Gregory Garrett v. State of Indiana

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
Apr 19 2013, 9:57 am
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:
SUZY ST. JOHN GREGORY F. ZOELLER
Indianapolis, Indiana Attorney General of Indiana
JONATHAN R. SICHTERMANN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
GREGORY GARRETT, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1208-CR-666
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Rebekah Pierson-Treacy, Judge
Cause No. 49F19-1205-CM-30199
April 19, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
PYLE, Judge
STATEMENT OF THE CASE
Gregory Garrett (“Garrett”) appeals his conviction for Class A misdemeanor
battery.1
We affirm.
ISSUE
Whether sufficient evidence supports Garrett’s conviction.
FACTS
Garrett was an inmate at the Duvall Residential Center (“Duvall”), a community
corrections facility in Indianapolis, Indiana. On May 6, 2012, Garrett returned to the
facility from a scheduled leave. When Garrett returned to Duvall, facility guards
attempted to perform a search of his belongings. Mark Callahan (“Callahan”), a guard at
Duvall, escorted Garrett to a holding room to perform the search. During the search,
Callahan attempted to look inside a sandwich bag; the sandwich appeared to have
something in it. When Garrett would not let Callahan search the bag, other officers were
called for assistance; Garrett fled the room. Callahan attempted to block Garrett’s path,
but Garrett pushed Callahan against the door frame and ran down a hallway. Callahan
caught up with Garrett and wrapped his arms around Garrett’s waist. Garrett continued
to resist, dragging Callahan into another door frame. Garrett finally stopped and other
officers arrived to assist. The facility’s security cameras recorded the incident. A deputy
reviewed the footage and arrested Garrett for battery.
1
Ind. Code § 35-42-2-1.
2
On May 7, 2012, the State charged Garrett with battery, a Class A misdemeanor.
On July 23, 2012, a bench trial was held, and Garrett was found guilty of Class A
misdemeanor battery. The trial court sentenced Garrett to one hundred fifty-eight days
(158) executed in the Marion County Jail with credit for time already served.
DECISION
Garrett argues that the evidence was insufficient to support his conviction for
battery. Specifically, Garrett alleges that the State failed to prove that he knowingly
touched Callahan in a rude, insolent, or angry manner. The standard of review for such a
challenge is well settled. “[W]e neither reweigh evidence nor judge witness credibility.”
Henley v. State, 881 N.E.2d 639, 652 (Ind. 2008). “We consider only the evidence
supporting the judgment and any reasonable inferences that can be drawn from such
evidence.” Id. “We will affirm a conviction if there is substantial evidence of probative
value such that a reasonable trier of fact could have concluded the defendant was guilty
beyond a reasonable doubt.” Id.To convict Garrett of Class A misdemeanor battery as charged, the State had to
prove that he knowingly touched Callahan in a rude, insolent, or angry manner that
resulted in pain to Callahan. I.C. § 35-42-2-1. “A person engages in conduct
‘knowingly’ if, when he engages in the conduct, he is aware of a high probability that he
is doing so.” I.C. § 35-41-2-2(b).
The evidence supporting the judgment shows that Garrett was serving a sentence
at Duvall and was required to follow its rules. Callahan testified that he attempted to
complete a search of Garrett, and Garrett refused to let Callahan search a plastic bag.
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Callahan further testified that Garrett fled the holding room where the search was taking
place and, in doing so, forced his way through Callahan to exit the room, causing some
scraping. Callahan stated that he chased and caught Garrett by wrapping his hands
around Garrett’s waist; Garrett was able to open another door, dragging Callahan
through, scraping his arm and causing pain.
Garrett attempts to rebut this evidence by claiming he did not act with the
conscious objective to touch Callahan and that Callahan initiated the touching, in essence
claiming the right of self-defense. First, the State did not charge Garrett with
intentionally touching Callahan. Therefore, they were not required to prove Garrett’s
conscious objective was to do so.
For Garrett’s supposed self-defense claim to succeed, he had to show that he: (1)
was in a place where he had the right to be; (2) did not provoke, instigate or participate
willingly in the violence; and (3) had a reasonable fear of death or great bodily harm.
Sudberry v. State, 982 N.E.2d 475, 481 (Ind. Ct. App. 2013). Of course, Garrett did not
raise this during trial because the record clearly shows that the incident began with
Garrett forcing his way out of the room while Callahan attempted to block the door.
Thus, Garrett cannot show that he did not provoke, instigate, or participate willingly in
the violence. Considering Callahan’s testimony about the entire incident and the
accompanying video, we find there was substantial evidence for the trier of fact to infer
that Garrett was highly aware that his actions caused a touching in a rude, insolent, or
angry manner causing injury. See, e.g. Bailey v. State, 907 N.E.2d 1003, 1005 (Ind.
4
2009) (finding that trier of fact could infer defendant’s “push or physical movement of
disrespect” showing noncompliance, constituted touching).
Accordingly, we affirm Garrett’s conviction for Class A misdemeanor battery.
Affirmed.
ROBB, C.J., and MAY, J., concur.
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