Lowell Guy Cain, Jr v. State of Indiana ( 2014 )

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before Oct 23 2014, 9:47 am
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:
ANA M. QUIRK GREGORY F. ZOELLER
Public Defender Attorney General of Indiana
Muncie, Indiana
LARRY D. ALLEN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
LOWELL GUY CAIN, JR., )
)
Appellant-Defendant, )
)
vs. ) No. 18A02-1403-CR-149
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE DELAWARE CIRCUIT COURT
The Honorable Marianne L. Vorhees, Judge
Cause No. 18C01-1306-FD-90
October 23, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
NAJAM, Judge
STATEMENT OF THE CASE
Lowell Guy Cain, Jr. appeals his conviction for domestic battery, as a Class D
felony. Cain raises a single issue for our review, namely, whether the State presented
sufficient evidence to support his conviction. We affirm.
FACTS AND PROCEDURAL HISTORY
On June 4, 2013, Cain lived with K.R. in Delaware County. Cain and K.R. had
three minor children together, each of whom lived with Cain and K.R. That morning,
Cain and K.R. got into an argument. While “yelling and screaming in [K.R.’s] face,”
Cain followed K.R. into the laundry room, where he then repeatedly struck her while “he
continued to yell and scream.” Tr. at 4-5. The children were asleep in their bedrooms at
the time. The children’s bedrooms were adjacent to the kitchen, which was adjacent to
the laundry room. The house’s laundry room, kitchen, and children’s bedrooms form a
straight line to the front of the house.
On June 10, the State charged Cain with domestic battery, as a Class D felony,
among other charges.1 At the ensuing bench trial, K.R. testified that the distance from the
laundry room to the children’s bedrooms was on par with the prosecutor’s distance “to
the wall” of the courtroom, though there is not an estimate of this distance in the record.
Id. at 7. The court found Cain guilty of domestic battery, as a Class D felony, and
sentenced him accordingly. This appeal ensued.
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Cain does not appeal his other convictions or his resulting sentences.
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DISCUSSION AND DECISION
Cain asserts on appeal that the State failed to present sufficient evidence to support
his conviction for domestic battery, as a Class D felony. When reviewing a claim of
sufficiency of the evidence, we do not reweigh the evidence or judge the credibility of the
witnesses. Jones v. State, 783 N.E.2d 1132, 1139 (Ind. 2003). We look only to the
probative evidence supporting the judgment and the reasonable inferences that may be
drawn from that evidence to determine whether a reasonable trier of fact could conclude
the defendant was guilty beyond a reasonable doubt. Id. If there is substantial evidence
of probative value to support the conviction, it will not be set aside. Id.To demonstrate that Cain committed domestic battery, as a Class D felony, the
State was required to show, as relevant here, that Cain knowingly or intentionally
battered and injured K.R. “in the physical presence of a child less than sixteen (16) years
of age, knowing that the child was present and might be able to see or hear the offense.”
Ind. Code § 35-42-2-1.3(b)(2). It is well established under Indiana Code Section 35-42-
2-1.3(b)(2) that “none of the children had to actually sense the battery; there only needed
to be the possibility that they ‘might’ see or hear it.” True v. State, 954 N.E.2d 1105,
1111 (Ind. Ct. App. 2011). On appeal, Cain argues only that the State failed to show that
any of the three children might have been able to see or hear the offense. We cannot
agree.
K.R. testified that the children were in the house during the battery. In particular,
she testified that they were in their bedrooms, and that only the kitchen separated the
laundry room, where the battery occurred, from the children’s bedrooms. She further
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testified that Cain was yelling and screaming during the battery. And, during the trial,
she informed the court that the distance from the prosecutor to one of the courtroom walls
was a close approximation of the distance from the laundry room to the children’s
bedrooms. While this distance is not reflected in the record, the trial court, the fact-finder
here, was able to see it.
Cain’s argument on appeal is simply a request for this court to reweigh the
evidence that was before the trial court. We will not do so. The State’s evidence
permitted the fact-finder to conclude that the offense occurred “in the physical presence
of a child.” I.C. § 35-42-2-1.3(b)(2); see, e.g., True, 954 N.E.2d at 1111. As such, we
affirm Cain’s conviction.
Affirmed.
BAILEY, J., and PYLE, J., concur.
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