Gerald Mayberry v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: April 17, 2012
• Docket: 49A02-1109-CR-879
• Status: Unpublished

Opinion

Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be FILED Apr 17 2012, 9:13 am regarded as precedent or cited before any court except for the purpose of CLERK establishing the defense of res judicata, of the supreme court, court of appeals and tax court collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

TIMOTHY J. BURNS GREGORY F. ZOELLER Indianapolis, Indiana Attorney General of Indiana

RICHARD C. WEBSTER Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

GERALD MAYBERRY, ) ) Appellant-Defendant, ) ) vs. ) No. 49A02-1109-CR-879 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Kimberly J. Brown, Judge The Honorable Teresa Hall, Commissioner Cause No. 49G16-1107-CM-50709

April 17, 2012

MEMORANDUM DECISION – NOT FOR PUBLICATION RILEY, Judge

STATEMENT OF THE CASE

Appellant-Defendant, Gerald Mayberry (Mayberry), appeals his conviction for

Count I, interference with reporting a crime, a Class A misdemeanor, Ind. Code § 35-45-

2-5; and Count II, battery, a Class B misdemeanor, I.C. § 35-42-2-1.

We affirm.

ISSUES

Mayberry raises two issues on appeal, which we restate as follows:

(1) Whether the State produced sufficient evidence to prove beyond a reasonable

doubt that he committed interference with reporting a crime; and

(2) Whether the State produced sufficient evidence to prove beyond a reasonable

doubt that he committed battery.

FACTS AND PROCEDURAL HISTORY

In July of 2011, Tika Bell (Bell) and her two children lived in the Laurelwood

Apartments in Indianapolis, Indiana. Bell and Mayberry had been in a relationship for

approximately four months at that time. On the morning of July 17, 2011, they were in

her room, and Bell was getting her children ready to go to church with her aunt. Bell was

sitting on her bed combing her daughter’s hair when she and Mayberry got into an

argument. Bell asked Mayberry to leave and started yelling “curse words” at him.

(Transcript p. 14). Mayberry approached Bell, grabbed her throat with one hand and

2 choked her. He could not get a good grip because Bell’s daughter was between them, but

he impeded her breathing and made it difficult for her to swallow.

When Mayberry released Bell, she told him that she was going to call the police.

She picked up the phone and dialed, but Mayberry ripped the telephone cord out of the

wall before her call connected. Mayberry then went downstairs, followed by Bell. Bell

again told Mayberry that she was going to call the police, and he smiled at her and

walked out of the house. After Mayberry’s departure, Bell accessed another phone cord

she had in the house and called 911.

On July 19, 2011, the State filed an Information charging Mayberry with Count I,

interference with reporting a crime, a Class A misdemeanor, I.C. § 35-45-2-5; and Count

II, battery, a Class B misdemeanor, I.C. § 35-42-2-1. On September 1, 2011, a bench

trial was held. At the conclusion of the evidence, the trial court found Mayberry guilty of

both Counts and sentenced him to 365 days, with 180 days suspended for Count I, and

180 days executed for Count II, with the sentences to run concurrently.

Mayberry now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

On appeal, Mayberry challenges the sufficiency of the evidence supporting both

Counts of his conviction. In reviewing a sufficiency of the evidence claim, this court

does not reweigh evidence or judge the credibility of witnesses. Perez v. State, 872

N.E.2d 208, 213 (Ind. Ct. App. 2007), trans. denied. In addition, we only consider the

evidence most favorable to the judgment and the reasonable inferences stemming from

3 that evidence. Id. We will only reverse a conviction when reasonable persons would not

be able to form inferences as to each material element of the offense. Id. at 212-13.

I. Interference with Reporting a Crime

In order to convict Mayberry of interference with the reporting of a crime, the

State was required to prove beyond a reasonable doubt that he “with the intent to commit,

conceal, or aid in the commission of a crime, knowingly or intentionally interfere[d] with

or prevent[ed] an individual from: (1) using a 911 emergency telephone system . . . .”

I.C. § 35-45-2-5.

Mayberry argues that there was insufficient evidence of his intent to prevent Bell

from calling 911 because he left the house after Bell told him she was going to call 911

and did not stop her from making the phone call. However, we conclude that in spite of

the fact that Bell eventually called 911, there is sufficient evidence that Mayberry

interfered with her call. Specifically, Bell testified that when she dialed the police,

Mayberry ripped the phone cord out of the wall, thereby preventing her from completing

the call. When Mayberry left shortly thereafter, Bell had to find an old phone cord in

order to continue her interrupted call to 911. Thus, Mayberry interfered with Bell’s call.

II. Battery

In order to convict Mayberry of battery as a Class B misdemeanor, the State was

required to prove beyond a reasonable doubt that he “knowingly or intentionally

touch[ed] another person in a rude, insolent, or angry manner.” I.C. § 35-42-2-1. We

4 recognize that any touching, however slight, may constitute a battery. Impson v. State,

721 N.E.2d 1275, 1285 (Ind. Ct. App. 2000).

With respect to this charge, Mayberry points to his testimony that he attempted to

kiss Bell rather than choke her. He also claims that the evidence presented at trial was

not sufficient to support his conviction, even if we do not reweigh the evidence to take

into account his testimony. However, as Mayberry acknowledges, we may not reweigh

the evidence on appeal. Perez, 872 N.E.2d at 213. In light of that standard, we cannot

agree with his argument. Bell testified that Mayberry placed his hand around her throat

and choked her, thereby impeding her breathing and making it difficult for her to

swallow. It is clear that this was an intentional rude and insolent touch. Thus, we

conclude that the State presented sufficient evidence that Mayberry committed battery as

a Class B misdemeanor.

CONCLUSION

Based on the foregoing, we conclude that (1) the State produced sufficient

evidence to prove beyond a reasonable doubt that Mayberry committed interference with

reporting a crime and (2) the State produced sufficient evidence to prove beyond a

reasonable doubt that Mayberry committed battery.

Affirmed.

NAJAM, J. and DARDEN, J. concur