APPEAL FROM THE MARION SUPERIOR COURT. The Honorable Clayton Graham, Judge. Cause No. 49G17-1310-FD-65095.
ATTORNEY FOR APPELLANT: SUZY ST. JOHN, Marion County Public Defender, Indianapolis, Indiana.
ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER, Attorney General of Indiana; ERIC P. BABBS, Deputy Attorney General, Indianapolis, Indiana.
BAKER, Judge. MAY, J., and BARNES, J., concur.
Scott Hitch, who was convicted of class A misdemeanor Battery by a jury, appeals the trial court's determination that he committed a crime of domestic violence. Hitch argues that the trial court's domestic violence determination infringed upon his Sixth Amendment right to a jury trial when it found a fact that increased the penalty for his conviction beyond the statutory maximum in violation of Blakely v. Washington. 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Finding that the trial court's determination that Hitch committed a crime of domestic violence required it to find a fact that increased the penalty for Hitch's conviction beyond the statutory maximum, we reverse.
On October 2, 2013, Hitch and Erica Bruce went to the Winner's Circle in Indianapolis to have drinks. Later, they went to the Steak n' Shake to order food. While the two waited for their food, the two engaged in an argument. At some point, Hitch flicked hot chili into Bruce's face. Bruce was embarrassed and walked out of the restaurant. However, she did not have money to call a cab so she rode home with Hitch.
Bruce testified that once they were inside Hitch's apartment, she plugged her phone in so that she would be able to contact her children's father. She testified that when Hitch saw that she was contacting her children's father, he became angry and told her to get out of the apartment. Bruce testified that she asked Hitch if she could stay the night, as she did not have a car, and stated that Hitch then grabbed her by her neck and positioned himself on top of her. She testified that she managed to get away and call 911. A police officer responded and found Bruce outside the apartment with some belongings. The officer noticed that Bruce's throat was red, and Bruce stated that her throat was sore to the touch. She was taken to St. Francis Hospital, where medical personnel noted that Bruce was reporting neck pain and tenderness.
At trial, Bruce testified that she had lived with Hitch as his girlfriend from January 2013 until August 2013. Bruce then moved back in with the father of her children, but when that did not work out, she moved back in with Hitch. Both testified at trial that Bruce did not unpack her bags because she planned to move shortly thereafter. Hitch testified that he had not had a relationship with Bruce after she had moved out in August 2013, and that he had been allowing Bruce to stay with him temporarily to help her out because she was " in trouble and needed a place to stay."  Tr. p. 165.
On October 2, 2013, the State charged Hitch with class D felony strangulation, class D felony intimidation, and class A misdemeanor battery. The State dismissed the intimidation charge on March 27, 2014. A jury trial occurred on March 27, 2014. The jury found Hitch not guilty of strangulation and guilty of battery. The trial court sentenced Hitch to 365 days, with twelve days executed and 353 days suspended to probation.
The trial court also determined, pursuant to Indiana Code Section 35-38-1-7.7, that Hitch had committed a crime of domestic ...