Landon Harbert v. State of Indiana ( 2014 )

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Dec 18 2014, 10:12 am
regarded as precedent or cited before Dec 18 2014, 10:12 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:
STEVEN KNECHT GREGORY F. ZOELLER
Vonderheide & Knecht, P.C. Attorney General of Indiana
Lafayette, Indiana
JODI KATHRYN STEIN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
LANDON HARBERT, )
)
Appellant-Defendant, )
)
vs. ) No. 79A05-1312-CR-634
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE TIPPECANOE SUPERIOR COURT
The Honorable Les A. Meade, Judge
Cause No. 79D05-1301-FD-2
December 18, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
PYLE, Judge
STATEMENT OF THE CASE
Landon Harbert (“Harbert”) appeals his conviction, after a jury trial, for Class D
felony domestic battery.1 On appeal, Harbert claims that the State failed to prove that the
battery occurred in the presence of children under the age of sixteen. Concluding that the
altercation occurred at a place where children were present and might have seen or heard
it, we affirm Harbert’s conviction.
We affirm.
ISSUE
Whether sufficient evidence supports Harbert’s conviction.
FACTS
On December 30, 2012, Officer Adam Ferguson (“Officer Ferguson”) of the West
Lafayette Police Department responded to a domestic disturbance in progress. When he
arrived, he saw Kristin Harbert (“Kristin”) on the ground with Harbert, her husband,
standing over her and screaming at her. Megan Simpson (“Simpson”) was also standing
a short distance away. All three people were located near the front door of the house.
As Officer Ferguson approached, he ordered Harbert to stop. Harbert stopped
yelling and went inside the house. With Simpson’s help, Kristin stood up. However,
Kristin did not want to tell Officer Ferguson anything about the incident. He observed
that Kristin was “very red,” crying, covered in snow, and appeared to be afraid. (Tr. 56).
Simpson would later tell an officer that Harbert had hit Kristin.
1
IND. CODE § 35-42-2-1.3(b)(2) (2012). We note that, effective July 1, 2014, a new version of this
domestic battery statute was enacted and that Class D felony domestic battery is now a Level 6 felony.
Because Harbert committed this offense in 2012, we will apply the statute in effect at that time.
2
Officer Ferguson went to the door, knocked loudly, and asked for Harbert to come
out and talk to him. The officer heard movement in the house, but Harbert did not come
to the door. In the meantime, Officer Jeffrey Dunscomb (“Officer Dunscomb”) arrived at
the residence and waited with Kristin and Simpson while Officer Ferguson attempted to
make contact with Harbert. Officer Dunscomb spoke with Kristin and observed that “she
was shaking, [and was] visibly very, very upset.” (Tr. 78). He also observed that Kristin
had a bloody upper lip, a fat lower lip, a mark under her right eye, and swelling on the
left side of her forehead. Officer Dunscomb learned that children were in the house, and
the officers began to focus on getting them out safely. The children ranged in age from
seven to eighteen. A SWAT team eventually went into the home and got the children out
safely. Afterward, the officers again attempted to contact Harbert but received no
response. Officers eventually went inside, located Harbert in a locked bedroom, and took
him into custody.
On January 2, 2013, the State charged Harbert with domestic battery, a Class D
felony, alleging that the battery occurred in the presence of a child less than sixteen years
of age; domestic battery, a Class A misdemeanor; interference with reporting of a crime,
a Class A misdemeanor; and criminal mischief, a class A misdemeanor.
On October 22, 2013, a jury trial was conducted, and the jury found Harbert guilty
of felony and misdemeanor domestic battery and criminal mischief. At sentencing, the
trial court merged the domestic battery convictions and sentenced Harbert to two and one
half (2 ½) years executed on the domestic battery conviction and one (1) year on the
criminal mischief conviction. The trial court ordered the convictions to be served
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concurrently in the Department of Correction. Harbert now appeals his conviction for
felony domestic battery. We will provide additional facts as necessary.
DECISION
Harbert argues that insufficient evidence supports his conviction for felony
domestic battery. Harbert does not dispute that he hit Kristin; he only argues that the
State did not present sufficient evidence proving that the battery occurred in the presence
of a child sixteen (16) years of age or younger.
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 trial court’s ruling.
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).
To convict Harbert of Class D felony domestic battery, the State had to prove that
he knowingly or intentionally battered and injured Kristin “in the physical presence of a
child less than sixteen (16) years of age, knowing that the child was present and might be
able to see or hear the offense.” I.C. § 35-42-2-1.3(b)(2). It is well established under
INDIANA CODE § 35-42-2-1.3(b)(2) that “none of the children had to actually sense the
battery; there only needed be the possibility that they ‘might’ see or hear it.” True v.
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State, 954 N.E.2d 1105, 1111 (Ind. Ct. App. 2011) (citing Boyd v. State, 889 N.E.2d 321,
325 (Ind. Ct. App. 2008), trans. denied).
Here, Harbert argues that insufficient evidence supports his conviction because the
battery took place outside of the house while the children were inside. He further relies
on Kristin’s testimony that the house was long and that the children were inside asleep to
support his claim that the children did not see or hear the altercation. However, as we
noted in True, the children here did not have to sense the battery. Id. The possibility that
they might have seen or heard it is sufficient. Id. Officer Ferguson testified that he
observed Harbert yelling at Kristin while standing over her. Further, the altercation
occurred close to the front door of the house. It was not unreasonable for the jury to
conclude that it was possible that the children might have heard or seen the altercation.
Accordingly, sufficient evidence supports the jury’s verdict, and we affirm Harbert’s
conviction for Class D felony domestic battery.
We affirm.
NAJAM, J., and BAILEY, J., concur.
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