MEMORANDUM DECISION
[1] Robert Lloyd Matthew Gouge appeals following his conviction of Level 6 felony domestic battery in the presence of a child less than sixteen years old.
1
George raises one issue on appeal: whether the State presented sufficient evidence that a child was present during the commission of his battery offense. We affirm.
Facts and Procedural History
[2] On July 5, 2020, at approximately 3:30 a.m., Officer Julia Ridgway of the Richmond Police Department responded to a domestic disturbance call at the residence of Gouge and his wife, C.G. When Officer Ridgeway arrived at the scene, she found C.G. sitting on the curb crying with the front of her shirt covered in blood. The Officer also observed the Gouges’ neighbor, Natitia Via, standing on the porch of the Gouges’ home holding the Gouges’ infant son. C.G. attempted to speak to Officer Ridgway but was unable to talk because she was choking and coughing up blood as a result of her injuries. Shortly thereafter, C.G. conveyed to the officers that earlier that day she and Gouge had been fighting, and she went outside to sleep in their car while Gouge remained in the house with their one-year-old son. When C.G. woke up, she went back into the house to retrieve the child. As she roused Gouge, who had been sleeping on the couch in the living room, he suddenly began striking and kicking her.
[3] Via then explained to Officer Ridgeway that sometime late at night she heard continuous sobbing and a wailing noise coming from the direction of the Gouges’ residence. Upon approaching the Gouges’ home, Via observed a “very excitable and in shock” C.G., with “[h]er nose, her face, just covered; covered in blood. It was dripping down her face onto her chest. Her eyes were barely open.” (Tr. Vol. II at 118.) While talking to Via, C.G. kept repeating that her child was inside the house and that Gouge was going to kill her. Vias boyfriend also came to assist and began knocking on the Gouges’ door. Gouge eventually opened the door holding the infant on his hip.
[4] Gouge was arrested that day for domestic battery, and the State formally charged him with Level 6 felony domestic battery in the presence of a child less than sixteen years old on July 21, 2020. On May 25, 2021, the trial court held a jury trial, and the jury returned a verdict finding Gouge guilty of Level 6 felony domestic battery in the presence of a child less than sixteen years old. On June 21, 2021, the trial court imposed an eighteen-month sentence.
Discussion and Decision
[5] When reviewing the sufficiency of the evidence to support a conviction, we consider only the probative evidence and reasonable inferences supporting the trial courts decision. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). The evidence need not exclude “every reasonable hypothesis of innocence.” Id. at 147. It is solely the initial factfinders role to evaluate witness credibility and weigh the evidence to determine whether it is sufficient to support a conviction; thus, we give great deference to the initial factfinder and will not reweigh evidence, and we consider conflicting evidence in the light most favorable to the trial courts ruling. Jones v. State, 783 N.E.2d 1132, 1139 (Ind. 2003). We will affirm a conviction unless no reasonable factfinder could find the elements of the crime proven beyond a reasonable doubt, id., and reverse only “when the record contains no facts to support [the conviction] either directly or by inference.” Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996).
[6] Gouge asserts the State did not present sufficient evidence to support his felony conviction. Specifically, Gouge contends the State failed to show he knowingly committed the offense in the presence of his one-year-old child. He argues the State proved only that the child was present after the incident had occurred. Such distinction is vital because the presence of a child under sixteen during the offense elevates Gouges offense from a Class A Misdemeanor to a Level 6 Felony. To convict Gouge of Level 6 felony domestic battery as charged, the State had to present evidence to prove beyond a reasonable doubt that Gouge battered C.G. “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).
[7] This court addressed the meaning of “presence” for purposes of Indiana Code section 35-42-2-1.3 in Boyd v. State, in which we held there need not be evidence that a child actually sensed the battery for the child to have been “present” under the statute. 889 N.E.2d 321, 325 (Ind. Ct. App. 2008), trans. denied. Rather, it is sufficient that there be a possibility the child might see or hear the battery occur. We explained “[i]f the words ‘presence’ and ‘present’ required that the child see or sense that a battery is taking place, then this interpretation would make the word ‘physical’ in the phrase ‘physical presence’ and the phrase ‘might be able to see or hear the offense’ meaningless.” Id. Then, in True v. State, we clarified that a defendant must knowingly be within either the possible sight or hearing of a child. 954 N.E.2d 1105, 1111 (Ind. Ct. App. 2011) Thus, determining whether a child is present within the meaning of the battery statute requires considering “whether a reasonable person would conclude that the child might see or hear the offense; not whether the child is in the same room as where the offense is taking place.” Manuel v. State, 971 N.E.2d 1262, 1270 (Ind. Ct. App. 2012).
[8] On appeal, Gouge asks us to evaluate the “void of evidence” as it relates to the presence of their child during the battery offense. (Appellants Br. at 9.) Gouge argues:
There was no evidence regarding the infant being witness to or near the battery. There was no evidence that [Gouge] committed the battery knowing the child would see or could hear the battery. There was no evidence regarding the infants sleeping location. There was no evidence regarding the demeanor of the child. The allegation that [Gouge] knew the child was present and might be able to see or hear the offense belies reason. The evidence regarding the loud “wailing” was from outside the house and occurred after the battery already occurred.
(Id. at 8.) The record before us indicates Gouge opened the door holding their child when Vias boyfriend knocked on the front door. Gouge is correct that the fact he was seen holding the infant after the battery occurred is not an indication the child was present for the offense, and the childs mere presence post-offense is insufficient to support Gouges conviction. However, the childs post-offense presence is not the only piece of evidence upon which the States allegations rely. Our standard in Manuel reaffirms that establishing presence does not require the child to be in the same room where the battery occurred; rather, there must have been some possibility that the child could sense the battery. To this end, Gouge does not dispute that the infant was present in the home throughout the duration of the battery. See Manuel, 971 N.E.2d at 1269 (rejecting defendants argument that he committed battery outside presence of children, when the children were in their bedroom during the incident).
[9] During trial, Officer Ridgeway testified she observed a pack-and-play approximately three feet from the couch where Gouge was sleeping right before he battered C.G. The Gouges’ neighbor Via testified multiple times that, following the battery, C.G. repeated to her the infant was in the home, “my babys in the house,” and “it was her biggest concern.” (Tr. Vol. II at 119-120.) Lastly, given that the incident between Gouge and C.G. occurred at 3:15 a.m., it is reasonable to infer the infant was inside the home with his parents and could have heard or seen the battery as it occurred. As our precedent establishes that it is not a requirement the child actually hear, see, or comprehend the offense, or that he be physically present in the room contemporaneously with the offense, Officer Ridgways direct observations and further circumstantial evidence are sufficient to elevate Gouges conviction to a felony. Contra Young v. State, 980 N.E.2d 412, 423 (Ind. Ct. App. 2012) (mothers simple statement that battery occurred “at their apartment across the street,” with no accompanying testimony or evidence regarding where the children were during the incident was insufficient to uphold a felony conviction of battery in the presence of a child); and see Maul v. State, 731 N.E.2d 438, 439 (Ind. 2000) (“[a] verdict may be sustained based on circumstantial evidence alone if that circumstantial evidence supports a reasonable inference of guilt”).
Conclusion
[10] Gouges assertion that the State presented insufficient evidence regarding the felony enhancing element of the domestic battery charge fails given the evidence in the record. Accordingly, we affirm Gouges conviction of Level 6 felony domestic battery while in the presence of a child under sixteen years old.
[11] Affirmed.
FOOTNOTES
1
. Ind. Code § 35-42-2-1.3(a)(1).
May, Judge.
Brown, J., and Pyle, J., concur.