Brian E. Domer v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Nov 29 2017, 9:49 am
this Memorandum Decision shall not be
regarded as precedent or cited before any CLERK
Indiana Supreme Court
Court of Appeals
court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Mark A. Thoma Curtis T. Hill, Jr.
Leonard Hammond Thoma & Terrill Attorney General of Indiana
Fort Wayne, Indiana
Michael Gene Worden
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Brian E. Domer, November 29, 2017
Appellant-Defendant, Court of Appeals Case No.
02A04-1706-CR-1479
v. Appeal from the Allen Superior
Court
State of Indiana, The Honorable Frances C. Gull,
Appellee-Plaintiff. Judge
Trial Court Cause No.
02D06-1608-F5-246
Barnes, Judge.
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Case Summary
[1] Brian Domer appeals his conviction for Level 6 felony domestic battery. We
affirm.
Issue
[2] Domer raises one issue, which we restate as whether the evidence is sufficient
to sustain his conviction.
Facts
[3] On August 20, 2016, K.K. was six months pregnant with Domer’s child. She
sometimes stayed with him at his trailer in Allen County. She was at the trailer
taking a shower when he returned home, and they started arguing. K.K. called
her grandmother and started to get dressed. Domer said “Before you leave,
we’re gonna . . . f***ing fist fight.” Tr. p. 21. K.K. told Domer that she did not
want to do that. They continued fighting, and K.K. went outside and walked
down the street but came back. Domer said, “I don’t give a f*** anymore. I
don’t give a f*** who sees, I’m beating you’re a** right here, right now.” Id. at
22. Domer then hit K.K. in the face and the head, grabbed her hair, and
pushed her against the trailer. Domer stopped when he saw a car approach.
K.K. called her grandmother again and then called 911. When an officer
arrived, he found that K.K. had a knot on her head and white dust from the
trailer on the back of her arms. Domer admitted to the officer that he had
pushed K.K. against the trailer.
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[4] The State charged Domer with Level 5 felony domestic battery with bodily
injury of a pregnant woman and Level 6 felony domestic battery with a prior
conviction. A jury found Domer not guilty of the Level 5 felony but guilty of
the Level 6 felony. Domer then stipulated to having a prior battery conviction,
and the trial court entered judgment of conviction for Level 6 felony domestic
battery. The trial court sentenced Domer to two and one-half years in jail.
Domer now appeals.
Analysis
[5] Domer challenges the sufficiency of the evidence to sustain his conviction.
When reviewing the sufficiency of the evidence needed to support a criminal
conviction, we neither reweigh evidence nor judge witness credibility. Bailey v.
State, 907 N.E.2d 1003, 1005 (Ind. 2009). “We consider only the evidence
supporting the judgment and any reasonable inferences that can be drawn from
such evidence.” Id. We will affirm 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. Id.[6] Under Indiana Code Section 35-42-2-1.3, the State was required to prove that
Domer knowingly or intentionally touched K.K., who was a family or
household member, in a rude, insolent, or angry manner and that Domer had a
prior conviction for battery. Domer argues that the evidence is insufficient to
sustain his conviction because K.K.’s lack of injuries is inconsistent with her
explanation of the events, she did not go to the hospital or seek medical
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treatment, and a neighbor testified that she witnessed the incident and did not
see Domer hit K.K.
[7] Although the neighbor, Christy Gipple, testified that she lived next door to
Domer with her husband, that she witnessed the incident between K.K. and
Domer, that Domer did not hit K.K., and that she did not talk to the police at
the time, Gipple also admitted that she had started a relationship with Domer
while he was incarcerated. K.K. testified that Domer repeatedly hit her on the
face and head and that he shoved her against the trailer. The responding officer
found that K.K. had a knot on her head and white dust from the trailer on the
back of her arms. Further, Domer admitted to the officer that he shoved K.K.
against the trailer. Domer’s argument is merely a request that we reweigh the
evidence and judge the credibility of the witnesses, which we cannot do. Bailey,
907 N.E.2d at 1005. The State presented substantial evidence of probative
value that Domer knowingly or intentionally touched K.K., who was a family
or household member, in a rude, insolent, or angry manner, and Domer
stipulated that he had a prior conviction for battery. The evidence is sufficient
to sustain his conviction.
Conclusion
[8] The evidence is sufficient to sustain Domer’s conviction for Level 6 felony
domestic battery. We affirm.
[9] Affirmed.
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May, J., and Bradford, J., concur.
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