Gregory Davis v. State of Indiana

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of Sep 12 2014, 10:33 am
establishing the defense of res judicata,
collateral estoppel, or the law of the
case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
ELLEN F. HURLEY GREGORY F. ZOELLER
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
BRIAN REITZ
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
GREGORY DAVIS, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1402-CR-76
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Bradley Keffer, Judge Pro-Tem
Cause No. 49F09-1308-FD-53365
September 12, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
ROBB, Judge
Case Summary and Issue
Following a bench trial, Gregory G. Davis was convicted of criminal recklessness
as a Class D felony for the use of a deadly weapon. Davis raises one issue for review:
whether there was sufficient evidence to show he used a deadly weapon. Concluding there
was sufficient evidence, we affirm.
Facts and Procedural History
While walking to the Indianapolis Central Public Library on August 13, 2013,
Michael Mullin was approached by Davis, who was 6’ 6” and 240 pounds. Davis showed
Mullin a yellow nylon bag, which contained three watches. He attempted to sell Mullin a
watch, but Mullin declined and continued walking toward the rear entrance of the library.
Davis followed, and Mullin walked faster to avoid a confrontation. Mullin testified that he
was “scared out of his mind.” Transcript at 15. Mullin quickly entered the rear of the
library and attended to his business once inside.
After Mullin was finished inside the library, he exited through the front entrance
and walked toward the post office. As he was walking, Mullin heard Davis yell threats to
“beat [him] up” and statements like “you MFing cracker.” Id. at 18. Mullin ignored the
statements and continued walking until he reached a more populated area. At that time,
Mullin turned toward Davis and said, “leave me alone. I didn’t do anything to you.” Id. at
19. Mullin’s request was ignored. Davis walked toward Mullin while continuing to make
similar threatening statements. Davis then struck Mullin on his shoulders, causing Mullin
to stumble. Next, Davis raised his fist, and Mullin kicked Davis in an attempt to back him
off. After he was kicked, Davis shouted “now I’m going to ‘F’ you up.” Id. at 20-21.
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Davis then pulled a small grey box cutter out of his bag. Davis struck Mullin with the box
cutter, causing a stab wound to his upper left forehead. Davis ran away when Mullin
attempted to kick him again.
Mullin immediately called 911. He reported the attack and specified the general
direction that Davis had run. Shortly after the first 911 call, Mullin saw Davis enter an
alley. To avoid letting Davis slip away, Mullin followed at a distance and called 911 again.
Mullin reported Davis’s location, and the police soon arrived. Davis was arrested. When
the police asked Mullin about his injury, he was initially unsure what caused it—either his
eye glasses or the box cutter. After examining his wound, he determined it was caused by
Davis’s box cutter. Mullin received five stitches.
The State charged Davis with criminal recklessness as a Class D felony, battery as
a Class A misdemeanor, and possession of marijuana as a Class A misdemeanor. Davis
was convicted of both criminal recklessness and battery at a bench trial; he was found not
guilty of possessing marijuana. At the sentencing hearing, the trial court merged the
criminal recklessness and battery convictions, and sentenced Davis to 545 days for criminal
recklessness, all of which were to be executed in Indiana Department of Correction. Davis
now appeals.
Discussion and Decision
I. Standard of Review
In reviewing a claim of insufficient evidence, we will affirm the conviction
unless, considering only the evidence and reasonable inferences favorable to
the judgment, and neither reweighing the evidence nor assessing the
credibility of the witnesses, we conclude that no reasonable fact-finder could
find the elements of the crime beyond a reasonable doubt.
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Sisk v. State, 736 N.E.2d 250, 252 (Ind. 2000).
II. Sufficiency of Evidence1
To support Davis’s conviction of criminal recklessness, the State had to prove that:
1) Davis recklessly, knowingly, or intentionally performed an act that created a substantial
risk of bodily injury, and 2) it was committed with a deadly weapon. Ind. Code § 35-42-2-
2(b)(1), (c)(2)(A) (2013). Davis contends there was insufficient evidence to show he used
a deadly weapon, because Mullin was the only one to testify about a weapon, and a box
cutter was never found.
In order to prove that a weapon was used in the commission of a crime, it is not
necessary to introduce that weapon into evidence. Gorman v. State, 968 N.E.2d 845, 850
(Ind. Ct. App. 2012), trans. denied. This does not, however, dispense with the need to
prove that the defendant was armed with a deadly weapon at the time of the crime. Id. As
proof of the use of a deadly weapon, a “victim’s testimony that he or she saw the defendant
use [a deadly weapon] is, by itself, sufficient . . . .” Id. at 851. This court will sustain a
conviction even if the only testimony is the uncorroborated testimony of the victim himself.
Jones v. State, 569 N.E.2d 975, 980 (Ind. Ct. App. 1991).
Mullin testified that Davis attacked him with a box cutter. He also had an injury he
alleged was caused by the box cutter. A box cutter, used in the manner that Davis used
it—striking Mullin in the face—is a deadly weapon. In this State, a “deadly weapon” is
any item that in the manner it is used, could be used, or is intended to be used is capable of
1
Davis does not challenge the trial court’s finding with regard to battery.
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causing serious bodily injury. Ind. Code § 35-31.5-2-86(a)(2). A box cutter is capable of
causing serious bodily injury. See Robinson v. State, 543 N.E.2d 1119, 1120 (Ind. 1989)
(determining a box cutter used to cut the victim’s ear was a deadly weapon). The trial court
heard Mullin’s testimony as to how the injury occurred, including the possibility that it was
caused by Mullin’s eye glasses. The trial court appropriately weighed the evidence and
also determined Mullin’s credibility. See Lock v. State, 971 N.E.2d 71, 74 (Ind. 2012)
(stating that appellate courts do not assess witness credibility). We will not do it again.
The fact that the Mullin was initially uncertain as to the cause of his wound is not an issue
for this court to decide.
There was sufficient proof that Davis performed an act creating a substantial risk of
bodily injury and used a deadly weapon.
Conclusion
There was sufficient evidence from which a reasonable fact-finder could have found
that the elements for criminal recklessness as a Class D felony existed beyond a reasonable
doubt. Davis’s conviction is therefore affirmed.
Affirmed.
BAKER, J., and KIRSCH, J., concur.
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