Robert L. Wine v. State of Indiana (mem. dec.) , 121 N.E.3d 149 ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jan 31 2019, 8:44 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Brandon E. Murphy Curtis T. Hill, Jr.
Cannon Bruns & Murphy Attorney General
Muncie, Indiana
Caroline G. Templeton
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Robert L. Wine, January 31, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-2186
v. Appeal from the Blackford
Superior Court
State of Indiana, The Honorable Nick Barry, Judge
Appellee-Plaintiff Trial Court Cause No.
05D01-1804-CM-111
Crone, Judge.
[1] Robert L. Wine appeals his conviction for level 6 felony battery by bodily
waste, claiming that the charging information was deficient. Because Wine has
waived this argument, we affirm.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2186 | January 31, 2019 Page 1 of 3
[2] On March 6, 2018, Aaron Morris was working as an emergency medical
services provider and was dispatched to the Blackford County Jail on a report
that Wine, an inmate, had consumed hand sanitizer and orange juice. Morris
and his partner loaded Wine into the ambulance and hooked him up to an IV.
As the ambulance neared the hospital, Wine became agitated and tried to rip
out the IV. When the ambulance reached the hospital, Morris secured the IV
and turned to leave the vehicle. Wine spat on the back of Morris’s head.
[3] The State charged Wine with class B misdemeanor battery by bodily waste and
class B misdemeanor disorderly conduct. One week later, the State amended
the battery charge to a level 6 felony, alleging that Wine “did knowingly or
intentionally, in a rude, insolent, or angry manner, place bodily fluid or waste
on Aaron Morris while the said official was engaged in the official’s official
duty ….” Appellant’s App. Vol. 2 at 15; see Ind. Code § 35-42-2-1(e)(2) (stating
that battery is a level 6 felony if it “is committed against a public safety official
while the official is engaged in the official’s official duty”); Ind. Code § 35-42-2-
1(a)(10) (defining “public safety official” in pertinent part as “an emergency
medical services provider”). Wine failed to appear at his bench trial. At the
close of evidence, Wine’s counsel argued for the first time that Wine could not
be convicted of battery because the charging information did not allege “that
Aaron Morris was a public safety official.” Tr. Vol. 2 at 33. The trial court
rejected this argument, found Wine guilty of level 6 felony battery, and
sentenced him to 910 days.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2186 | January 31, 2019 Page 2 of 3
[4] On appeal, Wine argues that his conviction should be reversed because “the
State’s amended charge failed to allege all elements necessary for a
conviction[.]” Appellant’s Br. at 8. The State contends that this argument is
waived because Wine failed to file a motion to dismiss the charge. We agree.
“The proper method to challenge deficiencies in a charging information is to
file a motion to dismiss the information, no later than twenty days before the
omnibus date.” Miller v. State, 634 N.E.2d 57, 60 (Ind. Ct. App. 1994). Failure
to do so results in waiver of the issue absent fundamental error, id., and Wine
alleges no fundamental error here. Therefore, we affirm.
[5] Affirmed.
Vaidik, C.J., and Mathias, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2186 | January 31, 2019 Page 3 of 3