Gregory Freeman v. State of Indiana ( 2024 )

FILED
Jun 24 2024, 9:02 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
IN THE
Court of Appeals of Indiana
Gregory Freeman,
Appellant-Defendant
v.
State of Indiana,
Appellee-Plaintiff
June 24, 2024
Court of Appeals Case No.
23A-CR-2503
Appeal from the Marion Superior Court
The Honorable Mark Stoner, Judge
Trial Court Cause No.
49D32-1607-F1-25396
Opinion by Judge Vaidik
Judges Weissmann and Foley concur.
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Vaidik, Judge.
Case Summary
[1] In Indiana, when a defendant is charged with a crime against another person,
the victim’s identity is a material element of the offense that the State must
specifically allege in the charging information and then prove beyond a
reasonable doubt. These requirements serve to place the defendant on notice of
the exact crime being charged and to protect the defendant against double
jeopardy—a subsequent prosecution for the same offense.
[2] Here, the State charged Gregory Freeman with attempted murder, alleging that
he shot a man named Lawon Browning. Browning was excluded from
testifying because he refused to appear for a deposition, and at the bench trial
no witness identified the victim as Lawon Browning. Still, the trial court found
Freeman guilty of the lesser-included offense of Level 5 felony battery with a
deadly weapon. Concluding that the State failed to prove beyond a reasonable
doubt that Lawon Browning was the victim of the shooting, we must reverse
that conviction.
Facts and Procedural History
[3] In the early morning hours of May 26, 2016, Freeman was at a strip club in
Indianapolis. Just before 3:00 a.m., Freeman and two other men walked
through the parking lot, approached a man who had been driving a maroon
Pontiac, and shot him multiple times. Freeman and the other shooters fled the
scene. The victim survived the shooting and was still present when Indianapolis
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Metropolitan Police Department (IMPD) Officer Christopher Clouse arrived to
collect evidence. Officer Clouse took photos of the victim but didn’t get his
name. The victim was then taken to a hospital. IMPD Detective Connie
Pearson went to the hospital later that day, but the victim couldn’t provide a
coherent statement.
[4] The State charged Freeman with Level 1 felony attempted murder and Class A
misdemeanor carrying a handgun without a license. (The State also charged
Freeman with Level 2 felony conspiracy to commit murder but later dismissed
that count.) The attempted-murder charging information identified the victim as
Lawon Browning. While the case was pending, Browning was charged with
and convicted of murder for an unrelated incident and sentenced to seventy-one
years in prison. See Cause No. 49G04-1804-MR-13688; Browning v. State, No.
19A-CR-2522 (Ind. Ct. App. Aug. 6. 2020) (mem.), trans. denied. He was
scheduled for a deposition in Freeman’s case but refused to participate, so
Freeman moved to exclude him as a witness. The State did not object to the
motion, noting that Browning was also refusing to cooperate with the State.
The trial court granted the motion to exclude.
[5] Freeman waived his right to a jury trial, and a bench trial was held. The State
called five witnesses, none of whom identified the victim by name. The State
presented its Exhibit 37, which it claimed is a jail booking photo of Browning
from 2018. The document includes a photo of a man, and below the photo is
the name “Browning, Lawon.” Officer Clouse said the man in the photo is the
man who was shot, but he didn’t know the man’s name and couldn’t confirm
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that the document is a booking photo. Freeman objected to the admission of the
exhibit “due to improper foundation and lack of knowledge of the person
purported to be identified.” Tr. p. 149. The court asked the State if it was
offering the exhibit “as a certified public record” or “through the testimony of
the witness[.]” Id. at 150. The State responded, “Both, one being relevance
through the witness, admissibility through public record.” Id. The court said it
would admit the exhibit “as it relates to the witness’s identification of the
individual” but that it was “not accepting it as a certified business record
because I don’t believe there is an adequate foundation being made[.]” Id. The
State later showed the exhibit to Detective Pearson. She testified that the man
in the photo is the man she saw at the hospital, but she didn’t say anything
about his name.
[6] The State also presented a certified BMV registration showing that the maroon
Pontiac was owned by “Lawon Edward Browning.” Ex. 131. The document
contains no photograph or physical description of the owner.
[7] The trial court found Freeman not guilty of attempted murder, concluding that
the State had not proven that Freeman acted with the specific intent to kill.
However, the court found Freeman guilty of the lesser-included offense of Level
5 felony battery with a deadly weapon, as well as Class A misdemeanor
carrying a handgun without a license. The court imposed sentences of two years
for the felony and one year for the misdemeanor, to be served concurrently.
[8] Freeman now appeals.
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Discussion and Decision
[9] Freeman contends the evidence is insufficient to support his conviction for
Level 5 felony battery with a deadly weapon. (He doesn’t appeal his conviction
for Class A misdemeanor carrying a handgun without a license.) When
reviewing sufficiency-of-the-evidence claims, we neither reweigh the evidence
nor judge the credibility of witnesses. Willis v. State, 27 N.E.3d 1065, 1066 (Ind.
2015). We will only consider the evidence supporting the judgment and any
reasonable inferences that can be drawn from the evidence. Id. A conviction
will be affirmed if there is substantial evidence of probative value to support
each element of the offense such that a reasonable trier of fact could have found
the defendant guilty beyond a reasonable doubt. Id.[10] Freeman doesn’t challenge the sufficiency of the evidence that he shot another
person. Rather, he argues that the State was required, but failed, to prove that
he shot the person named in the charging information, Lawon Browning. For a
crime against a person, the State must both allege and prove the identity of the
victim. See Leonard v. State, 73 N.E.3d 155, 162 (Ind. 2017) (holding, in a
double-murder case, that “the victims’ identities were material elements of the
offense”); A.A. v. State, 29 N.E.3d 1277, 1282 (Ind. Ct. App. 2015) (“It has long
been held in Indiana that as a general rule the name of one injured in his person
or property, by the act of the accused, or the name of one whose identity is
essential to a proper description of the offense charged should be alleged if
known.”). These requirements serve to (1) put a defendant on notice of the
specific crime charged, allowing them to prepare a defense, and (2) protect
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against a subsequent prosecution for the same offense (i.e., double jeopardy).
Robinson v. State, 112 N.E.2d 861, 862-63 (Ind. 1953); People v. Espinoza, 43
N.E.3d 993, 999 (Ill. 2015); Holborough v. State, 103 So. 3d 221, 223 (Fla. Dist.
Ct. App. 2012).
[11] The State argues that the victim’s identity was not an element it was required to
prove. It notes that the battery statute requires only the rude, insolent, or angry
touching of “another person.” Ind. Code § 35-42-2-1(c). But the State simply
ignores Freeman’s citation to our Supreme Court’s holding in Leonard. That
case involved the murder statute, which, like the battery statute, requires that
the offense be committed against “another human being.” I.C. § 35-42-1-1. The
Court nonetheless held that the victims’ identities were material elements of the
offense. That holding controls the analysis here.
[12] In the alternative, the State argues that it proved the identity of the victim
through Exhibit 37—the purported booking photo of Browning—and the BMV
registration. But when the trial court admitted Exhibit 37, it ruled that the State
hadn’t established an adequate foundation for the document to be admitted as a
public record or a business record, so the document could come in only through
the testimony of Officer Clouse. And Officer Clouse made clear that he didn’t
know the name of the man in the photo, only his face. Therefore, the trial court
admitted Exhibit 37 only for the photo, not the name under the photo.
[13] It may be tempting to write off the trial court’s ruling as a technicality, since the
Exhibit 37 ultimately admitted into evidence (and included in the record on
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appeal) shows the name “Browning, Lawon.” But that is simply a function of
this being a bench trial. If this had been a jury trial, the court’s evidentiary
ruling would have led to the name being redacted from the document. In other
words, the trial court’s ruling means that it proceeded as if there was no name
on the document. In reviewing the sufficiency of the State’s evidence, we must
do the same. As Freeman puts it, “What the State is left with in its Exhibit 37 is
a picture offering no more evidentiary value than a picture of the victim at a
family picnic.” Appellant’s Br. p. 13.
[14] That leaves the BMV registration showing that the car the victim was driving
was owned by “Lawon Edward Browning.” But that document doesn’t prove
Browning was driving the car at the time of the shooting. The driver may have
borrowed the car from Browning, or recently purchased the car from Browning
but not yet updated the registration, or stolen the car from Browning. The BMV
registration, standing alone, does not prove beyond a reasonable doubt that
Browning was the victim.
[15] The State cites Owens v. State, 224 N.E.3d 984 (Ind. Ct. App. 2023), trans.
denied, but that case is distinguishable. Owens was charged with and convicted
of battering a man named Jacob Dugas. On appeal, Owens argued that there
was insufficient evidence of the victim’s identity because the victim’s full name
was never established at trial. We disagreed, noting that (1) the State presented
evidence that the victim’s name was “Jacob” and (2) during closing arguments
defense counsel referred to the victim as both “Mr. Dugas” and “Jacob.” We
concluded, “Taken together, although Dugas was never identified by his full
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name at trial, the State’s evidence and defense counsel’s reference to the victim
as ‘Mr. Dugas’ were sufficient for the jury to find that the victim referenced at
trial was ‘Jacob Dugas,’ as named in the charging information.” Id. at 994.
Here, on the other hand, neither the evidence admitted nor defense counsel’s
argument established the first, last, or full name of the victim.
[16] Assuming that Lawon Browning was the victim of the shooting, the State could
have proven his identity in several ways. For example, if the State had a
booking photo of Browning, it could have presented a certified copy with
proper foundation. Or it could have presented medical records from the day of
the shooting or the testimony of someone who provided medical care. The State
didn’t present any evidence like this and instead relied solely on the purported
booking photo and the BMV registration.
[17] The State is correct that proving a victim’s identity doesn’t always require
direct evidence of the victim’s name. In Davis v. State, 796 N.E.2d 798 (Ind. Ct.
App. 2003), trans. denied, a woman named Lucy Scott reported that the
defendant had attacked her while she was holding her three-year-old daughter,
D.S. The State charged the defendant with domestic battery as to Scott and
battery as to D.S. At trial, D.S.’s name was never mentioned, but Officer Susan
Reidenbach testified that Scott was holding her three-year-old daughter at the
time of the attack. The defendant was found guilty and appealed, arguing that
the evidence was insufficient to identify the victim of the battery. We disagreed,
explaining:
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[T]he evidence is sufficiently clear to establish that the charging
information relating to D.S., a three-year-old child, refers to the
same three-year-old child who Officer Reidenbach testified was
being held by Scott when she was attacked and thrown onto the
bed. Officer Reidenbach also established that the three-year-old
child who Scott was holding was Scott’s own daughter. This
evidence was sufficient for the trial court to conclude that D.S.
was the child who was being held by Scott and who was injured
in the altercation.
Id. at 806.
[18] Here, though, no such identifying information about the victim was admitted
into evidence. While multiple witnesses identified the shooting victim in
photos, their testimony didn’t link the photos to the person named in the
charging information and the BMV registration.
[19] Because the State failed to prove the identity of the victim beyond a reasonable
doubt, we must reverse Freeman’s battery conviction. We affirm Freeman’s
conviction and one-year sentence for carrying a handgun without a license.
[20] Affirmed in part and reversed in part.
Weissmann, J., and Foley, J., concur.
ATTORNEY FOR APPELLANT
Matthew D. Anglemeyer
Marion County Public Defender
Appellate Division
Indianapolis, Indiana
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ATTORNEYS FOR APPELLEE
Theodore E. Rokita
Attorney General
J.T. Whitehead
Deputy Attorney General
Indianapolis, Indiana
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