Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
                                                       Dec 19 2013, 6:53 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:

MICHAEL D. GROSS                                   GREGORY F. ZOELLER
Lebanon, Indiana                                   Attorney General of Indiana

                                                   ANGELA N. SANCHEZ
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

MAXWELL SWISHER,                                   )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )        No. 06A04-1304-CR-173
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                      APPEAL FROM THE BOONE SUPERIOR COURT
                         The Honorable Matthew C. Kincaid, Judge
                             Cause No. 06D01-1112-FD-474


                                       December 19, 2013

                MEMORANDUM DECISION - NOT FOR PUBLICATION

PYLE, Judge
                                  STATEMENT OF THE CASE

          Maxwell Swisher (“Swisher”) appeals his conviction, following a bench trial, for

Class A misdemeanor domestic battery.1

          We affirm.

                                             ISSUE

                    Whether sufficient evidence supports Swisher’s conviction.

                                             FACTS

          The facts most favorable to the verdict reveal that in December 2011, Swisher, his

girlfriend, Debra Thobhani (“Thobhani”), and their two-year-old son, T.S., were living

with Swisher’s mother, Tammy Garding (“Garding”) and her husband in Boone County.

Swisher’s other son and younger sisters also lived at Garding’s house.           During the

evening hours of December 16, 2011, Jamestown Police Officer Larry Bewley (“Officer

Bewley”) was dispatched to Garding’s house on a domestic disturbance call after Garding

called 911 to request that a police officer be sent to her house.          Garding told the

dispatcher that “her son” was “hitting on his girlfriend” and reported that Swisher was

“physically” fighting with Thobhani and that she saw Thobhani “flat on her back on the

porch.” (State’s Ex. 1). While Garding was talking to the dispatcher, she stated that her

two-year-old grandson had just thrown up because he was “so upset over this.” (State’s

Ex. 1). Garding then called the 911 operator back a second time to inform the dispatcher

that Swisher had left the scene in a 2003 silver Taurus SES. When Garding was on the




1
    Ind. Code § 35-42-2-1.3(a).
                                                2
phone with the dispatcher, she confirmed that Swisher had hurt Thobhani and that

Thobhani had marks on her.

      When Officer Bewley arrived on the scene, he noticed that Thobhani was “very

upset” and that she had “some marks on her neck that [he] could obviously see.” (Tr. 8).

Thobhani also showed Officer Bewley that she had additional injuries, including scrapes

on her leg and lower back. Officer Bewley took photographs of Thobhani’s injuries and

of a broken chair on the front porch. Thobhani completed a voluntary written statement,

which provided:

      My boyfriend, Maxwell Swisher, came into the kitchen where I was talking
      to Tammy Garding, his mother. He then proceeds to get right up in my
      face, nose-to-nose, and yells obscenities and other profanities at me. The
      argument then moves into [Garding’s] bedroom where he the[n] pins me to
      the bed and continues to yell at me, and raises his fist to hit me. I then go
      outside to get away from him. I then open the door back up [be]cause I
      hear my son crying, he then pushes me out the door, shoves me down onto
      a plastic deck chair, which breaks, then continues to hold me down onto it,
      took my cigarette from my hand and burns me on the neck with it, he then
      also proceeds to go to kick and hit me. That is when his mother and
      stepfather, and the kids came outside. ALL of this took place in front of the
      children [ages 13, 10, 6, and 2].

(State’s Exhibit 4). While Thobhani was writing her statement, Officer Bewley spoke

with Garding, who was also “upset.” (Tr. 9). Garding also wrote out a voluntary

statement, which provided:

      Max [Swisher] came into the kitchen where I, Tammy Garding, was talking
      to [Thobhani]. He proceeded to berate [Thobhani] and get in her face and
      yell and push her around. A little later I was in my bedroom when
      [Thobhani] came in to talk to me. [Swisher] burst in and yelled at
      [Thobhani] and pinned her down yelling at her. A little later I heard my
      grandsons screaming, so I came out to find my 2 year old grandson, T.S.,
      screaming because [Swisher] and [Thobhani] were having a physical
      altercation on the porch. [Swisher] pushed [Thobhani] down and it was at

                                           3
       this time that I called the police. [Swisher] then sped off in a silver, 2003
       Taurus SES.

(State’s Exhibit 3). Both Thobhani and Garding returned their statements to Officer

Bewley that night.

       The State originally charged Swisher with Class D felony domestic battery but

later amended it to Class A misdemeanor domestic battery. On March 15, 2013, the trial

court held a bench trial. During the State’s opening argument, the prosecutor informed

the trial court that the State was planning to introduce Thobhani’s and Garding’s written

statements from the night of the incident, which she stated were “excited utterances” and

were “truthful statements” of what happened that night.         (Tr. 4).   The prosecutor,

however, warned the trial court that she was unsure of exactly how these witnesses would

testify at trial due to their relationship with Swisher and their current desire that he not

get into trouble. During Swisher’s opening statement, his attorney stated that Swisher’s

defense was that the State would not be able to present evidence to support every element

of domestic battery. Swisher’s attorney stated that Thobhani and Garding would testify

that they had made “mistakes” and “assumptions” under the existing “hysteria” of the

night and that “once it had all settled out later they realized that what they ha[d] said in

their statement[s] [was]n’t exactly what [had] happened.” (Tr. 5).

       When the State called Thobhani and Garding as witnesses to testify, they both

repudiated their prior written statements. Thobhani admitted that she wrote out and

signed her written statement but asserted that she wrote the allegations in the statement

because she was confused, upset, and “going off of what [Garding] had stated.” (Tr. 39).


                                             4
Thobhani claimed that she never spoke to Officer Bewley and that only Garding spoke to

the officer. Thobhani claimed that she and Swisher only verbally argued but that he

never physically touched her in the kitchen, never pinned her down in the bedroom, and

never shoved her or touched her on the porch. Instead, Thobhani maintained that she

injured her leg and lower back by tripping over rollerblades and falling on and breaking

the plastic chair on the front porch. Thobhani also testified that she burned her own neck

with a cigarette that she was holding when she fell on the chair.

       Garding also admitted that she wrote out and signed her written statement but

claimed that never saw Swisher physically touch Thobhani at any point that night.

Garding also admitted that she called 911 the first time but testified that she did not

remember calling 911 the second time. Garding contended that she called 911 based on a

“misunderstanding” and that she had “jumped to a conclusion” when she saw Thobhani

lying on her back on the porch. (Tr. 17).

       When the State introduced the recording of the two 911 calls (State’s Exhibit 1),

Garding’s written statement (State’s Exhibit 3), and Thobhani’s written statement (State’s

Exhibit 4), into evidence, Swisher did not object and affirmatively stated that he had

“[n]o objection” to the admission of these exhibits. (Tr. 18, 22, 38).

       After the State rested, Swisher moved for a directed verdict, arguing that the State

had failed to present any evidence that Swisher had touched Thobhani in a rude, insolent,

or angry manner. The State argued that the written statements and 911 calls were excited

utterances and were being used as substantive evidence and asserted that the trial court

needed to weigh the credibility of that evidence against the witnesses’ in-trial testimony.

                                             5
The trial court denied Swisher’s motion. Swisher then testified on his own behalf and

stated that he yelled at Thobhani in the kitchen and bedroom and on the porch, but he

testified that he did not shove or hit her. The trial court found Swisher guilty as charged.

The trial court imposed a fourteen (14) day sentence in the Boone County Jail with credit

for time served. Swisher now appeals his conviction.

                                        DECISION

       Swisher argues that the evidence was insufficient to support his conviction for

Class A misdemeanor domestic battery.

       When reviewing the sufficiency of the evidence to support a conviction,
       appellate courts must consider only the probative evidence and reasonable
       inferences supporting the verdict. It is the fact-finder’s role, not that of
       appellate courts, to assess witness credibility and weigh the evidence to
       determine whether it is sufficient to support a conviction. To preserve this
       structure, when appellate courts are confronted with conflicting evidence,
       they must consider it most favorably to the [jury’s verdict]. Appellate
       courts affirm the conviction unless no reasonable fact-finder could find the
       elements of the crime proven beyond a reasonable doubt. It is therefore not
       necessary that the evidence overcome every reasonable hypothesis of
       innocence. The evidence is sufficient if an inference may reasonably be
       drawn from it to support the verdict.

Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (internal quotation marks and

citations omitted) (emphasis in original).

       Indiana Code § 35-42-2-1.3(a) provides that a person commits Class A

misdemeanor domestic battery when he knowingly or intentionally touches an individual

with whom he has a child in common in a rude, insolent, or angry manner that results in

bodily injury to that person.




                                             6
       Swisher contends that there was insufficient evidence to support the element of a

rude, insolent, or angry touching because Thobhani and Garding testified that Swisher did

not physically touch Thobhani. Swisher acknowledges that the evidence of the 911 call

(State’s Exhibit 1), Garding’s written statement (State’s Exhibit 3), and Thobhani’s

written statement (State’s Exhibit 4) provides evidence that he touched Thobhani in a

rude, insolent, or angry manner; however, he now contends on appeal that these exhibits

were either improperly admitted into evidence or improperly used as substantive

evidence. We cannot agree.

       First, Swisher’s contention that the evidence was insufficient because Thobhani’s

and Garding’s in-trial testimony did not provide evidence of a physical touching is

nothing more than an invitation to reweigh the evidence against their written statements

and to judge the credibility of the witnesses, which we will not do. See Drane, 867

N.E.2d at 146. Additionally, to the extent that Swisher is attempting to challenge the

admissibility of State’s Exhibits 1, 3, and 4, he has waived any such appellate challenge

because he did not object to the these exhibits at trial. In fact, he affirmatively stated that

he had “[n]o objection” to the admission of this evidence.                   (Tr. 18, 22, 38).

Consequently, Swisher has waived appellate review of his claim of error.2 See, e.g.,

Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010) (holding that defendant, who did not

object to evidence upon introduction of evidence and who affirmatively stated he had no

objection, waived review of his argument that evidence was unlawfully seized), reh’g

denied; Jackson v. State, 735 N.E.2d 1146, 1152 (Ind. 2000) (“The failure to make a
2
  Swisher fails to acknowledge his lack of objection to the evidence he now claims was improperly
admitted, and he does not argue that fundamental error occurred by the admission of this evidence.
                                                7
contemporaneous objection to the admission of evidence at trial results in waiver of the

error on appeal.”).

       Because there was probative and unchallenged evidence from which the trial

court—as trier of fact in this bench trial—could have found that Swisher touched

Thobhani in a rude, insolent, or angry manner, we affirm his conviction for Class A

misdemeanor domestic battery.

       Affirmed.

MATHIAS, J., and BRADFORD, J., concur.




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