Daniel T. Harrison v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any Dec 05 2018, 9:29 am

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

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Lisa M. Johnson Curtis T. Hill, Jr. Brownsburg, Indiana Attorney General of Indiana Matthew Michaloski Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Daniel T. Harrison, December 5, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-1840 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Jeffrey L. Marchal, Appellee-Plaintiff Magistrate Trial Court Cause No. 49G06-1711-F5-43431

Baker, Judge. Court of Appeals of Indiana | Memorandum Decision 18A-CR-1840 | December 5, 2018 Page 1 of 6 [1] Daniel T. Harrison appeals his conviction for Level 5 Felony Battery Resulting

in Bodily Injury on a Pregnant Woman,1 arguing that the evidence is

insufficient. Finding the evidence sufficient, we affirm. We also remand so

that the trial court may formally vacate two convictions that were merged into

the Level 5 felony conviction.

Facts [2] In November 2017, Harrison lived with LaRhonda Roberts, his pregnant

girlfriend. On November 6, 2017, Harrison became angry with Roberts because

she had had contact with another man. He was at home with two friends when

Roberts arrived home from work. After she arrived home, she picked up her

baby, whom Harrison had been watching. Harrison began questioning Roberts

angrily; then, while she was holding the baby, he “forcefully grab[bed] her

throat,” and made a “forceful push.” Tr. Vol. II p. 58. Roberts denied

Harrison’s accusations about the other man, at which point Harrison “grab[bed]

her with his right hand and yank[ed] her off the couch by her hair and

punch[ed] her with his left hand” as Roberts begged him to stop. Id. at 29-30.

One of Harrison’s friends pleaded with him to stop because of the unborn child;

Harrison responded, “I don’t give a f*ck about the baby.” Id. at 63. He choked

Roberts repeatedly and dragged her across the floor. At one point, he went to

the kitchen and retrieved a knife, proceeding to throw the knife at Roberts and

1 Ind. Code § 35-42-2-1.

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telling her to stab him with it. Id. at 65-66. Roberts was in good condition

when she first arrived at the house, but “[a]fter the fight, her hair was all over

her head, her face was red, [and] her eyes were red.” Id. at 48. [3] Harrison’s friends both called the police to report the altercation. Police officers

responded and arrested Harrison. One of the officers observed that Roberts had

“darkened circles around her eyes, and she also had petechiae in both of the

eyes as well.” Id. at 102. This officer had the training and experience to know

that petechiae are dark spots in the eyes “where blood vessels have been

popped.” Id. at 103. Roberts told the arresting officer that she was afraid of

Harrison and did not want to speak to the officer about the incident because she

was worried it would jeopardize her subsidized housing. [4] On November 8, 2017, the State charged Harrison with Level 5 felony battery

resulting in bodily injury to a pregnant woman; Level 5 felony strangulation;

Level 6 felony criminal confinement; two counts of Level 6 felony domestic

battery; and Class A misdemeanor intimidation. Harrison waived his right to a

jury trial; his bench trial took place on May 2, 2018. Roberts, the two friends

who were present during the altercation, the arresting officer, and a police

detective testified at trial. Roberts denied that the altercation had included any

physical violence. The two witnesses, however, described the altercation as set

forth above and the arresting officer testified as to the petechiae in Roberts’s

eyes at the time of Harrison’s arrest.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1840 | December 5, 2018 Page 3 of 6 [5] The trial court found Harrison guilty of Level 5 felony battery resulting in

bodily injury to a pregnant woman, Level 6 felony domestic battery, and Class

A misdemeanor domestic battery, merging the latter two offenses into the first

and sentencing him only on the Level 5 felony.2 The trial court found Harrison

not guilty of the remaining charges. On July 12, 2018, the trial court sentenced

Harrison to four years, with two years suspended to probation. Harrison now

appeals.

Discussion and Decision [6] Harrison’s sole argument on appeal is that the evidence is insufficient to support

his conviction. When reviewing the sufficiency of the evidence to support a

conviction, we must consider only the probative evidence and reasonable

inferences supporting the conviction and will neither assess witness credibility

nor reweigh the evidence. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We

will affirm unless no reasonable factfinder could find the elements of the crime

proved beyond a reasonable doubt. Id. [7] To convict Harrison of Level 5 felony battery causing bodily injury to a

pregnant woman, the State was required to prove beyond a reasonable doubt

that Harrison knowingly or intentionally touched Roberts, knowing that she

was pregnant, in a rude, insolent, or angry manner, causing bodily injury. I.C.

2 As we explain below, the two Level 6 felony convictions should have been vacated rather than merged.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1840 | December 5, 2018 Page 4 of 6

§ 35-42-2-1(g)(3). Harrison argues that the evidence does not support a

conclusion that his actions caused Roberts to sustain bodily injury. [8] We disagree. The other witnesses to the altercation testified that Harrison

choked, dragged, and punched Roberts. Tr. Vol. II p. 29-30, 58. Moreover,

there was testimony that Roberts looked fine when she first arrived at the house

but that after the altercation, among other things, her eyes were red. Id. at 48,

84. The arresting officer observed that Roberts had petechiae in her eyes, which

the officer knew to be a sign of popped blood vessels. A reasonable factfinder

could conclude from this evidence that Harrison’s actions caused Roberts to

sustain bodily injury—i.e., petechiae. Harrison argues that the petechiae could

have resulted from other causes, such as vomiting, but this amounts to a request

that we reweigh the evidence, which we may not do. Because a reasonable

factfinder could conclude that Harrison touched Roberts in a rude, insolent, or

angry manner, causing bodily injury, the evidence is sufficient to support the

conviction. [9] We also note sua sponte that, in addition to the Level 5 felony, the trial court

found Harrison guilty of two counts of Level 6 felony battery. Based on double

jeopardy concerns, the trial court sentenced Harrison only on the Level 5

felony. The trial court did, however, enter an oral judgment of guilty on the

two Level 6 felonies, tr. vol. II p. 124, and those convictions are reflected in the

Chronological Case Summary. Appellant’s App. Vol. II p. 9. Both the abstract

of judgment and sentencing order note that the Level 6 felony convictions were

“merged” with the Level 5 felony conviction. Id. at 12, 14. It is well

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established, however, that “[a] trial court’s act of merging, without also

vacating the conviction, is not sufficient to cure a double jeopardy violation.”

Stickrod v. State, 108 N.E.3d 385, 392 (Ind. Ct. App. 2018), trans. denied.

Therefore, we remand so that the trial court may formally vacate Harrison’s

two convictions for Level 6 felony battery. [10] The judgment of the trial court is affirmed and remanded with instructions.

May, J., and Tavitas, J., concur.

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