Gerald Mayberry v. State of Indiana

Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
FILED
Apr 17 2012, 9:13 am
regarded as precedent or cited before any
court except for the purpose of
CLERK
establishing the defense of res judicata, of the supreme court,
court of appeals and
tax court
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
TIMOTHY J. BURNS GREGORY F. ZOELLER
Indianapolis, Indiana Attorney General of Indiana
RICHARD C. WEBSTER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
GERALD MAYBERRY, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1109-CR-879
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Kimberly J. Brown, Judge
The Honorable Teresa Hall, Commissioner
Cause No. 49G16-1107-CM-50709
April 17, 2012
MEMORANDUM DECISION – NOT FOR PUBLICATION
RILEY, Judge
STATEMENT OF THE CASE
Appellant-Defendant, Gerald Mayberry (Mayberry), appeals his conviction for
Count I, interference with reporting a crime, a Class A misdemeanor, Ind. Code § 35-45-
2-5; and Count II, battery, a Class B misdemeanor, I.C. § 35-42-2-1.
We affirm.
ISSUES
Mayberry raises two issues on appeal, which we restate as follows:
(1) Whether the State produced sufficient evidence to prove beyond a reasonable
doubt that he committed interference with reporting a crime; and
(2) Whether the State produced sufficient evidence to prove beyond a reasonable
doubt that he committed battery.
FACTS AND PROCEDURAL HISTORY
In July of 2011, Tika Bell (Bell) and her two children lived in the Laurelwood
Apartments in Indianapolis, Indiana. Bell and Mayberry had been in a relationship for
approximately four months at that time. On the morning of July 17, 2011, they were in
her room, and Bell was getting her children ready to go to church with her aunt. Bell was
sitting on her bed combing her daughter’s hair when she and Mayberry got into an
argument. Bell asked Mayberry to leave and started yelling “curse words” at him.
(Transcript p. 14). Mayberry approached Bell, grabbed her throat with one hand and
2
choked her. He could not get a good grip because Bell’s daughter was between them, but
he impeded her breathing and made it difficult for her to swallow.
When Mayberry released Bell, she told him that she was going to call the police.
She picked up the phone and dialed, but Mayberry ripped the telephone cord out of the
wall before her call connected. Mayberry then went downstairs, followed by Bell. Bell
again told Mayberry that she was going to call the police, and he smiled at her and
walked out of the house. After Mayberry’s departure, Bell accessed another phone cord
she had in the house and called 911.
On July 19, 2011, the State filed an Information charging Mayberry with Count I,
interference with reporting a crime, a Class A misdemeanor, I.C. § 35-45-2-5; and Count
II, battery, a Class B misdemeanor, I.C. § 35-42-2-1. On September 1, 2011, a bench
trial was held. At the conclusion of the evidence, the trial court found Mayberry guilty of
both Counts and sentenced him to 365 days, with 180 days suspended for Count I, and
180 days executed for Count II, with the sentences to run concurrently.
Mayberry now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
On appeal, Mayberry challenges the sufficiency of the evidence supporting both
Counts of his conviction. In reviewing a sufficiency of the evidence claim, this court
does not reweigh evidence or judge the credibility of witnesses. Perez v. State, 872
N.E.2d 208, 213 (Ind. Ct. App. 2007), trans. denied. In addition, we only consider the
evidence most favorable to the judgment and the reasonable inferences stemming from
3
that evidence. Id. We will only reverse a conviction when reasonable persons would not
be able to form inferences as to each material element of the offense. Id. at 212-13.
I. Interference with Reporting a Crime
In order to convict Mayberry of interference with the reporting of a crime, the
State was required to prove beyond a reasonable doubt that he “with the intent to commit,
conceal, or aid in the commission of a crime, knowingly or intentionally interfere[d] with
or prevent[ed] an individual from: (1) using a 911 emergency telephone system . . . .”
I.C. § 35-45-2-5.
Mayberry argues that there was insufficient evidence of his intent to prevent Bell
from calling 911 because he left the house after Bell told him she was going to call 911
and did not stop her from making the phone call. However, we conclude that in spite of
the fact that Bell eventually called 911, there is sufficient evidence that Mayberry
interfered with her call. Specifically, Bell testified that when she dialed the police,
Mayberry ripped the phone cord out of the wall, thereby preventing her from completing
the call. When Mayberry left shortly thereafter, Bell had to find an old phone cord in
order to continue her interrupted call to 911. Thus, Mayberry interfered with Bell’s call.
II. Battery
In order to convict Mayberry of battery as a Class B misdemeanor, the State was
required to prove beyond a reasonable doubt that he “knowingly or intentionally
touch[ed] another person in a rude, insolent, or angry manner.” I.C. § 35-42-2-1. We
4
recognize that any touching, however slight, may constitute a battery. Impson v. State,
721 N.E.2d 1275, 1285 (Ind. Ct. App. 2000).
With respect to this charge, Mayberry points to his testimony that he attempted to
kiss Bell rather than choke her. He also claims that the evidence presented at trial was
not sufficient to support his conviction, even if we do not reweigh the evidence to take
into account his testimony. However, as Mayberry acknowledges, we may not reweigh
the evidence on appeal. Perez, 872 N.E.2d at 213. In light of that standard, we cannot
agree with his argument. Bell testified that Mayberry placed his hand around her throat
and choked her, thereby impeding her breathing and making it difficult for her to
swallow. It is clear that this was an intentional rude and insolent touch. Thus, we
conclude that the State presented sufficient evidence that Mayberry committed battery as
a Class B misdemeanor.
CONCLUSION
Based on the foregoing, we conclude that (1) the State produced sufficient
evidence to prove beyond a reasonable doubt that Mayberry committed interference with
reporting a crime and (2) the State produced sufficient evidence to prove beyond a
reasonable doubt that Mayberry committed battery.
Affirmed.
NAJAM, J. and DARDEN, J. concur
5