Pursuant to Ind.Appellate Rule 65(D), 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. Sep 24 2013, 5:45 am
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
DAVID M. PAYNE GREGORY F. ZOELLER Ryan & Payne Attorney General of Indiana Marion, Indiana KARL M. SCHARNBERG Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
ERVIN MCCLUNG, ) ) Appellant-Defendant, ) ) vs. ) No. 27A02-1302-CR-134 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE GRANT SUPERIOR COURT The Honorable Warren Haas, Judge Cause No. 27D03-1206-CM-320
September 24, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
VAIDIK, Judge Case Summary
Ervin McClung appeals his convictions for Class B misdemeanor battery and
Class A misdemeanor criminal recklessness. He contends that the evidence is
insufficient to sustain his convictions. Finding the evidence sufficient for both
convictions, we affirm.
Facts and Procedural History
The facts most favorable to the convictions follow. On November 9, 2011, Maiah
Gross called McClung to ask for a ride to work. McClung agreed to take Gross to work
if she paid him for gas. McClung arrived at her home late and Gross was upset that she
and her two children were waiting in the cold and she would be late for work. Gross got
into the car and put her children in car seats in the back of McClung’s car. Her children
were one and two-and-a-half years old at the time.
After McClung started driving, McClung and Gross began to argue. As the
argument continued, McClung threatened to take Gross home. Gross said that if he took
her home, she would not give him any money for gas. McClung grabbed Gross’s purse
in an attempt to take gas money. Gross took her wallet out of the purse and called the
police.
At that point, McClung turned into a driveway and stopped the car. He ordered
Gross to take her children and get out of the car. When Gross refused, McClung got out
of the car, opened the driver’s side back door, unbuckled Gross’s one-year-old child’s car
2 seat, and roughly set the child, who was still in the car seat, on the ground outside the car.
Because the ground was uneven, the car seat tipped over.
Gross called her mother and again called the police. McClung got back into his
car and threw some items from Gross’s purse outside of the car. Gross then grabbed
some of McClung’s stuff and threw it out of the car. At that point, McClung grabbed
Gross by the back of her neck and pulled her forward.
Gross then got out of the car and unbuckled her two-and-a-half-year-old child.
The child was still in the car seat. She turned the car seat so that the child was facing
away from her when McClung leaned over and shoved the car seat, with the child still
inside, out of the car, causing it to fall backwards onto the ground. The car seat was still
connected to the car and McClung pulled forward dragging the car seat about three feet.
Gross screamed. According to Gross, McClung could see that he was pulling the car seat
by the seatbelt as he inched forward. Tr. p. 10.
When McClung stopped, Gross pulled her child out of the car seat. McClung then
backed up, still dragging the empty car seat. After a few feet, the car seat untangled from
the seatbelt and was no longer being dragged. McClung drove away.
In November 2011, the State charged McClung with two counts of Class B
misdemeanor battery and one count of Class A misdemeanor criminal recklessness.
Appellant’s App. p. 7-8. McClung pled guilty to all three counts in Marion City Court
and was sentenced to a 180-day suspended sentence and one year of non-reporting
probation. The sentences were to be served concurrently. Id. at 12-17. McClung then
3 filed a request for a trial de novo. Id. at 18. The Grant Superior Court granted his
request. Id. at 21-22.
A bench trial was conducted in January 2013. At trial, McClung testified that he
hugged Gross instead of grabbing her and that he did not see the car seat dragging on the
ground. The trial court found McClung guilty of one count of Class B misdemeanor
battery and one count of Class A misdemeanor criminal recklessness. Id. at 36.
McClung was sentenced to 180 days in jail, which was suspended. Id. The court also
ordered McClung to serve one year of probation and entered a no-contact order with
Gross. Id.
McClung now appeals.
Discussion and Decision
McClung contends that the evidence is insufficient to support his conviction for
Class B misdemeanor battery and Class A misdemeanor criminal recklessness. When
reviewing the sufficiency of the evidence, we neither reweigh the evidence nor determine
the credibility of witnesses. Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012). We look
solely to the evidence most favorable to the judgment together with all reasonable
inferences to be drawn therefrom. Id. A conviction will be affirmed if the probative
evidence and reasonable inferences to be drawn from the evidence could have allowed a
reasonable trier of fact to find the defendant guilty beyond a reasonable doubt. Id.
Class B misdemeanor battery occurs when a person “knowingly or intentionally
touches another person in a rude, insolent, or angry manner . . . .” Ind. Code § 35-42-2-1;
Appellant’s App. p. 7. McClung essentially admits to choking Gross. Appellant’s Br. p.
4 10 (quoting Tr. p. 7). However, he claims that it was not done in a rude, insolent, or
angry manner. Appellant’s Br. p. 10. Instead, McClung argues for the first time on
appeal that he was entitled to use reasonable force to eject her and that he was “exercising
self-help in resolving the issue.” Id.
It is well-settled that generally speaking, “[t]he failure to raise an issue at trial
waives the issue on appeal.” Wilson v. State, 931 N.E.2d 914, 919 (Ind. Ct. App. 2010),
trans. denied. At trial, McClung never asserted a privilege for touching Gross to remove
her from the car. In fact, he said that “I tried to hug her and put my arms around her.”
Tr. p. 43. During closing argument, defense counsel said, “I don’t believe he even
touched her.” Id. at 59. McClung cannot now assert that he was privileged to use
physical force to remove Gross from his car.
Even still, the evidence is sufficient to support his conviction of Class B
misdemeanor battery. Gross testified that McClung “reached over the back of my neck
and grabbed me . . . it wasn’t in a gentle way . . . basically choking wise not from the
front but from the back.” Id. at 7. This evidence is sufficient to support McClung’s
battery conviction. See Bailey, 979 N.E.2d at 135 (“A conviction can be sustained on
only the uncorroborated testimony of a single witness, even when that witness is the
victim.”).
In order to convict McClung of Class A misdemeanor criminal recklessness, the
State must prove that McClung (1) recklessly (2) performed an act (3) including the use
of a vehicle (4) that created a substantial risk of bodily injury to Gross’s two-and-a-half-
year-old child. Ind.
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Pursuant to Ind.Appellate Rule 65(D), 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. Sep 24 2013, 5:45 am
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
DAVID M. PAYNE GREGORY F. ZOELLER Ryan & Payne Attorney General of Indiana Marion, Indiana KARL M. SCHARNBERG Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
ERVIN MCCLUNG, ) ) Appellant-Defendant, ) ) vs. ) No. 27A02-1302-CR-134 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE GRANT SUPERIOR COURT The Honorable Warren Haas, Judge Cause No. 27D03-1206-CM-320
September 24, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
VAIDIK, Judge Case Summary
Ervin McClung appeals his convictions for Class B misdemeanor battery and
Class A misdemeanor criminal recklessness. He contends that the evidence is
insufficient to sustain his convictions. Finding the evidence sufficient for both
convictions, we affirm.
Facts and Procedural History
The facts most favorable to the convictions follow. On November 9, 2011, Maiah
Gross called McClung to ask for a ride to work. McClung agreed to take Gross to work
if she paid him for gas. McClung arrived at her home late and Gross was upset that she
and her two children were waiting in the cold and she would be late for work. Gross got
into the car and put her children in car seats in the back of McClung’s car. Her children
were one and two-and-a-half years old at the time.
After McClung started driving, McClung and Gross began to argue. As the
argument continued, McClung threatened to take Gross home. Gross said that if he took
her home, she would not give him any money for gas. McClung grabbed Gross’s purse
in an attempt to take gas money. Gross took her wallet out of the purse and called the
police.
At that point, McClung turned into a driveway and stopped the car. He ordered
Gross to take her children and get out of the car. When Gross refused, McClung got out
of the car, opened the driver’s side back door, unbuckled Gross’s one-year-old child’s car
2 seat, and roughly set the child, who was still in the car seat, on the ground outside the car.
Because the ground was uneven, the car seat tipped over.
Gross called her mother and again called the police. McClung got back into his
car and threw some items from Gross’s purse outside of the car. Gross then grabbed
some of McClung’s stuff and threw it out of the car. At that point, McClung grabbed
Gross by the back of her neck and pulled her forward.
Gross then got out of the car and unbuckled her two-and-a-half-year-old child.
The child was still in the car seat. She turned the car seat so that the child was facing
away from her when McClung leaned over and shoved the car seat, with the child still
inside, out of the car, causing it to fall backwards onto the ground. The car seat was still
connected to the car and McClung pulled forward dragging the car seat about three feet.
Gross screamed. According to Gross, McClung could see that he was pulling the car seat
by the seatbelt as he inched forward. Tr. p. 10.
When McClung stopped, Gross pulled her child out of the car seat. McClung then
backed up, still dragging the empty car seat. After a few feet, the car seat untangled from
the seatbelt and was no longer being dragged. McClung drove away.
In November 2011, the State charged McClung with two counts of Class B
misdemeanor battery and one count of Class A misdemeanor criminal recklessness.
Appellant’s App. p. 7-8. McClung pled guilty to all three counts in Marion City Court
and was sentenced to a 180-day suspended sentence and one year of non-reporting
probation. The sentences were to be served concurrently. Id. at 12-17. McClung then
3 filed a request for a trial de novo. Id. at 18. The Grant Superior Court granted his
request. Id. at 21-22.
A bench trial was conducted in January 2013. At trial, McClung testified that he
hugged Gross instead of grabbing her and that he did not see the car seat dragging on the
ground. The trial court found McClung guilty of one count of Class B misdemeanor
battery and one count of Class A misdemeanor criminal recklessness. Id. at 36.
McClung was sentenced to 180 days in jail, which was suspended. Id. The court also
ordered McClung to serve one year of probation and entered a no-contact order with
Gross. Id.
McClung now appeals.
Discussion and Decision
McClung contends that the evidence is insufficient to support his conviction for
Class B misdemeanor battery and Class A misdemeanor criminal recklessness. When
reviewing the sufficiency of the evidence, we neither reweigh the evidence nor determine
the credibility of witnesses. Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012). We look
solely to the evidence most favorable to the judgment together with all reasonable
inferences to be drawn therefrom. Id. A conviction will be affirmed if the probative
evidence and reasonable inferences to be drawn from the evidence could have allowed a
reasonable trier of fact to find the defendant guilty beyond a reasonable doubt. Id.
Class B misdemeanor battery occurs when a person “knowingly or intentionally
touches another person in a rude, insolent, or angry manner . . . .” Ind. Code § 35-42-2-1;
Appellant’s App. p. 7. McClung essentially admits to choking Gross. Appellant’s Br. p.
4 10 (quoting Tr. p. 7). However, he claims that it was not done in a rude, insolent, or
angry manner. Appellant’s Br. p. 10. Instead, McClung argues for the first time on
appeal that he was entitled to use reasonable force to eject her and that he was “exercising
self-help in resolving the issue.” Id.
It is well-settled that generally speaking, “[t]he failure to raise an issue at trial
waives the issue on appeal.” Wilson v. State, 931 N.E.2d 914, 919 (Ind. Ct. App. 2010),
trans. denied. At trial, McClung never asserted a privilege for touching Gross to remove
her from the car. In fact, he said that “I tried to hug her and put my arms around her.”
Tr. p. 43. During closing argument, defense counsel said, “I don’t believe he even
touched her.” Id. at 59. McClung cannot now assert that he was privileged to use
physical force to remove Gross from his car.
Even still, the evidence is sufficient to support his conviction of Class B
misdemeanor battery. Gross testified that McClung “reached over the back of my neck
and grabbed me . . . it wasn’t in a gentle way . . . basically choking wise not from the
front but from the back.” Id. at 7. This evidence is sufficient to support McClung’s
battery conviction. See Bailey, 979 N.E.2d at 135 (“A conviction can be sustained on
only the uncorroborated testimony of a single witness, even when that witness is the
victim.”).
In order to convict McClung of Class A misdemeanor criminal recklessness, the
State must prove that McClung (1) recklessly (2) performed an act (3) including the use
of a vehicle (4) that created a substantial risk of bodily injury to Gross’s two-and-a-half-
year-old child. Ind. Code § 35-42-2-2(b), (c)(1); Appellant’s App. p. 8. A person
5 engages in conduct “recklessly” if he engages in the conduct in plain, conscious, and
unjustifiable disregard of harm that might result and the disregard involves a substantial
deviation from acceptable standards of conduct. Ind. Code § 35-41-2-2(c). In order to
obtain a conviction for criminal recklessness, “the State does not need to prove the actor
acted intentionally, but merely that the actor realized or should have realized there was a
strong probability that the harm might occur.” Wallace v. State, 558 N.E.2d 864, 865-66
(Ind. Ct. App. 1990).
McClung argues that the evidence is insufficient to support his conviction for
Class A misdemeanor criminal recklessness because “it is highly improbable that
[McClung] would have recklessly, knowingly or intentionally pulled forward risking
injury to the child” and that “[o]bviously [McClung] thought both children were out of
the car at that point.” Appellant’s Br. p. 11.
We reject McClung’s invitation to reweigh the evidence. The evidence most
favorable to the judgment shows that McClung pushed the car seat out of the car door and
inched forward about three feet, dragging the car seat on the ground. Gross screamed at
McClung. McClung’s car door was open and he saw that the car seat was being pulled
by the seatbelt. Based on this evidence, the trial court had a reasonable basis for
concluding that even if McClung did not act intentionally, he should have realized that
pulling a car seat with a child in it dragging on the ground creates a strong probability
that harm might occur. The evidence is sufficient to sustain McClung’s conviction for
6 Class A misdemeanor criminal recklessness.1
Affirmed.
BAKER, J., and FRIEDLANDER, J., concur.
1 McClung argues that this case is similar to Wallace v. State. It is not. In Wallace, this Court held that Wallace was not reckless when he changed lanes and inadvertently forced a passenger car into the median strip because he did not see the car. The Court concluded that he could not be reckless because his truck had a blind spot and did not know the car was there. Wallace, 558 N.E.2d at 866. In this case, McClung pushed the car seat, with the child still inside, out of the door and the passenger door was still open. Gross was also screaming as the incident occurred. These facts suggest that unlike the truck driver in Wallace, McClung should have known that his actions would create a substantial risk of causing harm to the child. 7