David Rabinowitz v. State of Indiana (mem. dec.) ( 2015 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), Dec 31 2015, 8:40 am
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
Jane H. Conley Gregory F. Zoeller
Indianapolis, Indiana Attorney General
Katherine Modesitt Cooper
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
David Rabinowitz, December 31, 2015
Appellant-Defendant, Court of Appeals Case No.
49A04-1507-CR-788
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Jeffrey Mendes
Appellee-Plaintiff Trial Court Cause No.
49G05-1410-F5-46086
Vaidik, Chief Judge.
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Case Summary
[1] Following an altercation with an elderly woman with whom he was living,
David Rabinowitz was angry and swinging a baseball bat when the elderly
woman’s grandson, Anthony Blunk, arrived on the scene and tried to confront
Rabinowitz. Rabinowitz struck Blunk with the baseball bat, breaking his arm.
On appeal, Rabinowitz challenges his convictions for Level 5 felony battery,
arguing that the evidence is insufficient to prove that he had the requisite intent.
Finding sufficient evidence to support that Rabinowitz knowingly or
intentionally struck Blunk in an angry manner causing serious bodily injury, we
affirm his convictions.
Facts and Procedural History
[2] In July 2014, Harold Bullock, a neighbor of an elderly woman named Beulah
Rogers, drove his car up to Rogers’ house in Indianapolis and found David
Rabinowitz on Rogers’ front porch, swinging a baseball bat, mad, trying to get
in Rogers’ front door. Once Bullock was on the porch, he learned that Rogers
and Rabinowitz had been in an argument, and Rogers had made Rabinowitz
leave after he “tried to swing a bat on her.” Tr. p. 11. Rabinowitz eventually
left the porch and walked away in the direction of a nearby gas station, and
then Rogers’ grandson, Anthony Blunk, arrived at Rogers’ house, where he was
living and where Bullock told Blunk what had just happened.
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[3] Thereafter, Blunk went to confront Rabinowitz about “what [Rabinowitz] was
doing to [Blunk’s] grandma.” Id. at 17. Blunk and Rabinowitz began to argue,
and “[t]hat’s when the bat started getting swung.” Id. at 18. Rabinowitz “went
to hit [Blunk] in the head with the baseball bat and [Blunk] put [his] arm up and
it broke [his] arm.” Id. at 32. Then Blunk, being chased by Rabinowitz, ran
back to his and Rogers’ house to get a child-sized wooden bat, which he began
“swinging wildly.” Id. at 33. Thereafter, Blunk went to the hospital to receive
treatment for his broken arm and other injuries. Detective Russell O’Connor of
the Indianapolis Metropolitan Police Department met with Blunk and Bullock,
and both identified Rabinowitz in six-person photo arrays.
[4] The State charged Rabinowitz with Count I, battery resulting in serious bodily
injury as a Level 5 felony; and Count II, battery by means of a deadly weapon
as a Level 5 felony.1 Following the bench trial, the trial court found Rabinowitz
guilty of both counts and merged Count II into Count I. Thereafter, the trial
court sentenced him to four years, with twenty-two days served and seven credit
days earned, 1431 days suspended, and two years on probation. See Appellant’s
App. p. 17. Rabinowitz now challenges his Level 5 felony battery convictions.
1
Rabinowitz was also charged with attempted battery by means of a deadly weapon as a Level 5 felony, but
this count was ultimately dismissed and is not relevant to this appeal.
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Discussion and Decision
[5] On appeal, Rabinowitz contends that the evidence is insufficient to establish
that he had the requisite intent to support the battery convictions. Specifically,
he argues as follows: “The evidence does not establish beyond a reasonable
doubt that Rabinowitz hit Blunk for any reason other than as a response to
Blunk’s aggression.” Appellant’s Br. p. 7. When reviewing the sufficiency of
the evidence to support a conviction, we consider only the probative evidence
and reasonable inferences supporting the verdict. Moore v. State, 27 N.E.3d 749,
754 (Ind. 2015). Reviewing courts should not assess witness credibility and
weigh the evidence to determine whether it is sufficient to support a conviction.
Id. Convictions should be affirmed unless no reasonable fact-finder could find
the elements of the crime proven beyond a reasonable doubt. Id.
[6] In order to convict Rabinowitz of Level 5 felony battery, the State had to prove
that he knowingly or intentionally touched another person in a rude, insolent,
or angry manner that resulted in serious bodily injury or was committed with a
deadly weapon. See Ind. Code § 35-42-2-1(b), (f). Here, eyewitness Bullock
testified that Rabinowitz was the initial aggressor and that he observed
Rabinowitz strike Blunk several times with a baseball bat. See Tr. p. 17, 24-25.
Blunk, the victim, testified that he first tried to talk to Rabinowitz about what
had happened with Rogers and that Rabinowitz swung the baseball bat at him,
breaking his arm. Id. at 32.
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[7] While we acknowledge that the evidence presented at trial was inconsistent and
confusing, with multiple witnesses testifying as to their differing versions of the
events in question, the trial court chose to credit the evidence that Rabinowitz
was the aggressor and struck Blunk with a baseball bat, causing a broken arm.
See Tr. p. 128. This Court will not assess witness credibility or reweigh the
evidence. See Moore, 27 N.E.2d at 754. We find the evidence is sufficient to
support Rabinowitz’s convictions.2
[8] Affirmed.
Bailey, J., and Crone, J., concur.
2
The Argument portion of Rabinowitz’s appellate brief includes a subsection titled “Case filed on false
information,” in which he alleges that Blunk provided a different version of the events to Detective O’Connor
than he testified to at trial. See Appellant’s Br. p. 9-10. But Rabinowitz does not develop this argument or
support it with authority, and the brief subsection ultimately concludes with the assertion that choosing to
believe testimony “as unreliable as Blunk’s” was an abuse of discretion. Id. at 10. Thus, we find that this is
really just a continuation of his sufficiency-of-the-evidence argument.
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