Craig Nesbitt v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: January 13, 2017
• Docket: 49A02-1606-CR-1233
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Jan 13 2017, 9:50 am this Memorandum Decision shall not be regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court

the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Kimberly A. Jackson Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana Ellen H. Meilaender Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Craig Nesbitt, January 13, 2017 Appellant-Defendant, Court of Appeals Case No. 49A02-1606-CR-1233 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Lisa F. Borges, Appellee-Plaintiff Judge Trial Court Cause No. 49G04-1506-F2-19293

Baker, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1233 | January 13, 2017 Page 1 of 5 [1] Craig Nesbitt appeals his convictions for Kidnapping,1 a Level 3 Felony, and

Battery by Means of a Deadly Weapon,2 a Level 5 Felony. He argues that there

is insufficient evidence supporting his convictions. Finding the evidence

sufficient, we affirm.

Facts [2] In May 2015, Brandon McClendon, Andreas Wells, and Terrell Gordon shared

an apartment in Indianapolis. On the morning of May 26, McClendon was

getting ready for work while Wells was asleep and Gordon was in the

bathroom. As McClendon opened his apartment door to leave, two males

brandishing guns pushed their way into the apartment and grabbed McClendon

by his shirt. One of the men pointed the gun in McClendon’s face and pushed

him back into the apartment. He continued to push McClendon from the living

room into the hallway. The man repeatedly asked, “Where’s the money?” Tr.

p. 28. As the man pushed McClendon backwards, the two tripped over a piece

of furniture. The man struck McClendon on the head with the gun and the gun

fired, shooting a bullet into the ceiling. The man grabbed McClendon’s shirt

again and dragged him, “like a dog,” through the hallway towards the bedroom

and bathroom. Id. at 34.

1 Ind. Code § 35-42-3-2. 2 Ind. Code § 35-42-2-1.

Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1233 | January 13, 2017 Page 2 of 5 [3] Meanwhile, Gordon had retrieved his own gun. As the intruders made their

way down the hallway, Gordon aimed his gun through an open door and began

firing. He hit the man who had been dragging McClendon several times,

including once in the face. The intruders ran out, and McClendon barricaded

himself in the bedroom and called the police.

[4] Less than half an hour later, the police received a report of a man being treated

for a gunshot wound at a nearby hospital. At the hospital, they found Nesbitt,

who had been shot in the jaw and the left shoulder. Forensic investigators later

matched Nesbitt’s blood to blood found on the apartment door, the staircase

leading to the apartment, the back door of the apartment building, and the patio

outside.

[5] On June 4, 2015, the State charged Nesbitt with Level 2 felony burglary, Level

3 felony kidnapping, and Level 5 felony battery by means of a deadly weapon.

The State later added another Level 2 felony burglary charge. After an April

25-26, 2016, trial, a jury found Nesbitt guilty of kidnapping and battery, but not

guilty of the two burglary charges. On May 13, 2016, the trial court sentenced

Nesbitt to twelve years on the kidnapping conviction, with two years

suspended, and four years on the battery conviction, to be served concurrently.

Nesbitt now appeals.

Discussion and Decision [6] Nesbitt argues that there is insufficient evidence to support his kidnapping or

battery convictions. He argues that the evidence shows that he did not

Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1233 | January 13, 2017 Page 3 of 5 “remove” McClendon, but rather that McClendon’s movements were of his

own volition. Nesbitt also argues that he did not strike McClendon, but that

the two engaged in a mutual struggle over the gun.

[7] When reviewing the sufficiency of the evidence supporting a conviction, we will

neither reweigh the evidence nor assess witness credibility. Harbert v. State, 51

N.E.3d 267, 275 (Ind. Ct. App. 2016). We will consider only the evidence

supporting the judgment and any reasonable inferences that may be drawn

therefrom, and we will affirm if a reasonable trier of fact could have found the

defendant guilty beyond a reasonable doubt. Id.

[8] To convict Nesbitt of Level 3 felony kidnapping, the State was required to

prove beyond a reasonable doubt that Nesbitt “knowingly or intentionally

remove[d] another person by . . . force, or threat of force, from one place to

another” while armed with a deadly weapon. I.C. § 35-42-3-2(a); -2(b)(2)(A).

To convict him of Level 5 felony battery, the State was required to prove

beyond a reasonable doubt that Nesbitt “knowingly or intentionally touche[d]

another person in a rude, insolent or angry manner” and that he did so with a

deadly weapon. I.C. § 35-42-2-1(c)(1); -2(g)(2).

[9] McClendon testified that Nesbitt dragged him by his shirt through the

apartment from the living room down the hallway “like a dog.” Tr. p. 34.

McClendon also testified that Nesbitt “trie[d] to pistol-whip me with the gun,”

and that “in that same motion, the gun hit[] my head.” Id. at 31. The jury

accepted McClendon’s account, which readily supports Nesbitt’s convictions,

Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1233 | January 13, 2017 Page 4 of 5 as accurate. Nesbitt’s request that we reinterpret the situation in his favor

amounts to an invitation for us to reweigh the evidence, an invitation that we

decline. Because the uncorroborated testimony of a single witness is sufficient

to support a conviction, Thompson v. State, 612 N.E.2d 1094, 1098 (Ind. Ct.

App. 1993), Nesbitt’s convictions are supported by sufficient evidence.

[10] The judgment of the trial court is affirmed.

Mathias, J., and Pyle, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1233 | January 13, 2017 Page 5 of 5