Jonathon Andrew Moore v. State of Indiana (mem. dec.) ( 2018 )

MEMORANDUM DECISION FILED
Aug 03 2018, 7:46 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as CLERK
Indiana Supreme Court
precedent or cited before any court except for the Court of Appeals
and Tax Court
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Frederick Vaiana Curtis T. Hill, Jr.
Voyles Vaiana Lukemeyer Baldwin & Attorney General of Indiana
Webb
Indianapolis, Indiana Henry A. Flores, Jr.
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jonathon Andrew Moore, August 3, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-40
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Amy J. Barbar,
Appellee-Plaintiff. Magistrate
Trial Court Cause No.
49G02-1608-F5-32542
Darden, Senior Judge.
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Statement of the Case
[1] Jonathon Andrew Moore appeals his conviction of battery by a person at least
eighteen years of age resulting in bodily injury to a person under fourteen years
1
of age, a Level 5 felony. We affirm.
Issue
[2] Moore raises one issue, which we restate as: whether the evidence is sufficient
to sustain Moore’s conviction.
Facts and Procedural History
[3] On Sunday, August 7, 2016, Moore took his children, eleven-year-old G.M.
and six-year-old N.M., to a birthday party. At one point, N.M. was eating food
outside when a bee flew near her. She became scared and swatted at it, but it
landed in her food and attempted to land on her. N.M. then swatted at it again,
crying in fear. Moore walked over to her. He was upset and told her to stop
swatting at the bee.
[4] Next, Moore put G.M. and N.M. in his car, preparing to take G.M. back to his
mother’s home. Both children sat in the back seat, with G.M. sitting behind the
driver’s seat and N.M. sitting behind the front passenger seat. Moore turned
toward N.M. He was “mad.” Tr. Vol. II, pp. 27, 43. Moore told N.M., “I told
you to . . . stop swatting at that bee.” Id. at 42. He then slapped N.M. in the
1
Ind. Code § 35-42-2-1 (2016).
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face and on her arm several times. Moore hit N.M. “hard,” causing her to cry.
Id. at 26. Next, he drove G.M. home, dropped him off, and took N.M. back to
the party.
[5] On Monday, August 8, N.M. went to school. N.M.’s teacher noticed a mark
on the side of her face and a welt on her forehead. N.M. did not have the
marks on her face the previous Friday. The teacher alerted her principal and
called the Department of Child Services. She also called N.M.’s mother,
Latasha Colvin.
[6] Colvin had not seen N.M. since the previous Friday because Moore had
exercised parenting time with N.M. that weekend. Colvin went to N.M.’s
school and, upon seeing N.M., noticed a mark on the right side of her face and
a welt on her forehead.
[7] Next, Colvin checked N.M. out of school, called the police, and took N.M. to a
hospital. A forensic nurse examined N.M. and saw a red mark on the right side
of her face. The nurse opined that the mark was consistent with being struck by
a hand.
[8] On August 10, 2016, forensic interviewers spoke with N.M. about her injury. A
detective observed the interview and also noted a bruise on the right side of
N.M.’s face. The bruise resembled a handprint. The detective also interviewed
Moore, who denied striking N.M. He instead claimed N.M. must have been
accidentally struck by another child while playing at the party.
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[9] On August 22, 2016, the State charged Moore with battery by a person eighteen
years of age resulting in bodily injury to a person less than fourteen years of age,
a Level 5 felony. Moore waived his right to a jury trial, and the case was tried
to the bench. Moore testified that after he put G.M. and N.M. in the car, she
screamed that there was a bee in the car. He further claimed that he
accidentally hit N.M. while attempting to get the insect out of the car. The trial
court determined Moore was guilty, stating as follows:
Well the court finds there was remarkable consistence [sic] in the
testimony of these two children who haven’t seen each other in a
year. And particularly in regard to the details of when the child
was struck. Even children know the difference, as they showed
by their testimony between somebody swatting a bee and an
angry father, and the most inconsistent testimony in this case was
from the defendant. And the statements he gave to the detective
beforehand. Based upon all the evidence the court has seen, the
court finds the state did prove beyond a reasonable doubt that the
defendant committed a battery on a child less than fourteen years
of age, and so will enter judgment of conviction as to count one,
a level five felony.
Tr. Vol. II, p. 96. The trial court subsequently held a sentencing hearing and
imposed a sentence. This appeal followed.
Discussion and Decision
[10] Moore argues the evidence is insufficient to support his conviction. Our
standard of review for sufficiency of the evidence is well-settled. We do not
reweigh the evidence or assess the credibility of witnesses. Bell v. State, 31
N.E.3d 495, 499 (Ind. 2015). We consider only the probative evidence and
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reasonable inferences supporting the judgment. Perryman v. State, 80 N.E.3d
234, 250 (Ind. Ct. App. 2017). We will affirm the trial court if the probative
evidence and reasonable inferences drawn from the evidence could have
allowed a reasonable trier of fact to find the defendant guilty beyond a
reasonable doubt. Tobar v. State, 740 N.E.2d 109, 111-12 (Ind. 2000).
[11] To convict Moore as charged, the State was required to prove beyond a
reasonable doubt that (1) Moore, (2) who was more than eighteen years of age,
(3) knowingly or intentionally (4) touched N.M., (5) who was less than fourteen
years of age, (6) in a rude, insolent, or angry manner, (7) resulting in bodily
injury to N.M. Ind. Code § 35-42-2-1. The key question is whether Moore
knowingly or intentionally struck N.M. He claims the mark on N.M.’s face
was the result of “accidental contact.” Appellant’s Br. p. 10.
[12] As the General Assembly has stated:
(a) A person engages in conduct ‘intentionally’ if, when he
engages in the conduct, it is his conscious objective to do so.
(b) A person engages in conduct ‘knowingly’ if, when he engages
in the conduct, he is aware of a high probability that he is doing
so.
Ind. Code § 35-41-2-2 (1977). Because knowledge is a mental state of the actor,
it may be proved by circumstantial evidence and inferred from the
circumstances and facts of each case. Smith v. State, 963 N.E.2d 1110, 1113
(Ind. 2012).
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[13] Both children testified that Moore placed them in his car and was “mad.” They
further testified that Moore turned to N.M. and, after reminding her that he had
told her to stop swatting at the bee, slapped her several times on her face and
arm. N.M. cried because Moore struck her “hard,” but he simply told her to
stop crying. One of Moore’s slaps left a red handprint on the right side of her
face.
[14] When a detective interviewed Moore about the incident several days later, he
denied touching N.M. and stated that she must have been struck by another
child at the party. However, at trial he contradicted himself, testifying that he
accidentally hit her while trying to get an insect out of his car. This evidence is
sufficient to establish beyond a reasonable doubt that Moore knowingly or
intentionally struck N.M.; and, that he did so in a rude, insolent, or angry
manner. See Cooper v. State, 831 N.E.2d 1247, 1251 (Ind. Ct. App. 2005) (State
presented sufficient evidence to disprove Cooper’s claim that she accidentally
struck child victim; Cooper was angry and struck the child repeatedly, with
force), trans. denied. Moore’s citation to his own testimony is a request to
reweigh the evidence, which our standard of review forbids.
[15] Moore further raises a defense of parental privilege, claiming he cannot be held
criminally liable for striking N.M. because it was a reasonable use of force that
was necessary to discipline his child. Moore did not present this defense to the
trial court. Instead, he argued at trial that he struck N.M. by accident. Moore
is thus raising the defense of parental privilege for the first time on appeal and
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has procedurally defaulted it. See Benson v. State, 762 N.E.2d 748, 755-56 (Ind.
2002) (claims not presented to trial court could not be considered on appeal).
Conclusion
[16] For the reasons stated above, we affirm the judgment of the trial court.
[17] Affirmed.
Bailey, J., and Pyle, J., concur.
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