*1 might have that we possibility tive existed WILLIAMS, Appellant- Ronnie R. spring favor in the
ruled Williamson's Defendant, precedent available 2000. The bulk his brief when he filed would counsel v. that double to a reasonable conclusion led Indiana, Appellee-Plaintiff. a defen implicated not where STATE of jeoрardy is multiple crimes based dant is convicted No. 34A02-0212-CR-1084. that single of a act upon the commission victims.3 Such multiple in harm to results Indiana. Appeals Court of 1999, reached in October a conclusion Nov. moreover, proven by correct ap in 2002. hold that Bald decision We did not fall below
pellate counsel's conduct when he professional
reasonable norms jeopardy argument
failed to make a double behalf. Williamson's
Conclusion has not demonstrated
Williamson appel- ineffective assistance of
he received he failed to
late counsel because strategic made an unreasonable
counsel jeopardy making in not a double
decision upon precedent available
argument, based filed his brief. Addi-
at the time counsel strategie of this choice
tionаlly, the wisdom pree- fact that current supported clearly court allows supreme
edent of our arising convictions out of
multiple criminal multiple arson where vie- single act of affirm the denial
tims were involved. We post-conviction relief.
Affirmed. MAY, J.,
DARDEN, J., and concur. J., (Sullivan, course, assumes, (Ind.Ct.App.1988) 3. This defendant respect required concurring). mens rea with had the Kelly See v. each viсtim. *2 458 Jr., Menges,
William C. County Howard Defender, Kokomo, IN, Public Attorney for Appellant. Carter, Attorney
Steve General of Indiana, Carlton, Grant H. Deputy Attor- General, ney IN, Indianapolis, Attorneys Appellee. OPINION FRIEDLANDER, Judge.
Ronnie R. appeals from his conviction of Battery,1 (West, 26, § Ind.Code Aun. 35-42-2-1.3 PREM- 2002 under LC. 35-42-2-1.3 before the Sess.). through Spеcial May ISE 2002 1st On strong 2003 amendment. "Unless there are reasons, 7, 2003, compelling statutes will normal- General amended ly given prospective Indiana's domestic statute to application. include be While non-exhaustive list addressing merely procedural of factors courts shall re- statutes and re- considering view when may applied retroactively, whether a defendant medial matters "is spouse" alleged application required." or was as a such is not Gosnell v. victim. The amendment became effective Serv., Inc., 879, Ind. Water Soft July (Ind.1987). 2003. Williams was convicted on Oc- As Williams was convictеd 35-42-2-1.3, tober 2002 and sentenced on November before the amendment of challenge considering appeal When issue on The sole A misdemeanor. evidence, apply a sufficiency of the we his con- is, sufficient did nei standard of review. We well-settled viction? *3 nor assess matters weigh ther evidence affirm. We State, credibility. Davis v. 743 witness (Ind.2001). Instead, we con the conviction favorable to The facts our to the evidence and reason fine review Heath March that on demonstrate conviction. supporting the able inferences Officer, was dis- Evans, Police a Kokomo sup that evidence and the Upon reviewing Kenner. to the residence Susan patched inferences, we deter porting reasonable and Kenner admitted Evans arrived When evi mine whether there was substantial home, Evans witnessed him into the support value to probative dence disarray-furniture in a state of house if a will affirm reason judgment. Id. We overturned, the bed- objects strewn about fact could have found the able trier of room, glass on the broken room and a reasonable guilty beyond defendant floor, window on the broken-glass and a doubt. Id. noted that Kenner was door. Heath bаck that she had cuts shaking and crying and reveals that Kenner The record Evans that hand. Kenner informed on her and had an cohabiting were and Williams Williams, boyfriend, her live-in she and the time romantic at ongoing that Kenner's belief arguing were about It was therefore reason of the incident. with romantically involved was Williams they fact to infer that able for the trier of an- woman when Williams became another they spouses. as if were together lived damage in the home. and caused the gry Further, that she informed Evans Kenner during Evans that also told Kenner Williams's argued and had about Williams began hitting her argument Williams relationship with another possible romantic body against threw her head and and woman, hitting which escalated to Williams door, to caused her hand the back which body throwing and in the head and Kenner window and to sus- go through glass causing her to the back door against her Kenner the cuts Evans observed. tain completed injuries. Kenner also sustain a Domestic completed signed and then Battery Affidavit a Domestic signed and Affidavit, the resi- and Evans left of the incident. The evening dence to locate Williams. fact could trier of such that a reasonable of domestic guilty found Williams charged with subsequently was Williams doubt. battery beyond a reasonable after a battery and convicted tri decision of the affirming appeal, trial. this direct bench court, that the evidence was recent contends mindful of the Williams al we are of this court in ruling panel of another Spe- to his convictiоn. insufficient (Ind.Ct. State, (1) Vaughn v. cifically, contends: Williams case, In that denied. App.2003), liv- trans. prove that Williams was did not State girlfriend, with hit his former spouse; Vaughn if her Kenner as he were ing with longer living, repeatedly no that whom he was (2) did not the State and injury. Vaughn rude, causing in face in inso- Kenner touched the domestic convicted under manner, injury charged lent, causing angry or issue ad Id. The sole battery statute. her. analysis of the does not affect our amendment instant case. appeal
dressed on was whether LLC. 35- (3) has a child common with the other unconstitutionally 42-2-1.3 was vague as person; applied Vaughn The court rude, insolent, or angry manner found the statute unconstitutional ap in bodily injury results person plied and reversed the conviction. We be (8) (1), (2), described in subdivision lieve the of Vaughn clearly facts are distin commits battery, A Class guishable present from the but to the However, misdemeanor. the offense is Vаughn extent holds the two factors D felony person Class if the has a ie., demonstrated cohabiting previous, unrelated conviction under this *4 may and a sexual relationship, never satis (or 35-42-2-1(a)(2)(E) section IC before fy 35-42-2-1.3, requirements § the of I.C. repeal).3 its we respectfully disagree.2 We note here that no Indiana court has The General enacted Indiana's general purpose addressed the behind the statute, § 1.C. 35-42-2- battery statute. A "in statute's 1.3, in 2000: terpretation is express controlled the (a) person See. 1.3. A who know language of the statute and the rules of ingly intentionally or person touches a statutory Evans, construction." State v. who: 790 N.E.2d 560-61 (Ind.Ct.App.2003) (1) spouse is or awas of the per- other Patton, (citing Chavis v. son; 257 (Ind.Ct.App.1997)), trans. pending. (2) living is or was if spouse as a legislature the "The intent of the gleaned as person; other or from the prevails whole over the strict or (1) acknowledge 2. We аlso spouse person; is or was a of the other (2) (Ind.Ct.App.2003), living spouse a recent deci- is or was as if a of the sion of this court that addresses the person (b); provided other in subsection battery or statute in relation to In dic- ta, (3) distinguishes Davis Vaughn by has a child in itself from common with the other person; noting presented regarding that the evidence rude, insolent, angry or the defendant and victim in Davis demon- manner bodily injury person results in de- they living together strated that had been for (1), (2), (3) scribed in subdivision incident, or com- eight six to months at the time of the battery, mits domestic a Class A misde- agreement a had mutual relаtionship that a However, meanor. the offense is a D Class existed, and that the defendant had taken care felony person previous, if the has a unrelat- Davis, of the victim's children. Id. Similar to (or ed conviction under this section IC 35- we believe that "under the circumstances in 42-2-1(a)(2)(E) repeal). before its 'living this the spouse as if a of the other (b) considering person whether a is or person' provision battery within the domestic living spouse was as a of another individual susceptible statute meaning so as to (a)(2), in subsection the court shall review place on [Williams] notice that his conduсt following: the battery violated the domestic statute." Id. at (1) relationship; the duration of the (2) contact; frequency of the (3) interdependence; the financial apparent response 3. As an in 2003 (4) (2) whether the two individuals are rais- legislature § amended LC. 35-42-2-1.3 to ing together; children include factors to be reviewed when deter- (5) (2) whether the two individuals mining person aif is or was "as if a engaged in tasks directed towards a com- spouse": household; mon (a) person knowingly Sec. 1.3. A who or (6) other factors the court considers rele- intentionally touches an individual who: vant. setting, as contem- in a dоmestic curred phrase used any word meaning of literal Clearly, it did. by the statute. plated Id. statute." within Moreover, appar- legislature while battery statute enacting invita- Vaughn court's ently accepted the battery, legisla to domestic particular "as if a clarify meaning tion to creаte an addition clearly intended ture amendment of through the 2008 spouse" in a domestic battery al disincentive statute, legisla- we do not believe result, do achieve this setting.4 To factors to serve as these ture intended a harsher created battery statute mestic list that the test nor do we believe litmus battery general than the scheme penalty if the even be consulted factors need under I.C. Specifically, statute. clearly "do- is character of misdemeanor, B 34-42-2-1 position for this find mestic." We a class A misdemeanor may become which 85-42-2-1.8(b)(6) con- allows in that I.C. victim falls felony if thе D or a Class court con- factors the of "other sideration categories the enumerated within one of catchall rec- This broad siders relevant." victims, officers e.g., law enforcement any list *5 that strict reliance ognizes contrast, the under duty. the line of couple living a factors сould exclude statute, a first offense is battery may not satis- relationship who spouse-like subsequent and a A misdemeanor of mar- factors indicative fy the common § 34-42- felony. D 1.0. is a class offense 35-42-2-1.8(b), e.g., in 1.0. riage listed 2-1.3(a). to maintain couple who chooses finances, couple who see one commuter greater punishment potential for This Further, month, when onee a etc. another con- particular legislature's the recognizes relationship clearly of the the character costs of domestic impact the and cern with the domestic bat- applicаtion of warrants battery general. to battery opposed as ie., cohabiting statute, couple is tery experience practical and sense Common rela- ongoing in an romantic engaged and passions that heightened inform us of the not need to under- a court would tionship, relation- intimate romantic accompany cases, analysis. marginal further take emotional, and physical whether ships, the character where as such when a danger presented additional uncertain, the factors relationship is live under and a victim batterer potential but, thе facts of this applied, should a situa- Vaughn presented same roof. ask the State need not we whether questionable in which it was tion more than it has. seope fell within couple at issue arriving at battery statute. The instant thirty minutes the domestic Within case, however, residence, the situation precisely and Kenner's shared Williams battery statute. the situation by the domestic Evans assessed envisioned Officer To situation. to show domestic abuse presented potential The State Kenner, he end, interviewing in an were involved after and Kenner Williams Domestic sign a complete and were rеlationship had her ongoing romantic had that stated Williams Battery time dur- Affidavit Additionally, at no cohabiting. her towards physically abusive any question become there ing trial was Williams's Further, Williams argument. during an battery oc- whether the regarding raised ed.2003), http://www.m- Dictionary defines (11th at Webster available Merriam 4. The 25, 2003). relating to the household (last August "of or domestic as visited w.com Dictionary family." Merriam-Webster or the and Kenner cohabited and shared an ongo- in enacting the Statute ing romantic relationship at the time of the punish "battery was to in a domestic set- battery. The sufficiently proved State ting" severely more than punishment character their battery $ under I.C. 35-42-2-1. Op. clearly implicated the harm the domestic Again, at 461. a "domestic setting" in and battery sought prevent. statute The of itself trigger does not application of the evidence was sufficient to prove that Domestic Battery рrovision. If it were guilty otherwise, we ignore the clear and beyond a reasonable doubt. requirement unmistakable that the batter-
Judgment affirmed.
er is "living as if a spouse" of the victim.
See I.C.
35-42-2-1.3. If it were other-
RILEY, J., concur.
wise,
gentlemen
two
sharing living accom-
modations,
by
driven
a debate whether
SULLIVAN,
J., dissenting with
Cubs will
again play
ever
in a World Ser-
separate opinion.
ies, and who engage in a physical alterca-
SULLIVAN, Judge, dissenting.
causing
tion
bruises
guilty
would be
The recent
decision
this court
in Domestic Battery. So too even two sib-
(Ind.Ct.
opinion by Judge
upon
Darden focused
Furthermore,
majority
opinion rele
statutory
new
factors sеt forth in I.C.
gates the
amendatory
new
legislation to
Judge
35-42-2-1.3. Both
Baker and I
the serap-heap
statutory
construction.
wrote
concurrences reflecting our
It seems clear that the enumerated factors
respective
opposing
but
views concerning in
present
statute were intended to
the analysis
made
a unanimous but
guide the court in making a determination
panel
different
of this
Vaughn
court in
v. whether or
couple
not a
"living
were
ifas
State, 782 N.B2d 417 (Ind.Ct.App.2008).
spouse." It would
probable
seem
that the
It appears
Friedlander,
that Judge
statutory
amendment
response
was a
рer
opinion
his
in
us,
the case now before
the decision in Vaughn, supra. See Jones
Judge
Riley are more in
tune with v.
State,
Davis
far
Ind.
Mgmt.,
more
Envtl.
than a mere
"ongоing romantic
relationship"
(Ind.Ct.App.1991);
and living
Bailey v.
together.
Menzie,
Taking
majority
opinion in
determinative. forth, I am led set the reasons
For akin us are facts before that the
conclude I Accordingly, facts of and, holding follow the State, would with inconsistent
not in this of conviction judgment
reverse
case. Cuma, Tammy
Gregory DZIERBA and
Appellants-Plaintiffs,
v. CITY, MICHIGAN OF
CITY
Appellee-Defendant.
No. 46A03-0301-CV-34. Indiana. Appeals of
Court 10, 2003.
Nov.