Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of                                    Feb 27 2014, 9:34 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.


ATTORNEY FOR APPELLANT:                           ATTORNEYS FOR APPELLEE:

PATRICIA CARESS MCMATH                            GREGORY F. ZOELLER
Indianapolis, Indiana                             Attorney General of Indiana

                                                  JUSTIN F. ROEBEL
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

BRAD S. BROWN,                                    )
                                                  )
       Appellant-Defendant,                       )
                                                  )
               vs.                                )       No. 90A02-1306-CR-485
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee-Plaintiff.                        )


                      APPEAL FROM THE WELLS CIRCUIT COURT
                         The Honorable Kenton W. Kiracofe, Judge
                              Cause No. 90C01-1205-FD-34



                                      February 27, 2014
                MEMORANDUM DECISION - NOT FOR PUBLICATION


SHEPARD, Senior Judge
        Brad S. Brown entered the house of his mother-in-law without permission. Once

inside, he confronted his estranged wife and demanded to see her cell phone. When she

refused, Brown attacked her, took the phone, and left.

        Brown now appeals his convictions for domestic battery and two counts of

robbery. We reverse one of the robbery convictions, but otherwise affirm.

                           FACTS AND PROCEDURAL HISTORY

        In early 2012, Brown and his wife Taija Tuttle were experiencing marital

difficulties. 1 As a result, Tuttle and her twelve-year-old son C.T. (who was Brown’s

stepson) moved in with her mother Rebecca Foreman. In February 2012, Foreman told

Brown during a telephone call that he was not welcome at her house.

        On April 30, 2012, Tuttle and C.T. were at Foreman’s house. C.T. saw Brown

come in through the back door and go up the stairs. Tuttle was coming down the stairs

and met Brown on a landing. He told her to give him her cell phone, which Foreman had

purchased for her daughter the previous week. Tuttle refused, and Brown shoved her into

a wall with both hands. Next, he hit her on her head, and she fell down. Tuttle shouted

for C.T. to call 911 as Brown pinned her down. She bit him on the chest, and he let her

go. They both stood up, and Brown again demanded the phone. When Tuttle refused,

Brown reached into her pocket and took it. He then ran down the stairs.




1
  Tuttle’s last name was Brown at the time of the incident in question, but she had divorced Brown by the
time he went to trial.

                                                   2
         C.T., who had remained downstairs, heard Brown tell Tuttle to give him her

phone. Next, he heard a “thud” coming from the stairs, and then his mother yelled for

him to call 911. C.T. called 911, and he saw Brown come down the stairs and leave the

house.

         The State charged Brown with multiple counts. The jury found him guilty of

domestic battery, a class D felony, and two counts of robbery, one as a C felony and one

as a B. It found him not guilty of theft and residential entry. The court sentenced Brown

to twelve years on the B robbery and ran the other, shorter sentences concurrent to it.

This appeal followed.

                                             ISSUES

         I.       Whether the evidence is sufficient to sustain Brown’s conviction for
                  domestic battery,

         II.      Whether the trial court abused its discretion in sentencing Brown, and

         III.     Whether Brown’s convictions for robbery violate double jeopardy.

                                DISCUSSION AND DECISION

                I. SUFFICIENCY OF THE EVIDENCE – DOMESTIC BATTERY

         When reviewing a challenge to the sufficiency of the evidence underlying a

criminal conviction, we neither reweigh the evidence nor assess the credibility of

witnesses. Bailey v. State, 979 N.E.2d 133 (Ind. 2012). The evidence and all reasonable

inferences drawn from it are viewed in a light most favorable to the verdict. Id. We

affirm if there is substantial evidence of probative value supporting each element of the


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crime from which a reasonable jury could have found the defendant guilty beyond a

reasonable doubt. Id.

       To convict Brown of domestic battery as a class D felony, the State needed to

prove beyond a reasonable doubt that he (1) knowingly or intentionally (2) touched his

spouse (3) in a rude, insolent, or angry manner (4) resulting in bodily injury to his spouse

(5) in the physical presence of a child less than sixteen (16) years of age, (6) knowing the

child was present and might be able to see or hear the offense. Ind. Code § 35-42-2-1.3

(2012).

       Brown argues that the State failed to prove that he battered Tuttle in C.T.’s

physical presence, inasmuch as C.T. was downstairs during the attack. This Court has

concluded that the statute is violated so long as a child is close enough to the physical

space in which the battery occurred to hear or see it. As a panel of this Court recently

said, “[T]he critical question in determining whether a child is ‘present’ for purposes of

the statute is whether a reasonable person would conclude that the child might see or hear

the offense; not whether the child is in the same room as where the offense is taking

place.” Manuel v. State, 971 N.E.2d 1262, 1270 (Ind. Ct. App. 2012).

       In this case, there is no dispute that C.T., who was quite close by, heard Brown ask

Tuttle for the phone, then heard a thud and his mother yelling for him to call 911. A jury

could conclude beyond a reasonable doubt that Brown battered Tuttle in C.T.’s presence.




                                             4
                                    II. SENTENCING

       Subject to the review and revise authority provided by Indiana Appellate Rule

7(B), sentencing decisions rest within the sound discretion of the trial court and are

reviewed on appeal only for an abuse of discretion. Kimbrough v. State, 979 N.E.2d 625

(Ind. 2012). A trial court abuses its discretion when it: (1) fails to enter a sentencing

statement; (2) enters a sentencing statement that explains reasons for imposing the

sentence but the record does not support the reasons; (3) omits reasons that are clearly

supported by the record and advanced for consideration; or (4) gives reasons in the

sentencing statement that are improper as a matter of law. Id.

       In this case, the trial court cited as an aggravating factor that “this is a crime of

violence as defined by Indiana Code 35-50-1-2 and it was committed in the presence of

an individual who is less than 18 years of age.” Tr. p. 286. The trial court later noted,

“This crime again did occur in the presence of a minor child as I stated earlier.” Id.

       Brown says the presence of a minor child is an inappropriate aggravating factor

because it is an element of the offense of domestic battery and thus may not be used to

enhance his sentence. He cites Townsend v. State, 498 N.E.2d 1198, 1201 (Ind. 1986),

for the proposition that an element of a crime may not be used to enhance a sentence

without reference to the particularized circumstances of the case.

       We think it doubtful that Townsend and similar cases remain good law under the

sentencing scheme Indiana adopted in 2005. See Pedraza v. State, 887 N.E.2d 77, 80-81



                                             5
(Ind. 2008) (a conviction that is an element of a given crime may also be an aggravating

circumstance supporting a higher sentence for that crime).

       Whether that is true or not, the presence of a child is not an element of the class B

robbery, for which Brown received twelve years. Therefore, even under earlier caselaw

like Townsend, a trial court would not abuse its discretion in mentioning this factor in

deciding what sentence to impose for robbery.

                                III. DOUBLE JEOPARDY

       Brown argues that his conviction for robbery as a class C felony violates double

jeopardy principles because it was a lesser included offense of his conviction for class B

felony robbery. The State appropriately concedes this point. We therefore reverse

Brown’s conviction for class C felony robbery and remand to the trial court with

instructions to vacate that conviction.

                                      CONCLUSION

       We affirm the judgment of the trial court in part, reverse it in part, and remand.

Affirmed in part, reversed in part, and remanded.

RILEY, J., and BROWN, J., concur.




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