MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                             Sep 24 2019, 10:19 am
court except for the purpose of establishing                               CLERK
the defense of res judicata, collateral                                Indiana Supreme Court
                                                                          Court of Appeals
estoppel, or the law of the case.                                           and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Darren Bedwell                                           Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Evan Matthew Comer
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Matthew Pence,                                           September 24, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-508
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Jeffrey L. Marchal,
Appellee-Plaintiff.                                      Judge Pro Tempore
                                                         Trial Court Cause No.
                                                         49G06-1808-F5-29212



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-508 | September 24, 2019              Page 1 of 8
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, Matthew1 Pence (Pence), appeals his conviction for

      battery resulting in moderate bodily injury, a Level 6 felony, Ind. Code §§ 35-

      42-2-1(c)(1); -(e)(1).


[2]   We affirm.


                                                     ISSUE
[3]   Pence presents one issue on appeal, which we restate as: Whether the State

      proved beyond a reasonable doubt that he caused moderate bodily injury

      sufficient to sustain his battery conviction.


                       FACTS AND PROCEDURAL HISTORY
[4]   Pence and S.B. were involved in an intermittent romantic relationship for three

      years. In August 2018, they were dating again. On August 22, 2018, S.B. went

      to work around 11:30 a.m. and returned home around 9:00 p.m. Pence, who

      had been consuming vodka, was asleep on S.B.’s bed in her bedroom on the

      upper floor of her townhome. When S.B. telephoned to place a takeout food

      order, Pence awoke and became angry that she was not ordering food for him.

      Pence wanted S.B. to take him home, but she declined.




      1
        Pence’s given name is spelled in the record as both “Mathew” and “Matthew.” At trial, Pence spelled his
      name for the court reporter as “Matthew,” so we use that spelling.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-508 | September 24, 2019              Page 2 of 8
[5]   A verbal argument ensued, and, over the course of the ensuing five hours, the

      argument turned physical, starting when Pence grabbed S.B. by her hair and

      slammed her head into the bedroom wall several times, causing her “a lot of

      pain.” (Transcript p. 16). S.B. told Pence to stop and attempted to ignore him.

      Pence was not deterred. Pence pursued S.B. into the hallway where he

      “football plowed” her, knocking her into the wall and then to the ground. (Tr.

      p. 16). While S.B. was on the floor, Pence placed all of his bodyweight on her

      such that she could not flee. Pence placed his hands on S.B.’s neck and choked

      her until she could no longer breathe. S.B. eventually extricated herself from

      Pence and fled to the bathroom and then to the bedroom where Pence again

      tackled her to the ground and choked her until she could not breathe. Pence

      also headbutted S.B. multiple times. At various times throughout the episode,

      Pence prevented S.B. from leaving her home by blocking her from the door.

      Pence also prevented S.B. from using her cell phone to seek assistance and

      eventually smashed the cell phone against the wall, disabling it.


[6]   Pence finally lay down and went to sleep around 2:30 a.m. S.B. fled the home

      and tried to drive away in her minivan. Pence pursued her on foot and threw

      himself on the minivan as S.B. pulled away. Pence fell off of the moving

      vehicle, and S.B. drove away. After driving around for thirty minutes, S.B.

      returned home to find her front door wide open. Pence was not in the home

      when she returned, so S.B. went to sleep. She was awakened around 6:00 a.m.

      by Pence, who was standing over her bed. Pence informed S.B. that he had

      filed a police report. S.B. agreed to drive Pence back to his residence. During


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-508 | September 24, 2019   Page 3 of 8
      the trip to Pence’s home, Pence became angry with S.B. and used his left hand

      to slam her head into the window of her car while she was driving. S.B.

      succeeded in driving Pence to his home and left him there.


[7]   S.B. had a “very bad” migraine headache for two days, chest pain, and trouble

      breathing, so on August 24, 2018, she sought medical attention at St. Francis

      Hospital. (Tr. p. 15). S.B. had a knot the size of a fifty-cent piece on her

      forehead where Pence had headbutted her and which did not fully subside until

      three weeks later. S.B. had bruises on her neck, shoulders, and arms as well as

      internal bruising of her ribs. S.B. was examined and prescribed Naprosyn, a

      pain medication that is slightly stronger than what is available over-the-counter.

      A nurse at the hospital contacted law enforcement, and S.B. filed a report.


[8]   On August 31, 2018, the State filed an Information, charging Pence with Level

      5 felony criminal confinement with bodily injury, Level 6 felony criminal

      confinement, two Counts of Level 6 felony strangulation, Level 6 felony battery

      resulting in moderate bodily injury, three Counts of Class A misdemeanor

      domestic battery, and Class A misdemeanor interference with the reporting of a

      crime. On January 16, 2019, the trial court convened Pence’s bench trial. S.B.

      testified that Pence had slammed her head into the ground or a wall “over

      [twenty] times.” (Tr. pp. 19-20). The State argued that it proved the Level 6

      felony battery resulting in moderate bodily injury through evidence that Pence

      had grabbed S.B.’s hair, hit her head multiple times, tackled her, and grabbed

      her arms, causing soreness, bruising, and a migraine headache. The trial court

      found Pence guilty of all of the charges against him.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-508 | September 24, 2019   Page 4 of 8
[9]    On February 6, 2019, the trial court held Pence’s sentencing hearing. Due to

       double jeopardy concerns, the trial court vacated Pence’s convictions for Level

       6 felony criminal confinement, one Count of Level 6 felony strangulation, and

       two Counts of Class A misdemeanor domestic battery. The trial court

       sentenced Pence to three years for his Level 5 felony criminal confinement

       conviction, to be served with Community Corrections, with 550 days of that

       sentence suspended to probation. The trial court also sentenced Pence to one

       year for each of his Level 6 felony battery and Level 6 felony strangulation

       convictions and to 180-day sentences for his other Class A misdemeanor

       convictions for domestic battery and interference with reporting of a crime. All

       of Pence’s sentences were to be served concurrently.


[10]   Pence now appeals. Additional facts will be provided as necessary.


                               DISCUSSION AND DECISION
[11]   Pence challenges the evidence supporting his conviction for Level 6 felony

       battery resulting in moderate bodily injury. It is well-established that when we

       review the sufficiency of the evidence to support a conviction, we consider only

       the probative evidence and reasonable inferences supporting the judgment.

       Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). It is not our role as an appellate

       court to assess witness credibility or to weigh the evidence. Id. We will affirm

       the conviction unless no reasonable fact-finder could find the elements of the

       crime proven beyond a reasonable doubt. Id.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-508 | September 24, 2019   Page 5 of 8
[12]   In order to prove that Pence committed a Level 6 felony battery on S.B., the

       State was required to show that he knowingly or intentionally touched her in a

       rude, insolent, or angry manner, resulting in moderate bodily injury. See I.C. §§

       35-42-2-1(c)(1); -(e)(1). Moderate bodily injury is further defined as “any

       impairment of physical condition that includes substantial pain.” I.C. § 35-

       31.5-2-204.5. It is the province of the fact-finder to determine whether the State

       has proven the requisite degree of injury to establish the offense. See Gebhart v.

       State, 525 N.E.2d 603, 604 (Ind. 1988) (holding that “[t]he degree of injury is a

       question of fact for the jury.”).


[13]   Pence does not dispute that he touched S.B. in a rude, insolent, or angry

       manner; rather, he contends that the State did not show that he inflicted

       moderate bodily injury on S.B. He directs our attention to a number of cases

       which he contends illustrate that the State did not prove the requisite level of

       injury. However, we agree with the State that these cases are not dispositive

       because none directly reviews the sufficiency of the evidence supporting the

       fact-finder’s determination of moderate bodily injury. See Barthalow v. State, 119

       N.E.3d 204, 209-10 (Ind. Ct. App. 2019) (reviewing the sufficiency of the

       evidence supporting Barthalow’s intent to commit felony battery and infliction

       of mere bodily injury for purposes of a Level 3 felony burglary conviction);

       Clemons v. State, 83 N.E.3d 104, 107-08 (Ind. Ct. App. 2017) (finding no

       fundamental error where the trial court failed to instruct the jury on “serious

       bodily injury” during trial on a charge of Level 5 felony battery with a deadly

       weapon), trans. denied; Garner v. State, 59 N.E.3d 355, 358-59 (Ind. Ct. App.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-508 | September 24, 2019   Page 6 of 8
       2016) (affirming the trial court’s determination at trial on a charge of battery

       resulting in moderate bodily injury that an instruction on the lesser-included

       offense of battery with bodily injury was not merited where victim’s injuries

       would have justified an instruction on serious bodily injury).


[14]   Neither party directs our attention to a case wherein this court has directly

       addressed the sufficiency of the evidence required to prove substantial pain and

       moderate bodily injury for purposes of a charge of Level 6 felony battery, and

       our own research uncovered none. However, we find the case of Buckner v.

       State, 857 N.E.2d 1011 (Ind. Ct. App. 2006), to be instructive. Buckner was

       charged with Class C felony battery, which required the State to prove that he

       knowingly or intentionally touched his victim in a rude, insolent, or angry

       manner that resulted in serious bodily injury. Id. at 1017. Serious bodily injury

       was defined, as it is now, in relevant part as “extreme pain.” See id. at 1018

       (citing I.C. § 35-41-1-25, now codified at I.C. § 35-31.5-2-292). We found that

       evidence that Buckner had “repeatedly struck [his victim] with his hands and

       fists, causing her severe pain and leaving marks on her body” was sufficient to

       support a finding that he had caused his victim serious bodily injury and, thus,

       had committed the offense of Class C felony battery. Id.


[15]   Here, the evidence that the State relied upon to prove the Level 6 felony battery

       was that Pence grabbed S.B.’s hair, slammed S.B.’s head into the wall and

       ground, tackled her onto the ground and into a wall, grabbed her arms, and

       headbutted her several times. All in all, Pence had hit S.B.’s head into the

       ground or a wall over twenty times. These actions resulted in bruising and

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-508 | September 24, 2019   Page 7 of 8
       marks on S.B.’s body and a 50-cent-piece-sized knot on her forehead. S.B.

       testified that Pence’s act of slamming her head into the wall caused her “a lot”

       of pain and that she experienced a “very bad,” two-day migraine headache as a

       result of the blows to her head. (Tr. pp. 15, 16). In addition, S.B. was

       prescribed a pain-reliever for her injuries after being examined at St. Francis.

       We find these injuries and S.B.’s pain level to be sufficiently analogous to those

       found in Buckner to constitute the higher degree of injury of serious bodily

       injury that we conclude that the fact-finder reasonably could have found that

       S.B.’s injuries and pain level constituted the lesser degree of injury of substantial

       pain and moderate bodily injury. Pence’s argument that the evidence merely

       supported a finding of bodily injury essentially invites us to reweigh the

       evidence, which is contrary to our standard of review, and is, therefore,

       unpersuasive. See Drane, 867 N.E.2d at 146.


                                             CONCLUSION
[16]   Based on the foregoing, we conclude that the State produced sufficient evidence

       that Pence inflicted moderate bodily injury on S.B. to prove beyond a

       reasonable doubt that he committed Level 6 felony battery.


[17]   Affirmed.


[18]   Vaidik, C. J. and Bradford, J. concur




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-508 | September 24, 2019   Page 8 of 8
