RILEY, Judge.
Appellant-Defendant, Matthew Manuel (Manuel), appeals his conviction for domestic battery, a Class D felony, Ind.Code § 35-42-2-1.3, after a bench trial.
We affirm.
Manuel raises three issues on appeal, which we restate as follows:
Manuel and D.S. lived together for eight years in a home in Indianapolis, Indiana, and had one child together named D.M. D.S. also had one child from a previous relationship, whom Manuel helped raise during their eight year relationship. On the evening of September 28, 2011, D.S. went out to play Bingo to celebrate her birthday. While D.S. was away, Manuel put the two children to bed in their rooms, although D.M. did not go to sleep right away. D.S. returned home from playing Bingo around 10:30 p.m. and sat down to watch television with Manuel. At one point, Manuel began to talk about his desire to visit Madagascar, so they looked up Madagascar online on D.S.' laptop computer. Later, Manuel went into another room and D.S. began to check her e-mails. When Manuel came back into the room, he saw D.S. delete an e-mail. He demanded to know what she had deleted, but D.S. would not tell him and Manuel hit her on the forehead with a cell phone. They began to argue loudly and Manuel proceeded to examine the files on D.S.' laptop until its battery died and it automatically shut down.
Manuel plugged the laptop's battery charger in and turned the laptop back on, but discovered that it required a password to log in. He asked D.S. for the password, but she refused to give it to him. Manuel began "complaining and yelling and screaming walking through the house." (Transcript p. 38). When D.S. still refused to give him her password, he walked outside and put their daughter's net book computer, which was their second computer, into his car. While Manuel was outside, D.S. called 911 on her cell phone and then put the phone under a pillow on her bed. Manuel returned to the house and continued "yelling and screaming" at D.S. while she was standing in the doorway of their bedroom. (Tr. p. 42). Manuel threw D.S.' laptop on the floor and broke it. He then picked the laptop back up and hit D.S. on the head with it twice before grabbing her from behind and choking her.
D.S. managed to separate herself from Manuel, and shortly thereafter police officers arrived as a result of D.S.' 911 phone call. When the officers arrived, they knocked for about four or five minutes before anyone answered the door. However, they saw a person peek out from the bedroom window through the blinds. Eventually, Manuel answered the door with D.S. standing next to him. The officers noticed that D.S. was "visibly upset" and was "crying and shaking," but did not have any visible injuries. (Tr. p. 13).
On September 29, 2011, the State filed an Information charging Manuel with Count I, domestic battery, a Class D felony, Ind.Code § 35-42-2-1.3; Count II, battery of a family or household member, a Class D felony, I.C. § 35-42-2-1; Count III, domestic battery, a Class A misdemeanor, I.C. § 35-42-2-1.3; and Count IV, battery, a Class A misdemeanor, I.C. § 35-42-2-1. On November 17, 2011, a bench trial was held, and the trial court found Manuel guilty as charged. On December 1, 2011, the trial court held a sentencing hearing and sentenced Manuel to 365 days on Count I, with 128 days executed and 237 days suspended. The trial court merged Count II with Count I to avoid double jeopardy prohibitions and merged Counts III and IV with Count I as they were lesser included offenses.
Manuel now appeals. Additional facts will be provided as necessary.
During Manuel's cross-examination of D.S. at trial, Manuel elicited testimony
Preliminarily, we note that the scope and extent of cross-examination is within the discretion of the trial court, and we will reverse only upon finding an abuse of that discretion. Palmer v. State, 654 N.E.2d 844, 848 (Ind.Ct.App.1995). We will find an abuse of discretion where a trial court's decision is clearly against the logic and effect of the facts and circumstances before the court. Parker v. State, 965 N.E.2d 50, 53 (Ind.Ct.App.2012). Although a defendant's right to present a defense is of the utmost importance, it is not absolute. Id. "The accused, as is required of the State, must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence." Id.
Under Indiana Evidence Rule 607, "The credibility of a witness may be attacked by any party, including the party calling the witness." However, pursuant to Evid. R. 608(a), a party may only attack the credibility of a witness through evidence in the form of opinion or reputation. Evidence regarding specific instances is inadmissible, other than evidence of a conviction of a crime as provided in Evid. R. 609 and evidence concerning the character for truthfulness or untruthfulness of another witness as to which the witness has testified. Evid. R. 608(b).
In a similar vein, the defendant in Nunley v. State, 916 N.E.2d 712, 720 (Ind.Ct. App.2009), trans. denied, tried to introduce evidence at trial that the child who claimed that he had molested her had made a false accusation of misconduct on another occasion. The trial court found that the evidence was inadmissible under Evid. R. 608(b) as evidence of a specific instance, and we affirmed. Id. As D.S.' 2005 accusation and then recantation were specific instances of conduct similar to the false accusation at issue in Nunley, we conclude that evidence of D.S.' recantation here was likewise precluded under Evid. R. 608(b), and the trial court did not abuse its discretion when it did not permit Manuel to cross-examine D.S. about the 2005 charges.
Next, Manuel argues that the trial court improperly allowed the State to bolster the truthfulness of D.S.' testimony. At trial, the following exchange occurred:
(Tr. pp. 69-70). According to Manuel, this exchange was prohibited under our rules of evidence.
We review a trial court's decisions regarding the scope and extent of cross-examination for an abuse of discretion. See Parker, 965 N.E.2d at 53. We will find an abuse of discretion only where a trial court's decision is clearly against the logic and effect of the facts and circumstances before the court. Id.
As Manuel argues, Evid. R. 704(b) provides that "[w]itnesses may not testify to [] whether a witness has testified truthfully...." However, we have held that "[a] witness may be rehabilitated on redirect examination if [she] was discredited by [her] testimony on cross-examination." Embry v. State, 923 N.E.2d 1, 7 (Ind.Ct. App.2010), trans. denied. Indiana courts have recognized two general rules with respect to witness rehabilitation:
Id. The second principle is generally the more difficult one to apply, as its application requires determining what will logically refute the attack on credibility. Id. The answer usually varies depending on the basis for that attack. Id.
Here, many of Manuel's questions throughout his cross-examination were intended to impeach D.S.' credibility. The following exchanges occurred:
(Tr. pp. 53-55).
(Tr. pp. 60-62). In light of this testimony, we find that Manuel attempted to impeach D.S. as a witness with respect to her truthfulness. Because the impeachment related to truthfulness, we further conclude that questioning D.S. on re-direct regarding whether she had testified truthfully logically refuted the specific focus of Manuel's attack. See Embry, 923 N.E.2d at 7. Thus, the State's question was properly intended to rehabilitate its witness, rather than bolster her testimony, and the trial court did not abuse its discretion in allowing the question.
Finally, Manuel argues that the State failed to provide sufficient evidence that he committed domestic battery as a Class D felony. When reviewing a sufficiency of the evidence claim, we will only reverse a conviction when reasonable persons would not be able to form inferences as to each material element of the offense. Perez v. State, 872 N.E.2d 208, 212-213 (Ind.Ct.App.2007), trans. denied. We do not reweigh evidence or judge the credibility of witnesses. Id. at 213. In addition, we only consider the evidence most favorable to the bench trial and the reasonable inferences stemming from that evidence. Id.
A person commits domestic battery if that person: "knowingly or intentionally touches an individual who ... is or was a spouse of the other person; [] is or was living as if a spouse of the other person as provided in subsection (c); or [] has a child in common with another person; in a rude, insolent, or angry manner that results in bodily injury []." I.C. § 35-42-2-1.3. The offense is a Class D felony if the person commits the offense "in the physical presence of a child less than sixteen (16) years of age, knowing that the child [is] present and might be able to see or hear the offense." I.C. § 35-42-2-1.3.
Manuel's argument has two prongs: (1) that the State did not prove that he committed domestic battery as a Class D felony because it failed to provide sufficient evidence that the battery occurred in the presence of the children; and (2) that the evidence was insufficient because D.S.' testimony was incredibly dubious. We will address each of these assertions separately.
With respect to Manuel's first argument, he claims that he committed the battery within the "proximity" of the children rather than in their "presence" because the children were in their bedroom. We addressed the meaning of "presence" under I.C. § 35-42-2-1.3 in Boyd v. State, 889 N.E.2d 321 (Ind.Ct.App.2008), trans. denied, and True v. State, 954 N.E.2d 1105 (Ind.Ct.App.2011). Neither case is directly on point because in both cases a child
In the instant case, although both children were in their bedroom and were supposedly asleep, much of the parents' argument occurred in the hallway outside of their room, and seven year old D.M. testified that her door was open and that she could hear her father asking her mother for the laptop password. According to D.M., her father was "this loud," and hearing the argument made her "sad." (Tr. p. 25). Further, Manuel was aware that the children might hear him. On the 911 tape, D.S. repeatedly requested Manuel to lower his voice to avoid waking the children, and he responded "I don't care if the kids wake up." (State's Exh. 7). In light of these facts and our precedent, we conclude that the State did produce sufficient evidence that Manuel committed domestic battery as a Class D felony in the presence of the children.
Next, Manuel argues that the State did not present sufficient evidence that he committed domestic battery because D.S.' testimony was incredibly dubious and inherently improbable due to inconsistencies. Specifically, Manuel notes that D.S. testified that Manuel was intoxicated, but D.M. and Manuel's sister testified that he had not been drinking that day. Also, D.S. left for work at 6:30 in the morning and did not return until around 4:00 p.m. She left again at 5:00 p.m. to play Bingo and did not return to the house until 10:30 p.m. Based on D.S.' minimal time at home, Manuel claims that she could not have known whether he was drinking.
In addition, Manuel claims that D.S.' testimony was incredibly dubious because the 911 recording of the incident did not indicate that Manuel smashed the laptop or hit her. Instead, about five minutes into the recording, Manuel yelled "get off me," and about two minutes later he yelled "fall back" two times. (State's Exh. 7). About eight minutes into the recording, Manuel asked D.S. why she was screaming, and then when D.S. yelled "why are you hitting me[?]" Manuel responded "I ain't touched you" and continued to ask why D.S. was screaming. (State's Exh. 7). D.S. again asked Manuel why he was hitting her, and he responded "ain't nobody whipped your ass" and then, in response to D.S. sobs, "save that fake shit for somebody else." (State's Exh. 7).
Finally, Manuel argues that D.S.' testimony was incredibly dubious because although D.S. initially reported that the only physical acts against her occurred after she called 911, she later testified that Manuel had hit her on the head with the cell phone prior to the 911 call. Also, according to Manuel, it was impossible for him to hit D.S. with the laptop when evidence indicated that he had placed the laptop into his vehicle before D.S. called 911.
In light of this standard, three of Manuel's arguments fail because he requests us to reweigh inconsistencies between witness testimony and the evidence or between the testimonies of multiple witnesses, which we may not do under the "incredible dubiosity rule." See Glenn, 884 N.E.2d at 356. D.S. and Manuel's sister disagreed about Manuel's intoxication, but inconsistencies between two witnesses' testimonies do not make the evidence "incredible." See Morell, 933 N.E.2d at 492-93. Similarly, we cannot compare inconsistencies between D.S.' testimony and the 911 recording because they are not a single statement or testimony. See Glenn, 884 N.E.2d at 356. Likewise, Manuel does not identify contradictions in D.S.' testimony concerning the computer in Manuel's vehicle. D.S. testified that the computer was her daughter's net book, not Manuel's laptop, and she never deviated from that testimony. As a result, it was consistent for her to claim that Manuel hit her with a computer after he took the net book to the vehicle.
Manuel's only claim that we can review under the "incredible dubiosity rule" is that D.S. was inconsistent in her testimony concerning Manuel hitting her in the head with his cell phone. D.S. did seemingly contradict herself because initially she testified that the first time Manuel hit her was with the laptop, and then she later testified that Manuel first hit her with the cell phone. However, we do not find this testimony incredible because it is evident based on the following exchange that D.S. was confused:
(Tr. pp. 53-55). We do not find it incredible that a reasonable person would believe that D.S. was telling the truth and was merely confused or initially forgot to mention the phone. It is clear from her testimony that the cell phone was not the most important thing on her mind; rather, she testified that at that point she was afraid for her life. Thus, we conclude that the State provided sufficient evidence to support Manuel's conviction of domestic battery as a Class D felony.
Based on the foregoing, we conclude that: (1) the trial court did not abuse its discretion when it denied Manuel the opportunity to cross-examine D.S. about a past incident; (2) the trial court did not abuse its discretion when allowed the State to ask D.S. whether she had testified truthfully; and (3) the State produced sufficient evidence to prove beyond a reasonable doubt that Manuel committed domestic battery as a Class D felony.
Affirmed.
NAJAM, J. and DARDEN, S.J. concur.