MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                    FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                             Dec 05 2018, 9:29 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
Lisa M. Johnson                                         Curtis T. Hill, Jr.
Brownsburg, Indiana                                     Attorney General of Indiana
                                                        Matthew Michaloski
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Daniel T. Harrison,                                     December 5, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-1840
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Jeffrey L. Marchal,
Appellee-Plaintiff                                      Magistrate
                                                        Trial Court Cause No.
                                                        49G06-1711-F5-43431



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1840 | December 5, 2018              Page 1 of 6
[1]   Daniel T. Harrison appeals his conviction for Level 5 Felony Battery Resulting

      in Bodily Injury on a Pregnant Woman,1 arguing that the evidence is

      insufficient. Finding the evidence sufficient, we affirm. We also remand so

      that the trial court may formally vacate two convictions that were merged into

      the Level 5 felony conviction.


                                                    Facts
[2]   In November 2017, Harrison lived with LaRhonda Roberts, his pregnant

      girlfriend. On November 6, 2017, Harrison became angry with Roberts because

      she had had contact with another man. He was at home with two friends when

      Roberts arrived home from work. After she arrived home, she picked up her

      baby, whom Harrison had been watching. Harrison began questioning Roberts

      angrily; then, while she was holding the baby, he “forcefully grab[bed] her

      throat,” and made a “forceful push.” Tr. Vol. II p. 58. Roberts denied

      Harrison’s accusations about the other man, at which point Harrison “grab[bed]

      her with his right hand and yank[ed] her off the couch by her hair and

      punch[ed] her with his left hand” as Roberts begged him to stop. Id. at 29-30.

      One of Harrison’s friends pleaded with him to stop because of the unborn child;

      Harrison responded, “I don’t give a f*ck about the baby.” Id. at 63. He choked

      Roberts repeatedly and dragged her across the floor. At one point, he went to

      the kitchen and retrieved a knife, proceeding to throw the knife at Roberts and




      1
          Ind. Code § 35-42-2-1.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1840 | December 5, 2018   Page 2 of 6
      telling her to stab him with it. Id. at 65-66. Roberts was in good condition

      when she first arrived at the house, but “[a]fter the fight, her hair was all over

      her head, her face was red, [and] her eyes were red.” Id. at 48.


[3]   Harrison’s friends both called the police to report the altercation. Police officers

      responded and arrested Harrison. One of the officers observed that Roberts had

      “darkened circles around her eyes, and she also had petechiae in both of the

      eyes as well.” Id. at 102. This officer had the training and experience to know

      that petechiae are dark spots in the eyes “where blood vessels have been

      popped.” Id. at 103. Roberts told the arresting officer that she was afraid of

      Harrison and did not want to speak to the officer about the incident because she

      was worried it would jeopardize her subsidized housing.


[4]   On November 8, 2017, the State charged Harrison with Level 5 felony battery

      resulting in bodily injury to a pregnant woman; Level 5 felony strangulation;

      Level 6 felony criminal confinement; two counts of Level 6 felony domestic

      battery; and Class A misdemeanor intimidation. Harrison waived his right to a

      jury trial; his bench trial took place on May 2, 2018. Roberts, the two friends

      who were present during the altercation, the arresting officer, and a police

      detective testified at trial. Roberts denied that the altercation had included any

      physical violence. The two witnesses, however, described the altercation as set

      forth above and the arresting officer testified as to the petechiae in Roberts’s

      eyes at the time of Harrison’s arrest.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1840 | December 5, 2018   Page 3 of 6
[5]   The trial court found Harrison guilty of Level 5 felony battery resulting in

      bodily injury to a pregnant woman, Level 6 felony domestic battery, and Class

      A misdemeanor domestic battery, merging the latter two offenses into the first

      and sentencing him only on the Level 5 felony.2 The trial court found Harrison

      not guilty of the remaining charges. On July 12, 2018, the trial court sentenced

      Harrison to four years, with two years suspended to probation. Harrison now

      appeals.


                                      Discussion and Decision
[6]   Harrison’s sole argument on appeal is that the evidence is insufficient to support

      his conviction. When reviewing the sufficiency of the evidence to support a

      conviction, we must consider only the probative evidence and reasonable

      inferences supporting the conviction and will neither assess witness credibility

      nor reweigh the evidence. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We

      will affirm unless no reasonable factfinder could find the elements of the crime

      proved beyond a reasonable doubt. Id.


[7]   To convict Harrison of Level 5 felony battery causing bodily injury to a

      pregnant woman, the State was required to prove beyond a reasonable doubt

      that Harrison knowingly or intentionally touched Roberts, knowing that she

      was pregnant, in a rude, insolent, or angry manner, causing bodily injury. I.C.




      2
          As we explain below, the two Level 6 felony convictions should have been vacated rather than merged.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1840 | December 5, 2018                  Page 4 of 6
      § 35-42-2-1(g)(3). Harrison argues that the evidence does not support a

      conclusion that his actions caused Roberts to sustain bodily injury.


[8]   We disagree. The other witnesses to the altercation testified that Harrison

      choked, dragged, and punched Roberts. Tr. Vol. II p. 29-30, 58. Moreover,

      there was testimony that Roberts looked fine when she first arrived at the house

      but that after the altercation, among other things, her eyes were red. Id. at 48,

      84. The arresting officer observed that Roberts had petechiae in her eyes, which

      the officer knew to be a sign of popped blood vessels. A reasonable factfinder

      could conclude from this evidence that Harrison’s actions caused Roberts to

      sustain bodily injury—i.e., petechiae. Harrison argues that the petechiae could

      have resulted from other causes, such as vomiting, but this amounts to a request

      that we reweigh the evidence, which we may not do. Because a reasonable

      factfinder could conclude that Harrison touched Roberts in a rude, insolent, or

      angry manner, causing bodily injury, the evidence is sufficient to support the

      conviction.


[9]   We also note sua sponte that, in addition to the Level 5 felony, the trial court

      found Harrison guilty of two counts of Level 6 felony battery. Based on double

      jeopardy concerns, the trial court sentenced Harrison only on the Level 5

      felony. The trial court did, however, enter an oral judgment of guilty on the

      two Level 6 felonies, tr. vol. II p. 124, and those convictions are reflected in the

      Chronological Case Summary. Appellant’s App. Vol. II p. 9. Both the abstract

      of judgment and sentencing order note that the Level 6 felony convictions were

      “merged” with the Level 5 felony conviction. Id. at 12, 14. It is well

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1840 | December 5, 2018   Page 5 of 6
       established, however, that “[a] trial court’s act of merging, without also

       vacating the conviction, is not sufficient to cure a double jeopardy violation.”

       Stickrod v. State, 108 N.E.3d 385, 392 (Ind. Ct. App. 2018), trans. denied.

       Therefore, we remand so that the trial court may formally vacate Harrison’s

       two convictions for Level 6 felony battery.


[10]   The judgment of the trial court is affirmed and remanded with instructions.


       May, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1840 | December 5, 2018   Page 6 of 6
