Johnny J. Wesley, Jr. v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Feb 16 2016, 5:38 am
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 establishing the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Michael P. Quirk Gregory F. Zoeller
Muncie, Indiana Attorney General of Indiana
Christina D. Pace
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Johnny J. Wesley, Jr., February 16, 2016
Appellant-Defendant, Court of Appeals Case No.
18A02-1507-CR-885
v. Appeal from the Delaware Circuit
Court
State of Indiana, The Honorable Marianne L. Vorhees,
Judge
Appellee-Plaintiff.
Trial Court Cause No.
18C01-1306-FC-43
Pyle, Judge.
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Statement of the Case
[1] Johnny W. Wesley, Jr. (“Wesley”) appeals his convictions, following a bench
trial, for Class C felony battery by means of a deadly weapon1 and Class D
felony intimidation.2 Wesley argues that there was insufficient evidence to
support his convictions. Concluding that Wesley’s argument are merely a
request to reweigh the evidence, we deny this request and affirm his
convictions.
[2] We affirm.
Issue
Whether sufficient evidence supports Wesley’s convictions.
Facts
[3] On June 21, 2013, Wesley, who had a “personalized cart on wheels” containing
clothing and other belongings, entered a Marsh store in Delaware County. (Tr.
34). Wesley approached R.L. Musgrove (“Musgrove”), the co-manager of the
store, and asked for some cigarettes. Musgrove retrieved the cigarettes and
directed Wesley to go to the fifth register so that Musgrove could ring up the
1
IND. CODE § 35-42-2-1(a)(3). We note that, effective July 1, 2014, a new version of the battery statute was
enacted and that Class C felony battery is now a Level 5 felony. Because Wesley committed his crime in
2013, we will apply the statute in effect at that time.
2
I.C. § 35-45-2-1. Pursuant to the 2014 version of the intimidation statute, this Class D felony intimidation
offense is now a Level 6 felony.
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transaction. Once at the register, Wesley told Musgrove that he had gotten the
wrong cigarettes and that Wesley had asked for menthols. Musgrove
apologized, retrieved the menthol cigarettes, and then rang them up at the
register. Wesley became “upset” about the price and said that Musgrove “was
charging him too much and messing with him.” (Tr. 6). Wesley refused to pay
for the cigarettes and then walked over to the cashier at the first register and
asked for cigarettes. Musgrove told that cashier to remain at her register and
that he would get the cigarettes for Wesley. Musgrove, who was unarmed, told
Wesley that if “he didn’t pay for [the cigarettes], he wouldn’t get them.” (Tr.
6). Wesley then “jerk[ed] a sword . . . from the sheath and smacked the counter
and c[a]me around at [Musgrove] and said[,] ‘[G]ive me my damn cigarettes
and give them to me now.’” (Tr. 7). When Musgrove reached for the cigarettes
and again told Wesley that he had to purchase them, Wesley “came at
[Musgrove] with that sword.” (Tr. 7). Wesley “busted” the door of the
cigarette case and then started “jabbing the sword at [Musgrove,]” who
“smacked it away” and, in doing so, received a small cut on his hand that
resulted in a scar. (Tr. 7). Wesley then “hit [Musgrove] across the back of [his]
legs” with the sword and broke the skin. (Tr. 8).
[4] Thereafter, Wesley went back to the first register and knocked over a candy
display with the sword. The other store co-manager, Sean McCarthy
(“McCarthy”) saw Wesley strike Musgrove’s legs with the sword, which he
described as “a four (4) foot sword.” (Tr. 46). McCarthy also saw that Wesley
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“was very upset” and was “chopping up the store, the check stands and the
counters and everything with the sword.” (Tr. 36). McCarthy then called 911.
[5] Officer Chris Kesler (“Officer Kesler”) and Officer Eric Peterson (“Officer
Peterson”) were dispatched to the Marsh store. Upon arriving, Officer Kesler
saw Wesley “coming out of the front doors with the sword in his hand.” (Tr.
54). Officer Kesler instructed Wesley to drop his sword. When Wesley turned
to put the sword in the sheath in his cart, Officer Kesler saw that he had a knife
in the back part of his pants. Officer Kesler yelled to the other officer that
Wesley had a knife, drew his gun, and instructed Wesley not to reach for the
knife. Wesley, however, tried to reach for the knife, and Officer Peterson
grabbed Wesley’s hand and prevented him from getting the knife. As the
officers handcuffed and arrested Wesley, he told Officer Kesler that “he was
going to get a gun -- go to his house and get a gun and kill [him].” (Tr. 56).
Later that day, the police took photographs of the injuries to Musgrove’s hand
and the back of his legs.
[6] Thereafter, the State charged Wesley with: Count 1, Class C felony battery
with a deadly weapon; Count 2, Class C felony intimidation; and Count 3,
Class D felony intimidation. The trial court held a bench trial on April 10,
2015. At the beginning of trial, the State moved to dismiss Count 2. Musgrove
and McCarthy testified regarding the facts of the battery charge, and Officer
Kesler testified regarding the facts of the intimidation charge. The State also
introduced into evidence photographs of Wesley’s sword and knife,
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photographs of Musgrove’s injuries, and the DVD of the Marsh store security
video from the day of the crimes.
[7] Following the State’s presentation of evidence, Wesley moved for a directed
verdict on both counts, and the trial court denied the motion. Wesley then
testified on his own behalf. Wesley admitted that he had swung a sword at
Musgrove and that Musgrove’s hand had been hit when he tried to block the
sword. Wesley testified that he had pulled out his sword because Musgrove
had pulled a gun on him and had threatened to shoot him. The trial court took
the matter under advisement and, thereafter, issued an order, finding Wesley
guilty as charged in Counts 1 and 3.
[8] Thereafter, the trial court imposed a four (4) year sentence, with eight (8)
months executed in the Department of Correction and forty (40) months
suspended to supervised probation for Wesley’s Class C felony battery
conviction, and it imposed a two (2) year suspended sentence for his
intimidation conviction. The trial court ordered that the sentences were to run
concurrently. The trial court also determined that Wesley had already served
the executed time, and it ordered him to immediately start his supervised
probation, obtain a mental health evaluation, and follow all treatment
recommendations. Wesley now appeals his convictions.
Decision
[9] Wesley argues that the evidence was insufficient to support his convictions for
Class C felony battery and Class D felony intimidation.
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When reviewing the sufficiency of the evidence to support a
conviction, appellate courts must consider only the probative
evidence and reasonable inferences supporting the verdict. It is
the fact-finder’s role, not that of appellate courts, to assess
witness credibility and weigh the evidence to determine whether
it is sufficient to support a conviction. To preserve this structure,
when appellate courts are confronted with conflicting evidence,
they must consider it most favorably to the trial court’s ruling.
Appellate courts affirm the conviction unless no reasonable fact-
finder could find the elements of the crime proven beyond a
reasonable doubt. It is therefore not necessary that the evidence
overcome every reasonable hypothesis of innocence. The
evidence is sufficient if an inference may reasonably be drawn
from it to support the verdict.
Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (internal quotation marks
and citations omitted) (emphasis in original).
[10] We first address Wesley’s challenge to his battery conviction. At the time of
Wesley’s crime, the battery statute, INDIANA CODE § 35-42-2-1(a), provided
that “[a] person who knowingly or intentionally touches another person in a
rude, insolent, or angry manner commits battery, a Class B misdemeanor.”
The offense was determined to be a Class C felony if the battery was
“committed by means of a deadly weapon[.]” I.C. § 35-42-2-1(a)(3). Thus, to
convict Wesley for battery as charged, the State was required to establish that
he “knowingly touch[ed]” Musgrove “in a rude, insolent, or angry manner”
and that “said touching [was] committed with a deadly weapon, to wit:
sword[.]” (App. 16).
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[11] Wesley does not dispute that he touched Musgrove in a rude, insolent, or angry
manner. Instead, he argues that there was insufficient evidence to show that he
used a deadly weapon. Specifically, Wesley contends that “[t]he evidence
presented was too vague to describe the weapon possessed by the Defendant to
determine whether it was a deadly weapon.” (Wesley’s Br. 6).
[12] A “deadly weapon” is defined, in part, as “[a] destructive device, weapon,
device, taser . . . , equipment, chemical substance, or other material that in the
manner it . . . is used . . . could ordinarily be used . . . or is intended to be used .
. . is readily capable of causing serious bodily injury.” I.C. § 35-31.5-2-86(a)(2).
Whether an object is a deadly weapon is determined by considering a
description of the object, the manner of its use, and the circumstances of the
case. Davis v. State, 835 N.E.2d 1102, 1112 (Ind. Ct. App. 2005), trans. denied.
“Whether an object is a deadly weapon based on these factors is a question of
fact.” Gleason v. State, 965 N.E.2d 702, 708 (Ind. Ct. App. 2012) (citing Miller v.
State, 500 N.E.2d 193, 197 (Ind. 1986)). “The original purpose of the object is
not considered. Rather, the manner in which the defendant actually used the
object is examined.” Id. (citing Timm v. State, 644 N.E.2d 1235, 1238 (Ind.
1994)). Also, it does not matter if actual injuries were sustained by the crime
victim, provided the defendant had the apparent ability to injure the victim
seriously through his use of the object during the crime.” Id. (citing Miller, 500
N.E.2d at 196-97).
[13] Contrary to Wesley’s assertion, there is sufficient evidence to support the trial
court’s determination that the sword that Wesley used to touch Musgrove in a
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rude or insolent manner was a deadly weapon. Here, the State introduced a
photograph of the sword, and the evidence showed that Wesley became upset,
drew his sword from his sheath, swung it at Musgrove, and jabbed at and struck
him. After considering the testimony, exhibits, and the reasonable inferences
surrounding the circumstances of Wesley’s actions, the trial court, as trier of
fact, determined that Wesley had committed battery by means of a deadly
weapon. Wesley’s argument is simply a request to reweigh the evidence and
reassess the trial court’s credibility determination, which we will not do. See
Drane, 867 N.E.2d at 146. Accordingly, we affirm Wesley’s Class C felony
battery conviction.
[14] Turning to Wesley’s challenge to his intimidation conviction, we note that, at
the time of Wesley’s offense, the intimidation statute provided that a defendant
committed intimidation as a Class D felony when he communicated a threat to
a law enforcement officer, with the intent that the officer be placed in fear of
retaliation for a prior lawful act. I.C. § 35-45-2-1(a)(2), (b)(2)(B)(i). In order to
convict Wesley of Class D felony intimidation as charged, the State was
required to prove beyond a reasonable doubt that he communicated a threat to
Officer Kesler with the intent to place him in fear of retaliation for a prior
lawful act. To establish intimidation, the State must specifically identify a legal
act by the victim and “establish that the legal act occurred prior to the threat
and that the defendant intended to place the victim in fear of retaliation for that
act.” Casey v. State, 676 N.E.2d 1069, 1072 (Ind. Ct. App. 1997).
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[15] It is not entirely clear what element, if any, that Wesley is challenging. He
merely makes a general assertion that the State “failed to prove that the Police
Officer was intimidated or even that any intimidation took place involving
either officer present.” (Wesley’s Br. 5). At the same time, he does not deny
that he threatened Officer Kesler or the fact that the threat was made in
retaliation for a prior lawful act. Because Wesley has failed to make a cogent
argument and failed to provide any citations to supporting authority, we
conclude that he was waived any appellate challenge to this conviction. See
Ind. Appellate Rule 46(A)(8)(a) (explaining that an argument must be
supported by cogent argument and citations to authority); see also Cooper v. State,
854 N.E.2d 831, 834 n.1 (Ind. 2006) (deeming argument presented in “a two-
sentence concluding paragraph . . . supported neither by cogent argument nor
citation to authority” to be waived).
[16] Waiver notwithstanding, Wesley’s argument is nothing more than a request to
reweigh the evidence. Here, the evidence showed that the officers handcuffed
and arrested Wesley and that he threatened to get a gun and kill Officer Kesler.
From this evidence, the trial court could have reasonably determined that
Wesley had communicated a threat to the officer in retaliation for being
arrested. We will not reweigh the evidence or the trial court’s determination.
See Drane, 867 N.E.2d at 146. Accordingly, we affirm Wesley’s Class C felony
battery conviction.
[17] Affirmed.
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Baker, J., and Bradford, J., concur.
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