Raymon Johnson 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 FILED
establishing the defense of res judicata, Aug 07 2012, 9:12 am
collateral estoppel, or the law of the case.
CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
ERNEST P. GALOS GREGORY F. ZOELLER
South Bend, Indiana Attorney General of Indiana
AARON J. SPOLARICH
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
RAYMON JOHNSON, )
)
Appellant-Defendant, )
)
vs. ) No. 71A04-1111-CR-636
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
The Honorable Jane Woodward Miller, Judge
Cause Nos. 71D03-1105-FD-408 & 71D01-1006-FD-528
August 7, 2012
MEMORANDUM DECISION – NOT FOR PUBLICATION
MATHIAS, Judge
Raymon Johnson (“Johnson”) was convicted in St. Joseph Superior Court of Class
D felony battery on a law enforcement officer resulting in bodily injury in one case and
his probation in another case was revoked because of his commission of this crime.
Johnson appeals and presents four issues, which we reorder and restate as:
I. Whether the trial court erred in overruling Johnson’s Batson challenge to
the State’s exercise of a peremptory strike;
II. Whether the State presented evidence sufficient to support Johnson’s
conviction;
III. Whether the State presented evidence sufficient to support the trial court’s
determination that Johnson violated the terms of his probation; and
IV. Whether the trial court abused its discretion by refusing Johnson’s tendered
instruction on the lesser-included offense of battery as a Class A
misdemeanor.
We affirm.
Facts and Procedural History
On the night of May 23, 2011, Officer Theodore Robert (“Officer Robert”) of the
South Bend Police Department was working for the South Bend Housing Authority when
he was dispatched to the South Bend Apartments, a small public housing complex, to
investigate a complaint of loud noise. When he drove down the cul-de-sac he saw a
small crowd of people on the porch area in front of the apartment building. Several of
these people retreated into the apartments when they saw Officer Robert arrive. The ones
that remained on the porch area were defendant Johnson, his mother Juanita Johnson
2
(“Juanita”) and his cousin Adam Kuspa (“Kuspa”). As Officer Robert approached the
porch area, he saw empty beer bottles lying on the ground.1
Officer Robert attempted to identify the three individuals remaining in the porch
area. Kuspa provided the officer with his name and an identification card. Johnson
verbally identified himself, but did not provide Officer Robert with his identification card
because he knew there was an active warrant for his arrest for failure to pay child support.
Juanita did not have an identification card, and told Officer Robert only that her name
was “Miss Johnson.” At this point, Johnson’s brother, Raheem Johnson (“Raheem”),
came outside from one of the apartments. He refused Officer Robert’s request to identify
himself and attempted to return to the apartment whence he came. Officer Robert told
Raheem to remain outside, and shut the door to the apartment to ensure that Raheem did
not go back inside.
Officer Robert then attempted to further identify Juanita. While he questioned her
concerning her identity, Juanita grabbed Officer Robert’s wrist. Officer Robert removed
her hand and told her not to touch him. Juanita then immediately grabbed Officer
Robert’s wrist a second time. Officer Robert again removed her hand and warned her a
second time not to touch him. This caused Raheem to step within a foot of Officer
Robert and tell him, “this is my mother, she’s 50 years old, you don’t have to talk to her
that way.” Tr. p. 99. Officer Robert told Raheem to step away, and Raheem complied.
Officer Robert asked if any of the four individuals lived at the apartment complex or
1
According to Officer Robert, it was against the Housing Authority’s rules to drink alcohol outside the
apartment building.
3
knew any of the tenants. All four stated that they did not live at the apartment complex
and could not identify any tenants.
Even though he had told Officer Robert that he did not live in the apartment
complex and did not know any tenants, Raheem again attempted to go back inside the
building. Officer Robert stepped in between Raheem and the door to prevent him from
going inside. Juanita then grabbed Officer Robert’s wrist for a third time. Officer Robert
removed her hand and told her yet again not to touch him. This prompted Raheem to
again confront Officer Robert in close proximity, face-to-face. Officer Robert pushed
Raheem away with one hand. Raheem reacted by swinging his fists at Officer Robert.
Before Raheem could strike him, Officer Robert knocked Raheem to the ground and
attempted to handcuff him. As he attempted to handcuff Raheem, and as Raheem
continued to resist and strike Officer Robert, Johnson jumped on the officer’s back.
Officer Robert then removed Johnson from his back and stood face-to-face with Johnson.
Raheem and Johnson continued to strike Officer Robert, so Officer Robert radioed for
backup.
Johnson and his brother continued to fight Officer Robert as they moved from the
porch area to the cul-de-sac. At this point, Juanita joined in the attack against Officer
Robert. When the combatants reached the middle of the cul-de-sac, Kuspa had joined in
the attack. In an attempt to regain control of the situation, Officer Robert reached for his
taser or his service pistol, but his belt had been turned around during the fight, so Officer
Robert could not immediately access his weapons. As the officer attempted to straighten
his belt, Johnson, Raheem, Juanita, and Kuspa continued to strike Officer Robert. When
4
Officer Robert was finally able to retrieve his pistol, he retreated several feet, pointed the
gun, and warned his attackers to stay back. As his attackers continued their advance,
Officer Robert determined that he had not been subject to deadly force, so he re-holstered
his weapon. Instead, Officer Robert decided to attempt to handcuff Raheem again, as
Raheem was the individual who had initiated the fight.
When Officer Robert attempted to handcuff Raheem, Raheem fled from Officer
Robert on foot. Officer Robert gave chase and quickly caught up with him and began to
handcuff him. As he did so, the other three combatants resumed their attack upon him.
As backup officers arrived, Officer Robert was able to handcuff Raheem, but Johnson
had fled. After searching one other apartment unit, the police found Johnson hiding in a
closet in another unit and arrested him. As a result of the fight, Officer Robert suffered a
wound on the palm of his hand in addition to scratches and a painful bruise on his right
arm. Officer Robert’s eyeglasses were destroyed during the fight, and his vest was ripped
and torn to such an extent that it had to be discarded.
On May 25, 2011, the State charged Johnson with Class D felony battery on a law
enforcement officer and Class A misdemeanor resisting law enforcement in Cause No.
71D03-1105-FD-408 (“Cause FD-408”). Johnson had earlier pleaded guilty to Class D
felony possession of marijuana in Cause No. 71D01-1006-FD-528 (“Cause FD-528”) and
was on probation for this offense at the time of the attack on Officer Robert. On June 24,
2011, the State filed a petition to revoke Johnson’s probation in Cause FD-528 as a result
of the new pending charges in Cause FD-408.
5
A joint jury trial and probation revocation hearing was held on September 28 and
29, 2011. At the conclusion of the trial, the jury found Johnson guilty of Class D felony
battery on a law enforcement officer, but acquitted him of resisting law enforcement.
The trial court then found that Johnson had violated the terms of his probation by
committing a new criminal offense. On October 26, 2011, the trial court sentenced
Johnson to two years of incarceration as a result of his conviction in Cause FD-408. The
trial court also revoked Johnson’s probation in Cause FD-528 and ordered execution of
Johnson’s previously-suspended sentence of two and one-half years. Johnson now
appeals.
I. Batson Challenge
Johnson claims that the trial court erred in overruling his Batson challenge to the
State’s use of a peremptory strike to remove an African-American juror from the venire.
Our supreme court recently explained that “[p]urposeful racial discrimination in selection
of the venire violates a defendant’s right to equal protection because it denies him the
protection that a trial by jury is intended to secure.” Addison v. State, 962 N.E.2d 1202,
1208 (Ind. 2012) (citing Batson v. Kentucky, 476 U.S. 79, 86 (1986)). The exclusion of
even a single prospective juror based on race, ethnicity, or gender violates the Fourteenth
Amendment’s Equal Protection Clause. Id. (citing Snyder v. Louisiana, 552 U.S. 472,
478 (2008)). “[P]ursuant to Batson and its progeny, a trial court must engage in a three-
step process in evaluating a claim that a peremptory strike was based on race. Cartwright
v. State, 962 N.E.2d 1217, 1220 (Ind. 2012).
6
First, “‘a defendant must make a prima facie showing that a peremptory challenge
has been exercised on the basis of race[.]’” Id. (quoting Snyder, 552 U.S. at 476-77).
Using a peremptory strike to remove some African-American jurors does not, by itself,
raise an inference of racial discrimination. Addison, 962 N.E.2d at 1209 (citing Kent v.
State, 675 N.E.2d 332, 340 (Ind. 1996)). But the removal of the only African-American
juror on the venire panel does raise an inference that the juror was excluded on the basis
of race. Id. (citing McCormick v. State, 803 N.E.2d 1108, 1111 (Ind. 2004); McCants v.
State, 686 N.E.2d 1281, 1284 (Ind. 1997)).
Here, Johnson objected when the State used a peremptory strike to remove Juror
No. 13, an African-American male. As noted by the State, another African-American
remained on the panel of potential jurors. In fact, the other African-American was
eventually selected as the alternate juror. Under these facts and circumstances, we cannot
say that Johnson met his burden of making a prima facie showing that the peremptory
challenge was based on the race of Juror No. 13. See Addison, 962 N.E.2d at 1209.
It has been held, however, that “once the [State] ‘has offered a race-neutral
explanation for the peremptory challenges and the trial court has ruled on the ultimate
question of intentional discrimination, the preliminary issue of whether the [defendant]
had made a prima facie showing becomes moot.” Jeter v. State, 888 N.E.2d 1257, 1264
(Ind. 2008) (quoting Hernandez v. New York, 500 U.S. 352, 359 (1991)). We therefore
proceed to the second step of the Batson analysis. See Jeter, 888 N.E.2d at 1264.
In the second step of the Batson analysis, once the defendant has made a prima
facie showing, the prosecution must offer a “race-neutral basis for striking the juror in
7
question[.]” Addison, 962 N.E.2d at 1209 (citing Snyder, 552 U.S. at 476-77). An
explanation is considered race-neutral if, on its face, it is based on something other than
race. Id. (citing Forrest v. State, 757 N.E.2d 1003, 1004 (Ind. 2001)). “‘Unless a
discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will
be deemed race neutral.’” Id. (quoting Purkett v. Elem, 514 U.S. 765, 768 (1995) (per
curiam)). And although the race-neutral reason must be more than a mere denial of
improper motive, the reason need not be particularly persuasive, or even plausible. Id.Here, the State offered the race-neutral reason that Juror No. 13 had indicated that
he had been awake for a long period of time due to his third-shift job and would therefore
find it hard to focus on the trial.2 This is well supported by the record. Juror No. 13
indicated that he had awakened on the evening before trial, went to work at 10:00 p.m.
and remained there until 6:00 a.m. He then reported for jury duty at 10:00 a.m. that same
day. Juror No. 13 explained that he usually sleeps after he returns home from work in the
morning until 2:00 p.m. or 3:00 p.m. When the trial court asked Juror No. 13 if he would
be too tired to be able to serve on the jury, the juror responded that he would be too tired.
He also indicated that he had to work at 10:00 p.m. that night as well. Thus, serving on
the jury had the potential to make him stay awake for almost two days straight. When
questioned by Johnson’s counsel, Juror No. 13 stated that he would be tired but believed
2
The prosecuting attorney also proffered the race-neutral reason that Juror No. 13 had stated during voir
dire that none of his family members had been charged with a crime, whereas the prosecuting attorney
had “information that both his mother and father had been charged with crimes[.]” Tr. p. 62. When
pressed by the trial court as to how the prosecuting attorney knew that the individuals charged with the
crimes were in fact Juror No. 13’s parents, the prosecuting attorney admitted that he was “not a hundred
percent sure, but that’s the information that I received.” Id. at 62-63. The trial court then expressly based
its ruling on the Batson challenge on Juror No. 13’s work schedule. Id. at 64. We therefore consider only
this proffered race-neutral reason in our analysis.
8
that he could be attentive. But he also admitted that he had never stayed awake for a full
day after working third shift. It is therefore clear that the State proffered a race-neutral
reason for using its peremptory strike to remove Juror No. 13.
The last part of the Batson analysis is for the trial court to determine, in light of the
parties’ submissions, whether the defendant has shown purposeful discrimination.
Addison, 962 N.E.2d at 1209. “Although the burden of persuasion on a Batson challenge
rests with the party opposing the strike, the third step—determination of discrimination—
is the ‘duty’ of the trial judge.” Id. (citing Miller–El, 545 U.S. at 239; Jeter, 888 N.E.2d
at 1264-65). It is for the trial court to evaluate the persuasiveness of the proffered race-
neutral justification at the third step of the analysis. Id. “It is then that ‘implausible or
fantastic justifications may (and probably will) be found to be pretexts for purposeful
discrimination.’” Cartwright, 962 N.E.2d at 1221 (quoting Purkett, 514 U.S. at 768). At
this final step, the defendant may offer additional evidence to demonstrate that the
proffered justification was pretextual. Id. Upon appellate review of the trial court’s
decision, we give great deference to the trial court’s decision concerning whether a
peremptory challenge is discriminatory, and the trial court’s decision will be set aside
only if it is clearly erroneous. Id. (citing Forrest, 757 N.E.2d at 1004; Miller–El v.
Cockrell, 537 U.S. 322, 340 (2003)).
Here, the trial court’s finding of no purposeful racial discrimination was not
clearly erroneous. As explained above, Juror No. 13 admitted that he had been awake for
a long period of time and therefore would find it hard to concentrate on the trial. He also
9
admitted that he had never been awake for such a long period of time after having worked
the night before.
In this sense, the present case is similar to that before our supreme court in Forrest,
where the State used a peremptory strike to remove the only African-American on the
jury panel. When the defendant made a Batson objection, the State noted that the juror in
question had laughed at jokes made by defense counsel and also indicated that she had
gotten only forty-five minutes’ sleep the night before. Even though the juror indicated
that she should be able to serve as juror despite her lack of sleep, the trial court overruled
the defendant’s Batson challenge. Forrest, 757 N.E.2d at 1005. On appeal, our supreme
court affirmed the trial court’s ruling, concluding that, based on the juror’s lack of sleep,
the trial court did not clearly err in determining that the State’s use of the peremptory
challenge was not discriminatory. Id.
Moreover, there is no indication in the case before us that the State’s race-neutral
explanation was merely a pretext. The State made a successful for-cause challenge to
Juror No. 7, a non-African-American, who also indicated that he had little sleep the night
before. See Tr. p. 57-59. In fact, the State first made a challenge for cause to remove
Juror No. 13 for the same reason, which the trial court denied. See Cartwright, 962
N.E.2d at 1223 (affirming trial court’s determination that defendant failed to prove
purposeful racial discrimination in use of peremptory strike to remove African-American
from jury panel where non-African-Americans with issues similar to that of stricken
African-American were dismissed from the jury for cause and by use of peremptory
strikes). Cf. Addison, 962 N.E.2d at 1215 (reversing trial court’s ruling that State’s use
10
of peremptory strike to remove African-American from jury panel where non-African
American jurors gave “strikingly similar” answers to the answers given by the stricken
juror that formed the State’s proffered “race-neutral” reason for striking the juror).
Nor does it appear here that the State used its peremptory challenges in a pattern to
remove other African-Americans from the jury panel. See Boney v. State, 880 N.E.2d
279, 288 (Ind. Ct. App. 2008) (citing Batson, 476 U.S. at 96-97) (noting that a pattern of
strikes against minority jurors in a venire can give rise to an inference of discrimination).
Although there were apparently only two African-Americans on the venire, the State did
not use a peremptory strike to remove the other African-American from the panel, and
this juror was ultimately chosen to serve as the alternate juror.3 Tr. p. 71.
Under these facts and circumstances, the trial court did not clearly err in
determining that Johnson failed to meet his burden of proving purposeful racial
discrimination in the State’s use of a peremptory strike to remove one of two African-
American jurors from the jury panel.
II. Sufficiency of the Evidence
Johnson next claims that the State failed to present evidence sufficient to support
his conviction for Class D felony battery on a law enforcement officer resulting in bodily
injury. In reviewing Johnson’s claim, we respect the exclusive province of the trier of
fact to weigh any conflicting evidence. McHenry v. State, 820 N.E.2d 124, 126 (Ind.
2005). Thus, we will neither reweigh the evidence nor judge the credibility of witnesses.
3
We reject Johnson’s contention that the trial court believed that the Batson analysis was inapplicable
simply because there was another African-American on the jury panel.
11
Id. We consider only the probative evidence and reasonable inferences supporting the
verdict, and we will affirm if the probative evidence and reasonable inferences drawn
from the evidence could have allowed a reasonable trier of fact to find the defendant
guilty beyond a reasonable doubt. Id.To convict Johnson of Class D felony battery, the State was required to prove that
he knowingly or intentionally touched Officer Robert in a rude, insolent, or angry manner
and that this resulted in bodily injury to Officer Robert, a law enforcement officer. See
Ind. Code § 35-42-2-1(a)(2)(A); see also Appellant’s App. p. 86. On appeal, Johnson
does not deny that Officer Robert was a law enforcement officer. See Appellant’s Br. at
11 (“Officer Theodore Robert was a South Bend police officer on May 24, 2011 [and]
was working for the South Bend Housing Authority at the time he heard a dispatch
request to the South Bend Apartments.”). Instead, he claims that Officer Robert’s
account of what happened was inconsistent with the testimony of other witnesses and was
“incredibly dubious.”
Application of the “incredible dubiosity” rule is limited to those situations where a
sole witness presents inherently contradictory testimony, which is equivocal or the result
of coercion, and there is a complete lack of circumstantial evidence of the defendant’s
guilt. Baumgartner v. State, 891 N.E.2d 1131, 1138 (Ind. Ct. App. 2008) (citing Majors v.
State, 748 N.E.2d 365, 367 (Ind. 2001)). We will overturn a conviction based upon the
incredible dubiosity rule only when the testimony is so incredibly dubious or inherently
improbable that it runs counter to human experience, and no reasonable person could
believe it. Id. (citing Kien v. State, 782 N.E.2d 398, 407 (Ind. Ct. App. 2003)).
12
Inconsistencies in the testimony of witnesses go to the weight of the evidence and
credibility of each individual witnesses’ testimony, and such inconsistencies do not make
the evidence “incredible” as a matter of law. Stephenson v. State, 742 N.E.2d 463, 497
(Ind. 2001).
Simply put, there is nothing about Officer Robert’s testimony which is so
incredibly dubious or inherently improbable that it runs counter to human experience
with the result that no reasonable person could believe it. Officer Robert testified that
Johnson jumped on his back when the officer attempted to place Johnson’s brother in
handcuffs. Officer Robert also testified that Johnson was one of four individuals who
attacked Officer Robert and struck him with their fists. As a result of the fight, Officer
Robert sustained injuries to his palm and right arm. From this testimony, the jury could
reasonably conclude that Johnson touched Officer Robert, a law enforcement officer, in a
rude insolent, or angry manner, and that this touching resulted in bodily injury to Officer
Robert. See Ind. Code § 35-41-1-4 (2004) (defining “bodily injury” as “any impairment
of physical condition, including physical pain.”).4 Johnson’s argument to the contrary is
simply a request that we believe his testimony instead of Officer Robert’s testimony,
which is precluded by our standard of review.
III. Probation Violation
Johnson next claims that the evidence was insufficient to support the trial court’s
conclusion that Johnson violated the terms of his probation in Cause FD-528 by
4
Effective July 1, 2012, this definition is now located at Indiana Code section 35-31.5-2-29. See
P.L.114-2012 § 67.
13
committing another criminal offense. A probation revocation hearing is in the nature of a
civil proceeding, and the alleged violation therefore need be proven only by a
preponderance of the evidence. Mateyko v. State, 901 N.E.2d 554, 558 (Ind. Ct. App.
2009), trans. denied. On appeal, we consider only the evidence most favorable to the
judgment, and we will neither reweigh the evidence nor judge the credibility of the
witnesses. Id. We will affirm the trial court’s judgment so long as substantial evidence
of probative value exists to support the trial court’s finding that a violation occurred, and
the violation of a single condition of probation is sufficient to revoke probation.
Wilkerson v. State, 918 N.E.2d 458, 461 (Ind. Ct. App. 2009).
As previously discussed, the State presented evidence sufficient to prove beyond a
reasonable doubt that Johnson committed Class D felony battery on Officer Robert. It
therefore follows that the State also presented evidence sufficient to establish by a
preponderance of the evidence that Johnson violated the terms of his probation by
committing this additional crime. See Braxton v. State, 651 N.E.2d 268, 270 (Ind. 1995)
(“it is always a condition of probation that a probationer not commit an additional
crime.”) (citing Ind. Code § 35-38-2-1(a)).
IV. Lesser-Included Offense Instruction
Johnson lastly claims that the trial court erred in refusing to give the jury his
proffered instruction on the lesser-included offense of Class A misdemeanor battery. The
manner of instructing the jury lies within the discretion of the trial court, and we will
reverse the trial court only upon an abuse of that discretion. Smith v. State, 777 N.E.2d
1432, 34 (Ind. Ct. App. 2002). An abuse of discretion occurs if the instructions, considered
as a whole and in reference to each other, mislead the jury as to the applicable law.
In Webb v. State, our supreme court explained the three-part test that trial courts
should perform when called upon by a party to instruct the jury on a lesser-included
offense of the charged crime:
First, the trial court must compare the statute defining the crime charged
with the statute defining the alleged lesser included offense to determine if
the alleged lesser included offense is inherently included in the crime
charged. Second, if a trial court determines that an alleged lesser included
offense is not inherently included in the crime charged under step one, then
it must determine if the alleged lesser included offense is factually included
in the crime charged. If the alleged lesser included offense is neither
inherently nor factually included in the crime charged, the trial court should
not give an instruction on the alleged lesser included offense. Third, if a
trial court has determined that an alleged lesser included offense is either
inherently or factually included in the crime charged, it must look at the
evidence presented in the case by both parties to determine if there is a
serious evidentiary dispute about the element or elements distinguishing the
greater from the lesser offense and if, in view of this dispute, a jury could
conclude that the lesser offense was committed but not the greater. It is
reversible error for a trial court not to give an instruction, when requested,
on the inherently or factually included lesser offense if there is such an
evidentiary dispute.
963 N.E.2d 1103, 1106 (Ind. 2012) (citing Wright v. State 658 N.E.2d 563 (Ind. 1995))
(citations and internal quotations omitted).
Johnson’s proffered instruction read in pertinent part:
The crime of battery is defined by statute as follows:
A person who knowingly or intentionally touches another person in a rude,
insolent or angry manner which:
Results in bodily injury to any other person
Or
15
Is committed against a law enforcement officer or against a person
summoned and directed by the officer while the officer is engaged in the
execution of his official duty
Commits battery, a Class A misdemeanor.
Before you may convict the Defendant, the State must prove each of the
following beyond a reasonable doubt:
1. The Defendant
2. Knowingly or intentionally
3. Touched Theodore Robert
4. In a rude, insolent or angry manner
5. Which resulted in bodily injury to Theodore Robert
6. Or was committed against Theodore Robert a law enforcement
officer.
If the State failed to prove each of these elements beyond a reasonable
doubt, you must find the Defendant not guilty of battery, a Class A
misdemeanor. If the State did prove each and every element beyond a
reasonable doubt, you may find the Defendant guilty of the lesser included
offense of battery, a Class A misdemeanor.
Appellant’s App. p. 61.
On appeal, the State admits that Class A misdemeanor battery is an inherently and
factually included offense of the charged crime of Class D felony battery. The State also
admits that Johnson’s proffered instruction was a correct statement of the law.5 The State
focuses its argument on the third prong of the analysis, i.e. whether there was a serious
evidentiary dispute about the element or elements distinguishing the greater from the
lesser offense. On appeal, Johnson claims that “the only difference between the crime
5
We note, however, that although this instruction generally tracks the statutory language of Indiana Code
section 35-42-2-1(a)(1)(A) and (B), it is not entirely clear as to what is required to find the defendant
guilty of Class A misdemeanor battery. The instruction states that the State must prove each of the
elements, but it uses the disjunctive “or” at the beginning of element 6. The instruction further states that
the jury must find Johnson not guilty if the State failed to prove each of these elements. It then repeats
the requirement that the State prove “each and every element” in order to find Johnson guilty of the lesser
included offense of Class A misdemeanor battery. The use of the disjunctive “or” at the beginning of the
listed sixth element, along with instructing the jury that it must find “each and every” element listed in
order to find Johnson guilty, had the potential to confuse the jury and make it think that it had to prove all
six elements listed, which is incorrect.
16
charged and the lesser included offense is that the bodily injury is to a law enforcement
officer.” Appellant’s Br. at 18.
As noted above, to convict Johnson of Class D felony battery, the State was
required to prove that he knowingly or intentionally touched Officer Robert in a rude,
insolent, or angry manner and that this resulted in bodily injury to Officer Robert, a law
enforcement officer. See Ind. Code § 35-42-2-1(a)(2)(A); see also Appellant’s App. p.
86. To convict Johnson of Class A misdemeanor battery, the State would have had to
prove that he knowingly or intentionally touched Officer Robert in a rude insolent or
angry manner and that this touching either “result[ed] in bodily injury to any other person”
or was “committed against a law enforcement officer or against a person summoned and
directed by the officer while the officer [wa]s engaged in the execution of the officer’s
official duty.” In other words, to convict Johnson of Class A misdemeanor battery, the
State had to prove that Johnson’s battery resulted in bodily injury to any other person or
that the battery was committed against a law enforcement officer, whereas to convict him
of Class D felony battery, the State had to prove that Johnson’s battery resulted in bodily
injury to a law enforcement officer.
It is not entirely clear from Johnson’s argument as to which element he claims
there was a serious evidentiary dispute. But, as noted above, Johnson makes no
cognizable claim that Officer Robert was not a law enforcement officer. We therefore
understand Johnson’s claim to be that there was a serious evidentiary dispute with regard
to whether his battery resulted in serious bodily injury to Officer Robert.
17
The evidence at trial clearly demonstrated that Officer Robert suffered from
injuries as a result of the fight with Johnson and his companions. Johnson elicited
testimony from Officer Robert that he was unsure of which assailant caused which
particular injury, but the jury was instructed on accomplice liability. Thus, which
assailant caused which particular injury was not an issue at trial. See Wieland v. State,
736 N.E.2d 1198, 1202 (Ind. 2000) (“accomplice liability applies to the contemplated
offense and all acts that are a probable and natural consequence of the concerted
action.”); Kendall v. State, 790 N.E.2d 122, 132 (Ind. Ct. App. 2003) (noting that an
accomplice is liable for everything which follows incidentally in the execution of the
common design, as one of its natural and probable consequences, even though it was not
intended as a part of the original design or common plan), trans. denied. There was no
serious evidentiary dispute that Officer Robert suffered bodily injury as a result of the
fight with Johnson and his accomplices.
Moreover, Johnson’s own testimony was that he was not involved in the fight at
all and was instead inside one of the apartment units. If the jury believed Johnson’s
testimony, then it would have to have found him not guilty of any battery. Johnson never
claimed that he did not cause bodily injury to Officer Robert. Because there was no
serious evidentiary dispute about the elements distinguishing the greater from the lesser
offense, we cannot say that the trial court abused its discretion in refusing to give
Johnson’s tendered instruction on Class A misdemeanor battery.
18
Conclusion
The State presented evidence sufficient to support Johnson’s conviction for Class
D felony battery on a law enforcement officer resulting in bodily injury in Cause FD-408.
This same evidence was also sufficient to support the trial court’s conclusion that
Johnson violated the terms of his probation in Cause FD-528 by committing this
additional criminal offense. The trial court did not clearly err in overruling Johnson’s
Batson challenge to the State’s use of a peremptory strike to remove an African-
American member of the jury panel, and the trial court did not abuse its discretion in
refusing Johnson’s proffered instruction on the lesser-included offense of Class A
misdemeanor battery.
Affirmed.
VAIDIK, J., and BARNES, J., concur.
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