Court of Appeals of Indiana | Memorandum Decision 19A-CR-508 | September 24, 2019 Page 1 of 8

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

Darren Bedwell

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Evan Matthew Comer

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Matthew Pence,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

September 24, 2019

Court of Appeals Case No.

19A-CR-508

Appeal from the Marion Superior 

Court

The Honorable Jeffrey L. Marchal, 

Judge Pro Tempore 

Trial Court Cause No.

49G06-1808-F5-29212

Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-508 | September 24, 2019 Page 2 of 8

STATEMENT OF THE CASE

[1] Appellant-Defendant, Matthew1 Pence (Pence), appeals his conviction for 

battery resulting in moderate bodily injury, a Level 6 felony, Ind. Code §§ 35-

42-2-1(c)(1); -(e)(1).

[2] We affirm. 

ISSUE

[3] Pence presents one issue on appeal, which we restate as: Whether the State 

proved beyond a reasonable doubt that he caused moderate bodily injury

sufficient to sustain his battery conviction.

FACTS AND PROCEDURAL HISTORY

[4] Pence and S.B. were involved in an intermittent romantic relationship for three 

years. In August 2018, they were dating again. On August 22, 2018, S.B. went 

to work around 11:30 a.m. and returned home around 9:00 p.m. Pence, who 

had been consuming vodka, was asleep on S.B.’s bed in her bedroom on the 

upper floor of her townhome. When S.B. telephoned to place a takeout food 

order, Pence awoke and became angry that she was not ordering food for him. 

Pence wanted S.B. to take him home, but she declined. 

1

 Pence’s given name is spelled in the record as both “Mathew” and “Matthew.” At trial, Pence spelled his 

name for the court reporter as “Matthew,” so we use that spelling. 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-508 | September 24, 2019 Page 3 of 8

[5] A verbal argument ensued, and, over the course of the ensuing five hours, the 

argument turned physical, starting when Pence grabbed S.B. by her hair and 

slammed her head into the bedroom wall several times, causing her “a lot of 

pain.” (Transcript p. 16). S.B. told Pence to stop and attempted to ignore him. 

Pence was not deterred. Pence pursued S.B. into the hallway where he 

“football plowed” her, knocking her into the wall and then to the ground. (Tr. 

p. 16). While S.B. was on the floor, Pence placed all of his bodyweight on her

such that she could not flee. Pence placed his hands on S.B.’s neck and choked 

her until she could no longer breathe. S.B. eventually extricated herself from 

Pence and fled to the bathroom and then to the bedroom where Pence again 

tackled her to the ground and choked her until she could not breathe. Pence 

also headbutted S.B. multiple times. At various times throughout the episode, 

Pence prevented S.B. from leaving her home by blocking her from the door. 

Pence also prevented S.B. from using her cell phone to seek assistance and 

eventually smashed the cell phone against the wall, disabling it.

[6] Pence finally lay down and went to sleep around 2:30 a.m. S.B. fled the home 

and tried to drive away in her minivan. Pence pursued her on foot and threw 

himself on the minivan as S.B. pulled away. Pence fell off of the moving

vehicle, and S.B. drove away. After driving around for thirty minutes, S.B. 

returned home to find her front door wide open. Pence was not in the home 

when she returned, so S.B. went to sleep. She was awakened around 6:00 a.m.

by Pence, who was standing over her bed. Pence informed S.B. that he had 

filed a police report. S.B. agreed to drive Pence back to his residence. During 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-508 | September 24, 2019 Page 4 of 8

the trip to Pence’s home, Pence became angry with S.B. and used his left hand 

to slam her head into the window of her car while she was driving. S.B. 

succeeded in driving Pence to his home and left him there. 

[7] S.B. had a “very bad” migraine headache for two days, chest pain, and trouble 

breathing, so on August 24, 2018, she sought medical attention at St. Francis 

Hospital. (Tr. p. 15). S.B. had a knot the size of a fifty-cent piece on her 

forehead where Pence had headbutted her and which did not fully subside until 

three weeks later. S.B. had bruises on her neck, shoulders, and arms as well as 

internal bruising of her ribs. S.B. was examined and prescribed Naprosyn, a 

pain medication that is slightly stronger than what is available over-the-counter. 

A nurse at the hospital contacted law enforcement, and S.B. filed a report. 

[8] On August 31, 2018, the State filed an Information, charging Pence with Level 

5 felony criminal confinement with bodily injury, Level 6 felony criminal 

confinement, two Counts of Level 6 felony strangulation, Level 6 felony battery

resulting in moderate bodily injury, three Counts of Class A misdemeanor 

domestic battery, and Class A misdemeanor interference with the reporting of a 

crime. On January 16, 2019, the trial court convened Pence’s bench trial. S.B. 

testified that Pence had slammed her head into the ground or a wall “over 

[twenty] times.” (Tr. pp. 19-20). The State argued that it proved the Level 6 

felony battery resulting in moderate bodily injury through evidence that Pence 

had grabbed S.B.’s hair, hit her head multiple times, tackled her, and grabbed 

her arms, causing soreness, bruising, and a migraine headache. The trial court 

found Pence guilty of all of the charges against him. 
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[9] On February 6, 2019, the trial court held Pence’s sentencing hearing. Due to 

double jeopardy concerns, the trial court vacated Pence’s convictions for Level 

6 felony criminal confinement, one Count of Level 6 felony strangulation, and 

two Counts of Class A misdemeanor domestic battery. The trial court 

sentenced Pence to three years for his Level 5 felony criminal confinement 

conviction, to be served with Community Corrections, with 550 days of that 

sentence suspended to probation. The trial court also sentenced Pence to one

year for each of his Level 6 felony battery and Level 6 felony strangulation 

convictions and to 180-day sentences for his other Class A misdemeanor 

convictions for domestic battery and interference with reporting of a crime. All 

of Pence’s sentences were to be served concurrently. 

[10] Pence now appeals. Additional facts will be provided as necessary. 

DISCUSSION AND DECISION

[11] Pence challenges the evidence supporting his conviction for Level 6 felony 

battery resulting in moderate bodily injury. It is well-established that when we 

review the sufficiency of the evidence to support a conviction, we consider only 

the probative evidence and reasonable inferences supporting the judgment. 

Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). It is not our role as an appellate 

court to assess witness credibility or to weigh the evidence. Id. We will affirm 

the conviction unless no reasonable fact-finder could find the elements of the 

crime proven beyond a reasonable doubt. Id. 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-508 | September 24, 2019 Page 6 of 8

[12] In order to prove that Pence committed a Level 6 felony battery on S.B., the 

State was required to show that he knowingly or intentionally touched her in a 

rude, insolent, or angry manner, resulting in moderate bodily injury. See I.C. §§ 

35-42-2-1(c)(1); -(e)(1). Moderate bodily injury is further defined as “any 

impairment of physical condition that includes substantial pain.” I.C. § 35-

31.5-2-204.5. It is the province of the fact-finder to determine whether the State 

has proven the requisite degree of injury to establish the offense. See Gebhart v. 

State, 525 N.E.2d 603, 604 (Ind. 1988) (holding that “[t]he degree of injury is a 

question of fact for the jury.”). 

[13] Pence does not dispute that he touched S.B. in a rude, insolent, or angry 

manner; rather, he contends that the State did not show that he inflicted 

moderate bodily injury on S.B. He directs our attention to a number of cases 

which he contends illustrate that the State did not prove the requisite level of 

injury. However, we agree with the State that these cases are not dispositive 

because none directly reviews the sufficiency of the evidence supporting the 

fact-finder’s determination of moderate bodily injury. See Barthalow v. State, 119 

N.E.3d 204, 209-10 (Ind. Ct. App. 2019) (reviewing the sufficiency of the 

evidence supporting Barthalow’s intent to commit felony battery and infliction 

of mere bodily injury for purposes of a Level 3 felony burglary conviction); 

Clemons v. State, 83 N.E.3d 104, 107-08 (Ind. Ct. App. 2017) (finding no 

fundamental error where the trial court failed to instruct the jury on “serious 

bodily injury” during trial on a charge of Level 5 felony battery with a deadly 

weapon), trans. denied; Garner v. State, 59 N.E.3d 355, 358-59 (Ind. Ct. App. 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-508 | September 24, 2019 Page 7 of 8

2016) (affirming the trial court’s determination at trial on a charge of battery 

resulting in moderate bodily injury that an instruction on the lesser-included 

offense of battery with bodily injury was not merited where victim’s injuries 

would have justified an instruction on serious bodily injury).

[14] Neither party directs our attention to a case wherein this court has directly 

addressed the sufficiency of the evidence required to prove substantial pain and 

moderate bodily injury for purposes of a charge of Level 6 felony battery, and 

our own research uncovered none. However, we find the case of Buckner v. 

State, 857 N.E.2d 1011 (Ind. Ct. App. 2006), to be instructive. Buckner was 

charged with Class C felony battery, which required the State to prove that he 

knowingly or intentionally touched his victim in a rude, insolent, or angry 

manner that resulted in serious bodily injury. Id. at 1017. Serious bodily injury 

was defined, as it is now, in relevant part as “extreme pain.” See id. at 1018 

(citing I.C. § 35-41-1-25, now codified at I.C. § 35-31.5-2-292). We found that 

evidence that Buckner had “repeatedly struck [his victim] with his hands and 

fists, causing her severe pain and leaving marks on her body” was sufficient to 

support a finding that he had caused his victim serious bodily injury and, thus, 

had committed the offense of Class C felony battery. Id. 

[15] Here, the evidence that the State relied upon to prove the Level 6 felony battery 

was that Pence grabbed S.B.’s hair, slammed S.B.’s head into the wall and 

ground, tackled her onto the ground and into a wall, grabbed her arms, and 

headbutted her several times. All in all, Pence had hit S.B.’s head into the 

ground or a wall over twenty times. These actions resulted in bruising and 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-508 | September 24, 2019 Page 8 of 8

marks on S.B.’s body and a 50-cent-piece-sized knot on her forehead. S.B. 

testified that Pence’s act of slamming her head into the wall caused her “a lot” 

of pain and that she experienced a “very bad,” two-day migraine headache as a 

result of the blows to her head. (Tr. pp. 15, 16). In addition, S.B. was 

prescribed a pain-reliever for her injuries after being examined at St. Francis. 

We find these injuries and S.B.’s pain level to be sufficiently analogous to those 

found in Buckner to constitute the higher degree of injury of serious bodily 

injury that we conclude that the fact-finder reasonably could have found that 

S.B.’s injuries and pain level constituted the lesser degree of injury of substantial 

pain and moderate bodily injury. Pence’s argument that the evidence merely 

supported a finding of bodily injury essentially invites us to reweigh the 

evidence, which is contrary to our standard of review, and is, therefore, 

unpersuasive. See Drane, 867 N.E.2d at 146. 

CONCLUSION

[16] Based on the foregoing, we conclude that the State produced sufficient evidence 

that Pence inflicted moderate bodily injury on S.B. to prove beyond a 

reasonable doubt that he committed Level 6 felony battery.

[17] Affirmed. 

[18] Vaidik, C. J. and Bradford, J. concur