MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                   FILED
this Memorandum Decision shall not be                                Oct 07 2019, 5:46 am
regarded as precedent or cited before any
                                                                         CLERK
court except for the purpose of establishing                         Indiana Supreme Court
                                                                        Court of Appeals
the defense of res judicata, collateral                                   and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Andrew R. Falk                                           Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         Samuel J. Dayton
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

James Howard Cupp,                                       October 7, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-928
        v.                                               Appeal from the Hendricks
                                                         Superior Court
State of Indiana,                                        The Honorable Stephenie LeMay-
Appellee-Plaintiff.                                      Luken, Judge
                                                         Trial Court Cause No.
                                                         32D05-1712-F6-1168



Barnes, Senior Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-928 | October 7, 2019               Page 1 of 7
                                            Statement of the Case
[1]   James Howard Cupp appeals his conviction of domestic battery, a Level 6
                 1
      felony. We affirm.


                                                     Issue
[2]   Cupp raises one issue: whether the State presented sufficient evidence to

      sustain his conviction.


                                   Facts and Procedural History
[3]   Cupp and Reina Frey have three children together, all under the age of five.

      They used to live together, but Frey and the children went to live with her

      parents in late November 2017. Cupp moved in with a friend.


[4]   On the night of December 10, 2017, Frey, Cupp, and their children ate dinner

      at a restaurant. Next, the family drove around Plainfield and parked in

      different lots so that Cupp could see the children and talk with Frey. Frey was

      driving her vehicle, a black SUV. Cupp sat in the front passenger seat, and the

      three children were in the back seats.


[5]   At eleven o’clock, Cupp asked Frey to take him to a hospital because stitches

      had come out of his hand. They went to a hospital in Danville, but when they




      1
          Ind. Code § 35-42-2-1.3 (2016).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-928 | October 7, 2019   Page 2 of 7
      arrived, Cupp changed his mind and declined to enter the hospital. Frey drove

      Cupp back to his residence in Plainfield, arriving after 11:30 p.m.


[6]   Upon arriving at Cupp’s residence, he refused to get out of Frey’s vehicle. Frey

      repeatedly told him to get out, but he declined. The two began to argue, and

      Cupp, whose feet were resting on the dash, pushed at the windshield. It was

      already cracked, but Cupp caused it to develop a second crack on the passenger

      side.


[7]   Frey took out her cell phone and began to record Cupp because she “didn’t

      want to be blamed for the damage on [her] car.” Tr. Vol. II, p. 104. The video

      recording shows Cupp reaching toward Frey as he angrily says, “Don’t f*****g

      record me.” State’s Ex. 1. After a brief struggle, he took her phone while she

      screamed loudly. Cupp threw the phone out of the vehicle, and Frey left the

      SUV to pick it up. After she retrieved her phone, Cupp got out of the SUV, and

      Frey left with the children.


[8]   As she drove away, Frey noticed blood on her phone and then determined that

      her bottom lip was swollen and bleeding. Her lip had not been bleeding before

      she began to record Cupp. Frey had slipped and fallen as she retrieved her

      phone, but she did not recall anything contacting her face as she fell. She drove

      to the Plainfield Police Department’s (the PPD) offices.


[9]   At 1 a.m. on December 11, 2017, Officer Javier Casas of the PPD was

      dispatched to the PPD’s offices to investigate a report of a domestic battery. He

      was directed to a black SUV in the parking lot, where he encountered Frey.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-928 | October 7, 2019   Page 3 of 7
       She was “quite upset and distraught.” Tr. Vol. II, p. 83. Frey’s three children

       were still with her. Officer Casas told her “she was safe,” and “she sorta broke

       down a little.” Id. at 84. Medics also arrived at the scene and determined Frey

       did not need to go to the hospital. Officer Casas noted the passenger side of the

       SUV’s windshield was “shattered.” Id. at 83.


[10]   Officer Casas entered the offices with Frey and her children. He interviewed

       her, taking an oral and written statement from her. Frey “kept on becoming

       emotional and breaking down” during the interview as she discussed what

       happened. Id. at 87. Officer Casas took a photograph of Frey’s face.


[11]   On December 12, 2017, the State charged Cupp with domestic battery, a Level

       6 felony, and criminal mischief, a Class B misdemeanor. The trial court issued

       a no-contact order, barring Cupp from contacting Frey.


[12]   On January 10, 2018, two days prior to Frey’s deposition in this case, Cupp
                                                        2
       called Frey. The call was recorded. Cupp asked Frey what she was going to

       say, and she said she was going to tell the truth. When he told her she did not

       have to go to court, she responded that she had been subpoenaed and was

       required to appear. Cupp then threatened to have his attorney charge her with




       2
         During the call, Cupp pretended to be someone else and repeatedly referred to himself in the third person as
       “Howie,” although he once referred to himself as “I” rather than “Howie.” State’s Ex. 7. During trial, Frey
       indicated Cupp was the caller.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-928 | October 7, 2019                     Page 4 of 7
       a felony, claiming she had attempted to drive away with him in the car against

       his will.


[13]   A jury determined Cupp was guilty of domestic battery but not guilty of

       criminal mischief. The trial court imposed a sentence, and this appeal followed.


                                       Discussion and Decision
[14]   Cupp claims the State failed to present sufficient evidence to sustain his

       conviction. In reviewing such claims, we consider only evidence that supports

       the verdict and draw all reasonable inferences therefrom. Richeson v. State, 704

       N.E.2d 1008, 1011 (Ind. 1998). We do not reweigh the evidence nor do we

       judge the credibility of witnesses. Id. We uphold a conviction if there is

       substantial evidence of probative value from which a jury could have found the

       defendant guilty beyond a reasonable doubt. Id.


[15]   To obtain a conviction of domestic battery as charged, the State was required to

       prove beyond a reasonable doubt that: (1) Cupp; (2) who is a person of at least

       eighteen years of age; (3) knowingly or intentionally; (4) touched a household

       member (Frey); (5) in a rude, insolent, or angry manner; (6) in the physical

       presence of a child less than sixteen years of age (their three children). Ind.
                                                                                       3
       Code § 35-42-2-1.3 (a)(1) & (b)(2); Appellant’s App. p. 2.




       3
         A separate subsection of Indiana Code section 35-42-2-1.3 provides that domestic battery is also a Level 6
       felony if it results in moderate bodily injury. See Ind. Code § 35-42-2-1.3 (b)(3). The State did not cite that

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-928 | October 7, 2019                        Page 5 of 7
[16]   Cupp argues there is insufficient evidence that he knowingly or intentionally

       touched Frey in a rude, insolent, or angry manner. We disagree. Cupp and

       Frey argued because Cupp refused to get out of her SUV, and he (intentionally

       or not) damaged her windshield. When she began recording him, he angrily

       told her to stop recording him and reached for her phone. After a short

       struggle, Cupp gained control over the telephone and threw it out of the SUV

       while Frey screamed loudly.


[17]   Cupp left the SUV after Frey retrieved her phone. As she drove away, she

       noticed blood was on her phone and her bottom lip was swollen and bleeding.

       She had not been bleeding before she began recording Cupp, and she had not

       sustained the injury while she retrieved her phone from the ground. A

       reasonable jury could have concluded that Frey sustained her injury while

       struggling with Cupp. Bodily injury is not an element of the offense charged

       here, but the injury is evidence that Cupp knowingly or intentionally touched

       Frey in a rude, insolent, or angry manner.


[18]   When Officer Casas interviewed Frey, she was distraught and crying. He

       noticed her injured lip and took a photograph. Finally, Cupp called Frey two

       days before her deposition. He told her she did not have to appear at trial and

       further threatened to have his attorney charge her with a felony. Cupp’s




       subsection when it charged Cupp, and as a result the State was not required to prove as an element of the
       offense that Cupp injured Frey.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-928 | October 7, 2019                    Page 6 of 7
       attempts to intimidate Frey into not testifying undermine his claim that he did

       not knowingly or intentionally touch her in a rude, insolent, or angry manner.


[19]   The foregoing evidence provided a sufficient basis for the jury to determine

       beyond a reasonable doubt that Cupp was guilty of domestic battery because he

       struggled with Frey, resulting in her phone striking her face. See Impson v. State,

       721 N.E.2d 1275, 1285 (Ind. Ct. App. 2000) (affirming defendant’s conviction

       of B misdemeanor battery; defendant committed the required touching by

       knocking victim’s glasses off of his face, even though he did not touch the

       victim’s body).


[20]   Cupp points to Frey’s cross-examination testimony, during which she said that

       Cupp did not hit her in a rude, insolent, or angry manner. Cupp further claims

       Frey could have injured herself after Cupp got out of her SUV. Finally, Cupp

       cites to a statement he gave to Officer Casas, during which he said he did not

       intend to hurt Frey. These arguments are all requests to reweigh the evidence,

       which our standard of review forbids.


                                                Conclusion
[21]   For the reasons stated above, we affirm the judgment of the trial court.


[22]   Affirmed.


       Crone, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-928 | October 7, 2019   Page 7 of 7
