MEMORANDUM DECISION
                                                                        FILED
Pursuant to Ind. Appellate Rule 65(D),                             Aug 12 2016, 10:03 am
this Memorandum Decision shall not be
regarded as precedent or cited before any                               CLERK
                                                                    Indiana Supreme Court
                                                                       Court of Appeals
court except for the purpose of establishing                             and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Mario Garcia                                             Gregory F. Zoeller
Brattain Minnix Garcia                                   Attorney General of Indiana
Indianapolis, Indiana
                                                         Christina D. Pace
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Robert C. Mackrill,                                      August 12, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         30A04-1602-CR-387
        v.                                               Appeal from the Hancock Circuit
                                                         Court
State of Indiana,                                        The Honorable Richard D. Culver,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         30C01-1508-F6-1194



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 30A04-1602-CR-387 | August 12, 2016       Page 1 of 6
                                             Case Summary
[1]   The trial court found Robert C. Mackrill guilty of committing class A

      misdemeanor domestic battery against his wife. On appeal, Mackrill argues

      that the court erred in denying his motion for involuntary dismissal, claiming

      that the State failed to prove that his wife suffered bodily injury. We disagree

      and therefore affirm.


                                 Facts and Procedural History
[2]   On August 7, 2015, Mackrill’s wife called 911. The recording of the 911 call

      indicates that she was crying and extremely agitated. State’s Ex. 1. She stated

      that “my husband just attacked me” and that he “choked me” and “threw me

      on the ground.” Id. She gave her name and address to the operator and stated

      that her nineteen-month-old baby was with her.


[3]   Hancock County Deputy Sheriff David Wood responded to the call and “was

      greeted by a female who ran out of the front door crying with a baby in her

      arms.” Tr. at 30. According to the deputy, the female “was hysterically crying,

      she was sobbing.” Id. at 31. The deputy went inside and talked with Mackrill,

      who was “pacing back and forth and angry” and stated that “he had spoke[n]

      with somebody on the telephone that [his wife] did not approve of which

      sparked an argument.” Id. at 32. Both Mackrill and his wife claimed to be

      victims of domestic violence.


[4]   Mackrill provided a written statement in which he claimed that his wife had

      “assaulted” him and that he defended himself “by wrapping [his] arms around

      Court of Appeals of Indiana | Memorandum Decision 30A04-1602-CR-387 | August 12, 2016   Page 2 of 6
      her arms and torso so that she couldn’t continue to hit [him].” State’s Ex. 4.

      After he did so, they “both fell to the floor […] and she immediately started to

      act as though [he] was choking her[.]” Id.


[5]   The State charged Mackrill with domestic battery, strangulation, and criminal

      confinement, all as level 6 felonies. In August 2015, when the crimes were

      allegedly committed, the domestic battery statute provided in relevant part that

      a person who knowingly or intentionally touches his spouse in a rude, insolent,

      or angry manner that results in bodily injury to the spouse commits domestic

      battery as a class A misdemeanor. Ind. Code § 35-42-2-1.3(a). The offense is

      elevated to a level 6 felony if the person committed it in the physical presence of

      a child less than sixteen 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).


[6]   At Mackrill’s bench trial, his wife did not testify, but the recording of the 911

      call and his written statement were admitted over his objection. 1 When

      questioned by the prosecutor, Deputy Wood testified that Mackrill said that


                 he was hit in [the] ribs by a, what he describes as a glancing blow
                 that did not hurt. Uh, after he was hit with the glancing blow in
                 the ribs […] he said that he wrapped Mrs. Mackrill up by the
                 torso around the arms and they fell to the ground[.]”




      1
          Mackrill does not challenge the admissibility of this evidence on appeal.


      Court of Appeals of Indiana | Memorandum Decision 30A04-1602-CR-387 | August 12, 2016   Page 3 of 6
      Tr. at 33. The deputy also testified that he did not observe “any kind of

      injuries” on either Mackrill or his wife. Id. at 34. On cross examination,

      defense counsel asked, “And I believe you testified you didn’t see any signs of

      injury on either party, Mrs. Mackrill, Mr. Mackrill, is that correct?” Id. at 41.

      The deputy replied, “Uh, other than the complaint of pain, uh, no visible signs

      of injury.” Id.


[7]   After the State rested, Mackrill moved for involuntary dismissal pursuant to

      Indiana Trial Rule 41(B). 2 The State moved to dismiss the strangulation and

      criminal confinement charges. The trial court denied Mackrill’s motion to

      dismiss the domestic battery charge and granted the State’s motion to dismiss

      the other charges. Based upon the evidence presented, the court found “that

      there was insufficient evidence on the additional […] elements to enhance [the

      domestic battery] charge to a Level 6 Felony” and found Macrkrill guilty of

      domestic battery as a class A misdemeanor. Id. at 58. This appeal ensued.




      2
          Trial Rule 41(B) states in pertinent part,

               After the plaintiff or party with the burden of proof upon an issue, in an action tried by the court
               without a jury, has completed the presentation of his evidence thereon, the opposing party,
               without waiving his right to offer evidence in the event the motion is not granted, may move for
               a dismissal on the ground that upon the weight of the evidence and the law there has been
               shown no right to relief. The court as trier of the facts may then determine them and render
               judgment against the plaintiff or may decline to render any judgment until the close of all the
               evidence.

      Court of Appeals of Indiana | Memorandum Decision 30A04-1602-CR-387 | August 12, 2016                   Page 4 of 6
                                      Discussion and Decision
[8]    On appeal, Mackrill contends that the trial court erred in denying his motion

       for involuntary dismissal. Such a motion is essentially a test of the sufficiency

       of the State’s evidence. Workman v. State, 716 N.E.2d 445, 448 (Ind. 1999).


               Our standard of review on appeal is to determine, considering as
               true all of the State’s evidence, along with reasonable inferences
               which can be drawn therefrom, whether there was sufficient
               evidence of probative value to support a finding as to each
               element of the offenses with which the defendant was charged.


       State v. Holmes, 181 Ind. App. 634, 635-36, 393 N.E.2d 242, 243 (1979). “[T]his

       court will not reweigh the evidence or judge the credibility of the witnesses. We

       will reverse the trial court only if the evidence is not conflicting and points

       unerringly to a conclusion different from the one reached by the lower court.”

       Todd v. State, 900 N.E.2d 776, 778 (Ind. Ct. App. 2009) (citations omitted).


[9]    Mackrill contends that the State failed to prove that his wife suffered bodily

       injury, which is defined as “any impairment of physical condition, including

       physical pain.” Ind. Code § 35-31.5-2-29. This definition “contains no

       requirement that the pain be of any particular severity, nor does it require that

       the pain endure for any particular length of time. It must simply be physical

       pain.” Toney v. State, 961 N.E.2d 57, 59 (Ind. Ct. App. 2012).


[10]   During her 911 call, Mackrill’s wife told the operator that Mackrill had thrown

       her to the ground. Mackrill himself admitted that she had fallen to the ground,

       albeit as a result of his alleged self-defense. Pursuant to our standard of review,

       Court of Appeals of Indiana | Memorandum Decision 30A04-1602-CR-387 | August 12, 2016   Page 5 of 6
       we must consider the State’s evidence to be true. It is reasonable to infer that

       being thrown to the ground would cause pain, and in fact Deputy Wood

       testified that a “complaint of pain” was made. Tr. at 41. Given that Mackrill

       denied being hurt by his wife’s “glancing blow” to his ribs, id. at 33, it is

       reasonable to infer that Mackrill’s wife was the one who complained of pain,

       which satisfies the bodily injury requirement of the domestic battery statute. 3

       Mackrill’s argument to the contrary is an invitation to reweigh evidence, draw

       inferences, and judge witness credibility in his favor, which we may not do.

       Therefore, we affirm the denial of his motion for involuntary dismissal.


[11]   Affirmed.


       Kirsch, J., and May, J., concur.




       3
         In light of the trial court’s dismissal of the strangulation charge, we agree with Mackrill that we may not
       infer that his wife suffered bodily injury from choking.

       Court of Appeals of Indiana | Memorandum Decision 30A04-1602-CR-387 | August 12, 2016                Page 6 of 6
