MEMORANDUM DECISION

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.

ATTORNEY FOR APPELLANT

Sally Skodinski

South Bend, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General

Caryn N. Szyper

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Javier A. Simental,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

December 16, 2016

Court of Appeals Case No.

71A04-1606-CR-1240

Appeal from the St. Joseph 

Superior Court

The Honorable John M. 

Marnocha, Judge

Trial Court Cause No.

71D02-1503-F6-131

Crone, Judge.

[1] A jury found Javier A. Simental guilty of level 6 felony domestic battery, and he 

argues that the evidence is insufficient to support his conviction. We affirm.

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[2] In reviewing a claim of insufficient evidence, we do not reweigh the evidence or 

judge the credibility of witnesses, and we consider only the evidence–even if 

conflicting–that supports the conviction and the reasonable inferences arising 

therefrom. Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009). “We will affirm 

if there is substantial evidence of probative value such that a reasonable trier of 

fact could have concluded the defendant was guilty beyond a reasonable 

doubt.” Id. The uncorroborated testimony of a single witness is sufficient to 

sustain a conviction, even when that witness is the victim. Id.

[3] To convict Simental of level 6 felony domestic battery as charged, the State was 

required to prove beyond a reasonable doubt that he knowingly touched a 

person with whom he has a child in common in a rude, insolent, or angry 

manner resulting in bodily injury to that person in the physical presence of a 

child less than sixteen years of age, knowing the child was present and might be 

able to see or hear the offense. Ind. Code § 35-42-2-1.3(a), -(b)(2); Appellant’s 

App. at 10. Simental claims that the evidence was insufficient to show that he

knowingly struck the victim. “A person engages in conduct knowingly, if when 

he engages in the conduct, he is aware of a high probability that he is doing so.” 

Ind. Code § 35-41-2-2. 

[4] The facts most favorable to the verdict show that in November 2014, Simental 

and his girlfriend Liliana Victoria argued over whether their two-year-old child 

should go to church with Victoria or stay home with Simental. Victoria took 

the child to her bedroom to dress her. Simental grabbed Victoria by the hair 

and pulled her out in the hallway with his hand around her neck. In the 

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kitchen, Victoria tried to get her cell phone out of her handbag to call 911. 

Victoria and Simental struggled over the phone. Simental “smacked” Victoria 

on the head, which hurt “a lot” and “knocked her to the ground.” Tr. at 109, 

172. Simental held Victoria on the floor and kicked her. The child followed 

them into the kitchen to find Victoria crying. Victoria and the child, who was 

also crying, hid behind a furnace and called 911. On the 911 call, Victoria 

reported that Simental “had smacked [her] really hard and [she] thought [she] 

was going to pass out.” Id. at 112. Police officers arrived at the scene, but

Simental was gone. The police observed that Victoria appeared distraught, was 

shaking and red in the face, and had been crying. Victoria had bruises and 

marks on her neck and experienced head pain for a few days following the 

incident.

[5] Simental asserts that he accidentally struck Victoria and that he so testified at 

trial. See id. at 172 (“I didn’t mean to, but I did smack her one time.”). He 

observes that although the State charged him with two counts–level 6 felony 

strangulation and level 6 felony domestic battery–the jury found him guilty only 

on the battery count. According to Simental, the jury must not have given any 

weight to Victoria’s testimony regarding the strangulation count, and therefore 

the verdict must have been based on what he admitted in his testimony. 

Simental’s argument is without merit. “‘The jurors are the triers of fact, and in 

performing this function, they may attach whatever weight and credibility to the 

evidence as they believe is warranted.’” Parks v. State, 734 N.E.2d 694, 700 

(Ind. Ct. App. 2000) (quoting Hicks v. State, 426 N.E.2d 411, 414 (Ind. 1981)).

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The jury is free to believe some portions and disbelieve other portions of a 

witness’s testimony. Id. Simental’s argument is an invitation to reweigh the 

evidence, which we must decline. We conclude that the evidence is sufficient 

to show that Simental knowingly struck Victoria, and therefore we affirm his 

conviction.

[6] Affirmed.

Riley, J., and Altice, J., concur.

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