MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                   FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                            Oct 29 2018, 9:07 am

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
Timothy J. Burns                                         Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General
                                                         Evan M. Comer
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Anel Suarez-Torres,                                      October 29, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-476
        v.                                               Appeal from the Marion Superior
                                                         Court Criminal Division
State of Indiana,                                        The Honorable David Hooper,
Appellee-Plaintiff.                                      Magistrate
                                                         Trial Court Cause Nos.
                                                         49G12-1701-CM-2409
                                                         49G12-1605-CM-20156



Tavitas, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-476| October 29, 2018               Page 1 of 12
                                         Statement of the Case

[1]   Anel Suarez-Torres appeals her convictions for battery resulting in bodily

      injury, a Class A misdemeanor, and invasion of privacy, a Class A

      misdemeanor. We affirm.


                                                     Issues

[2]   Suarez-Torres raises two issues on appeal, which we restate as:


              1. Whether the evidence is sufficient to convict Suarez-Torres of
                 battery resulting in bodily injury.

              2. Whether the evidence is sufficient to convict Suarez-Torres of
                 invasion of privacy.

                                                     Facts

[3]   On April 16, 2017, Stephany Hernandez (“Stephany”) went to a club in

      downtown Indianapolis to see Stephany’s then-fiancé, Jesus Martinez

      (“Jesus”), perform. Stephany was accompanied by her mother, Gabriela

      Virgende Hernandez (“Gabriela”) and Gabriela’s friend. When they arrived at

      the club, the performance had already begun. Sometime during the

      performance, Stephany and Gabriela went to the restroom. On the way to the

      restroom, Stephany saw Suarez-Torres standing by the restroom door.

      Stephany and Suarez-Torres have known each other since 2011. Jesus is the

      father of Suarez-Torres’ daughter. Gabriela and Suarez-Torres had never met.

      Suarez-Torres entered the restroom and attempted to speak with Stephany

      when Gabriela was in the restroom stall.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-476| October 29, 2018   Page 2 of 12
[4]   Stephany asked Suarez-Torres to leave multiple times while Suarez-Torres

      attempted to speak with her. There were about eight other people in the “very

      small restroom.” Tr. Vol. II p. 19. When Gabriela exited the restroom stall,

      she asked what was going on between Stephany and Suarez-Torres. Suarez-

      Torres told Gabriela not to get involved in the discussion. Suarez-Torres left

      the restroom, and Stephany and Gabriela left a short time later. When

      Stephany and Gabriela exited the restroom, Gabriela walked out first.


[5]   Suddenly, Stephany saw Suarez-Torres’ “hands everywhere” as she fought and

      “ma[de] contact” with Gabriela. Id. at 9-10. Gabriela felt someone “grab[]

      [her] by the neck” and “pull[] her hair.” 1 Id. at 20. The person, who Gabriela

      did not know at the time, “almost threw [her] down.” Id. Gabriela’s “instinct

      was to defend” herself. Id. Stephany witnessed Suarez-Torres initiate contact

      with Gabriela.


[6]   During the altercation, Stephany tried to step between Gabriela and Suarez-

      Torres, but Suarez-Torres pushed Stephany away and continued to attack

      Gabriela. Security at the club got involved and pulled Suarez-Torres away.


[7]   Stephany and Gabriela stayed at the club to continue watching the

      performance. They noticed Gabriela bleeding from the shoulder and cheek and

      decided to leave. After leaving the club, Stephany and Gabriela went to

      Gabriela’s house to clean her shoulder, which continued to bleed. Gabriela



      1
          Gabriela testified through a Spanish-English interpreter, Carolina Salter.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-476| October 29, 2018   Page 3 of 12
       decided she wanted to file a police report. Stephany and Gabriela went to find

       a police officer to file the report.


[8]    Stephany and Gabriela initially went back to the club to try to find someone to

       file a report, but no one was at the club. Stephany and Gabriela were then

       directed toward a hotel where they were able to find a police officer to make a

       report. There, Stephany and Gabriela met Officer Jamal Abdullah of the

       Indianapolis Metropolitan Police Department, who took pictures and asked

       Gabriela questions about the altercation. Officer Abdullah observed scratch

       marks on Gabriela’s left and right arm and on the left and right sides of her

       face. Officer Abdullah noted that Gabriela was very upset.


[9]    The State charged Suarez-Torres with battery, a Class A misdemeanor, in Case

       No. 49G12-1605-CM-020156 (“the battery” charge). The Court entered a no

       contact order on July 28, 2016. Pursuant to the order, Suarez-Torres was to

       have no contact with Stephany or Gabriela, “in person, by telephone or letter,

       through an intermediary, or in any other way, directly or indirectly, except

       through an attorney of record, while released from custody pending trial.”

       State’s Ex. 1.


[10]   On October 1, 2016, Stephany went to her friend’s house for a baby shower

       from 2:30 p.m. until approximately 6:00 p.m. While at the baby shower,

       Stephany received three phone calls and one text. The phone calls came in

       quick succession – the first at 5:20 p.m., the second at 5:21 p.m., and the third

       at 5:28 p.m. Stephany did not recognize the number, so she rejected the first


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-476| October 29, 2018   Page 4 of 12
       call. When the number called a second time, Stephany answered because she

       “thought it was maybe important.” Tr. Vol. II p. 44. When Stephany

       answered the phone, Suarez-Torres identified herself as the caller. Stephany

       told Suarez-Torres she was not supposed to be calling, and Stephany ended the

       call. When Suarez-Torres called for the third time, Stephany answered and

       reminded Suarez-Torres again that Suarez-Torres should not be calling.

       Suarez-Torres responded that she was looking for Jesus because Suarez-Torres

       “didn’t know his phone number and [Suarez-Torres] was blocked off of [sic] his

       social media and [Suarez-Torres] just wanted for [Jesus] to pay for the child

       support.” Id. at 47. Stephany hung up the phone and “didn’t really have a

       conversation with [Suarez-Torres].” Id.


[11]   After Stephany hung up on Suarez-Torres, Suarez-Torres sent Stephany a text

       message at 5:32 p.m. The text message said:


               its [sic] f***ed up you are taking the money he is making and
               how you lied but hey its [sic] fine just dont [sic] want him to pay
               anything from now on thats [sic] all i [sic] wanted to say


       State’s Ex. 5.


[12]   The State charged Suarez-Torres with invasion of privacy, a class A

       misdemeanor, for violating an order issued pursuant to Indiana Code Section

       35-33-8-3.2, Case No. 49G12-1701-CM-2409 (“the invasion of privacy”

       charge).




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-476| October 29, 2018   Page 5 of 12
[13]   On February 22, 2018, the trial court conducted a bench trial for the two

       causes. At the bench trial, Suarez-Torres testified that Stephany, on her way to

       the restroom, bumped Suarez-Torres, hitting her in the side of the rib. Suarez-

       Torres testified that she wanted to tell Stephany that she had no problems, but

       that upon entering the restroom, Gabriela “got in front of Stephany and quickly

       started threatening” Suarez-Torres. Tr. Vol. II p. 32. Suarez-Torres stated that

       she left the restroom and that, when Gabriela came out of the restroom, she was

       screaming at Suarez-Torres. Suarez-Torres testified that she then “just felt

       someone pulling” her hair, and that someone “pulled her hard all the way

       down to the ground.” Id. at 33. Suarez-Torres stated that after the encounter,

       both she and Gabriela were asked to leave. Suarez-Torres stated that she did

       not file a police report because she was “afraid to do that.” Id. at 35. Suarez-

       Torres also stated that there was “no way” Suarez-Torres could have caused the

       scratching and bleeding on Gabriela because she has fibromyalgia and other

       medical issues. Id. at 30.


[14]   Suarez-Torres also testified that she contacted Stephany, despite the no contact

       order, because there was a medical situation regarding asthma medication for

       Suarez-Torres’ daughter. Specifically, Suarez-Torres stated she was trying to

       reach Jesus that day because she “needed money to buy something that [her

       daughter’s] Medicaid did not cover that day.” Id. at 56. Suarez-Torres claimed

       that Jesus blocked Suarez-Torres from his social media accounts and that

       Suarez-Torres did not have Jesus’ phone number. Therefore, Suarez-Torres




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-476| October 29, 2018   Page 6 of 12
       claims she used her mother’s phone and attempted to reach Jesus through

       Stephany.


[15]   The trial court found Suarez-Torres guilty of both the battery charge and the

       invasion of privacy charge. At sentencing for the battery conviction, Suarez-

       Torres was sentenced to a one-year sentence suspended to probation. For the

       invasion of privacy charge, Suarez-Torres was sentenced to time served of ten

       days.


                                                    Analysis

[16]   Suarez-Torres challenges the sufficiency of the evidence for both the battery

       conviction and the invasion of privacy conviction. When there is a challenge to

       the sufficiency of the evidence, “[w]e neither reweigh evidence nor judge

       witness credibility.” Gibson v. State, 51 N.E.3d 204, 210 (Ind. 2016) (citing

       Bieghler v. State, 481 N.E.2d 78, 84 (Ind. 1985)). Instead, “we ‘consider only

       that evidence most favorable to the judgment together with all reasonable

       inferences drawn therefrom.’” Id. (quoting Bieghler, 481 N.E.2d at 84). “We

       will affirm the judgment if it is supported by ‘substantial evidence of probative

       value even if there is some conflict in that evidence.’” Id. (quoting Bieghler, 481

       N.E.2d at 84); see also McCallister v. State, 91 N.E.3d 554, 558 (Ind. 2018)

       (holding that, even though there was conflicting evidence, it was “beside the

       point” because that argument “misapprehend[s] our limited role as a reviewing

       court”). Further, “[w]e will affirm the conviction unless no reasonable fact-

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


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-476| October 29, 2018   Page 7 of 12
       Love v. State, 73 N.E.3d 693, 696 (Ind. 2017) (citing Drane v. State, 867 N.E.2d

       144, 146 (Ind. 2007)).


                                           I.       The Battery Conviction

[17]   Suarez-Torres was first charged with battery resulting in bodily injury, a Class

       A misdemeanor, under Indiana Code Section 35-42-2-1. To prove that Suarez-

       Torres committed battery resulting in bodily injury, a Class A misdemeanor,

       the State was required to prove that Suarez-Torres knowingly or intentionally

       touched another person in a rude, insolent, or angry manner, which resulted in

       bodily injury to any other person beyond a reasonable doubt. See Ind. Code §

       35-42-2-1.


[18]   We cannot say that no reasonable fact finder could have found that the State

       met the elements of the offense beyond a reasonable doubt. Stephany testified

       that she saw Suarez-Torres quickly approach and fight Gabriela. Gabriela

       testified that a person grabbed her neck and pulled her hair. In addition, the

       testimony of Stephany, Gabriela, and Officer Abdullah established there was

       bodily injury as a result of Suarez-Torres’ battery.


[19]   Suarez-Torres argues that the trial court should have concluded this was a

       situation of “mutual combat.” 2 See Richardson v. State, 79 N.E.3d 958, 964 (Ind.

       Ct. App. 2017); see also Morell v. State, 933 N.E.2d 484, 491 (Ind. Ct. App.



       2
        We assume that Suarez-Torres is attempting to now argue self-defense, as “mutual combatant” is a term
       used to describe an individual who engages in battery as a form of self-defense. See Morell, 933 N.E.2d at 491.
       At trial, Suarez-Torres did not argue self-defense.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-476| October 29, 2018                    Page 8 of 12
       2010). Suarez-Torres simply argues that “[i]t is clear in this case that the

       altercation appeared to be one where the testimony supports a finding of

       ‘mutual combat’ since [Suarez-Torres] states she was attacked and Stephany

       claims she and her mother, Gabriela, were attacked.” Appellant’s Br. p. 7.

       Even though Suarez-Torres’ testimony regarding the events that occurred that

       evening conflicts with Stephany’s or Gabriela’s testimony, we do not, and

       cannot, reweigh the evidence or judge the credibility of witnesses. See

       McCallister, 91 N.E.3d at 558. While Suarez-Torres did provide a different

       account of the events that evening, it was the trial court’s role to weigh that

       conflicting evidence. It is not our role now. The trial court apparently did not

       find Suarez-Torres’ testimony regarding the events that transpired to be

       credible, and the trial court, as the trier of fact, is required to determine

       credibility. See Anthony v. State, 103 N.E.3d 698, 700 (Ind. Ct. App. 2018)

       (citing Binkley v. State, 654 N.E.2d 736, 737 (Ind. 1995)) (“[w]e do not assess the

       credibility of the witnesses or reweigh the evidence in determining whether the

       evidence is sufficient.”). Accordingly, the evidence presented by the State was

       sufficient to convict Suarez-Torres of battery resulting in bodily injury. We

       affirm Suarez-Torres’ conviction for battery resulting in a bodily injury, a Class

       A misdemeanor.


                                 II.      The Invasion of Privacy Conviction

[20]   Suarez-Torres was also charged with invasion of privacy, a Class A

       misdemeanor, under Indiana Code Section 35-46-1-15.1(11) for violating an

       order issued pursuant to Indiana Code Section 35-33-8-3.2. To prove that

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-476| October 29, 2018   Page 9 of 12
       Suarez-Torres committed invasion of privacy, a Class A misdemeanor, the

       State was required to prove that Suarez-Torres knowingly or intentionally

       violated a no contact order. Ind. Code § 35-46-1-15.1(11).


[21]   “Invasion of privacy and stalking are crimes that can be accomplished by

       telephone calls, emails, letters, or rung doorbells.” Eisert v. State, 102 N.E.3d

       330, 334 (Ind. Ct. App. 2018), trans. denied. The State established, and Suarez-

       Torres admitted, that she contacted Stephany, in violation of the no contact

       order, by calling three times and by texting once. Suarez-Torres had knowledge

       of the no contact order. 3 Even if Suarez-Torres had denied that she made the

       phone call to Stephany, the State presented sufficient evidence that: (1) the

       initiating phone number belonged to Suarez-Torres’ mother; (2) the caller

       identified herself as Suarez-Torres; (3) Stephany recognized the caller’s voice as

       Suarez-Torres’ voice; (4) there was a no contact order in place of which Suarez-

       Torres had prior knowledge; and (5) Suarez-Torres contacted Stephany

       anyway. This evidence was sufficient to convict Suarez-Torres of invasion of

       privacy, a Class A misdemeanor.


[22]   Suarez-Torres claims that, despite her violation of the no contact order, she

       established the defense of necessity. To prevail on a necessity claim, the

       defendant must show:




       3
           Suarez-Torres “does not dispute the existence of the no contact order.” Appellant’s Br. p. 11.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-476| October 29, 2018                       Page 10 of 12
                   the act charged as criminal must have been done to prevent a
                   significant evil, (2) there must have been no adequate
                   alternative to the commission of the act, (3) the harm caused
                   by the act must not be disproportionate to the harm avoided,
                   (4) the accused must entertain a good faith belief that his act
                   was necessary to prevent greater harm, (5) such belief must be
                   objectively reasonable under all the circumstances, and (6) the
                   accused must not have substantially contributed to the
                   creation of the emergency.


       Clemons v. State, 996 N.E.2d 1282, 1285 (Ind. Ct. App. 2013) (citing Dozier v.

       State, 709 N.E.2d 27, 29 (Ind. Ct. App. 1999)), trans denied. Where, as here,

       Suarez-Torres was convicted despite her claim of necessity, “this court will

       reverse the conviction only if no reasonable person could say that the defense

       was negated by the State beyond a reasonable doubt.” Clemons, 996 N.E.2d at

       1285. The State can refute a claim of the defense “by direct rebuttal, or by

       relying upon the sufficiency of the evidence in its case-in-chief.” Id.


[23]   Suarez-Torres did not present any evidence that the harm to her daughter was

       immediate; nor did Suarez-Torres present evidence that she had no alternative

       but to contact Stephany. The text message that Suarez-Torres sent to Stephany

       does not in any way indicate there was an emergency and, in fact, seems to

       indicate the calls were related to child support, instead of a medical emergency.

       At the very least, there does not appear to have been a significant evil that

       needed to be overcome. The State negated Suarez-Torres’ claims that this was

       an immediate medical emergency by presentation of Suarez-Torres’ text

       message to Stephany, which indicated the true purpose of the communications.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-476| October 29, 2018   Page 11 of 12
       We, therefore, affirm Suarez-Torres’ conviction for invasion of privacy, a Class

       A misdemeanor.


                                                  Conclusion

[24]   The evidence is sufficient to convict Suarez-Torres of battery resulting in bodily

       injury, a Class A misdemeanor, and invasion of privacy, a Class A

       misdemeanor. We affirm.


[25]   Affirmed.


       Brown, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-476| October 29, 2018   Page 12 of 12
