Anel Suarez-Torres v. State of Indiana (mem. dec.) ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any Oct 29 2018, 9:07 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
Timothy J. Burns Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General
Evan M. Comer
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Anel Suarez-Torres, October 29, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-476
v. Appeal from the Marion Superior
Court Criminal Division
State of Indiana, The Honorable David Hooper,
Appellee-Plaintiff. Magistrate
Trial Court Cause Nos.
49G12-1701-CM-2409
49G12-1605-CM-20156
Tavitas, Judge.
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Statement of the Case
[1] Anel Suarez-Torres appeals her convictions for battery resulting in bodily
injury, a Class A misdemeanor, and invasion of privacy, a Class A
misdemeanor. We affirm.
Issues
[2] Suarez-Torres raises two issues on appeal, which we restate as:
1. Whether the evidence is sufficient to convict Suarez-Torres of
battery resulting in bodily injury.
2. Whether the evidence is sufficient to convict Suarez-Torres of
invasion of privacy.
Facts
[3] On April 16, 2017, Stephany Hernandez (“Stephany”) went to a club in
downtown Indianapolis to see Stephany’s then-fiancé, Jesus Martinez
(“Jesus”), perform. Stephany was accompanied by her mother, Gabriela
Virgende Hernandez (“Gabriela”) and Gabriela’s friend. When they arrived at
the club, the performance had already begun. Sometime during the
performance, Stephany and Gabriela went to the restroom. On the way to the
restroom, Stephany saw Suarez-Torres standing by the restroom door.
Stephany and Suarez-Torres have known each other since 2011. Jesus is the
father of Suarez-Torres’ daughter. Gabriela and Suarez-Torres had never met.
Suarez-Torres entered the restroom and attempted to speak with Stephany
when Gabriela was in the restroom stall.
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[4] Stephany asked Suarez-Torres to leave multiple times while Suarez-Torres
attempted to speak with her. There were about eight other people in the “very
small restroom.” Tr. Vol. II p. 19. When Gabriela exited the restroom stall,
she asked what was going on between Stephany and Suarez-Torres. Suarez-
Torres told Gabriela not to get involved in the discussion. Suarez-Torres left
the restroom, and Stephany and Gabriela left a short time later. When
Stephany and Gabriela exited the restroom, Gabriela walked out first.
[5] Suddenly, Stephany saw Suarez-Torres’ “hands everywhere” as she fought and
“ma[de] contact” with Gabriela. Id. at 9-10. Gabriela felt someone “grab[]
[her] by the neck” and “pull[] her hair.” 1 Id. at 20. The person, who Gabriela
did not know at the time, “almost threw [her] down.” Id. Gabriela’s “instinct
was to defend” herself. Id. Stephany witnessed Suarez-Torres initiate contact
with Gabriela.
[6] During the altercation, Stephany tried to step between Gabriela and Suarez-
Torres, but Suarez-Torres pushed Stephany away and continued to attack
Gabriela. Security at the club got involved and pulled Suarez-Torres away.
[7] Stephany and Gabriela stayed at the club to continue watching the
performance. They noticed Gabriela bleeding from the shoulder and cheek and
decided to leave. After leaving the club, Stephany and Gabriela went to
Gabriela’s house to clean her shoulder, which continued to bleed. Gabriela
1
Gabriela testified through a Spanish-English interpreter, Carolina Salter.
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decided she wanted to file a police report. Stephany and Gabriela went to find
a police officer to file the report.
[8] Stephany and Gabriela initially went back to the club to try to find someone to
file a report, but no one was at the club. Stephany and Gabriela were then
directed toward a hotel where they were able to find a police officer to make a
report. There, Stephany and Gabriela met Officer Jamal Abdullah of the
Indianapolis Metropolitan Police Department, who took pictures and asked
Gabriela questions about the altercation. Officer Abdullah observed scratch
marks on Gabriela’s left and right arm and on the left and right sides of her
face. Officer Abdullah noted that Gabriela was very upset.
[9] The State charged Suarez-Torres with battery, a Class A misdemeanor, in Case
No. 49G12-1605-CM-020156 (“the battery” charge). The Court entered a no
contact order on July 28, 2016. Pursuant to the order, Suarez-Torres was to
have no contact with Stephany or Gabriela, “in person, by telephone or letter,
through an intermediary, or in any other way, directly or indirectly, except
through an attorney of record, while released from custody pending trial.”
State’s Ex. 1.
[10] On October 1, 2016, Stephany went to her friend’s house for a baby shower
from 2:30 p.m. until approximately 6:00 p.m. While at the baby shower,
Stephany received three phone calls and one text. The phone calls came in
quick succession – the first at 5:20 p.m., the second at 5:21 p.m., and the third
at 5:28 p.m. Stephany did not recognize the number, so she rejected the first
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call. When the number called a second time, Stephany answered because she
“thought it was maybe important.” Tr. Vol. II p. 44. When Stephany
answered the phone, Suarez-Torres identified herself as the caller. Stephany
told Suarez-Torres she was not supposed to be calling, and Stephany ended the
call. When Suarez-Torres called for the third time, Stephany answered and
reminded Suarez-Torres again that Suarez-Torres should not be calling.
Suarez-Torres responded that she was looking for Jesus because Suarez-Torres
“didn’t know his phone number and [Suarez-Torres] was blocked off of [sic] his
social media and [Suarez-Torres] just wanted for [Jesus] to pay for the child
support.” Id. at 47. Stephany hung up the phone and “didn’t really have a
conversation with [Suarez-Torres].” Id.
[11] After Stephany hung up on Suarez-Torres, Suarez-Torres sent Stephany a text
message at 5:32 p.m. The text message said:
its [sic] f***ed up you are taking the money he is making and
how you lied but hey its [sic] fine just dont [sic] want him to pay
anything from now on thats [sic] all i [sic] wanted to say
State’s Ex. 5.
[12] The State charged Suarez-Torres with invasion of privacy, a class A
misdemeanor, for violating an order issued pursuant to Indiana Code Section
35-33-8-3.2, Case No. 49G12-1701-CM-2409 (“the invasion of privacy”
charge).
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[13] On February 22, 2018, the trial court conducted a bench trial for the two
causes. At the bench trial, Suarez-Torres testified that Stephany, on her way to
the restroom, bumped Suarez-Torres, hitting her in the side of the rib. Suarez-
Torres testified that she wanted to tell Stephany that she had no problems, but
that upon entering the restroom, Gabriela “got in front of Stephany and quickly
started threatening” Suarez-Torres. Tr. Vol. II p. 32. Suarez-Torres stated that
she left the restroom and that, when Gabriela came out of the restroom, she was
screaming at Suarez-Torres. Suarez-Torres testified that she then “just felt
someone pulling” her hair, and that someone “pulled her hard all the way
down to the ground.” Id. at 33. Suarez-Torres stated that after the encounter,
both she and Gabriela were asked to leave. Suarez-Torres stated that she did
not file a police report because she was “afraid to do that.” Id. at 35. Suarez-
Torres also stated that there was “no way” Suarez-Torres could have caused the
scratching and bleeding on Gabriela because she has fibromyalgia and other
medical issues. Id. at 30.
[14] Suarez-Torres also testified that she contacted Stephany, despite the no contact
order, because there was a medical situation regarding asthma medication for
Suarez-Torres’ daughter. Specifically, Suarez-Torres stated she was trying to
reach Jesus that day because she “needed money to buy something that [her
daughter’s] Medicaid did not cover that day.” Id. at 56. Suarez-Torres claimed
that Jesus blocked Suarez-Torres from his social media accounts and that
Suarez-Torres did not have Jesus’ phone number. Therefore, Suarez-Torres
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claims she used her mother’s phone and attempted to reach Jesus through
Stephany.
[15] The trial court found Suarez-Torres guilty of both the battery charge and the
invasion of privacy charge. At sentencing for the battery conviction, Suarez-
Torres was sentenced to a one-year sentence suspended to probation. For the
invasion of privacy charge, Suarez-Torres was sentenced to time served of ten
days.
Analysis
[16] Suarez-Torres challenges the sufficiency of the evidence for both the battery
conviction and the invasion of privacy conviction. When there is a challenge to
the sufficiency of the evidence, “[w]e neither reweigh evidence nor judge
witness credibility.” Gibson v. State, 51 N.E.3d 204, 210 (Ind. 2016) (citing
Bieghler v. State, 481 N.E.2d 78, 84 (Ind. 1985)). Instead, “we ‘consider only
that evidence most favorable to the judgment together with all reasonable
inferences drawn therefrom.’” Id. (quoting Bieghler, 481 N.E.2d at 84). “We
will affirm the judgment if it is supported by ‘substantial evidence of probative
value even if there is some conflict in that evidence.’” Id. (quoting Bieghler, 481
N.E.2d at 84); see also McCallister v. State, 91 N.E.3d 554, 558 (Ind. 2018)
(holding that, even though there was conflicting evidence, it was “beside the
point” because that argument “misapprehend[s] our limited role as a reviewing
court”). Further, “[w]e will affirm the conviction unless no reasonable fact-
finder could find the elements of the crime proven beyond a reasonable doubt.”
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Love v. State, 73 N.E.3d 693, 696 (Ind. 2017) (citing Drane v. State, 867 N.E.2d
144, 146 (Ind. 2007)).
I. The Battery Conviction
[17] Suarez-Torres was first charged with battery resulting in bodily injury, a Class
A misdemeanor, under Indiana Code Section 35-42-2-1. To prove that Suarez-
Torres committed battery resulting in bodily injury, a Class A misdemeanor,
the State was required to prove that Suarez-Torres knowingly or intentionally
touched another person in a rude, insolent, or angry manner, which resulted in
bodily injury to any other person beyond a reasonable doubt. See Ind. Code §
35-42-2-1.
[18] We cannot say that no reasonable fact finder could have found that the State
met the elements of the offense beyond a reasonable doubt. Stephany testified
that she saw Suarez-Torres quickly approach and fight Gabriela. Gabriela
testified that a person grabbed her neck and pulled her hair. In addition, the
testimony of Stephany, Gabriela, and Officer Abdullah established there was
bodily injury as a result of Suarez-Torres’ battery.
[19] Suarez-Torres argues that the trial court should have concluded this was a
situation of “mutual combat.” 2 See Richardson v. State, 79 N.E.3d 958, 964 (Ind.
Ct. App. 2017); see also Morell v. State, 933 N.E.2d 484, 491 (Ind. Ct. App.
2
We assume that Suarez-Torres is attempting to now argue self-defense, as “mutual combatant” is a term
used to describe an individual who engages in battery as a form of self-defense. See Morell, 933 N.E.2d at 491.
At trial, Suarez-Torres did not argue self-defense.
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2010). Suarez-Torres simply argues that “[i]t is clear in this case that the
altercation appeared to be one where the testimony supports a finding of
‘mutual combat’ since [Suarez-Torres] states she was attacked and Stephany
claims she and her mother, Gabriela, were attacked.” Appellant’s Br. p. 7.
Even though Suarez-Torres’ testimony regarding the events that occurred that
evening conflicts with Stephany’s or Gabriela’s testimony, we do not, and
cannot, reweigh the evidence or judge the credibility of witnesses. See
McCallister, 91 N.E.3d at 558. While Suarez-Torres did provide a different
account of the events that evening, it was the trial court’s role to weigh that
conflicting evidence. It is not our role now. The trial court apparently did not
find Suarez-Torres’ testimony regarding the events that transpired to be
credible, and the trial court, as the trier of fact, is required to determine
credibility. See Anthony v. State, 103 N.E.3d 698, 700 (Ind. Ct. App. 2018)
(citing Binkley v. State, 654 N.E.2d 736, 737 (Ind. 1995)) (“[w]e do not assess the
credibility of the witnesses or reweigh the evidence in determining whether the
evidence is sufficient.”). Accordingly, the evidence presented by the State was
sufficient to convict Suarez-Torres of battery resulting in bodily injury. We
affirm Suarez-Torres’ conviction for battery resulting in a bodily injury, a Class
A misdemeanor.
II. The Invasion of Privacy Conviction
[20] Suarez-Torres was also charged with invasion of privacy, a Class A
misdemeanor, under Indiana Code Section 35-46-1-15.1(11) for violating an
order issued pursuant to Indiana Code Section 35-33-8-3.2. To prove that
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Suarez-Torres committed invasion of privacy, a Class A misdemeanor, the
State was required to prove that Suarez-Torres knowingly or intentionally
violated a no contact order. Ind. Code § 35-46-1-15.1(11).
[21] “Invasion of privacy and stalking are crimes that can be accomplished by
telephone calls, emails, letters, or rung doorbells.” Eisert v. State, 102 N.E.3d
330, 334 (Ind. Ct. App. 2018), trans. denied. The State established, and Suarez-
Torres admitted, that she contacted Stephany, in violation of the no contact
order, by calling three times and by texting once. Suarez-Torres had knowledge
of the no contact order. 3 Even if Suarez-Torres had denied that she made the
phone call to Stephany, the State presented sufficient evidence that: (1) the
initiating phone number belonged to Suarez-Torres’ mother; (2) the caller
identified herself as Suarez-Torres; (3) Stephany recognized the caller’s voice as
Suarez-Torres’ voice; (4) there was a no contact order in place of which Suarez-
Torres had prior knowledge; and (5) Suarez-Torres contacted Stephany
anyway. This evidence was sufficient to convict Suarez-Torres of invasion of
privacy, a Class A misdemeanor.
[22] Suarez-Torres claims that, despite her violation of the no contact order, she
established the defense of necessity. To prevail on a necessity claim, the
defendant must show:
3
Suarez-Torres “does not dispute the existence of the no contact order.” Appellant’s Br. p. 11.
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the act charged as criminal must have been done to prevent a
significant evil, (2) there must have been no adequate
alternative to the commission of the act, (3) the harm caused
by the act must not be disproportionate to the harm avoided,
(4) the accused must entertain a good faith belief that his act
was necessary to prevent greater harm, (5) such belief must be
objectively reasonable under all the circumstances, and (6) the
accused must not have substantially contributed to the
creation of the emergency.
Clemons v. State, 996 N.E.2d 1282, 1285 (Ind. Ct. App. 2013) (citing Dozier v.
State, 709 N.E.2d 27, 29 (Ind. Ct. App. 1999)), trans denied. Where, as here,
Suarez-Torres was convicted despite her claim of necessity, “this court will
reverse the conviction only if no reasonable person could say that the defense
was negated by the State beyond a reasonable doubt.” Clemons, 996 N.E.2d at
1285. The State can refute a claim of the defense “by direct rebuttal, or by
relying upon the sufficiency of the evidence in its case-in-chief.” Id.
[23] Suarez-Torres did not present any evidence that the harm to her daughter was
immediate; nor did Suarez-Torres present evidence that she had no alternative
but to contact Stephany. The text message that Suarez-Torres sent to Stephany
does not in any way indicate there was an emergency and, in fact, seems to
indicate the calls were related to child support, instead of a medical emergency.
At the very least, there does not appear to have been a significant evil that
needed to be overcome. The State negated Suarez-Torres’ claims that this was
an immediate medical emergency by presentation of Suarez-Torres’ text
message to Stephany, which indicated the true purpose of the communications.
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We, therefore, affirm Suarez-Torres’ conviction for invasion of privacy, a Class
A misdemeanor.
Conclusion
[24] The evidence is sufficient to convict Suarez-Torres of battery resulting in bodily
injury, a Class A misdemeanor, and invasion of privacy, a Class A
misdemeanor. We affirm.
[25] Affirmed.
Brown, J., and Altice, J., concur.
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