MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                        FILED
this Memorandum Decision shall not be
                                                                         Apr 20 2020, 10:39 am
regarded as precedent or cited before any
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
Denise L. Turner                                          Curtis T. Hill, Jr.
DTurner Legal LLC                                         Attorney General of Indiana
Indianapolis, Indiana
                                                          Samuel J. Dayton
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jeffery Manley McMillen,                                  April 20, 2020
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          19A-CR-2549
        v.                                                Appeal from the
                                                          Shelby Circuit Court
State of Indiana,                                         The Honorable
Appellee-Plaintiff.                                       Trent E. Meltzer, Judge
                                                          Trial Court Cause No.
                                                          73C01-1812-F6-577



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2549 | April 20, 2020                    Page 1 of 9
[1]   Jeffery Manley McMillen (“McMillen”) was convicted after a bench trial of

      domestic battery1 as a Level 5 felony and interference with the reporting of a

      crime,2 a Class A misdemeanor. He appeals his convictions and raises the

      following restated issue for our review: whether the State presented sufficient

      evidence to support his convictions.


[2]   We affirm.


                                       Facts and Procedural History
[3]   At the time of the incident in this case, McMillen and H.M. were married and

      had four children together, ranging in age from eight to seventeen years old. Tr.

      Vol. 2 at 23. On December 19, 2018, McMillen, H.M., and three of their

      children were at their home in Shelby County, Indiana. Id. at 24. Their

      seventeen-year-old child was not at home. Id. It was the night before the

      children’s last day of school before winter break, and H.M. asked McMillen

      whether he would be able to help pay for Christmas gifts for the children’s

      teachers. Id. When H.M. posed the question to McMillen, he was headed up

      the stairs, and he ran down the stairs. Id. McMillen stood in front of H.M.’s

      face, and yelled, “[Y]ou know I don’t have any money,” which caused H.M. to

      back away from him. Id. McMillen was “in [her] face,” and so she grabbed his

      neck. Id.




      1
          See Ind. Code § 35-42-2-1.3(c)(4)(A).
      2
          See Ind. Code § 35-45-2-5.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2549 | April 20, 2020   Page 2 of 9
[4]   H.M. went to the bathroom and closed the door so she could calm down. Id. at

      25. H.M. explained that in situations like that, McMillen usually leaves the

      house, otherwise things just get “worse, worse and worse.” Id. at 25, 27. This

      time, McMillen went to the basement to work on a “wood burning” project. Id.

      at 25. While H.M. was in the bathroom, she began listening to a voicemail

      McMillen had left on her phone that he did not want the children to hear. Id.


[5]   McMillen could hear the voicemail being played through a vent. Id. at 25, 35.

      He went upstairs and kicked in the bathroom door in order to get to H.M. Id.

      H.M. was wearing a hooded sweatshirt with a pocket, and she attempted to put

      her phone in that pocket, but McMillen “grabbed it from [her].” Id. at 25-26.

      One of the children found another phone in the house and used it to call 911.

      Id. at 27.


[6]   Shelbyville Police Department Officer James Jones (“Officer Jones”) was

      dispatched to the home after a 911 call was received from a child who reported

      that a “physical domestic” was in progress. Id. at 7. When Officer Jones

      arrived, a neighbor told the officer that a man had “just [run] out of the house

      and took off in a car.” Id. Officer Jones then made contact with H.M. and

      observed that there were three children in the house with H.M. Id. at 8, 13. He

      also observed a red mark on H.M.’s right cheek. Id. at 10.


[7]   After he had a brief conversation with H.M., Officer Jones found out that

      McMillen had driven away in a black Civic and gave the information to other

      officers. Id. at 8. Shortly thereafter, another officer located McMillen and


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2549 | April 20, 2020   Page 3 of 9
      stopped him four or five blocks away. Id. McMillen admitted to that officer

      that McMillen had been arguing with H.M. over issues about paying the rent.

      Id. at 18. McMillen also admitted to the officer that he had kicked in the

      bathroom door and grabbed H.M.’s cell phone, which he had with him at the

      time of the traffic stop. Id. at 19. McMillen told the officer that he had taken

      H.M.’s cell phone because she was calling 911. Id. at 22. In 2013, McMillen

      had been previously charged with and pleaded guilty to domestic battery

      committed against H.M in Cause Number 73D02-1306-FD-223. Id. at 69-71;

      State’s Exs. 13, 14.


[8]   On December 20, 2018, the State charged McMillen with Level 6 felony

      domestic battery in the presence of a child and Class A misdemeanor

      interference with the reporting of a crime. Appellant’s App. Vol. II at 14-15. That

      same day, the State moved to amend the charging information to add a count

      for domestic battery with a prior unrelated conviction for domestic battery

      against the same family or household member as a Level 5 felony, and the trial

      court granted the motion on December 28, 2018. Id. at 4, 19-20.


[9]   On March 8, 2019, McMillen filed a written waiver of jury trial. Id. at 21-22.

      A bench trial was held on September 10, 2019, and at the conclusion, the trial

      court found McMillen guilty on all counts and entered a judgment of conviction

      against him for Level 5 felony domestic battery and Class A misdemeanor

      interference with the reporting of a crime. Id. at 25-29. On October 22, 2019,

      the trial court sentenced McMillen to thirty-six months for his domestic battery

      conviction and twelve months for his interference with the reporting of a crime

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2549 | April 20, 2020   Page 4 of 9
       conviction and ordered the sentences to be served concurrently. Id. at 25-29.

       The trial court ordered that McMillen serve four days executed for each count

       and ordered that the remainder of each sentence be suspended to probation. Id.

       McMillen was required to serve 180 days of his probation on home detention.

       Id. at 28-34. McMillen now appeals.


                                      Discussion and Decision
[10]   McMillen argues that the evidence presented at trial was insufficient to support

       his convictions. When we review the sufficiency of evidence to support a

       conviction, we do not reweigh the evidence or assess the credibility of the

       witnesses. Lehman v. State, 55 N.E.3d 863, 868 (Ind. Ct. App. 2016), trans.

       denied. We consider only the evidence most favorable to the trial court’s ruling

       and the reasonable inferences that can be drawn from that evidence. Lock v.

       State, 971 N.E.2d 71, 74 (Ind. 2012). We also consider conflicting evidence in

       the light most favorable to the trial court’s ruling. Oster v. State, 992 N.E.2d 871,

       875 (Ind. Ct. App. 2013), trans. denied. A conviction will be affirmed if there is

       substantial evidence of probative value such that a reasonable trier of fact could

       have concluded the defendant was guilty beyond a reasonable doubt. Wolf v.

       State, 76 N.E.3d 911, 915 (Ind. Ct. App. 2017).


[11]   McMillen contends that the State presented insufficient evidence to support

       both his conviction for domestic battery and his conviction for interference with

       the reporting of a crime. As to his domestic battery conviction, he asserts that

       the State failed to provide sufficient evidence that he touched H.M. in a rude,


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2549 | April 20, 2020   Page 5 of 9
       insolent, or angry manner. He claims that the evidence only showed that he

       grabbed H.M.’s phone and not that he touched her. As to his conviction for

       interference with the reporting of a crime, McMillen argues that the State failed

       to prove two essential elements of the crime: (1) that he had the intent to

       conceal the commission of a crime; and (2) that he interfered with or prevented

       H.M. from calling 911. He contends that no crime had been committed, and,

       therefore, he did not take H.M.’s phone to conceal the commission of a crime.

       He further asserts that the evidence did not show that H.M. was calling 911

       when he took her phone or had even discussed calling 911.


[12]   In order to convict McMillen of domestic battery as a Level 5 felony as charged,

       the State was required to prove beyond a reasonable doubt that he knowingly or

       intentionally touched a family or household member, H.M., in a rude, insolent,

       or angry manner and that he had a previous conviction for a battery offense

       against the same family or household member. Ind. Code § 35-42-2-1.3(a)(1),

       (c)(4)(A). McMillen does not challenge the fact that he had a prior domestic

       battery conviction against H.M. He only challenges the sufficiency of the

       evidence in that he asserts that he did not touch H.M. in a rude, insolent, or

       angry manner.


[13]   The evidence presented at trial reasonably supported a finding by the trial court

       that McMillen touched H.M. in a rude, angry, or insolent manner. When

       Officer Jones arrived at the house, he observed a red mark on H.M.’s right

       cheek. Tr. Vol. II at 10. McMillen admitted at trial that he struck H.M. in the

       cheek with his elbow when she tried to get her phone back from him, but he

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2549 | April 20, 2020   Page 6 of 9
       claimed it was an accident. Id. at 58-59. However, the trial court as factfinder

       was not required to accept McMillen’s claim that he did not intend to hit H.M.


[14]   There was also evidence that McMillen touched H.M. in a rude, angry, or

       insolent manner when he grabbed her phone from her. When McMillen

       testified, he acknowledged that there “could have been contact” when he

       grabbed the phone from H.M. but claimed that he did not have the requisite

       intent, an explanation that the factfinder was not required to accept. Tr. Vol. II

       at 57. H.M. testified that the bathroom was small, that when McMillen entered

       the bathroom, she was attempting to put the phone in the front pocket of her

       sweatshirt, and that McMillen put his arms around her. Id. at 26. On redirect

       examination, H.M. was asked whether McMillen touched her, and she

       provided the following answers: “[H]e, he grab . . . . He, he put his arm he put

       his he put, I don’t, like I don’t I wouldn’t consider . . . . He grabbed my phone

       from me and he probably . . . . He didn’t like I don’t know he had his arm

       around like right around me, but I mean.” Id. at 45. H.M. was asked one final

       time about whether McMillen touched her, and she stated, “Ok I guess, I don’t

       know.” Id. Although both H.M. and McMillen equivocated about whether

       McMillen touched H.M. when he grabbed her cell phone away from her, it is

       for the trier of fact to resolve conflicts in the evidence and to decide which

       witnesses to believe or disbelieve. Moore v. State, 27 N.E.3d 749, 755-56 (Ind.

       2015).


[15]   Additionally, in the 911 call, the child who called stated that she thought her

       parents were hurting each other and that she was scared. State’s Ex. 11. Later

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2549 | April 20, 2020   Page 7 of 9
       in the call, the child said there was yelling and punching going on. Id. In his

       brief, McMillen concedes that a reasonable theory of guilt existed in this case,

       and that it was supported by the testimony given by both H.M. and McMillen.

       Appellant’s Br. at 8. Therefore, his arguments are requests to reweigh the

       evidence and judge the credibility of the witnesses, which we cannot do.

       Lehman, 55 N.E.3d at 868.


[16]   Based on the evidence presented at trial, we conclude that it was reasonable for

       the trial court to conclude that McMillen touched H.M. in a manner that was

       rude, angry, or insolent. The evidence showed that H.M. had a red mark on

       her cheek when the police arrived, and McMillen testified to hitting her with his

       elbow when he grabbed her cell phone from her. Although he claimed that it

       was not intentional and he was not angry, the trial court could reasonably infer

       that he was angry from his actions. The evidence showed that McMillen kicked

       the bathroom door, breaking it in half, in order to get access to H.M. inside the

       bathroom and to grab her phone from her. The evidence supported the trial

       court’s finding that McMillen was guilty of domestic battery as a Level 5 felony.


[17]   In order to convict McMillen of interference with the reporting of a crime as a

       Class A misdemeanor, the State was required to prove beyond a reasonable

       doubt that McMillen, with the intent to commit, conceal, or aid in the

       commission of a crime, knowingly or intentionally interfered with or prevented

       H.M. from using a 911 emergency telephone system. Ind. Code § 35-45-2-5.

       McMillen challenges the sufficiency of the evidence showing that he concealed



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2549 | April 20, 2020   Page 8 of 9
       the commission of a crime and that he interfered with or prevented H.M. from

       dialing 911.


[18]   The evidence showed that when McMillen was pulled over by the police,

       McMillen told the officer that he had H.M.’s phone because he took it from her

       “because she was trying to call [911].” Tr. Vol. II at 22. Although at trial,

       McMillen claimed that he only took H.M.’s phone from her because he was

       going to delete the voicemail, it was the trial court’s responsibility, as trier of

       fact, to resolve conflicts in the evidence and to decide which witnesses to

       believe or disbelieve. Moore, 27 N.E.3d at 755-56. McMillen’s contention that

       he was not concealing a crime is based on his claim that the State did not

       present sufficient evidence to support his conviction for Level 5 felony domestic

       battery. However, as we have determined that there was sufficient evidence

       from which the trier of fact could find that he committed Level 5 felony

       domestic battery, it was reasonable for the trial court to find that McMillen took

       the phone from H.M. in order to prevent her from dialing 911 and to conceal

       his commission of domestic battery. McMillen’s arguments are a request for

       this court to reweigh the evidence, which we cannot do. Lehman, 55 N.E.3d at

       868. We conclude that the State presented sufficient evidence to support

       McMillen’s conviction for interference with the reporting of a crime.


[19]   Affirmed.


       Najam, J., and Brown, J., concur.



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2549 | April 20, 2020   Page 9 of 9
