Antionne Lamar Brewster v. State of Indiana (mem. dec.) ( 2015 )

MEMORANDUM DECISION
Oct 07 2015, 9:37 am
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 establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEES
Sergey Grechukhin Gregory F. Zoeller
Kirtley, Taylor, Sims, Chadd & Minnette, Attorney General of Indiana
P.C.
Richard C. Webster
Lebanon, Indiana
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Antionne Lamar Brewster, October 7, 2015
Appellant-Defendant, Court of Appeals Case No.
06A01-1502-CR-66
v. Appeal from the Boone Superior
Court
The Honorable Matthew C. Kincaid,
State of Indiana, Judge
Appellee-Plaintiff. Trial Court Cause No. 06D01-1411-
F6-183
Bradford, Judge.
Case Summary
[1] Appellant-Defendant Antionne Brewster and J.P had been romantically
involved for approximately four years as of November of 2014. On November
Court of Appeals of Indiana | Memorandum Decision 06A01-1502-CR-66 | October 7, 2015 Page 1 of 6
12, 2014, Brewster and J.P. argued over a telephone call J.P. received from a
male coworker. When J.P. locked herself and her three children in a bedroom,
Brewster broke the door open and proceeded to push, smack, choke, and bite
J.P. J.P.’s children were in the “next room” when Brewster’s assault on J.P.
occurred. Appellee-Plaintiff the State of Indiana eventually charged Brewster
with two counts of Level 6 felony domestic battery, Level 6 felony
strangulation, and Class A misdemeanor domestic battery. The trial court
found Brewster guilty as charged and sentenced him to two and one-half years
each for Level 6 felony domestic battery and Level 6 felony strangulation, both
sentences to be served consecutively. Brewster contends that the State
produced insufficient evidence to sustain his conviction for Level 6 felony
domestic battery. Concluding that the State produced sufficient evidence to
sustain the challenged conviction, we affirm.
Facts and Procedural History
[2] By November of 2014, Brewster and J.P. had been romantically involved for
approximately four years, were living together, and considered themselves to be
husband and wife. (Tr. 29). At the time, J.P. had three children, all of whom
were under the age of thirteen and none of whom were biologically Brewster’s.
During the morning of November 12, 2014, Brewster and J.P. began arguing
after J.P. received a telephone call from a male coworker. (Tr. 39). Brewster
accused J.P. of “sleep[ing] around” and called her “[a] ho.” Tr. pp. 30, 31.
Court of Appeals of Indiana | Memorandum Decision 06A01-1502-CR-66 | October 7, 2015 Page 2 of 6
[3] Later, J.P. locked herself and her children in a bedroom, but Brewster “was not
pleased with the door being locked and busted it in.” Tr. p. 31. Brewster
pushed, smacked, and choked J.P. and “bit [her] on the face.” Tr. p. 32.
During the attack, J.P.’s children “were in the next room.” Tr. p. 32.
[4] On November 13, 2014, the State charged Brewster with Level 6 felony
strangulation and Level 6 felony domestic battery. (Appellant's App. 37). On
December 29, 2014, the State amended the charging information to add Count
III, Class A misdemeanor domestic battery and Count IV, Level 6 felony
domestic battery. (Appellant's App. 26-27). On January 12, 2015, the trial
court conducted a bench trial, after which it found Brewster guilty as charged.
(Appellant's App. 74-75). On February 5, 2015, the trial court entered
judgment of conviction for one count of Level 6 felony domestic battery and
Level 6 felony strangulation. (Tr. 101). That day, the trial court sentenced
Brewster to two and one-half years of incarceration for each conviction, both
sentences to be served consecutively. (Tr. 101-02).
Discussion and Decision
Whether the State Produced Sufficient Evidence to
Sustain Brewster’s Conviction for Level 6 Felony
Domestic Battery
[5] Brewster contends that the State produced insufficient evidence to sustain his
Level 6 felony domestic battery conviction. When reviewing the sufficiency of
the evidence, we neither reweigh the evidence nor resolve questions of
Court of Appeals of Indiana | Memorandum Decision 06A01-1502-CR-66 | October 7, 2015 Page 3 of 6
credibility. Jordan v. State, 656 N.E.2d 816, 817 (Ind. 1995). We look only to
the evidence of probative value and the reasonable inferences to be drawn
therefrom which support the verdict. Id. If from that viewpoint there is
evidence of probative value from which a reasonable trier of fact could conclude
that the defendant was guilty beyond a reasonable doubt, we will affirm the
conviction. Spangler v. State, 607 N.E.2d 720, 724 (Ind. 1993).
[6] Brewster challenges only the sufficiency of the State’s evidence to establish that
he committed his battery of J.P. within the physical presence of her three
children, which raises his domestic battery from a misdemeanor to a Level 6
felony. Indiana Code section 35-42-2-1.3 provides, in part, as follows:
(a) A person who knowingly or intentionally touches an
individual who:
…
(2) is or was living as if a spouse of the other person as
provided in subsection (c); or
…
in a rude, insolent, or angry manner that results in bodily injury
to the person described in subdivision (1), (2), or (3) commits
domestic battery, a Class A misdemeanor.
(b) However, the offense under subsection (a) is a Level 6 felony
if the person who committed the offense:
….
(2) committed the offense 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.
[7] Indiana Code section 35-42-2-1.3 requires only “the possibility that [the
children] ‘might’ see or hear [the domestic battery].” True v. State, 954 N.E.2d
Court of Appeals of Indiana | Memorandum Decision 06A01-1502-CR-66 | October 7, 2015 Page 4 of 6
1105, 1111 (Ind. Ct. App. 2011). “‘Presence’ is defined as knowingly being
within either the possible sight or hearing of a child.” Id. (emphasis omitted).
[8] We conclude that the State proved that Brewster committed his domestic
battery of J.P. in the physical presence of her three children. Brewster testified
that he was aware that the children were present when the argument began, and
the trial court was free to infer that he saw them again when he knocked in
J.P.’s door directly before battering her. J.P. testified that as Brewster pushed,
hit, choked, and bit her, her children were “in the next room.” Tr. p. 32.
Brewster argues that J.P.’s testimony is unclear regarding whether the children
were in the next room when he bit J.P., but we believe that a fair reading of the
testimony in question indicates otherwise:
Q. How did he touch you?
A. He was pushing me, smacking me, he choked me out and
bit me on my face?
Q. When you say he choked you out, what part of his body
did he put on what part of your body?
A. He was laying on top of me and his hands were around my
throat.
Q. Were you able to breathe while that was happening?
A. For the most part.
Q. Did you have trouble breathing?
A. Yes.
Q. Did you have any trouble speaking or saying anything at
that time?
A. Yes.
Q. Where were the children when that was going on?
A. They were in the next room.
Tr. p. 32.
Court of Appeals of Indiana | Memorandum Decision 06A01-1502-CR-66 | October 7, 2015 Page 5 of 6
We conclude that the State produced sufficient evidence to sustain a finding
that the children were in the next room during Brewster’s battery of J.P., clearly
within possible sight or hearing of the attack. Brewster’s argument amounts to
an invitation to reweigh the evidence, which we will not do. Jordan, 656
N.E.2d at 817.
[9] The judgment of the trial court is affirmed.
May, J., and Crone, J., concur.
Court of Appeals of Indiana | Memorandum Decision 06A01-1502-CR-66 | October 7, 2015 Page 6 of 6