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

Kimmerly A. Klee

Greenwood, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Cynthia L. Ploughe

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Jon Donovan,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

September 17, 2015

Court of Appeals Case No.

49A05-1503-CR-86

Appeal from the Marion Superior 

Court

The Honorable Christina R. 

Klineman, Judge

Trial Court Cause No.

49G17-1411-F6-50373

Crone, Judge.

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Case Summary

[1] Jon Donovan appeals his conviction for level six felony domestic battery, 

following a bench trial. The sole issue raised for our review is whether the State 

presented sufficient evidence to support the conviction. Finding the evidence 

sufficient, we affirm.

Facts and Procedural History

[2] The facts most favorable to the conviction indicate that, at the time of the 

incident in question, Donovan and Lindsey Kinnard had been in a romantic 

relationship for approximately eight years. In October 2014, the couple resided 

together in an apartment in Marion County. At approximately 5:30 a.m. on 

October 31, Kinnard awoke and went into the kitchen to get something to 

drink. The noise caused Donovan, who had fallen asleep on a loveseat in the 

living room, to also wake up. As Kinnard walked back to the bedroom, 

Donovan followed her. He was angry at her for failing to wake him to come to 

bed the previous night, so he began yelling at her. He placed his hand over her 

mouth as he yelled. He then grabbed her by the wrists and told her to “get the 

eff out.” Tr. at 27. Kinnard’s wrists were “kind of tangled up and [she] was 

fighting a little bit, and it hurt and ... [she] fell to the ground.” Id. at 27-28. 

Donovan then picked her up and pushed her. Kinnard hit the doorjamb and 

fell into the hallway. Kinnard suffered pain and bruises. On November 1, 

2014, Kinnard called police to report the incident. Donovan was subsequently 

arrested. 

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[3] The State charged Donovan with level 6 felony strangulation, class A 

misdemeanor domestic battery, level 6 felony criminal confinement, and class 

A misdemeanor battery resulting in bodily injury. The State dismissed the 

strangulation and criminal confinement charges prior to trial. A bench trial was 

held on January 15, 2015. The trial court found Donovan guilty of battery and 

domestic battery. Thereafter, in exchange for the dismissal of the battery 

charge, Donovan agreed to the enhancement of the domestic battery to a level 6 

felony based upon his prior conviction for domestic battery. Consequently, the 

trial court entered judgment of conviction for one count of domestic battery as a 

level 6 felony. This appeal followed.

Discussion and Decision

[4] Donovan challenges the sufficiency of the evidence to support his conviction for 

level 6 felony domestic battery. When reviewing the sufficiency of the evidence 

to support a conviction, we examine only the probative evidence and 

reasonable inferences that support the conviction. Morgan v. State, 22 N.E.3d 

570, 573 (Ind. 2014). We do not assess witness credibility or reweigh evidence. 

Id. Rather, we consider only the evidence most favorable to the trial court’s

ruling and will affirm the conviction unless no reasonable factfinder could find 

the elements of the crime proven beyond a reasonable doubt. Id. The evidence 

will be deemed sufficient if an inference may reasonably be drawn from it to 

support the conviction. Drane v. State, 867 N.E.2d 144, 147 (Ind. 2007).

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[5] Indiana Code Section 35-42-2-1.3(a)(2) provides that a person who knowingly 

or intentionally touches an individual who is or was living as if a spouse of the 

other person, in a rude, insolent, or angry manner that results in bodily injury to 

the individual, commits domestic battery, a class A misdemeanor. The offense 

becomes a level 6 felony if the person who committed the offense has a 

previous, unrelated conviction under this section. Ind. Code § 35-42-2-1.3(b). 

In considering whether a person “is or was living as a spouse of another 

individual for purposes of subsection (a)(2),” the court shall review:

(1) the duration of the relationship;

(2) the frequency of the contact;

(3) the financial independence;

(4) whether the two (2) individuals are raising children together;

(5) whether the two (2) individuals have engaged in tasks directed 

toward maintaining a common household; and

(6) other factors the court considers relevant.

Ind. Code § 35-42-2-1.3(c).

[6] Here, Donovan asserts that the evidence was insufficient to establish that he 

and Kinnard were living as if spouses or that Kinnard suffered bodily injury as a 

result of the battery. The facts most favorable to the conviction indicate that 

Kinnard and Donovan had been in a romantic relationship for approximately 

eight years. Kinnard testified that the couple had always resided together 

during that eight-year period except for when Donovan was incarcerated and

during very brief periods when they broke up. Kinnard testified that any of 

their separations were “not for very long” and they definitely lived together

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“more often than not.” Tr. at 17. Kinnard testified that on the date of the 

battery, she and Donovan lived together in an apartment in Marion County. 

She stated that the apartment was the couple’s “only residence” and that they 

lived in the apartment along with their pet of over two years, a dog named 

“Max.” Tr. at 19. 

[7] We have held that the factors listed in Indiana Code Section 35-42-2-1.3(c) do 

not serve as a litmus test, and that the “character of the relationship” is the 

decisive consideration in determining whether the domestic battery statute 

applies. Williams v. State, 798 N.E.2d 457, 461 (Ind. Ct. App. 2003). Indeed 

where, as here, the couple is cohabiting and engaged in an ongoing romantic 

relationship, “a court would not need undertake further analysis.” See id. The 

State presented sufficient evidence to support the trial court’s conclusion that 

Kinnard was living “as if a spouse” of Donovan for purposes of Indiana Code 

Section 35-42-2-1.3(a)(2).

[8] Regarding bodily injury, pursuant to statute it includes “any impairment of 

physical condition, including physical pain.” Ind. Code § 35-31.5-2-29. No 

particular level of pain is required, as physical pain is, in and of itself, an 

impairment of physical condition. Bailey v. State, 979 N.E.2d 133, 138 (Ind. 

2012). Kinnard testified that Donovan followed her into the bedroom and 

began to yell at her. She described how he grabbed her by the wrists, that “it 

hurt,” and that she fell to the ground. Tr. at 27-28. She stated that Donovan

then picked her back up and pushed her out the bedroom door. She hit the 

doorjamb and landed in the hallway. Kinnard testified that, as a result of the 

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incident, she suffered pain and bruising on her hip, her legs, and especially her 

shoulder. The investigating police officer also testified that he personally 

observed bruises on Kinnard. This evidence is sufficient to establish that 

Donovan knowingly or intentionally touched Kinnard in a rude, insolent, or 

angry manner that resulted in bodily injury to her.

[9] Donovan’s sole argument on appeal is that there was “conflicting” evidence 

regarding the couple’s relationship and whether Kinnard suffered any bodily 

injury as a result of the battery. Appellant’s Br. at 9. Donovan merely invites 

us to assess witness credibility and reweigh the evidence in his favor, which we 

may not do. The State presented sufficient evidence to support Donovan’s 

domestic battery conviction. Therefore, we affirm.

[10] Affirmed.

May, J., and Bradford, J., concur.

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