Jerry D. Boyce v. State of Indiana ( 2013 )

Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
Apr 30 2013, 9:13 am
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:
LEANNA WEISSMANN GREGORY F. ZOELLER
Lawrenceburg, Indiana Attorney General of Indiana
AARON J. SPOLARICH
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
JERRY D. BOYCE, )
)
Appellant-Defendant, )
)
vs. ) No. 16A01-1210-CR-453
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE DECATUR SUPERIOR COURT
The Honorable Matthew D. Bailey, Judge
Cause No. 16D01-1002-FD-61
April 30, 2013
MEMORANDUM DECISION – NOT FOR PUBLICATION
RILEY, Judge
STATEMENT OF THE CASE
Appellant-Defendant, Jerry D. Boyce (Boyce), appeals his conviction for Count I,
battery by bodily waste, a Class D felony, Ind. Code § 35-42-2-6(e); Count II, battery, a
Class A misdemeanor, I.C. § 35-42-2-1(a)(1)(B); and Count III, battery, a Class B
misdemeanor, I.C. § 35-42-2-1(a).
We affirm.
ISSUE
Boyce raises one issue on appeal, which we restate as: Whether the State
presented sufficient evidence beyond a reasonable doubt that Boyce had the requisite
mens rea to commit the charges.
FACTS AND PROCEDURAL HISTORY
In July 2000, when he was approximately thirty-three years old, Boyce suffered a
brain aneurism. He survived because surgeons were able to clip the aneurism, but he
subsequently developed a seizure disorder, with seizures occurring once or twice each
month. Boyce has been on disability ever since.
On February 9, 2010, Boyce suffered several seizures at his mother’s residence.
When he remained still for almost an hour, his mother called 911. Decatur County
paramedics arrived and they found Boyce unresponsive on the kitchen floor. Boyce
eventually woke up, urinated on the kitchen floor, stumbled around the kitchen, and then
started to walk towards his bedroom. Paramedic Matthew Morrow (Morrow) followed
Boyce into the bedroom and asked him questions to assess Boyce’s medical condition.
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Boyce responded with profanity. The more Morrow questioned Boyce, the angrier Boyce
became. Morrow followed Boyce toward the bed and Boyce, laying on the bed, struck
and kicked Morrow. After fifteen to twenty minutes of Boyce responding to Morrow
with profanities, Douglas Banks (Banks), the director of ambulance services who was
also present, decided to transport Boyce to the hospital. Boyce’s brother tried to calm
him down, but Boyce just pushed him.
Greensburg Police Department Officer Brendan Bridges (Officer Bridges) was
present at the house to assist the paramedics. After Boyce struck Morrow, Officer
Bridges entered the bedroom. Boyce struck Officer Bridges on the shoulder. After
Boyce aggressively postured to Officer Bridges, he and Officer Dennis Blodgett (Officer
Blodgett) restrained Boyce and handcuffed him. The Officers escorted Boyce to the
ambulance. During the ride to the hospital, Boyce managed to free one leg from the
restraints used to secure him on the stretcher and throughout the drive, he continued to
curse.
Boyce arrived at the hospital, approximately thirty-five minutes after his mother
made the 911 call. At the hospital, it took five people to restrain Boyce in the emergency
room. Boyce used profanities and tried to kick those around him. According to nurse
Shelly Lanter (nurse Lanter), who attended to Boyce, the strikes were not random but
aimed at people. Boyce also started to spit at those attempting to restrain him and spit on
Officer Blodgett’s uniform. Boyce pulled down his pants, exposed his penis, and told the
nurses to suck it.
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On February 17, 2010, the State filed an Information charging Boyce with Count I,
battery by bodily waste, a Class D felony, Ind. Code § 35-42-2-6(e); Count II, battery, a
Class A misdemeanor, I.C. § 35-42-2-1(a)(1)(B); and Count III, battery, a Class B
misdemeanor, I.C. § 35-42-2-1(a). On July 9, 2010, Boyce filed a notice of intent to offer
an affirmative defense of mental illness, disease, or defect, alleging that he was
awakening from a seizure when the events leading to the charges took place. On July 21,
2011, the State and Boyce entered into a conditional plea agreement whereby Boyce
agreed to plead guilty to Count I in exchange for the State dismissing the remaining
Counts. The State also agreed to convert the Class D felony conviction of Count I to a
Class A misdemeanor. However, on September 28, 2011, the trial court found Boyce
incompetent to stand trial and committed him to the Division of Mental Health and
Addiction.
On February 12, 2012, Boyce was found competent to stand trial. On August 20
through August 21, 2012, the trial court conducted a jury trial. During the trial, Boyce’s
brother, Jim Boyce (Jim), testified that it is a common pattern that after a seizure—during
the postictal state—Boyce is confused, aggressive, and wants to go to sleep. Jim stated
that Boyce would “look through you” and not recognize another person’s presence.
(Appellant’s App. p. 258). This disrupted mental state can last for days and afterwards,
Boyce will not remember anything. Jim explained that he had once found Boyce sitting
on a six-foot high fence, that Boyce walks around the neighborhood clothed or unclothed,
and urinates in inappropriate places. Jim stated that at times, Boyce hallucinates during
his post-seizure state. Boyce’s medical difficulties were not unknown in the Greensburg
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community. Banks testified that he knew Boyce has seizures and was commonly
aggressive when coming out of them.
Two court-appointed psychiatrists testified as to whether Boyce could comprehend
the wrongfulness of his actions. Dr. Philip Coons (Dr. Coons), opined that:
Although [Boyce] had a mental disease or defect which was certainly
strong enough to affect his perception at times, [] he could understand the
wrongfulness of his actions at the time of the alleged crime. And that was
based on the fact that I felt that he basically had a rational motive for what
he did. He did not want[] to go to the hospital and put up a fight against
going to the hospital.
(Tr. p. 324). Dr. Coons stated that the postictal phase is “probably about a half an hour.”
(Tr. p. 326). Because Boyce’s violent behavior continued after the phase ended, Dr.
Coons determined that he “was engaged in purposeful directed behavior.” (Tr. p. 326).
During cross-examination, Dr. Coons acknowledged that in “the postictal behavior . . .
they might get violent. And I think some observers might mistakenly think that that was
purposeful. But it’s not really.” (Tr. p. 329).
On the other hand, Dr. Larry Ewert (Dr. Ewert) determined that Boyce “was
suffering from a mental defect.” (Tr. p. 294). He concluded that Boyce cannot
appreciate the wrongfulness of his actions
during the seizure, but also at other times. Because the type of brain injury
from that part of the brain the aneurism is an area of the brain, and I put it
in my report, that has to do with judgment and dis-inhibiting behavior.
Meaning, people do things they might not do otherwise and they don’t
make good decisions and they react easily to anger. So, I think I just
answered your question that it’s not only during the seizure but in general.
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(Tr. p. 297). Because of his brain damage, Boyce is “easily irritated and angered.” (Tr.
p. 298). In Dr. Ewert’s opinion, the postictal period “could be an hour, easily.” (Tr. p.
306). At the close of the evidence, the jury found Boyce guilty but mentally ill.
On September 20, 2012, the trial court conducted a sentencing hearing and
sentenced Boyce to eighteen months executed on Count I, one year executed on Count II,
and 180 days executed on Count III, with sentences to run concurrently.
Boyce now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
Boyce contends that the State failed to present sufficient evidence beyond a
reasonable doubt to sustain his conviction. In reviewing a sufficiency of the evidence
claim, this court does not reweigh the evidence or judge the credibility of the witnesses.
Perez v. State, 872 N.E.2d 208, 212-13 (Ind. Ct. App. 2007), trans. denied. We will
consider only the evidence most favorable to the judgment and the reasonable inferences
to be drawn therefrom and will affirm if the evidence and those inferences constitute
substantial evidence of probative value to support the judgment. See id. at 213. Reversal
is appropriate only when reasonable persons would not be able to form inferences as to
each material element of the offense. Id.To convict Boyce of battery by bodily waste, as a Class D felony, the State was
required to establish beyond a reasonable doubt that he “knowingly or intentionally, in a
rude, insolent, or angry manner” placed bodily fluid on Office Blodgett while that officer
was engaged in the performance of his duties. I.C. § 35-42-2-6(e). For a conviction of
battery against Officer Bridges, as a Class A misdemeanor, the State had to prove that
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Boyce knowingly or intentionally touched Officer Bridges, while engaged in his duties,
in a rude, insolent, or angry manner. See I.C. § 35-42-2-1(a)(1)(B). Finally, to establish
battery against Morrow, as a Class B misdemeanor, the State was required to prove that
Boyce knowingly or intentionally touched Morrow in a rude, insolent, or angry manner.
See I.C. § 35-42-2-1(a). Here, the State charged Boyce with “knowingly” committing the
offenses. Under the statute “[a] person engages in conduct knowingly if, when he
engages in the conduct, he is aware of a high probability that he is doing so.” I.C. § 35-
42-2-2(b).
While Boyce does not dispute the facts, Boyce’s argument focuses on the State’s
evidence to establish the requisite mens rea. Highlighting the different conclusions
between the two court-appointed psychiatrists, Boyce claims that Dr. Coons’ testimony is
“not reliable given the weight of the evidence.” (Appellant’s Br. p. 11). Specifically,
Boyce maintains that in light of the evidence regarding Boyce’s typical behavior during
and post seizures, Dr. Coons’ testimony that Boyce’s postictal time lasted about thirty
minutes and therefore he could form the requisite mens rea after thirty minutes had
lapsed is illogical.
By declaring Boyce to be guilty but mentally ill, the jury clearly found Dr. Coons’
testimony credible in that he opined that Boyce “was engaged in purposeful directed
behavior.” (Tr. p. 326). Focusing on the evidence in support of his position together
with the allegation that Dr. Coons’ testimony is unreliable, Boyce is in effect asking us to
reweigh the evidence and the credibility of the witnesses. We decline his invitation to do
so.
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While we do not disregard the amount of evidence seemingly establishing that
Boyce could not possibly have acted with the requisite knowledge, there is sufficient
evidence of probative value from which a jury could find him guilty beyond a reasonable
doubt. The EMT records reveal that Boyce’s mother called 911 at 3:12 pm, with the
paramedics arriving at the residence at 3:14 pm, finding Boyce unresponsive on the
kitchen floor. Boyce was placed in the ambulance at 3:44 pm and arrived at the hospital
thirty-six minutes after Boyce’s mother made the emergency call. Dr. Coons testified
that Boyce formed a rational motive of not wanting to go to the hospital and therefore put
up a fight. Based on Dr. Coons’ statement that Boyce’s postictal phase lasted “probably
about a half an hour,” Boyce started to recover from the seizure when placed in the
ambulance. (Tr. p. 326).
Moreover, other witnesses testified that Boyce was aware of the purposefulness of
his actions. Morrow stated that while Boyce was in the kitchen, he was unresponsive and
urinated on the floor. However, when he walked into his bedroom, Morrow testified that
Boyce became more agitated and responded to his questions with profanity. He also
explained that, in Morrow’s opinion, Boyce’s kicking him was voluntary because Boyce
“turned and looked at me, then kicked me.” (Tr. p. 166). Likewise, nurse Lanter, told the
jury that Boyce’s kicks in the emergency room were not random but aimed at certain
people. Officer Blodgett, who was also present in the emergency room, clarified that
Boyce would look at the person he swore at or attempted to strike. In sum, based on the
totality of the evidence before us, we conclude that the jury could reasonably infer that
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Boyce acted with the requisite knowledge when he struck Morrow, Officer Blodgett, and
Officer Bridges.
CONCLUSION
Based on the foregoing, we conclude that the State presented sufficient evidence
to sustain Boyce’s convictions.
Affirmed.
BRADFORD, J. and BROWN, J. concur
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