Jeffery Manley McMillen v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Apr 20 2020, 10:39 am regarded as precedent or cited before any 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 Denise L. Turner Curtis T. Hill, Jr. DTurner Legal LLC Attorney General of Indiana Indianapolis, Indiana Samuel J. Dayton Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Jeffery Manley McMillen, April 20, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-2549 v. Appeal from the Shelby Circuit Court State of Indiana, The Honorable Appellee-Plaintiff. Trent E. Meltzer, Judge Trial Court Cause No. 73C01-1812-F6-577

Kirsch, Judge. Court of Appeals of Indiana | Memorandum Decision 19A-CR-2549 | April 20, 2020 Page 1 of 9 [1] Jeffery Manley McMillen (“McMillen”) was convicted after a bench trial of

domestic battery1 as a Level 5 felony and interference with the reporting of a

crime,2 a Class A misdemeanor. He appeals his convictions and raises the

following restated issue for our review: whether the State presented sufficient

evidence to support his convictions. [2] We affirm.

Facts and Procedural History [3] At the time of the incident in this case, McMillen and H.M. were married and

had four children together, ranging in age from eight to seventeen years old. Tr.

Vol. 2 at 23. On December 19, 2018, McMillen, H.M., and three of their

children were at their home in Shelby County, Indiana. Id. at 24. Their

seventeen-year-old child was not at home. Id. It was the night before the

children’s last day of school before winter break, and H.M. asked McMillen

whether he would be able to help pay for Christmas gifts for the children’s

teachers. Id. When H.M. posed the question to McMillen, he was headed up

the stairs, and he ran down the stairs. Id. McMillen stood in front of H.M.’s

face, and yelled, “[Y]ou know I don’t have any money,” which caused H.M. to

back away from him. Id. McMillen was “in [her] face,” and so she grabbed his

neck. Id.

1 See Ind. Code § 35-42-2-1.3(c)(4)(A). 2 See Ind. Code § 35-45-2-5.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2549 | April 20, 2020 Page 2 of 9 [4] H.M. went to the bathroom and closed the door so she could calm down. Id. at

25. H.M. explained that in situations like that, McMillen usually leaves the

house, otherwise things just get “worse, worse and worse.” Id. at 25, 27. This

time, McMillen went to the basement to work on a “wood burning” project. Id.

at 25. While H.M. was in the bathroom, she began listening to a voicemail

McMillen had left on her phone that he did not want the children to hear. Id. [5] McMillen could hear the voicemail being played through a vent. Id. at 25, 35.

He went upstairs and kicked in the bathroom door in order to get to H.M. Id.

H.M. was wearing a hooded sweatshirt with a pocket, and she attempted to put

her phone in that pocket, but McMillen “grabbed it from [her].” Id. at 25-26.

One of the children found another phone in the house and used it to call 911.

Id. at 27. [6] Shelbyville Police Department Officer James Jones (“Officer Jones”) was

dispatched to the home after a 911 call was received from a child who reported

that a “physical domestic” was in progress. Id. at 7. When Officer Jones

arrived, a neighbor told the officer that a man had “just [run] out of the house

and took off in a car.” Id. Officer Jones then made contact with H.M. and

observed that there were three children in the house with H.M. Id. at 8, 13. He

also observed a red mark on H.M.’s right cheek. Id. at 10. [7] After he had a brief conversation with H.M., Officer Jones found out that

McMillen had driven away in a black Civic and gave the information to other

officers. Id. at 8. Shortly thereafter, another officer located McMillen and

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stopped him four or five blocks away. Id. McMillen admitted to that officer

that McMillen had been arguing with H.M. over issues about paying the rent.

Id. at 18. McMillen also admitted to the officer that he had kicked in the

bathroom door and grabbed H.M.’s cell phone, which he had with him at the

time of the traffic stop. Id. at 19. McMillen told the officer that he had taken

H.M.’s cell phone because she was calling 911. Id. at 22. In 2013, McMillen

had been previously charged with and pleaded guilty to domestic battery

committed against H.M in Cause Number 73D02-1306-FD-223. Id. at 69-71;

State’s Exs. 13, 14. [8] On December 20, 2018, the State charged McMillen with Level 6 felony

domestic battery in the presence of a child and Class A misdemeanor

interference with the reporting of a crime. Appellant’s App. Vol. II at 14-15. That

same day, the State moved to amend the charging information to add a count

for domestic battery with a prior unrelated conviction for domestic battery

against the same family or household member as a Level 5 felony, and the trial

court granted the motion on December 28, 2018. Id. at 4, 19-20. [9] On March 8, 2019, McMillen filed a written waiver of jury trial. Id. at 21-22.

A bench trial was held on September 10, 2019, and at the conclusion, the trial

court found McMillen guilty on all counts and entered a judgment of conviction

against him for Level 5 felony domestic battery and Class A misdemeanor

interference with the reporting of a crime. Id. at 25-29. On October 22, 2019,

the trial court sentenced McMillen to thirty-six months for his domestic battery

conviction and twelve months for his interference with the reporting of a crime

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conviction and ordered the sentences to be served concurrently. Id. at 25-29.

The trial court ordered that McMillen serve four days executed for each count

and ordered that the remainder of each sentence be suspended to probation. Id.

McMillen was required to serve 180 days of his probation on home detention.

Id. at 28-34. McMillen now appeals.

Discussion and Decision [10] McMillen argues that the evidence presented at trial was insufficient to support

his convictions. When we review the sufficiency of evidence to support a

conviction, we do not reweigh the evidence or assess the credibility of the

witnesses. Lehman v. State, 55 N.E.3d 863, 868 (Ind. Ct. App. 2016), trans.

denied. We consider only the evidence most favorable to the trial court’s ruling

and the reasonable inferences that can be drawn from that evidence. Lock v.

State, 971 N.E.2d 71, 74 (Ind. 2012). We also consider conflicting evidence in

the light most favorable to the trial court’s ruling. Oster v. State, 992 N.E.2d 871,

875 (Ind. Ct. App. 2013), trans. denied. A conviction will be affirmed 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. Wolf v.

State, 76 N.E.3d 911, 915 (Ind. Ct. App. 2017). [11] McMillen contends that the State presented insufficient evidence to support

both his conviction for domestic battery and his conviction for interference with

the reporting of a crime. As to his domestic battery conviction, he asserts that

the State failed to provide sufficient evidence that he touched H.M. in a rude,

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insolent, or angry manner. He claims that the evidence only showed that he

grabbed H.M.’s phone and not that he touched her. As to his conviction for

interference with the reporting of a crime, McMillen argues that the State failed

to prove two essential elements of the crime: (1) that he had the intent to

conceal the commission of a crime; and (2) that he interfered with or prevented

H.M. from calling 911. He contends that no crime had been committed, and,

therefore, he did not take H.M.’s phone to conceal the commission of a crime.

He further asserts that the evidence did not show that H.M. was calling 911

when he took her phone or had even discussed calling 911. [12] In order to convict McMillen of domestic battery as a Level 5 felony as charged,

the State was required to prove beyond a reasonable doubt that he knowingly or

intentionally touched a family or household member, H.M., in a rude, insolent,

or angry manner and that he had a previous conviction for a battery offense

against the same family or household member. Ind. Code § 35-42-2-1.3(a)(1),

(c)(4)(A). McMillen does not challenge the fact that he had a prior domestic

battery conviction against H.M. He only challenges the sufficiency of the

evidence in that he asserts that he did not touch H.M. in a rude, insolent, or

angry manner. [13] The evidence presented at trial reasonably supported a finding by the trial court

that McMillen touched H.M. in a rude, angry, or insolent manner. When

Officer Jones arrived at the house, he observed a red mark on H.M.’s right

cheek. Tr. Vol. II at 10. McMillen admitted at trial that he struck H.M. in the

cheek with his elbow when she tried to get her phone back from him, but he

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claimed it was an accident. Id. at 58-59. However, the trial court as factfinder

was not required to accept McMillen’s claim that he did not intend to hit H.M. [14] There was also evidence that McMillen touched H.M. in a rude, angry, or

insolent manner when he grabbed her phone from her. When McMillen

testified, he acknowledged that there “could have been contact” when he

grabbed the phone from H.M. but claimed that he did not have the requisite

intent, an explanation that the factfinder was not required to accept. Tr. Vol. II

at 57. H.M. testified that the bathroom was small, that when McMillen entered

the bathroom, she was attempting to put the phone in the front pocket of her

sweatshirt, and that McMillen put his arms around her. Id. at 26. On redirect

examination, H.M. was asked whether McMillen touched her, and she

provided the following answers: “[H]e, he grab . . . . He, he put his arm he put

his he put, I don’t, like I don’t I wouldn’t consider . . . . He grabbed my phone

from me and he probably . . . . He didn’t like I don’t know he had his arm

around like right around me, but I mean.” Id. at 45. H.M. was asked one final

time about whether McMillen touched her, and she stated, “Ok I guess, I don’t

know.” Id. Although both H.M. and McMillen equivocated about whether

McMillen touched H.M. when he grabbed her cell phone away from her, it is

for the trier of fact to resolve conflicts in the evidence and to decide which

witnesses to believe or disbelieve. Moore v. State, 27 N.E.3d 749, 755-56 (Ind.

2015). [15] Additionally, in the 911 call, the child who called stated that she thought her

parents were hurting each other and that she was scared. State’s Ex. 11. Later

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in the call, the child said there was yelling and punching going on. Id. In his

brief, McMillen concedes that a reasonable theory of guilt existed in this case,

and that it was supported by the testimony given by both H.M. and McMillen.

Appellant’s Br. at 8. Therefore, his arguments are requests to reweigh the

evidence and judge the credibility of the witnesses, which we cannot do.

Lehman, 55 N.E.3d at 868. [16] Based on the evidence presented at trial, we conclude that it was reasonable for

the trial court to conclude that McMillen touched H.M. in a manner that was

rude, angry, or insolent. The evidence showed that H.M. had a red mark on

her cheek when the police arrived, and McMillen testified to hitting her with his

elbow when he grabbed her cell phone from her. Although he claimed that it

was not intentional and he was not angry, the trial court could reasonably infer

that he was angry from his actions. The evidence showed that McMillen kicked

the bathroom door, breaking it in half, in order to get access to H.M. inside the

bathroom and to grab her phone from her. The evidence supported the trial

court’s finding that McMillen was guilty of domestic battery as a Level 5 felony. [17] In order to convict McMillen of interference with the reporting of a crime as a

Class A misdemeanor, the State was required to prove beyond a reasonable

doubt that McMillen, with the intent to commit, conceal, or aid in the

commission of a crime, knowingly or intentionally interfered with or prevented

H.M. from using a 911 emergency telephone system. Ind. Code § 35-45-2-5.

McMillen challenges the sufficiency of the evidence showing that he concealed

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the commission of a crime and that he interfered with or prevented H.M. from

dialing 911. [18] The evidence showed that when McMillen was pulled over by the police,

McMillen told the officer that he had H.M.’s phone because he took it from her

“because she was trying to call [911].” Tr. Vol. II at 22. Although at trial,

McMillen claimed that he only took H.M.’s phone from her because he was

going to delete the voicemail, it was the trial court’s responsibility, as trier of

fact, to resolve conflicts in the evidence and to decide which witnesses to

believe or disbelieve. Moore, 27 N.E.3d at 755-56. McMillen’s contention that

he was not concealing a crime is based on his claim that the State did not

present sufficient evidence to support his conviction for Level 5 felony domestic

battery. However, as we have determined that there was sufficient evidence

from which the trier of fact could find that he committed Level 5 felony

domestic battery, it was reasonable for the trial court to find that McMillen took

the phone from H.M. in order to prevent her from dialing 911 and to conceal

his commission of domestic battery. McMillen’s arguments are a request for

this court to reweigh the evidence, which we cannot do. Lehman, 55 N.E.3d at

868. We conclude that the State presented sufficient evidence to support

McMillen’s conviction for interference with the reporting of a crime. [19] Affirmed.

Najam, J., and Brown, J., concur.

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