Tina Pace v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jun 29 2017, 10:36 am

regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Timothy J. Burns Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana

Elizabeth M. Littlejohn Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Tina Pace, June 29, 2017 Appellant-Defendant, Court of Appeals Case No. 49A02-1701-CR-153 v. Appeal from the Marion Superior Court State of Indiana, The Honorable David Certo, Judge Appellee-Plaintiff. The Honorable David Hooper, Magistrate Trial Court Cause No. 49G12-1602-CM-7290

Barnes, Judge.

Case Summary Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-153 | June 29, 2017 Page 1 of 5 [1] Tina Pace appeals her conviction for Class B misdemeanor battery. We affirm.

Issue [2] The sole issue on appeal is whether there was sufficient evidence to support a

conviction for Class B misdemeanor battery.

Facts [3] On February 23, 2016, Pace was charged with Class A misdemeanor battery

resulting in bodily injury. A bench trial was held on December 28, 2016.

During the trial, Pace moved for an involuntary dismissal of the Count I Class

A misdemeanor battery charge.1 The trial court granted this motion, and the

State proceeded on the lesser-included offense of Class B misdemeanor battery.

During the trial, Officer Cameron Taylor testified that he was dispatched to

North Arsenal Avenue, in Indianapolis, to respond to a domestic disturbance

between a male and a female. Officer Taylor stated that when he arrived Pace

was standing outside of the house because she had decided to leave in an effort

to avoid any further conflict. He testified that he saw an older male standing in

the crack of the front doorway.2 Officer Taylor testified that his car was parked

about ten to twelve feet away from the front door and that his view of the

incident was unobstructed. Officer Taylor then stated, “I saw [Pace] throw a

bowl of food on the ground and rip the door open and then lower her shoulder

1 The trial court determined that, without the victim’s testimony, the State could not proceed with Class A misdemeanor battery. 2 Officer Taylor later identified that man as W.S., Pace’s uncle.

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into the elderly male and force him to the ground.” Tr. p. 7. When asked to

describe the older male, Officer Taylor stated that, “[W.S.] was about a sixty-

five year old male, disabled to a wheelchair, could hardly speak, [and was] very

frail in nature.” Id. at 8. Officer Taylor also testified that, “[Pace] put all of her

weight into [W.S.], into his body, in front of me, I witnessed that.” Id. at 16.

When asked whether he thought the incident could have occurred accidentally,

Officer Taylor stated, “No.” Id. [4] Pace testified that the incident occurred at her grandparents’ house, where both

she and W.S. were living at the time. Pace stated that on the day the incident

occurred, “[she] came down to explain to the police what was going on with me

and my uncle. He’s made all kinds of false reports. . . .And me and him had

got into a little argument about I was paying for my room and I was being

disturbed by his company.” Id. at 26. Pace testified that she wanted to get her

purse before leaving the house, but W.S. refused to open the door. Pace stated

that she was attempting to pull the door open and because W.S. was

handicapped, “he couldn’t get his balance and that’s how he fell.” Id. at 28. [5] The trial court found Pace guilty of Class B misdemeanor battery and sentenced

Pace to one-hundred and eighty days all suspended to probation. The trial

court also ordered Pace to complete thirty-two hours of community service

work and to have no further contact with W.S. Pace now appeals.

Analysis

Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-153 | June 29, 2017 Page 3 of 5 [6] Pace argues that there was insufficient evidence to sustain a conviction for Class

B misdemeanor battery because she contends, “the incident happened by either

purely accidental means or by [W.S’s] own action,” and because her testimony

regarding the incident conflicted with that of Officer Taylor’s. Appellant’s Br.

p. 7. When reviewing the sufficiency of evidence, we neither reweigh the

evidence nor judge the credibility of witnesses. Milam v. State, 14 N.E.3d 879,

881 (Ind. Ct. App. 2014). If there is sufficient evidence of probative value to

support the conclusion of the trier of fact, then the judgment will not be

disturbed. Id. This court considers only the evidence most favorable to the

judgment and all reasonable inferences drawn therefrom. Id. “Reversal is

appropriate only where reasonable persons would not be able to form inferences

as to each material element of the offense.” Id. [7] At the time Pace was convicted, Indiana Code Section 35-42-2-1(b)(1) required

the State to prove beyond a reasonable doubt that Pace knowingly or

intentionally touched W.S. in a “rude, insolent, or angry manner.” The facts

most favorable to the trial court’s ruling showed that, Pace forcefully opened a

door, lowered her shoulder and, using all her weight, pushed W.S., knocking

him to the ground. Officer Taylor testified that the force used was similar to a

“pendulum swing.” Tr. p. 16. The trial court was entitled to weigh the

evidence presented, and was under no obligation to credit Pace’s testimony,

over Officer Taylor’s. See McCullough v. State, 985 N.E.2d 1135, 1139 (Ind. Ct.

App. 2013) trans. denied. Based on the evidence presented, a reasonable trier of

fact could conclude Pace committed battery when she pushed W.S. Pace’s

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argument invites this court to reweigh the evidence presented, which we cannot

do.

Conclusion [8] The State presented sufficient evidence to sustain Pace’s conviction for Class B

misdemeanor battery. We affirm. [9] Affirmed.

Baker, J., and Crone, J., concur.

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