Elgin A. Fidell v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: December 21, 2016
• Docket: 49A05-1606-CR-1402
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any Dec 21 2016, 8:26 am

court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Lisa M. Johnson Gregory F. Zoeller Brownsburg, Indiana Attorney General of Indiana Eric P. Babbs Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Elgin A. Fidell, December 21, 2016 Appellant-Defendant, Court of Appeals Case No. 49A05-1606-CR-1402 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Stanley Kroh, Appellee-Plaintiff. Magistrate Trial Court Cause No. 49G03-1603-F5-10944

Pyle, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A05-1606-CR-1402 | December 21, 2016 Page 1 of 6 Statement of the Case [1] Elgin Andrew Fidell (“Fidell”) appeals his conviction of Level 5 felony battery

following a bench trial.1 He challenges the sufficiency of the evidence to

support the conviction. Concluding that the evidence is sufficient, we affirm.

[2] We affirm.

Issue Whether there is sufficient evidence to support Fidell’s Level 5 felony battery

conviction.

Facts [3] Fidell and S.T. (“S.T.”) began dating in February 2015. In April 2015, the

Hendricks Superior Court issued a no contact order in Cause Number 32D01-

1504-CM-509 (“Cause Number 509”) prohibiting Fidell from having any

contact with S.T. In October 2015, Fidell was convicted of invasion of privacy

as a Class A misdemeanor for violating the no contact order and battery as a

Class A misdemeanor for battering S.T. in Cause Number 49G16-1508-CM-

28361 (“Cause Number 28361”).

[4] In February 2016, S.T. was standing on a library elevator waiting for the doors

to close when Fidell rushed in, grabbed her by the hair, pushed her out of the

1 IND. CODE § 35-42-2-1.

Court of Appeals of Indiana | Memorandum Decision 49A05-1606-CR-1402 | December 21, 2016 Page 2 of 6 elevator, and punched her in the head, neck, and face. In March 2016, the

State charged Fidell with invasion of privacy as a Class A misdemeanor for

violating the no contact order in Cause Number 509, domestic battery as a

Class A misdemeanor, and battery as a Class B misdemeanor for battering S.T.

In a second part of the information, the State also charged Fidell with invasion

of privacy as a Level 6 felony because Fidell had a prior conviction under that

section in Cause Number 28361. Also as a second part of the information, the

State charged Fidell with battery as a Level 5 felony because Fidell had

previously been convicted of battery on the same person, S.T., in Cause

Number 28361.

[5] After a jury convicted him of Class A misdemeanor invasion of privacy and

Class B misdemeanor battery in June 2016, Fidell waived a jury trial on the

second parts of the information. During this second phase of trial, the trial

court granted the State’s motion “to incorporate the testimony evidence and

verdict from phase one.” (Tr. 108). This included S.T.’s testimony that she and

Fidell had dated “on and off for about a year.” (Tr. 29). S.T. also testified that

“there was a no contact order preventing [Fidell] from contacting [her].” (Tr.

31). The State introduced into evidence the no contact order issued under

Cause Number 509, which lists the protected person’s name as S.T. 2 The State

also introduced into evidence the August 2015 charging information in Cause

Number 28361, which alleged that Fidell had invaded S.T.’s privacy by

2 The no-contact order listed S.T.’s full name.

Court of Appeals of Indiana | Memorandum Decision 49A05-1606-CR-1402 | December 21, 2016 Page 3 of 6 violating the no-contact order and had battered S.T. The State further

introduced the October 2015 sentencing order, which reflected convictions for

both offenses. At the conclusion of the second part of the trial, the trial court

convicted Fidell of Level 6 felony invasion of privacy and Level 5 felony

battery. Fidell now appeals.

Decision [6] Fidell argues that there is insufficient evidence to support his conviction of

battery as a Level 5 felony. Our standard of review for sufficiency of the

evidence claims is well settled. We consider only the probative evidence and

reasonable inferences supporting the verdict. Drane v. State, 867 N.E.2d 144,

146 (Ind. 2007). We do not reweigh the evidence or judge witness credibility.

Id. We will affirm the conviction unless no reasonable fact finder could find the

elements of the crime proven beyond a reasonable doubt. Id. The evidence is

sufficient if an inference may be reasonably drawn from it to support the

verdict. Id. at 147.

[7] To convict Fidell of battery as a Level 5 felony, the State was required to prove

beyond a reasonable doubt that Fidell touched S.T. in a rude, insolent, or angry

manner and that Fidell was previously convicted of battery on the same person,

S.T., under Cause Number 28361. See IND. CODE § 35-42-2-1(g)(4). Fidell’s

sole argument is that “the State did not prove beyond a reasonable doubt that

the victim in the prior case [Cause Number 28361], and the victim in this case,

were the same person.” (Fidell’s Br. 11-12).

Court of Appeals of Indiana | Memorandum Decision 49A05-1606-CR-1402 | December 21, 2016 Page 4 of 6 [8] In support of his argument, Fidell directs us to Hernandez v. State, 716 N.E.2d

948, 953 (Ind. 1999), reh’g denied, wherein the Indiana Supreme Court explained

as follows regarding the identification evidence of the defendant necessary to

support an habitual offender adjudication:

Certified copies of judgments or commitments containing a defendant’s name or a similar name may be introduced to prove the commission of prior felonies. . . . While there must be supporting evidence to identify the defendant as the person named in the documents, the evidence may be circumstantial. . . . If the evidence yields logical and reasonable inferences from which the finder of fact may determine beyond a reasonable doubt that it was a defendant who was convicted of the prior felony, then a sufficient connection has been shown.

(Internal citations omitted).

[9] We agree with Fidell that several of these requirements are instructive to the

issue before us. For example, in Level 5 felony battery cases such as this, there

must be supporting evidence which identifies the victim in the prior case as the

victim in the current case. Such evidence may be circumstantial. In addition, a

sufficient connection has been shown between the victim in the prior case and

the victim in the current case if the evidence yields logical and reasonable

inferences from which the finder of fact may determine that it was the same

victim in both cases.

[10] Here, our review of the evidence reveals that the victim has a unique name,

which was included in the August 2015 charging information that led to the

October 2015 battery conviction. This is the same name that that was included

Court of Appeals of Indiana | Memorandum Decision 49A05-1606-CR-1402 | December 21, 2016 Page 5 of 6 in the March 2016 charging information that led to the June 2016 Level 5

felony battery conviction. In addition, S.T. testified that she and Fidell dated

for a year, from February 2015 until February 2016, which encompasses

Fidell’s 2015 conviction for battering S.T. as well as the 2016 charges that led to

the June 2016 conviction for battering S.T. again. Lastly, S.T. testified that she

was the protected person in the no contact order issued under Cause Number

509, which Fidell was convicted of violating in both 2015 and 2016.

[11] Because the victims in both cases had the same unique name and were both

protected by the no contact order in Cause Number 509, and because S.T.

testified that she was dating Fidell at the time of both batteries, we find that

logical and reasonable inferences show that S.T. was the victim in both cases.

See Hernandez, 716 N.E.2d at 953. We therefore find sufficient evidence to

support Fidell’s conviction of battery as a Level 5 felony.

[12] Affirmed.

Baker, J., and Mathias, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A05-1606-CR-1402 | December 21, 2016 Page 6 of 6