be
                                                                    FILED
 regarded as precedent or cited before                           May 09 2012, 8:47 am
 any court except for the purpose of
 establishing the defense of res judicata,                              CLERK
                                                                      of the supreme court,
 collateral estoppel, or the law of the case.                         court of appeals and
                                                                             tax court




ATTORNEY FOR APPELLANT:                                  ATTORNEYS FOR APPELLEE:

MICHAEL FRISCHKORN                                       GREGORY F. ZOELLER
Fortville, Indiana                                       Attorney General of Indiana

                                                         ANDREW R. FALK
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

PAUL T. DHAENENS,                                        )
                                                         )
       Appellant-Defendant,                              )
                                                         )
               vs.                                       )     No. 30A01-1111-CR-567
                                                         )
STATE OF INDIANA,                                        )
                                                         )
       Appellee-Plaintiff.                               )


                     APPEAL FROM THE HANCOCK SUPERIOR COURT
                            The Honorable Terry K. Snow, Judge
                              Cause No. 30D01-1107-FC-1129


                                                May 9, 2012

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

VAIDIK, Judge
                                      Case Summary

       Paul T. Dhaenens appeals his convictions for the Class C felony criminal

confinement and Class D felony domestic battery of his former live-in girlfriend. He

argues both that his convictions violate Indiana double-jeopardy principles because they

are based on the same bodily injury and the evidence is insufficient to support his

domestic-battery conviction because the evidence does not show that he is or was living

as the victim’s spouse. We find that Dhaenens’s convictions do not violate the actual-

evidence test because the victim had several bodily injuries. In addition, we find that the

evidence proves that Dhaenens and the victim were living as spouses shortly before the

incident in this case. We therefore affirm the trial court.

                              Facts and Procedural History

       The facts most favorable to the judgment reveal that Dhaenens and Megan Bonar

dated and lived together off-and-on for about a year. Megan has two children, one of

whom is J.I., who was five years old at the time of trial. Dhaenens is not the father of

Megan’s children. Dhaenens and Megan’s relationship ended on July 1, 2011, when

Dhaenens “kicked [her] out.” Tr. p. 59.

       A few days later, on July 5, 2011, Megan and J.I. stayed at the Dollar Inn in

Greenfield, Indiana, because she had an appointment the next day in Indianapolis. At this

time, all of Megan’s belongings were still at Dhaenens’s house. Around 8:00 or 8:30

a.m. the next morning, Dhaenens went to Megan’s motel room. J.I. was still asleep.

Dhaenens and Megan talked until J.I. woke up, at which point the trio walked to a nearby

gas station to get J.I. breakfast. When they returned to the motel room, Megan received a


                                              2
phone call from her new boyfriend, Dave Nelson. Id. at 44-45. Megan started living

with Dave after Dhaenens kicked her out. Dhaenens grabbed the cell phone from Megan

and spoke with Dave. An angry Dhaenens said that he did not understand why Dave

would step in the way of his relationship with Megan. Id. at 46. Dhaenens returned the

phone to Megan, who then spoke with Dave. After Megan ended her phone conversation

with Dave, Dhaenens, still angry, said that he did not understand how things could be

over. Megan was scared and asked Dhaenens to leave. Dhaenens refused and said they

needed to talk. Standing her ground, Megan again told Dhaenens to leave because she

had made her choice and “it[’]s over.” Id. at 49.

       Instead of leaving, Dhaenens locked the hotel-room door. Megan became even

more scared. Megan headed for the door, but Dhaenens intercepted her, pushed her down

on the floor, and told her that she was not leaving. Megan then started for the room

phone, but Dhaenens beat her there and ripped the phone cord out of the wall. Dhaenens

sat on Megan as she tried to get away. Megan hit Dhaenens in the head with her cell

phone and bit him in an attempt to get him off of her. Megan also yelled at J.I. to beat on

the windows in order to summon help. Megan freed herself and tried to run for the door

again, but Dhaenens pushed her to the ground a second time and hit her in the face with

his fist. Dhaenens pinned Megan’s arms to the ground with his legs, put his hands around

her throat, and told J.I. that he was “going to kill [her] this time.” Id. at 52. Although it

was hard for Megan to breathe, she never lost consciousness. At some point Dhaenens

called 911 to report that Megan was assaulting him.




                                             3
      Hancock County Deputy Sheriff Daniel Devoy was in the area and responded to

the Dollar Inn on reports of screaming. Deputy Devoy was directed to the motel room by

various bystanders.   Deputy Devoy looked in the window of the locked room and

observed Dhaenens on top of Megan, striking her and attempting to choke her. Believing

Megan to be in “imminent danger,” Deputy Devoy drew his weapon and kicked in the

door. Id. at 80. Dhaenens jumped up and rushed to the still-chained door. Deputy

Devoy pointed his gun at Dhaenens and told him that if he did not open the door, he

would shoot. Dhaenens opened the door.

      Once Deputy Devoy entered the room, there was chaos: Megan was screaming,

Dhaenens was upset and screaming, and the room was in shambles. Deputy Devoy

noticed that Dhaenens was bleeding from his head. Dhaenens was also babbling, but he

did not make sense to Deputy Devoy, who assumed that Dhaenens was under the

influence of something. At gunpoint, Deputy Devoy ordered Dhaenens to hit the floor;

Dhaenens complied. At this point, Deputy Devoy realized that there was a young child in

the room and removed Dhaenens from the room. By this time, a Greenfield Police

Department officer arrived and watched Dhaenens while Deputy Devoy went back inside

the room to attend to a visibly upset Megan and her son.

      Dhaenens was taken to the hospital for his injuries. Photographs were taken on

the scene of Megan’s injuries. See State’s Ex. 3 & 4. One of the photographs depicts a

bruise to Megan’s arm, and the other photograph shows Megan’s clothed body with no




                                            4
clearly visible injuries.1 In addition to the bruise to her arm, Megan said that she had

bruising to her neck and hip. Tr. p. 58.

       The State charged Dhaenens with Class A misdemeanor domestic battery, Class D

felony domestic battery (elevated from a Class A misdemeanor for committing the

offense in the physical presence of a child less than sixteen years old), two counts of

Class C felony criminal confinement (one for Megan and the other for J.I.), and Class A

misdemeanor interference with reporting of a crime. A bench trial was held, and J.I.,

Megan, and Dhaenens all testified. The trial court found Dhaenens guilty of Class D

felony domestic battery and one count of Class C felony criminal confinement (Megan).

The court sentenced Dhaenens to concurrent terms of eighteen months in the Department

of Correction for domestic battery and forty-eight months in the DOC for criminal

confinement with thirty months suspended to probation.

       Dhaenens now appeals.

                                    Discussion and Decision

       Dhaenens raises two issues on appeal. First, he contends that his convictions for

Class D felony domestic battery and Class C felony criminal confinement violate Indiana

double-jeopardy principles because “the same injury forms the basis for each conviction.”

Appellant’s Br. p. 4. Dhaenens also contends that the evidence is insufficient to support




       1
           See Tr. p. 145 (defense counsel stating during closing arguments that he could not see any
injuries from the photographs other than the bruise to Megan’s arm).

                                                 5
his domestic-battery conviction because the evidence does not show that he is or was

living as Megan’s spouse.2

                                       I. Double Jeopardy

       Dhaenens first contends that his convictions for Class D felony domestic battery

and Class C felony criminal confinement violate Indiana double-jeopardy principles

because they are based on the same injury. Whether convictions violate double jeopardy

is a question of law that we review de novo. Grabarczyk v. State, 772 N.E.2d 428, 432

(Ind. Ct. App. 2002).

       Article 1, Section 14 of the Indiana Constitution provides that “[n]o person shall

be put in jeopardy twice for the same offense.” Two or more offenses are the “same

offense” under Article 1, Section 14 if, with respect to either the statutory elements of the

challenged crimes or the actual evidence used to convict, the essential elements of one

challenged offense also establish the essential elements of another challenged offense.

Lee v. State, 892 N.E.2d 1231, 1233 (Ind. 2008). Dhaenens contends that his two

convictions fail the actual-evidence test. We disagree.

       Under the actual-evidence test, the evidence presented at trial is examined to

determine whether each challenged offense was established by separate and distinct facts.

Id. at 1234. To show that two challenged offenses constitute the “same offense” in a

claim of double jeopardy, a defendant must demonstrate a reasonable possibility that the

evidentiary facts used by the fact-finder to establish the essential elements of one offense

may also have been used to establish the essential elements of a second challenged


       2
          Dhaenens also contends that the evidence is insufficient to support his criminal-confinement
conviction, but he presents no argument to support this contention.
                                                  6
offense. Id. Application of this test requires the court to identify the essential elements

of each of the challenged crimes and evaluate the evidence from the fact-finder’s

perspective.   Id.   In addition, Indiana law recognizes that where one conviction is

elevated based on the same bodily injury that forms the basis of another conviction, the

two cannot stand. Strong v. State, 870 N.E.2d 442, 443 (Ind. 2007). To remedy this type

of double-jeopardy violation, a court may reduce the sentencing classification on one of

the offending convictions. Id.

       Here, the charging informations for both Class D felony domestic battery and

Class C felony criminal confinement allege bodily injury to Megan. See Appellant’s

App. p. 88 (domestic-battery charge alleging “bodily injury” to Megan), 82 (criminal-

confinement charge alleging that Dhaenens knowingly confined Megan without her

consent and such confinement resulted in “bodily injury to [Megan], to wit: bruising and

pain to the torso and neck areas”). Bodily injury is an element of both Class D felony

and Class A misdemeanor domestic battery. See Ind. Code § 35-42-2-1.3. In contrast,

bodily injury enhances criminal confinement from a Class D felony to a Class C felony.

See Ind. Code § 35-42-3-3.

       As for the bodily injury element of Class D felony domestic battery, the State

argued during closing arguments, “We have the photographs to prove the injuries that

resulted from that battering.” Tr. p. 142-43. As noted above, the photographs show a

bruise to Megan’s arm. As for the bodily injury element of Class C felony criminal

confinement, the State argued that the confinement occurred when Dhaenens locked the

door and Megan twice tried to get up and open the door to leave but was prevented from


                                            7
doing so. Id. at 143. The State directed the trial court “to the bruising and the pain

around [Megan’s] torso and her neck areas that she described in her testimony as well as

the photographs admitted.” Id.

        The State argues on appeal that there is no violation of the actual-evidence test

because the trial court “could have reasonably found that [Dhaenens] committed

domestic battery as a Class D felony” by “punching Megan in the face and the injuries to

her arm, neither of which formed the basis for the criminal confinement conviction.”

Appellee’s Br. p. 12. We agree. That is, the State explicitly used the bruising to Megan’s

hip and neck to support the bodily injury element of criminal confinement. But Megan

had one more injury: a bruise to her arm. In addition, Megan testified that Dhaenens,

who was sitting on top of her, hit her in the face with his fist. According to Indiana Code

section 35-41-1-4,3 “bodily injury” is defined as “any impairment of physical condition,

including physical pain.” The pain does not have to be of any particular severity or

endure for any particular length of time. Toney v. State, 961 N.E.2d 57, 59 (Ind. Ct. App.

2012). Although Megan did not testify that Dhaenens’s punch caused her pain, the mere

fact that he hit her in the face with his fist is sufficient to establish bodily injury. See

Lewis v. State, 898 N.E.2d 429, 435 (Ind. Ct. App. 2008) (“Although [the victim] may

have gamely attempted to minimize the physical pain he felt by stating that his adrenaline

was running, the jury was free to infer from [the victim’s] comments that he was hit

‘pretty hard’ and that ‘it didn’t feel good’ that he indeed felt physical pain, thus

experiencing bodily injury.”), trans. denied. Because of Megan’s separate injuries and


        3
         Effective July 1, 2012, this section will be recodified at Indiana Code section 35-31.5-2-29. See
P.L. 114-2012.
                                                    8
the fact that this case was tried before a judge, who is presumed to know the law and

apply it correctly, we conclude that Dhaenens’s convictions do not violate the actual-

evidence test. See H.M. v. State, 892 N.E.2d 679, 682-83 (Ind. Ct. App. 2008) (noting

that we presume the trial court knows the law and applies it correctly, including parsing

the evidence to avoid violation of the actual-evidence test), trans. denied.

                              II. Sufficiency of the Evidence

       Finally, Dhaenens contends that the evidence is insufficient to support his

conviction for Class D felony domestic battery because the evidence does not show that

he is or was living as Megan’s spouse. When reviewing the sufficiency of the evidence

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

inferences supporting the judgment. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007).

We do not assess witness credibility or reweigh the evidence. Id. When confronted with

conflicting evidence, we consider it 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. (quotation omitted). 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

judgment. Id.

       Dhaenens challenges only one element of his Class D felony domestic-battery

conviction. That is, he argues that the evidence does not prove that he “is or was living

as if a spouse of the other person as provided in subsection (c).” Ind. Code § 35-42-2-




                                             9
1.3(a)(2). Subsection (c), in turn, provides that in considering whether a person is or was

living as a spouse of another individual in subsection (a)(2), the court shall review:

       (1) the duration of the relationship;
       (2) the frequency of contact;
       (3) the financial interdependence;
       (4) whether the two (2) individuals are raising children together;
       (5) whether the two (2) individuals have engaged in tasks directed toward
       maintaining a common household; and
       (6) other factors the court considers relevant.

Ind. Code § 35-42-2-1.3(c). The legislature did not intend for these factors to serve as a

litmus test, and this Court has previously determined that the list does not need to be

consulted “if the character of the relationship is clearly ‘domestic.’” Croy v. State, 953

N.E.2d 660, 663 (Ind. Ct. App. 2011) (quotation omitted), reh’g denied.

       The record shows that Dhaenens and Megan lived together off-and-on for

approximately one year, during which time they dated. Even though Dhaenens kicked

Megan out on July 1, her belongings were still at his house on July 6. In fact, the

argument began on the morning of July 6 because Megan had a new boyfriend and

Dhaenens did not want their relationship to be over. Although Dhaenans and Megan

were not raising children together, the record shows that Dhaenens was nevertheless

worried about J.I. after he kicked Megan out and even took care of J.I. for a short time

during another time that Megan moved out. See Tr. p. 114 (“And honestly I didn’t feel

comfortable just having her and [J.I.] out on the street so I wanted to offer my assistance

helping her with [J.I.], maybe figuring out a situation where we could be roommates.”),

135 (Dhaenens indicating that one other time Megan moved out, he took care of J.I.).




                                             10
       Although the State did not elicit substantial evidence on all of the factors listed in

subsection (c), the evidence nevertheless establishes that Dhaenens and Megan lived

together for about a year during which time they dated. And even though Dhaenens and

Megan were not living together on July 6, Megan had just moved out a few days before,

her belongings were still at Dhaenens’s house, and Dhaenens was upset that Megan had a

new boyfriend. In addition, Dhaenens felt a responsibility toward Megan’s young son,

J.I. Based on this evidence, the State has proved that Dhaenens was living as if Megan’s

spouse. See Williams v. State, 798 N.E.2d 457, 461 (Ind. Ct. App. 2003) (“Further, when

the character of the relationship clearly warrants application of the domestic battery

statute, i.e., the couple is cohabiting and engaged in an ongoing romantic relationship, a

court would not need to undertake further analysis. In marginal cases, such as Vaughn [v.

State, 782 N.E.2d 417 (Ind. Ct. App. 2003), trans. denied], where the character of the

relationship is uncertain, the factors should be applied, but, on the facts of this case, we

need not ask the State to prove more than it has.”). The evidence is sufficient to support

Dhaenens’s conviction for Class D felony domestic battery.

       Affirmed.

 CRONE, J., and BRADFORD, J., concur.




                                             11
