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: ATTORNEYS FOR APPELLEE:

MICHAEL D. GROSS GREGORY F. ZOELLER

Lebanon, Indiana Attorney General of Indiana

ANGELA N. SANCHEZ

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

MAXWELL SWISHER, )

)

Appellant-Defendant, )

)

vs. ) No. 06A04-1304-CR-173

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE BOONE SUPERIOR COURT

The Honorable Matthew C. Kincaid, Judge 

Cause No. 06D01-1112-FD-474 

December 19, 2013

MEMORANDUM DECISION - NOT FOR PUBLICATION

PYLE, Judge
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STATEMENT OF THE CASE

Maxwell Swisher (“Swisher”) appeals his conviction, following a bench trial, for 

Class A misdemeanor domestic battery.

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We affirm.

ISSUE

Whether sufficient evidence supports Swisher’s conviction.

FACTS

The facts most favorable to the verdict reveal that in December 2011, Swisher, his 

girlfriend, Debra Thobhani (“Thobhani”), and their two-year-old son, T.S., were living 

with Swisher’s mother, Tammy Garding (“Garding”) and her husband in Boone County. 

Swisher’s other son and younger sisters also lived at Garding’s house. During the 

evening hours of December 16, 2011, Jamestown Police Officer Larry Bewley (“Officer 

Bewley”) was dispatched to Garding’s house on a domestic disturbance call after Garding 

called 911 to request that a police officer be sent to her house. Garding told the 

dispatcher that “her son” was “hitting on his girlfriend” and reported that Swisher was 

“physically” fighting with Thobhani and that she saw Thobhani “flat on her back on the 

porch.” (State’s Ex. 1). While Garding was talking to the dispatcher, she stated that her 

two-year-old grandson had just thrown up because he was “so upset over this.” (State’s 

Ex. 1). Garding then called the 911 operator back a second time to inform the dispatcher 

that Swisher had left the scene in a 2003 silver Taurus SES. When Garding was on the 

 

1

Ind. Code § 35-42-2-1.3(a).
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phone with the dispatcher, she confirmed that Swisher had hurt Thobhani and that 

Thobhani had marks on her. 

When Officer Bewley arrived on the scene, he noticed that Thobhani was “very 

upset” and that she had “some marks on her neck that [he] could obviously see.” (Tr. 8). 

Thobhani also showed Officer Bewley that she had additional injuries, including scrapes

on her leg and lower back. Officer Bewley took photographs of Thobhani’s injuries and 

of a broken chair on the front porch. Thobhani completed a voluntary written statement, 

which provided:

My boyfriend, Maxwell Swisher, came into the kitchen where I was talking 

to Tammy Garding, his mother. He then proceeds to get right up in my 

face, nose-to-nose, and yells obscenities and other profanities at me. The 

argument then moves into [Garding’s] bedroom where he the[n] pins me to 

the bed and continues to yell at me, and raises his fist to hit me. I then go 

outside to get away from him. I then open the door back up [be]cause I 

hear my son crying, he then pushes me out the door, shoves me down onto 

a plastic deck chair, which breaks, then continues to hold me down onto it, 

took my cigarette from my hand and burns me on the neck with it, he then 

also proceeds to go to kick and hit me. That is when his mother and 

stepfather, and the kids came outside. ALL of this took place in front of the 

children [ages 13, 10, 6, and 2]. 

(State’s Exhibit 4). While Thobhani was writing her statement, Officer Bewley spoke 

with Garding, who was also “upset.” (Tr. 9). Garding also wrote out a voluntary 

statement, which provided:

Max [Swisher] came into the kitchen where I, Tammy Garding, was talking 

to [Thobhani]. He proceeded to berate [Thobhani] and get in her face and 

yell and push her around. A little later I was in my bedroom when 

[Thobhani] came in to talk to me. [Swisher] burst in and yelled at 

[Thobhani] and pinned her down yelling at her. A little later I heard my 

grandsons screaming, so I came out to find my 2 year old grandson, T.S., 

screaming because [Swisher] and [Thobhani] were having a physical 

altercation on the porch. [Swisher] pushed [Thobhani] down and it was at 
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this time that I called the police. [Swisher] then sped off in a silver, 2003 

Taurus SES. 

(State’s Exhibit 3). Both Thobhani and Garding returned their statements to Officer 

Bewley that night. 

The State originally charged Swisher with Class D felony domestic battery but 

later amended it to Class A misdemeanor domestic battery. On March 15, 2013, the trial 

court held a bench trial. During the State’s opening argument, the prosecutor informed 

the trial court that the State was planning to introduce Thobhani’s and Garding’s written 

statements from the night of the incident, which she stated were “excited utterances” and 

were “truthful statements” of what happened that night. (Tr. 4). The prosecutor, 

however, warned the trial court that she was unsure of exactly how these witnesses would 

testify at trial due to their relationship with Swisher and their current desire that he not 

get into trouble. During Swisher’s opening statement, his attorney stated that Swisher’s 

defense was that the State would not be able to present evidence to support every element

of domestic battery. Swisher’s attorney stated that Thobhani and Garding would testify 

that they had made “mistakes” and “assumptions” under the existing “hysteria” of the 

night and that “once it had all settled out later they realized that what they ha[d] said in 

their statement[s] [was]n’t exactly what [had] happened.” (Tr. 5). 

When the State called Thobhani and Garding as witnesses to testify, they both 

repudiated their prior written statements. Thobhani admitted that she wrote out and 

signed her written statement but asserted that she wrote the allegations in the statement 

because she was confused, upset, and “going off of what [Garding] had stated.” (Tr. 39). 
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Thobhani claimed that she never spoke to Officer Bewley and that only Garding spoke to 

the officer. Thobhani claimed that she and Swisher only verbally argued but that he 

never physically touched her in the kitchen, never pinned her down in the bedroom, and 

never shoved her or touched her on the porch. Instead, Thobhani maintained that she 

injured her leg and lower back by tripping over rollerblades and falling on and breaking 

the plastic chair on the front porch. Thobhani also testified that she burned her own neck 

with a cigarette that she was holding when she fell on the chair. 

Garding also admitted that she wrote out and signed her written statement but 

claimed that never saw Swisher physically touch Thobhani at any point that night. 

Garding also admitted that she called 911 the first time but testified that she did not 

remember calling 911 the second time. Garding contended that she called 911 based on a 

“misunderstanding” and that she had “jumped to a conclusion” when she saw Thobhani 

lying on her back on the porch. (Tr. 17). 

When the State introduced the recording of the two 911 calls (State’s Exhibit 1),

Garding’s written statement (State’s Exhibit 3), and Thobhani’s written statement (State’s 

Exhibit 4), into evidence, Swisher did not object and affirmatively stated that he had 

“[n]o objection” to the admission of these exhibits. (Tr. 18, 22, 38). 

After the State rested, Swisher moved for a directed verdict, arguing that the State 

had failed to present any evidence that Swisher had touched Thobhani in a rude, insolent, 

or angry manner. The State argued that the written statements and 911 calls were excited 

utterances and were being used as substantive evidence and asserted that the trial court 

needed to weigh the credibility of that evidence against the witnesses’ in-trial testimony. 
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The trial court denied Swisher’s motion. Swisher then testified on his own behalf and 

stated that he yelled at Thobhani in the kitchen and bedroom and on the porch, but he 

testified that he did not shove or hit her. The trial court found Swisher guilty as charged. 

The trial court imposed a fourteen (14) day sentence in the Boone County Jail with credit 

for time served. Swisher now appeals his conviction.

DECISION

Swisher argues that the evidence was insufficient to support his conviction for 

Class A misdemeanor domestic battery. 

When reviewing the sufficiency of the evidence to support a 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 [jury’s verdict]. Appellate 

courts affirm the conviction unless no reasonable fact-finder could find the 

elements of 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) (internal quotation marks and 

citations omitted) (emphasis in original).

Indiana Code § 35-42-2-1.3(a) provides that a person commits Class A 

misdemeanor domestic battery when he knowingly or intentionally touches an individual 

with whom he has a child in common in a rude, insolent, or angry manner that results in 

bodily injury to that person. 
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Swisher contends that there was insufficient evidence to support the element of a 

rude, insolent, or angry touching because Thobhani and Garding testified that Swisher did 

not physically touch Thobhani. Swisher acknowledges that the evidence of the 911 call 

(State’s Exhibit 1), Garding’s written statement (State’s Exhibit 3), and Thobhani’s 

written statement (State’s Exhibit 4) provides evidence that he touched Thobhani in a 

rude, insolent, or angry manner; however, he now contends on appeal that these exhibits 

were either improperly admitted into evidence or improperly used as substantive 

evidence. We cannot agree.

First, Swisher’s contention that the evidence was insufficient because Thobhani’s 

and Garding’s in-trial testimony did not provide evidence of a physical touching is 

nothing more than an invitation to reweigh the evidence against their written statements 

and to judge the credibility of the witnesses, which we will not do. See Drane, 867 

N.E.2d at 146. Additionally, to the extent that Swisher is attempting to challenge the 

admissibility of State’s Exhibits 1, 3, and 4, he has waived any such appellate challenge 

because he did not object to the these exhibits at trial. In fact, he affirmatively stated that 

he had “[n]o objection” to the admission of this evidence. (Tr. 18, 22, 38). 

Consequently, Swisher has waived appellate review of his claim of error.2 See, e.g., 

Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010) (holding that defendant, who did not 

object to evidence upon introduction of evidence and who affirmatively stated he had no 

objection, waived review of his argument that evidence was unlawfully seized), reh’g 

denied; Jackson v. State, 735 N.E.2d 1146, 1152 (Ind. 2000) (“The failure to make a 

 

2 Swisher fails to acknowledge his lack of objection to the evidence he now claims was improperly 

admitted, and he does not argue that fundamental error occurred by the admission of this evidence. 
8

contemporaneous objection to the admission of evidence at trial results in waiver of the 

error on appeal.”). 

Because there was probative and unchallenged evidence from which the trial 

court—as trier of fact in this bench trial—could have found that Swisher touched 

Thobhani in a rude, insolent, or angry manner, we affirm his conviction for Class A 

misdemeanor domestic battery.

Affirmed.

MATHIAS, J., and BRADFORD, J., concur.