These opinions are not precedents and cannot be cited or relied upon unless used when establishing res judicata or collateral estoppel or in actions between the same party. Indiana Rules of Appellate Procedure 65(D).
APPEAL FROM THE HENRY CIRCUIT COURT. The Honorable Mary G. Willis, Judge. Cause No. 33C01-1207-FB-69.
ATTORNEY FOR APPELLANT: CHRISTOPHER A. CAGE, Anderson, Indiana.
ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER, Attorney General of Indiana; ANDREW FALK, Deputy Attorney General, Indianapolis, Indiana.
FRIEDLANDER, Judge. KIRSCH, J., and BAILEY, J., concur.
MEMORANDUM DECISION - NOT FOR PUBLICATION
Joseph Curnutt appeals after a jury trial from his conviction for one count of class B felony Battery, one count of class D felony Battery, and his admission to his habitual offender status, contending that the trial court abused its discretion by failing to give his tendered instruction on voluntariness, challenging the sufficiency of the evidence supporting his convictions for battery, and arguing that his sentence is inappropriate in light of the nature of the offense and the character of the offender.
Curnutt and Jennifer Howard exercised joint custody of their son G.H., who was seven years old at the time of the offenses. In the summer of 2012, Curnutt and G.H. were living with Curnutt's mother, Anna Davis, in Henry County. On the evening of July 20, 2012, Curnutt and G.H. ate supper at home, drove into town, and then returned home. G.H. thought that Curnutt appeared to be drunk because " he was talking sloppy." Transcript at 74. G.H. saw his father drinking and saw a full can of beer on the side of the bed. The two watched television for a while prior to retiring to bed at approximately 8:00 p.m. Although Curnutt acted as if he were going to sleep, G.H. thought Curnutt might have been " kind of faking it." Id. at 88.
When G.H. awoke after midnight to the sensation that his back was wet, he discovered that Curnutt was urinating on him. Curnutt's behavior confirmed for G.H. that his father was intoxicated. G.H. went into the next room and washed up with worn clothing before returning to the bedroom. G.H. observed that Curnutt was lying down and continuing to urinate on the bed. G.H., who believed Curnutt was sleeping because his eyes were closed, said to his father, " don't poop on the bed." Id. at 77.
In response to G.H.'s comment, Curnutt put his hands around G.H.'s neck and started choking him, " real hard." Id. G.H. could not breathe and could barely speak. Curnutt continued choking G.H. for what seemed to G.H. to be half an hour. Curnutt asked G.H. to repeat what he had said. On a scale of zero to ten, with ten representing the most amount of pain and zero representing the least, G.H. described the pain inflicted on him by Curnutt as a " nine and a half." Id. at 84.
Eventually, G.H. was able to move off the bed and tried to crawl under it, but Curnutt slapped him with his open hand on G.H.'s right cheek, and pulled G.H. back up on the bed. Curnutt then resumed choking G.H. for a second. This time G.H. could breathe " enough to live." Id. at 80. G.H. tried both verbally and physically to get Curnutt to release him, but could do ...