Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                 Oct 23 2014, 9:47 am
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:

ANA M. QUIRK                                      GREGORY F. ZOELLER
Public Defender                                   Attorney General of Indiana
Muncie, Indiana
                                                  LARRY D. ALLEN
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

LOWELL GUY CAIN, JR.,                             )
                                                  )
       Appellant-Defendant,                       )
                                                  )
              vs.                                 )       No. 18A02-1403-CR-149
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee-Plaintiff.                        )


                    APPEAL FROM THE DELAWARE CIRCUIT COURT
                        The Honorable Marianne L. Vorhees, Judge
                             Cause No. 18C01-1306-FD-90



                                       October 23, 2014


                MEMORANDUM DECISION - NOT FOR PUBLICATION


NAJAM, Judge
                                  STATEMENT OF THE CASE

       Lowell Guy Cain, Jr. appeals his conviction for domestic battery, as a Class D

felony. Cain raises a single issue for our review, namely, whether the State presented

sufficient evidence to support his conviction. We affirm.

                           FACTS AND PROCEDURAL HISTORY

       On June 4, 2013, Cain lived with K.R. in Delaware County. Cain and K.R. had

three minor children together, each of whom lived with Cain and K.R. That morning,

Cain and K.R. got into an argument. While “yelling and screaming in [K.R.’s] face,”

Cain followed K.R. into the laundry room, where he then repeatedly struck her while “he

continued to yell and scream.” Tr. at 4-5. The children were asleep in their bedrooms at

the time. The children’s bedrooms were adjacent to the kitchen, which was adjacent to

the laundry room. The house’s laundry room, kitchen, and children’s bedrooms form a

straight line to the front of the house.

       On June 10, the State charged Cain with domestic battery, as a Class D felony,

among other charges.1 At the ensuing bench trial, K.R. testified that the distance from the

laundry room to the children’s bedrooms was on par with the prosecutor’s distance “to

the wall” of the courtroom, though there is not an estimate of this distance in the record.

Id. at 7. The court found Cain guilty of domestic battery, as a Class D felony, and

sentenced him accordingly. This appeal ensued.




       1
           Cain does not appeal his other convictions or his resulting sentences.
                                                      2
                              DISCUSSION AND DECISION

         Cain asserts on appeal that the State failed to present sufficient evidence to support

his conviction for domestic battery, as a Class D felony. When reviewing a claim of

sufficiency of the evidence, we do not reweigh the evidence or judge the credibility of the

witnesses. Jones v. State, 783 N.E.2d 1132, 1139 (Ind. 2003). We look only to the

probative evidence supporting the judgment and the reasonable inferences that may be

drawn from that evidence to determine whether a reasonable trier of fact could conclude

the defendant was guilty beyond a reasonable doubt. Id. If there is substantial evidence

of probative value to support the conviction, it will not be set aside. Id.

         To demonstrate that Cain committed domestic battery, as a Class D felony, the

State was required to show, as relevant here, that Cain knowingly or intentionally

battered and injured K.R. “in the physical presence of a child less than sixteen (16) years

of age, knowing that the child was present and might be able to see or hear the offense.”

Ind. Code § 35-42-2-1.3(b)(2). It is well established under Indiana Code Section 35-42-

2-1.3(b)(2) that “none of the children had to actually sense the battery; there only needed

to be the possibility that they ‘might’ see or hear it.” True v. State, 954 N.E.2d 1105,

1111 (Ind. Ct. App. 2011). On appeal, Cain argues only that the State failed to show that

any of the three children might have been able to see or hear the offense. We cannot

agree.

         K.R. testified that the children were in the house during the battery. In particular,

she testified that they were in their bedrooms, and that only the kitchen separated the

laundry room, where the battery occurred, from the children’s bedrooms. She further


                                               3
testified that Cain was yelling and screaming during the battery. And, during the trial,

she informed the court that the distance from the prosecutor to one of the courtroom walls

was a close approximation of the distance from the laundry room to the children’s

bedrooms. While this distance is not reflected in the record, the trial court, the fact-finder

here, was able to see it.

       Cain’s argument on appeal is simply a request for this court to reweigh the

evidence that was before the trial court. We will not do so. The State’s evidence

permitted the fact-finder to conclude that the offense occurred “in the physical presence

of a child.” I.C. § 35-42-2-1.3(b)(2); see, e.g., True, 954 N.E.2d at 1111. As such, we

affirm Cain’s conviction.

       Affirmed.

BAILEY, J., and PYLE, J., concur.




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