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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: ELIZABETH A. GABIG Marion County Public Defender Agency Appellate Division Indianapoolis, Indiana ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General of Indiana MARA McCABE Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
DONALD FINCH, Appellant-Defendant, vs. STATE OF INDIANA, Appellee. ) ) ) ) ) ) ) ) )

No. 49A04-0608-CR-416

APPEAL FROM THE MARION SUPERIOR COURT CRIMINAL DIVISION 17 The Honorable Carol J. Orbison, Judge The Honorable Danielle Gaughan, Commissioner Cause No. 49G17-0601-CM-000390

May 16, 2007 MEMORANDUM DECISION - NOT FOR PUBLICATION

SULLIVAN, Judge

Following a bench trial, Appellant, Donald Finch, was convicted of Battery as a Class B misdemeanor, 1 and was sentenced to one hundred and eighty days with one hundred and seventy-two days suspended, with credit for eight days time served and one year of probation. Upon appeal, Finch argues that the evidence is insufficient to support his conviction. Finch further argues that the abstract of judgment should be corrected to accurately reflect his conviction for the lesser-included offense of Battery as a Class B misdemeanor. We affirm but remand with instructions. The facts most favorable to the conviction reveal that on January 3, 2006, Finch and his wife, Victoria, who at that time were separated, became involved in a heated verbal and physical confrontation at the home of Jacqueline Johnson, where Victoria was staying with the two children she shared with Finch. During the confrontation, Finch became "very angry" and eventually "exploded," yelling and cursing at Victoria. Transcript at 8, 7. Finch moved toward Victoria, pushing her toward a wall. Ultimately, Finch "pinned [Victoria] against the wall" and was "poking [her] with his finger in [her] face," which Victoria testified resulted in marks under her eye and on her chin. Transcript at 8. In an attempt to break free from Finch, Victoria found herself on the floor with Finch standing over her "just ranting." Transcript at 8. Victoria yelled for someone to call 911. Victoria was eventually able to stand up, but Finch approached her again, so she began pushing him away. After the police were called, Finch left the residence.
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Ind. Code

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