Jay Lynn v. State of Indiana , 2016 Ind. App. LEXIS 307 ( 2016 )

FILED
Aug 23 2016, 7:09 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Deborah Markisohn Gregory F. Zoeller
Marion County Public Defender Attorney General of Indiana
Appellate Division
Indianapolis, Indiana Michael Gene Worden
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jay Lynn, August 23, 2016
Appellant-Defendant, Court of Appeals Case No.
49A05-1601-CR-4
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable David Hooper,
Appellee-Plaintiff Magistrate
Trial Court Cause No.
49F08-1312-CM-79123
Crone, Judge.
Court of Appeals of Indiana | Opinion 49A05-1601-CR-4 | August 23, 2016 Page 1 of 10
Case Summary
[1] Jay Lynn appeals his convictions, following a jury trial, for battery and
disorderly conduct, both as class B misdemeanors. He contends that the trial
court committed fundamental error regarding a preliminary jury instruction and
that the State did not present sufficient evidence to support his disorderly
conduct conviction. Finding no fundamental error and concluding that the
State presented sufficient evidence, we affirm.
Facts and Procedural History
[2] Andrew Johnson works as a privately contracted security guard at the
Indianapolis North East social security office. Johnson’s job can be described
as “crowd control.” Tr. at 87. His duties include sitting at a desk in the main
lobby, directing people to take numbers, answering any minor questions that
people may have, and if “someone gets loud … that’s [his] job to escort them
out of the building.” Id. On December 12, 2013, sixty-one-year-old Lynn went
to the social security office because “he had locked himself out of his online
account.” Id. at 92. When Lynn arrived, he told Johnson that “he spoke with
somebody at the 1-800 number and was told that all he had to do was come in
and show his I.D.” Id. Johnson told Lynn that he would have to take a number
and wait because other people were already waiting in line. Lynn became
agitated and “very aggressive in his demeanor.” Id. He “made it clear that he
did not want to wait, he did not want to take a number.” Id. at 93. When
Johnson advised him that “he had to,” Lynn asked to speak to a supervisor. Id.
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[3] Lynn spoke to the assistant district manager, Robert Gramse. Gramse observed
that Lynn was upset and angry that he had to take a number and wait. After
Gramse explained that this was just office procedure, Lynn took a number and
sat down to wait. Sometime thereafter, one of the clerks called Lynn’s number
three times, but Lynn did not respond because he was talking to someone. In
accordance with protocol, the clerk moved on to the next number and helped
the next individual instead. When Lynn realized that he had missed his
number being called, he tried to proceed to the clerk’s window. Johnson
informed Lynn, “Your number was called, so actually you’ll have to take
another number.” Id. at 95. Lynn became angry and loud and started yelling at
Johnson. Johnson asked Lynn to “lower his voice,” and Lynn refused, telling
Johnson over and over again, “You don’t tell me what to do. I tell you what to
do.” Id. at 97. Johnson told Lynn that if he did not lower his voice that he
would have to leave the building. Lynn responded that he was “not going
anywhere.” Id. Because Johnson felt that Lynn was “disrupting operations in a
federal facility,” he told Lynn that it was time for him to leave, pointed toward
the door, and began to escort Lynn out of the building. Id. at 99.
[4] When Johnson gently placed his hand under Lynn’s elbow to direct him toward
the door, Lynn “struck [Johnson’s] forearm with his – with his closed hand
knocking [Johnson’s] hand away.” Id. at 100. The closed-fist punch impacted
Johnson’s mid-forearm and gave him “a pretty good shock.” Id. Lynn then
raised the cane that he was holding in the other hand and tried to strike
Johnson in the face. Johnson was able to use his arms to block the cane from
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hitting him by bringing his hands up and grabbing Lynn’s shirt lapels. The
scuffle caused Johnson and Lynn to both fall to the ground, with Johnson
ending up on top of Lynn. Johnson told Lynn that he was being detained and
needed to put his hands behind his back so that he could be handcuffed. Lynn
refused and instead placed his hands underneath his body. Johnson asked
Lynn approximately thirty or forty times to place his hands behind his back, but
Johnson refused. Lawrence police officers arrived, used “a dry stun” tasering
technique to obtain Lynn’s compliance with handcuffing, and arrested Lynn.
Id. at 106. 1
[5] The State charged Lynn with class A misdemeanor battery and class B
misdemeanor disorderly conduct. Following a trial, the jury found Lynn guilty
of battery and disorderly conduct, both as class B misdemeanors. This appeal
ensued.
Discussion and Decision
Section 1 – The trial court did not commit fundamental error
in instructing the jury.
[6] We address first Lynn’s assertion that the trial court committed fundamental
error in instructing the jury. Specifically, Lynn challenges Preliminary
1
Johnson explained,
a dry stun is where you activate, uh, the – taser mechanism so that it creates the arc of electricity
that flows into the body. They didn’t shoot him with any of the prongs, they just placed it
against his body, activated the electrical arc and that caused him to bring his arms out.
Tr. at 106.
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Instruction 4. Because he admittedly failed to make a contemporaneous
objection to the instruction, he argues that it amounted to fundamental error.
Our supreme court recently explained,
Because instructing the jury is a matter within the sound
discretion of the trial court, we will reverse a trial court’s decision
to tender or reject a jury instruction only if there is an abuse of
that discretion. We determine whether the instruction states the
law correctly, whether it is supported by record evidence, and
whether its substance is covered by other instructions. Jury
instructions are to be considered as a whole and in reference to
each other; error in a particular instruction will not result in
reversal unless the entire jury charge misleads the jury as to the
law in the case.
Where, as here, the defendant failed to preserve an alleged
instructional defect, the objection is waived, and reversal is
warranted only in instances of fundamental error. Error is
fundamental if it is a substantial blatant violation of basic
principles and where, if not corrected, it would deny a defendant
fundamental due process. This exception to the general rule
requiring a contemporaneous objection is narrow, providing
relief only in egregious circumstances that made a fair trial
impossible.
Pattison v. State, 54 N.E.3d 361, 365 (Ind. 2016) (citations and quotation marks
omitted).
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[7] Lynn concedes that Preliminary Instruction 4 followed Indiana Pattern
Criminal Jury Instruction 1.0700, 2 which provides how the jury is to be
instructed as to the charges. However, Lynn complains that the trial court here
improperly instructed the jury by including the affirmation language from the
original charging informations. Specifically, Preliminary Instruction 4 provided
in relevant part:
In this case, the State of Indiana has charged the Defendant with:
Count I: Battery
A Class A Misdemeanor
Count II: Disorderly Conduct
A Class B Misdemeanor
The Charges Read as Follows:
Count 1, Battery, Class A Misdemeanor
The undersigned affiant does hereby swear or affirm under the
penalties of perjury that:
On or about 12/12/13, in Marion County, State of Indiana, the
following named defendant, Jay Lynn, did knowingly in a rude,
insolent or angry manner touch Andrew Johnson, another
person, and further that said touching resulted in bodily injury to
the other person, specifically: pain.
All of which is contrary to the laws of the State of Indiana.
2
That instruction states “In this case, the State of Indiana has charged the Defendant with [Count 1: (insert
Count 1), Count 2: (insert Count 2), etc.] The charge(s) read(s) as follows: [insert the Charge].”
Court of Appeals of Indiana | Opinion 49A05-1601-CR-4 | August 23, 2016 Page 6 of 10
Count 2, Disorderly Conduct, Class B Misdemeanor
The undersigned affiant does hereby swear or affirm under the
penalties of perjury that:
On or about 12/12/13, in Marion County, State of Indiana, the
following named defendant, Jay Lynn, did recklessly, knowingly
or intentionally: engage in fighting or in tumultuous conduct; …
All of which is contrary to the laws of the State of Indiana.
Appellant’s App. at 76-78 (captions and underlining omitted).
[8] Lynn asserts that the “swear or affirm under the penalties of perjury” language
invaded the province of the jury and deprived him of due process because that
language constituted a “tacit expression of support for the State’s position”
regarding “the ultimate question of Lynn’s guilt.” Appellant’s Br. at 14-15.
Thus, he argues, the trial court’s failure to redact the affirmation language from
the instruction amounted to fundamental error. We disagree.
[9] In addition to Preliminary Instruction 4, the jury was specifically instructed that
“[t]he charges which have been filed are the formal methods of bringing the
Defendant to Trial. The filing of charges … is not to be considered by you as
any evidence of guilt.” Appellant’s App. at 84. The jurors were instructed that
a person charged with a crime is presumed to be innocent and that the State
bore the burden to prove each element of the crime charged beyond a
reasonable doubt. Id. at 85. The jurors were also told to consider the
instructions as a whole and that they were the exclusive judges of the evidence
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and facts as they found them. Id. at 87, 105, 109. Accordingly, we conclude
that Preliminary Instruction Number 4 did not invade the province of the jury
and that the affirmation language did not so affect the entire charge that the jury
was misled. Indeed, the jury’s decision to find Lynn guilty of the lesser-
included class B misdemeanor battery rather than the charged A misdemeanor
indicates that the jury was not substantially influenced by the affirmation
language such that Lynn was deprived of a fair trial. Under the circumstances,
Lynn has failed to demonstrate fundamental error.
[10] Nonetheless, we are compelled to note that, as a general matter, we think that
such affirmation language has no place in jury instructions and that the best
practice is for trial courts to redact such language. Inclusion of affirmation
language of this type raises several potential problems, including that it gives
the semblance of attribution to the trial court or to an unknown affiant, who
may or may not be available for cross-examination, as to the veracity of the
factual basis for the charges. This is undesirable and completely avoidable.
Thus, while the pattern jury instructions do not clearly require redaction, we
strongly advise it.
Section 2 – The State presented sufficient evidence to support
Lynn’s disorderly conduct conviction.
[11] Lynn next contends that the State presented insufficient evidence to support his
disorderly conduct conviction. When reviewing a claim of insufficient
evidence, we neither reweigh the evidence nor assess witness credibility. Bell v.
State, 31 N.E.3d 495, 499 (Ind. 2015). We look to the evidence and reasonable
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inferences drawn therefrom that support the verdict and will affirm if there is
probative evidence from which a reasonable factfinder could have found the
defendant guilty beyond a reasonable doubt. Id. In short, if the testimony
believed by the trier of fact is enough to support the verdict, then the reviewing
court will not disturb the conviction. Id. at 500.
[12] To prove the offense of class B misdemeanor disorderly conduct as charged
here, the State was required to prove that Lynn recklessly, knowingly, or
intentionally engaged in fighting or in tumultuous conduct. See Ind. Code § 35-
45-1-3(a)(1). Although our legislature has not statutorily defined the term
“fighting,” this Court has stated that the term “fight” refers to “a ‘[h]ostile
encounter; either physical or verbal in nature.’” J.S. v. State, 843 N.E.2d 1013,
1016 (Ind. Ct. App. 2006) (quoting BLACK’S LAW DICTIONARY 565 (5th ed.
1979)), trans. denied.
[13] Johnson and Gramse testified that Lynn was upset and angry that he had to
follow procedure by taking a number and waiting his turn. Then, when Lynn
failed to respond to his number being called, causing him to lose that turn, he
became extremely agitated and began yelling at Johnson. Johnson requested
several times for Lynn to quiet down, but Lynn refused. After Johnson
instructed Lynn that he needed to leave the building and tried to escort him to
the door by gently placing his hand under Lynn’s elbow, Lynn became
aggressive and punched Johnson’s forearm. Lynn also tried to strike Johnson
in the face with his cane, causing Johnson to bring his hands up and grab
Lynn’s shirt lapels in order to defend himself. When the two men subsequently
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fell to the ground, Lynn immediately rolled over onto his hands to prevent
Johnson from handcuffing him. Lynn remained defiant for approximately
fourteen minutes until the local police arrived, tased him, and arrested him.
[14] This evidence unquestionably supports a reasonable inference that Lynn
engaged in a hostile encounter with Johnson that was both physical and verbal
in nature. Thus, the evidence is sufficient to establish that Lynn engaged in
fighting. His arguments on appeal are merely a request that we reweigh the
evidence in his favor, and we will not. The State presented sufficient evidence
to sustain Lynn’s conviction for disorderly conduct.
[15] Affirmed.
Kirsch, J., and May, J., concur.
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