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

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).

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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.

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Conclusion [10] For the foregoing reasons, we affirm the trial court’s order.

[11] Affirmed.

Crone, J., and Bradford, J., concur.

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