MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                         Nov 25 2015, 7:03 am

this Memorandum Decision shall not be
regarded as precedent or cited before 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
Michael D. Gross                                        Gregory F. Zoeller
Lebanon, Indiana                                        Attorney General of Indiana

                                                        Richard C. Webster
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Shannon Scott Clevenger,                                November 25, 2015
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        06A05-1504-CR-148
        v.                                              Appeal from the Boone Superior
                                                        Court
State of Indiana,                                       The Honorable Rebecca McClure,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        06D02-1405-CM-227



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 06A05-1504-CR-148 | November 25, 2015      Page 1 of 5
[1]   Shannon Scott Clevenger appeals his convictions of Class A misdemeanor

      domestic battery 1 and Class A misdemeanor interference with reporting of a

      crime. 2 He asserts the evidence was insufficient to sustain his convictions.


[2]   We affirm.


                                     Facts and Procedural History
[3]   In May 2014, Clevenger lived with Kimberly Morgan. On May 3, the two went

      out to drink alcohol at a bar. While there, they had an argument, and

      Clevenger left the bar and walked home. Morgan returned home later, and the

      two began fighting again. During the fight, Clevenger pushed Morgan into the

      wall with sufficient force to put a hole in the wall. When Morgan tried to call

      911, Clevenger broke Morgan’s cell phone in half.


[4]   The neighbors called the police to report a domestic disturbance. When the

      officer arrived at the apartment, he observed a hole in the wall near the back

      door of the apartment, a scratch on Morgan’s arm, blood on the wall near the

      hole, and the broken cell phone. At the scene, Morgan wrote and signed a

      statement about the events that happened, and that statement provided:

                 I, Kim Morgan came home and Scott Clevenger threw me by my
                 hair into the wall, cut my arm, snapped my phone when I said I




      1
          Ind. Code § 35-42-2-1.3(a) (2012).
      2
          Ind. Code § 35-45-2-5 (2002).


      Court of Appeals of Indiana | Memorandum Decision 06A05-1504-CR-148 | November 25, 2015   Page 2 of 5
              was gonna [sic] call 911. My upper back’s hurting from him
              throwing me into the wall.


      (Ex. at 12.)

[5]   The State charged Clevenger with Class A misdemeanor domestic battery and

      Class A misdemeanor interference with reporting of a crime based on his

      breaking of the cell phone when Morgan tried to call for help. During the

      bench trial, Morgan testified the statements she told the police about the

      incident were “probably incorrect.” (Tr. at 16.) After hearing all the evidence,

      the court found Clevenger guilty on both counts. The court imposed

      concurrent one-year sentences.


                                     Discussion and Decision
[6]   Clevenger contends neither of his convictions were supported by sufficient

      evidence because they were based on repudiated out-of-court statements. When

      reviewing sufficiency of evidence, we neither reweigh the evidence nor judge

      the credibility of witnesses; rather, we consider only the evidence that is

      favorable to the judgment along with the reasonable inferences to be drawn

      therefrom to determine whether there was sufficient evidence of probative value

      to support a conviction. Staten v. State, 844 N.E.2d 186, 187 (Ind. Ct. App.

      2006), trans. denied. We will affirm the conviction if there is substantial

      evidence of probative value from which a reasonable trier of fact could have

      drawn the conclusion that the defendant was guilty of the crime charged

      beyond a reasonable doubt. Id.



      Court of Appeals of Indiana | Memorandum Decision 06A05-1504-CR-148 | November 25, 2015   Page 3 of 5
[7]   It is well settled that a conviction may not be predicated upon a repudiated out-

      of-court statement unless there is substantial evidence of probative value from

      which the trier of fact could infer the repudiated statement is credible.

      Peckinpaugh v. State, 447 N.E.2d 576, 581 (Ind. 1983). However, in this case,

      the State’s case did not rest solely on Morgan’s repudiated out-of-court

      statements.

[8]   When the officer arrived at the residence Clevenger and Morgan shared, he

      observed a lamp on its side, a blood smear on the wall, a broken cell-phone, an

      injury to Morgan’s arm, and a hole in the wall. Morgan told the police that

      Clevenger pushed her into the wall and he broke her cell-phone when she tried

      to call 911. Morgan also wrote a statement describing the battery, signed it to

      certify that what she had written was true, and gave it to the police officers at

      the scene. Morgan testified she and Clevenger had a fight. Moreover, at trial,

      Morgan admitted giving police the signed written statement describing the

      domestic battery. Here, Morgan’s repudiated out-of-court statements were

      supported by sufficient evidence of probative value from which the trial judge

      could reasonably infer that her out-of-court statements were credible. See, e.g.,

      Van Donk v. State, 676 N.E.2d 349, 352 (Ind. Ct. App. 1997) (officer observation

      and a signed, written statement held to be sufficient to support credibility of

      repudiated out-of-court statements).


[9]   Considering all the evidence presented, including Morgan’s repudiated

      statements, there was sufficient evidence to support Clevenger’s convictions.




      Court of Appeals of Indiana | Memorandum Decision 06A05-1504-CR-148 | November 25, 2015   Page 4 of 5
                                                Conclusion
[10]   For the foregoing reasons, we affirm the trial court’s order.


[11]   Affirmed.


       Crone, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 06A05-1504-CR-148 | November 25, 2015   Page 5 of 5
