Cortez Boxley v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Jan 21 2020, 7:42 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Karen Celestino-Horseman Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Lauren A. Jacobsen
Deputy Attorney General
Michael Vo Sherman
Certified Legal Intern
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Cortez Boxley, January 21, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-902
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Mark D. Stoner,
Appellee-Plaintiff. Judge
Trial Court Cause No.
49G06-1710-F1-39804
Sharpnack, Senior Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-902 | January 21, 2020 Page 1 of 5
Statement of the Case
[1] Cortez Boxley appeals his conviction of striking a law enforcement animal, a
1
Class A misdemeanor. We affirm.
Issue
[2] Boxley presents one issue for our review, which we restate as: whether there
was sufficient evidence to sustain Boxley’s conviction of striking a law
enforcement animal.
Facts and Procedural History
[3] The facts most favorable to the verdict follow. In October 2017, Trooper Butt
of the Indiana State Police received a dispatch of a suspect fleeing from a traffic
stop. While searching for the suspect, Trooper Butt saw Boxley, who matched
the description of the suspect. Trooper Butt attempted to speak with Boxley,
but, as the trooper was attempting to place Boxley in handcuffs for safety,
Boxley elbowed the trooper in the chest and ran. The trooper released his K-9
companion, Apache, who caught up to Boxley and latched onto him. Boxley
attempted to continue running with Apache latched onto his arm. At some
point, Boxley turned toward Apache with a gun in his hand and fired. Trooper
Butt then began firing at Boxley but stopped once Boxley ceased firing his gun.
1
Ind. Code § 35-46-3-11 (2014).
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Apache sustained entrance and exit wounds and had metal fragments in his
neck; however, the wounds were not fatal.
[4] Based upon this incident, Boxley was charged with attempted murder, a Level 1
2
felony; carrying a handgun without a license with a prior conviction, a Level 5
3 4
felony; resisting law enforcement, a Level 6 felony; and striking a law
enforcement animal, a Class A misdemeanor. A jury found Boxley guilty of all
charges except the attempted murder. He was sentenced to five years with three
suspended on the handgun conviction, concurrent with two years on the
resisting conviction and one year on the striking a law enforcement animal
conviction. His sentence on the handgun conviction was ordered to be served
consecutively to a sentence in an unrelated cause. Boxley now appeals.
Discussion and Decision
[5] Boxley’s sole contention on appeal is the sufficiency of the evidence supporting
his conviction of striking a law enforcement animal. Particularly, he argues
that it is impossible to know who fired the bullet that struck Apache because
only one recovered bullet was positively identified as having been fired from
Boxley’s gun, and Trooper Butt fired at Boxley approximately fourteen times
while Apache was latched onto Boxley.
2
Ind. Code §§ 35-42-1-1 (2017), 35-41-5-1 (2014).
3
Ind. Code § 35-47-2-1 (2017).
4
Ind. Code § 35-44.1-3-1 (2016).
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[6] In reviewing such challenges, we neither reweigh the evidence nor judge the
credibility of the witnesses. Sandleben v. State, 29 N.E.3d 126, 131 (Ind. Ct.
App. 2015), trans. denied. Instead, we consider only the evidence most favorable
to the verdict and any reasonable inferences drawn therefrom. Id. If there is
substantial evidence of probative value from which a reasonable fact-finder
could have found the defendant guilty beyond a reasonable doubt, the verdict
will not be disturbed. Labarr v. State, 36 N.E.3d 501, 502 (Ind. Ct. App. 2015).
Moreover, when an appellant challenges the sufficiency of the evidence of his
conviction after a jury verdict, “the appellate posture is markedly deferential to
the outcome below.” Bowman v. State, 51 N.E.3d 1174, 1181 (Ind. 2016).
[7] In order to convict Boxley of striking a law enforcement animal, the State was
required to prove that he knowingly or intentionally struck, tormented, injured,
or otherwise mistreated a law enforcement animal. See Ind. Code § 35-46-3-11.
Boxley challenges the State’s evidence that he was the person who injured
Apache.
[8] At trial, Trooper Butt testified that Apache had latched on to Boxley’s right
arm. The trooper observed Boxley raise his arm, “kind of yanking” Apache
and “kind of dragging” him. Tr. Vol. II, p. 42. Trooper Butt then saw Boxley
with a silver pistol, observed a flash, and heard a “bang two times” while
Boxley had the gun aimed at Apache. Id. at 43. In addition, Trooper Malone
testified that, as he was arriving on the scene, he saw Boxley “push off of”
Trooper Butt, start to run away, and then turn and start firing at Trooper Butt.
Id. at 226. Once Apache latched onto Boxley, Trooper Malone observed
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Boxley “relocate[ ] his fire from Trooper Butt down to Trooper Apache.” Id.
He further clarified that Boxley “was firing shots at Apache.” Id. The jury also
viewed pictures of the location of the entrance and exit wounds on Apache’s
neck.
[9] The result of the jury carrying out its function of determining the weight of the
evidence and the credibility of the witnesses is that it is free to believe
whomever it wishes. Klaff v. State, 884 N.E.2d 272, 274 (Ind. Ct. App. 2008).
Moreover, it is not necessary that the evidence overcome every reasonable
hypothesis of innocence; rather, 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, 147 (Ind. 2007). Here, the jury heard the testimony of Troopers Butt and
Malone, determined the troopers’ credibility, weighed that evidence with all the
other evidence, and found Boxley guilty. Boxley’s argument on appeal is
simply an invitation for us to reweigh the evidence, and we cannot accept.
Conclusion
[10] For the reasons stated, we conclude the State presented evidence sufficient to
support Boxley’s conviction of striking a law enforcement animal.
[11] Affirmed.
Brown, J., and Tavitas, J., concur.
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