David Rabinowitz v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: December 31, 2015
• Docket: 49A04-1507-CR-788
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), Dec 31 2015, 8:40 am this Memorandum Decision shall not be regarded as precedent or cited before any 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 Jane H. Conley Gregory F. Zoeller Indianapolis, Indiana Attorney General

Katherine Modesitt Cooper Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

David Rabinowitz, December 31, 2015 Appellant-Defendant, Court of Appeals Case No. 49A04-1507-CR-788 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Jeffrey Mendes Appellee-Plaintiff Trial Court Cause No. 49G05-1410-F5-46086

Vaidik, Chief Judge.

Court of Appeals of Indiana | Memorandum Decision 49A04-1507-CR-788 | December 31, 2015 Page 1 of 5 Case Summary [1] Following an altercation with an elderly woman with whom he was living,

David Rabinowitz was angry and swinging a baseball bat when the elderly

woman’s grandson, Anthony Blunk, arrived on the scene and tried to confront

Rabinowitz. Rabinowitz struck Blunk with the baseball bat, breaking his arm.

On appeal, Rabinowitz challenges his convictions for Level 5 felony battery,

arguing that the evidence is insufficient to prove that he had the requisite intent.

Finding sufficient evidence to support that Rabinowitz knowingly or

intentionally struck Blunk in an angry manner causing serious bodily injury, we

affirm his convictions.

Facts and Procedural History [2] In July 2014, Harold Bullock, a neighbor of an elderly woman named Beulah

Rogers, drove his car up to Rogers’ house in Indianapolis and found David

Rabinowitz on Rogers’ front porch, swinging a baseball bat, mad, trying to get

in Rogers’ front door. Once Bullock was on the porch, he learned that Rogers

and Rabinowitz had been in an argument, and Rogers had made Rabinowitz

leave after he “tried to swing a bat on her.” Tr. p. 11. Rabinowitz eventually

left the porch and walked away in the direction of a nearby gas station, and

then Rogers’ grandson, Anthony Blunk, arrived at Rogers’ house, where he was

living and where Bullock told Blunk what had just happened.

Court of Appeals of Indiana | Memorandum Decision 49A04-1507-CR-788 | December 31, 2015 Page 2 of 5 [3] Thereafter, Blunk went to confront Rabinowitz about “what [Rabinowitz] was

doing to [Blunk’s] grandma.” Id. at 17. Blunk and Rabinowitz began to argue,

and “[t]hat’s when the bat started getting swung.” Id. at 18. Rabinowitz “went

to hit [Blunk] in the head with the baseball bat and [Blunk] put [his] arm up and

it broke [his] arm.” Id. at 32. Then Blunk, being chased by Rabinowitz, ran

back to his and Rogers’ house to get a child-sized wooden bat, which he began

“swinging wildly.” Id. at 33. Thereafter, Blunk went to the hospital to receive

treatment for his broken arm and other injuries. Detective Russell O’Connor of

the Indianapolis Metropolitan Police Department met with Blunk and Bullock,

and both identified Rabinowitz in six-person photo arrays.

[4] The State charged Rabinowitz with Count I, battery resulting in serious bodily

injury as a Level 5 felony; and Count II, battery by means of a deadly weapon

as a Level 5 felony.1 Following the bench trial, the trial court found Rabinowitz

guilty of both counts and merged Count II into Count I. Thereafter, the trial

court sentenced him to four years, with twenty-two days served and seven credit

days earned, 1431 days suspended, and two years on probation. See Appellant’s

App. p. 17. Rabinowitz now challenges his Level 5 felony battery convictions.

1 Rabinowitz was also charged with attempted battery by means of a deadly weapon as a Level 5 felony, but this count was ultimately dismissed and is not relevant to this appeal.

Court of Appeals of Indiana | Memorandum Decision 49A04-1507-CR-788 | December 31, 2015 Page 3 of 5 Discussion and Decision [5] On appeal, Rabinowitz contends that the evidence is insufficient to establish

that he had the requisite intent to support the battery convictions. Specifically,

he argues as follows: “The evidence does not establish beyond a reasonable

doubt that Rabinowitz hit Blunk for any reason other than as a response to

Blunk’s aggression.” Appellant’s Br. p. 7. When reviewing the sufficiency of

the evidence to support a conviction, we consider only the probative evidence

and reasonable inferences supporting the verdict. Moore v. State, 27 N.E.3d 749,

754 (Ind. 2015). Reviewing courts should not assess witness credibility and

weigh the evidence to determine whether it is sufficient to support a conviction.

Id. Convictions should be affirmed unless no reasonable fact-finder could find

the elements of the crime proven beyond a reasonable doubt. Id.

[6] In order to convict Rabinowitz of Level 5 felony battery, the State had to prove

that he knowingly or intentionally touched another person in a rude, insolent,

or angry manner that resulted in serious bodily injury or was committed with a

deadly weapon. See Ind. Code § 35-42-2-1(b), (f). Here, eyewitness Bullock

testified that Rabinowitz was the initial aggressor and that he observed

Rabinowitz strike Blunk several times with a baseball bat. See Tr. p. 17, 24-25.

Blunk, the victim, testified that he first tried to talk to Rabinowitz about what

had happened with Rogers and that Rabinowitz swung the baseball bat at him,

breaking his arm. Id. at 32.

Court of Appeals of Indiana | Memorandum Decision 49A04-1507-CR-788 | December 31, 2015 Page 4 of 5 [7] While we acknowledge that the evidence presented at trial was inconsistent and

confusing, with multiple witnesses testifying as to their differing versions of the

events in question, the trial court chose to credit the evidence that Rabinowitz

was the aggressor and struck Blunk with a baseball bat, causing a broken arm.

See Tr. p. 128. This Court will not assess witness credibility or reweigh the

evidence. See Moore, 27 N.E.2d at 754. We find the evidence is sufficient to

support Rabinowitz’s convictions.2

[8] Affirmed.

Bailey, J., and Crone, J., concur.

2 The Argument portion of Rabinowitz’s appellate brief includes a subsection titled “Case filed on false information,” in which he alleges that Blunk provided a different version of the events to Detective O’Connor than he testified to at trial. See Appellant’s Br. p. 9-10. But Rabinowitz does not develop this argument or support it with authority, and the brief subsection ultimately concludes with the assertion that choosing to believe testimony “as unreliable as Blunk’s” was an abuse of discretion. Id. at 10. Thus, we find that this is really just a continuation of his sufficiency-of-the-evidence argument.

Court of Appeals of Indiana | Memorandum Decision 49A04-1507-CR-788 | December 31, 2015 Page 5 of 5