Paul Fox v. State of Indiana (NFP)
Annotate this Case
Download PDF
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case. FILED Dec 08 2010, 9:41 am CLERK of the supreme court, court of appeals and tax court ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE: BARBARA J. SIMMONS Oldenburg, Indiana GREGORY F. ZOELLER Attorney General of Indiana CYNTHIA L. PLOUGHE Deputy Attorney General Indianapolis, Indiana IN THE COURT OF APPEALS OF INDIANA PAUL FOX, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) ) No. 49A05-1003-CR-193 APPEAL FROM THE MARION SUPERIOR COURT The Honorable Clark H. Rogers, Judge Cause No. 49G17-1001-CM-488 December 8, 2010 MEMORANDUM DECISION - NOT FOR PUBLICATION DARDEN, Judge STATEMENT OF THE CASE Paul Fox appeals his conviction, after a bench trial, of domestic battery, a class A misdemeanor. We affirm. ISSUE Whether sufficient evidence sustains Fox s conviction. FACTS Fox and Candy Whitesides were formerly married, and Joel Fox ( Joel ) is their adult son. In January of 2010, Joel was living with Fox in Fox s second floor apartment. On January 4, 2010, while Joel was away from the apartment buying groceries, a short in Fox s dryer caused a fire. After the Fire Department extinguished the fire, Fox s living room was a mess with debris from wet drywall and charred carpeting. The fire upset Fox. When Joel came home, he put the groceries away, went to his bedroom, and used his computer. According to Joel, Fox start[ed] yelling at [Joel] and cursing at [him]. Id. 14. [R]ather than have it end up into a fist fight or a physical confrontation, Joel called Whitesides to come pick him up. Id. at 24. Fox proceeded with vacuuming up the charred pieces of carpet. Id. at 21. When Whitesides arrived at the residence with her husband, Fox was outside ranting, screaming and hollering and throwing carpet away. Id. at 22, 23. Fox came to the car window, telling [them] not to bring the little m***** f***** to the house again. Id. at 23. Whiteside told [Fox] to just let [Joel] get his stuff and they would leave. Id. Fox then went inside and upstairs. 2 Whitesides heard screaming coming from inside, and she ran upstairs to the apartment. Id. at 24. Whitesides asked what was going on and [Fox] was screaming and hollering, ranting and raving, . . . stomping around. Id. She said, calm down, and Fox said get the f*** out of my house. Id. She said no problem, and started backing away. Id. [S]till screaming get the f*** out, get the f*** out, Fox swung the vacuum cleaner at Whitesides, and the vacuum cleaner hose hit [her] on [her] leg -inflicting a pretty deep cut on her shin. Id. at 24, 25, 26. Whitesides called 9-1-1, as Fox kept screaming get out. Id. at 27. Police responded, and an officer photographed Whitesides injury. On January 5, 2010, the State charged Fox with domestic battery, as a class A misdemeanor, and battery, also as a class A misdemeanor. On March 2, 2010, the trial court held a bench trial and heard testimony of the above from Joel and Whiteside. In addition, Tommy Grubb, Fox s friend and first-floor tenant, testified that he was in Fox s kitchen that afternoon and heard Fox yelling at Whitesides; she said can we talk? And [Fox] said get the F out of my house ; and then Grubb heard a crash. Id. at 45. Joel testified that he was in the bedroom when the altercation between Whitesides and Fox took place, id. at 17, but that Grubb was not present. Whitesides also testified that Grubb was not present in Fox s apartment at the time. Fox admitted that he was hysterical, angry, and upset about the fire ; argued with Joel about cleaning up the damage and became more upset ; and then ordered him to leave. Id. at 35, 36. Fox further admitted that Whitesides was . . . telling [him] not to argue with [Joel], and he told her to get the f*** out, but he testified that he did not throw a vacuum cleaner at her. Id. at 39, 3 40. According to Fox, Whitesides injured herself when she stumble[d] and fell backwards and tripped over the vacuum cleaner. Id. at 41, 40. The trial court found Fox guilty of domestic battery. [B]ased on double jeopardy, however, it found him [n]ot guilty on the battery charge. Id. at 52. DECISION To convict Fox of the offense of domestic battery, as a class A misdemeanor, the State was required to prove that Fox did knowingly or intentionally touch another person to whom he was formerly married, or with whom he ha[d] a child in common . . . , in a rude, insolent, or angry manner, and that bodily injury to that other person resulted. Ind. Code ยง 35-42-2-1.3(a). When reviewing the sufficiency of the evidence to support the conviction, appellate courts must consider only the probative evidence and reasonable inferences supporting the verdict. It is the fact-finder s role, not that of appellate courts, to assess witness credibility and weigh the evidence to determine whether it is sufficient to support a conviction. To preserve this structure, when appellate courts are confronted with conflicting evidence, they must consider it most favorably to the trial court s ruling. Appellate courts affirm the conviction unless no reasonable fact-finder could find the crime proven beyond a reasonable doubt. It is therefore not necessary that the evidence overcome every reasonable hypothesis of innocence. The evidence is sufficient if an inference may reasonably be drawn from it to support the verdict. Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (quotations and citations omitted) (emphasis in original). Fox argues that his conviction must be reversed because there was no evidence to support a finding that he committed domestic battery other than Mrs. Whitesides biased testimony. Fox s Br. at 6. We disagree. 4 Fox emphasizes the testimony by Grubb that he had a clear view of Mr. Fox as she was leaving the home and that Mr. Fox did not throw anything at Mrs. Whitesides or touch her in any way. Id. at 8. We first note that testimony was conflicting as to whether Grubb was present in Fox s apartment at the time of the incident. Moreover, Grubb testified that he and Fox d[id] things together socially, and Fox testified that Grubb was his friend and that they talked all the time. (Tr. 45, 33). Such testimony allows inferences to be drawn as to Grubb s credibility by the trier of fact. See Kilpatrick v. State, 746 N.E.2d 52, 61 ( It is for the trier of fact to resolve conflicts in the evidence and to decide which witnesses to believe or disbelieve. ). In addition, Grubb testified that at the time of the incident, he was in the kitchen, which was right next to the living room, yet he also testified that Fox [wa]s standing in front of [him] in the living room. (Tr. 45). Grubb s testimony that he was able to see Fox standing right exactly in front of [him] in the living room from the room next to the living room also provides for the drawing of an inference as to Grubb s credibility. Id. Further, Fox testified that the vacuum sweeper was in the living room. Id. at 40. Thus, Whitesides injury must have occurred in that room. Fox testified that he believed Whitesides had tripped, falling backward, and injured herself. Yet her injury, as reflected in the photograph, was to the front of her leg. As to Fox s repeated argument that Mrs. Whitesides provided biased testimony, Fox s Br. at 6, 10, we note that she testified that she was just there to calm Fox and to get [her] son out of the situation. (Tr. 27). Fox testified that his relationship with Whitesides since their divorce was [n]ot great, but pretty much we got along because of 5 Joel. Id. at 39. There was no testimony from either Joel or Grubb to support the inference of animus by Whitesides against Fox. Thus, a motive for Whitesides to lie about what happened was not clearly established. Further, Fox s own testimony established his extremely emotional state when Whitesides came into his living room; and he admitted as testified to by Whitesides and Grubb that she tried to calm him down. Id. In response, Fox was upset with her thinking that she was going to try to tell [him] how to run the house and telling [him] not to argue with [Joel]. Id. It is undisputed that Whitesides and Fox had formerly been married and had a child in common; that Fox was angry and screamed at her to leave; and that Whitesides suffered a deep cut to the front of her leg. Her testimony was that she suffered the cut when Fox angrily swung a vaccum cleaner at her and its hose struck her leg. Based upon the evidence presented, a reasonable trier of fact could have found Fox guilty beyond a reasonable doubt of domestic battery, as a class A misdemeanor. See Drane, 867 N.E.2d at 146. Affirmed. BRADFORD, J., and BROWN, J., concur. 6
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
