Shannon Scott Clevenger v. State of Indiana (mem. dec.) ( 2015 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), Nov 25 2015, 7:03 am
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 APPELLEE
Michael D. Gross Gregory F. Zoeller
Lebanon, Indiana Attorney General of Indiana
Richard C. Webster
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Shannon Scott Clevenger, November 25, 2015
Appellant-Defendant, Court of Appeals Case No.
06A05-1504-CR-148
v. Appeal from the Boone Superior
Court
State of Indiana, The Honorable Rebecca McClure,
Appellee-Plaintiff. Judge
Trial Court Cause No.
06D02-1405-CM-227
May, Judge.
Court of Appeals of Indiana | Memorandum Decision 06A05-1504-CR-148 | November 25, 2015 Page 1 of 5
[1] Shannon Scott Clevenger appeals his convictions of Class A misdemeanor
domestic battery 1 and Class A misdemeanor interference with reporting of a
crime. 2 He asserts the evidence was insufficient to sustain his convictions.
[2] We affirm.
Facts and Procedural History
[3] In May 2014, Clevenger lived with Kimberly Morgan. On May 3, the two went
out to drink alcohol at a bar. While there, they had an argument, and
Clevenger left the bar and walked home. Morgan returned home later, and the
two began fighting again. During the fight, Clevenger pushed Morgan into the
wall with sufficient force to put a hole in the wall. When Morgan tried to call
911, Clevenger broke Morgan’s cell phone in half.
[4] The neighbors called the police to report a domestic disturbance. When the
officer arrived at the apartment, he observed a hole in the wall near the back
door of the apartment, a scratch on Morgan’s arm, blood on the wall near the
hole, and the broken cell phone. At the scene, Morgan wrote and signed a
statement about the events that happened, and that statement provided:
I, Kim Morgan came home and Scott Clevenger threw me by my
hair into the wall, cut my arm, snapped my phone when I said I
1
Ind. Code § 35-42-2-1.3(a) (2012).
2
Ind. Code § 35-45-2-5 (2002).
Court of Appeals of Indiana | Memorandum Decision 06A05-1504-CR-148 | November 25, 2015 Page 2 of 5
was gonna [sic] call 911. My upper back’s hurting from him
throwing me into the wall.
(Ex. at 12.)
[5] The State charged Clevenger with Class A misdemeanor domestic battery and
Class A misdemeanor interference with reporting of a crime based on his
breaking of the cell phone when Morgan tried to call for help. During the
bench trial, Morgan testified the statements she told the police about the
incident were “probably incorrect.” (Tr. at 16.) After hearing all the evidence,
the court found Clevenger guilty on both counts. The court imposed
concurrent one-year sentences.
Discussion and Decision
[6] Clevenger contends neither of his convictions were supported by sufficient
evidence because they were based on repudiated out-of-court statements. When
reviewing sufficiency of evidence, we neither reweigh the evidence nor judge
the credibility of witnesses; rather, we consider only the evidence that is
favorable to the judgment along with the reasonable inferences to be drawn
therefrom to determine whether there was sufficient evidence of probative value
to support a conviction. Staten v. State, 844 N.E.2d 186, 187 (Ind. Ct. App.
2006), trans. denied. We will affirm the conviction if there is substantial
evidence of probative value from which a reasonable trier of fact could have
drawn the conclusion that the defendant was guilty of the crime charged
beyond a reasonable doubt. Id.Court of Appeals of Indiana | Memorandum Decision 06A05-1504-CR-148 | November 25, 2015 Page 3 of 5
[7] It is well settled that a conviction may not be predicated upon a repudiated out-
of-court statement unless there is substantial evidence of probative value from
which the trier of fact could infer the repudiated statement is credible.
Peckinpaugh v. State, 447 N.E.2d 576, 581 (Ind. 1983). However, in this case,
the State’s case did not rest solely on Morgan’s repudiated out-of-court
statements.
[8] When the officer arrived at the residence Clevenger and Morgan shared, he
observed a lamp on its side, a blood smear on the wall, a broken cell-phone, an
injury to Morgan’s arm, and a hole in the wall. Morgan told the police that
Clevenger pushed her into the wall and he broke her cell-phone when she tried
to call 911. Morgan also wrote a statement describing the battery, signed it to
certify that what she had written was true, and gave it to the police officers at
the scene. Morgan testified she and Clevenger had a fight. Moreover, at trial,
Morgan admitted giving police the signed written statement describing the
domestic battery. Here, Morgan’s repudiated out-of-court statements were
supported by sufficient evidence of probative value from which the trial judge
could reasonably infer that her out-of-court statements were credible. See, e.g.,
Van Donk v. State, 676 N.E.2d 349, 352 (Ind. Ct. App. 1997) (officer observation
and a signed, written statement held to be sufficient to support credibility of
repudiated out-of-court statements).
[9] Considering all the evidence presented, including Morgan’s repudiated
statements, there was sufficient evidence to support Clevenger’s convictions.
Court of Appeals of Indiana | Memorandum Decision 06A05-1504-CR-148 | November 25, 2015 Page 4 of 5
Conclusion
[10] For the foregoing reasons, we affirm the trial court’s order.
[11] Affirmed.
Crone, J., and Bradford, J., concur.
Court of Appeals of Indiana | Memorandum Decision 06A05-1504-CR-148 | November 25, 2015 Page 5 of 5