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

• Court: Indiana Court of Appeals
• Decided: January 21, 2020
• Docket: 19A-CR-902
• Status: Published

Opinion

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).

Court of Appeals of Indiana | Memorandum Decision 19A-CR-902 | January 21, 2020 Page 2 of 5 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).

Court of Appeals of Indiana | Memorandum Decision 19A-CR-902 | January 21, 2020 Page 3 of 5 [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

Court of Appeals of Indiana | Memorandum Decision 19A-CR-902 | January 21, 2020 Page 4 of 5 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.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-902 | January 21, 2020 Page 5 of 5