Gregory Freeman v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: June 24, 2024
• Docket: 23A-CR-02503
• Status: Published

Opinion

FILED Jun 24 2024, 9:02 am

CLERK Indiana Supreme Court Court of Appeals and Tax Court

IN THE

Court of Appeals of Indiana Gregory Freeman, Appellant-Defendant

v.

State of Indiana, Appellee-Plaintiff

June 24, 2024 Court of Appeals Case No. 23A-CR-2503 Appeal from the Marion Superior Court The Honorable Mark Stoner, Judge Trial Court Cause No. 49D32-1607-F1-25396

Opinion by Judge Vaidik Judges Weissmann and Foley concur.

Court of Appeals of Indiana | Opinion 23A-CR-2503 | June 24, 2024 Page 1 of 10 Vaidik, Judge.

Case Summary [1] In Indiana, when a defendant is charged with a crime against another person,

the victim’s identity is a material element of the offense that the State must

specifically allege in the charging information and then prove beyond a

reasonable doubt. These requirements serve to place the defendant on notice of

the exact crime being charged and to protect the defendant against double

jeopardy—a subsequent prosecution for the same offense.

[2] Here, the State charged Gregory Freeman with attempted murder, alleging that

he shot a man named Lawon Browning. Browning was excluded from

testifying because he refused to appear for a deposition, and at the bench trial

no witness identified the victim as Lawon Browning. Still, the trial court found

Freeman guilty of the lesser-included offense of Level 5 felony battery with a

deadly weapon. Concluding that the State failed to prove beyond a reasonable

doubt that Lawon Browning was the victim of the shooting, we must reverse

that conviction.

Facts and Procedural History [3] In the early morning hours of May 26, 2016, Freeman was at a strip club in

Indianapolis. Just before 3:00 a.m., Freeman and two other men walked

through the parking lot, approached a man who had been driving a maroon

Pontiac, and shot him multiple times. Freeman and the other shooters fled the

scene. The victim survived the shooting and was still present when Indianapolis Court of Appeals of Indiana | Opinion 23A-CR-2503 | June 24, 2024 Page 2 of 10 Metropolitan Police Department (IMPD) Officer Christopher Clouse arrived to

collect evidence. Officer Clouse took photos of the victim but didn’t get his

name. The victim was then taken to a hospital. IMPD Detective Connie

Pearson went to the hospital later that day, but the victim couldn’t provide a

coherent statement.

[4] The State charged Freeman with Level 1 felony attempted murder and Class A

misdemeanor carrying a handgun without a license. (The State also charged

Freeman with Level 2 felony conspiracy to commit murder but later dismissed

that count.) The attempted-murder charging information identified the victim as

Lawon Browning. While the case was pending, Browning was charged with

and convicted of murder for an unrelated incident and sentenced to seventy-one

years in prison. See Cause No. 49G04-1804-MR-13688; Browning v. State, No.

19A-CR-2522 (Ind. Ct. App. Aug. 6. 2020) (mem.), trans. denied. He was

scheduled for a deposition in Freeman’s case but refused to participate, so

Freeman moved to exclude him as a witness. The State did not object to the

motion, noting that Browning was also refusing to cooperate with the State.

The trial court granted the motion to exclude.

[5] Freeman waived his right to a jury trial, and a bench trial was held. The State

called five witnesses, none of whom identified the victim by name. The State

presented its Exhibit 37, which it claimed is a jail booking photo of Browning

from 2018. The document includes a photo of a man, and below the photo is

the name “Browning, Lawon.” Officer Clouse said the man in the photo is the

man who was shot, but he didn’t know the man’s name and couldn’t confirm

Court of Appeals of Indiana | Opinion 23A-CR-2503 | June 24, 2024 Page 3 of 10 that the document is a booking photo. Freeman objected to the admission of the

exhibit “due to improper foundation and lack of knowledge of the person

purported to be identified.” Tr. p. 149. The court asked the State if it was

offering the exhibit “as a certified public record” or “through the testimony of

the witness[.]” Id. at 150. The State responded, “Both, one being relevance

through the witness, admissibility through public record.” Id. The court said it

would admit the exhibit “as it relates to the witness’s identification of the

individual” but that it was “not accepting it as a certified business record

because I don’t believe there is an adequate foundation being made[.]” Id. The

State later showed the exhibit to Detective Pearson. She testified that the man

in the photo is the man she saw at the hospital, but she didn’t say anything

about his name.

[6] The State also presented a certified BMV registration showing that the maroon

Pontiac was owned by “Lawon Edward Browning.” Ex. 131. The document

contains no photograph or physical description of the owner.

[7] The trial court found Freeman not guilty of attempted murder, concluding that

the State had not proven that Freeman acted with the specific intent to kill.

However, the court found Freeman guilty of the lesser-included offense of Level

5 felony battery with a deadly weapon, as well as Class A misdemeanor

carrying a handgun without a license. The court imposed sentences of two years

for the felony and one year for the misdemeanor, to be served concurrently.

[8] Freeman now appeals.

Court of Appeals of Indiana | Opinion 23A-CR-2503 | June 24, 2024 Page 4 of 10 Discussion and Decision [9] Freeman contends the evidence is insufficient to support his conviction for

Level 5 felony battery with a deadly weapon. (He doesn’t appeal his conviction

for Class A misdemeanor carrying a handgun without a license.) When

reviewing sufficiency-of-the-evidence claims, we neither reweigh the evidence

nor judge the credibility of witnesses. Willis v. State, 27 N.E.3d 1065, 1066 (Ind.

2015). We will only consider the evidence supporting the judgment and any

reasonable inferences that can be drawn from the evidence. Id. A conviction

will be affirmed if there is substantial evidence of probative value to support

each element of the offense such that a reasonable trier of fact could have found

the defendant guilty beyond a reasonable doubt. Id.

[10] Freeman doesn’t challenge the sufficiency of the evidence that he shot another

person. Rather, he argues that the State was required, but failed, to prove that

he shot the person named in the charging information, Lawon Browning. For a

crime against a person, the State must both allege and prove the identity of the

victim. See Leonard v. State, 73 N.E.3d 155, 162 (Ind. 2017) (holding, in a

double-murder case, that “the victims’ identities were material elements of the

offense”); A.A. v. State, 29 N.E.3d 1277, 1282 (Ind. Ct. App. 2015) (“It has long

been held in Indiana that as a general rule the name of one injured in his person

or property, by the act of the accused, or the name of one whose identity is

essential to a proper description of the offense charged should be alleged if

known.”). These requirements serve to (1) put a defendant on notice of the

specific crime charged, allowing them to prepare a defense, and (2) protect

Court of Appeals of Indiana | Opinion 23A-CR-2503 | June 24, 2024 Page 5 of 10 against a subsequent prosecution for the same offense (i.e., double jeopardy).

Robinson v. State, 112 N.E.2d 861, 862-63 (Ind. 1953); People v. Espinoza, 43

N.E.3d 993, 999 (Ill. 2015); Holborough v. State, 103 So. 3d 221, 223 (Fla. Dist.

Ct. App. 2012).

[11] The State argues that the victim’s identity was not an element it was required to

prove. It notes that the battery statute requires only the rude, insolent, or angry

touching of “another person.” Ind. Code § 35-42-2-1(c). But the State simply

ignores Freeman’s citation to our Supreme Court’s holding in Leonard. That

case involved the murder statute, which, like the battery statute, requires that

the offense be committed against “another human being.” I.C. § 35-42-1-1. The

Court nonetheless held that the victims’ identities were material elements of the

offense. That holding controls the analysis here.

[12] In the alternative, the State argues that it proved the identity of the victim

through Exhibit 37—the purported booking photo of Browning—and the BMV

registration. But when the trial court admitted Exhibit 37, it ruled that the State

hadn’t established an adequate foundation for the document to be admitted as a

public record or a business record, so the document could come in only through

the testimony of Officer Clouse. And Officer Clouse made clear that he didn’t

know the name of the man in the photo, only his face. Therefore, the trial court

admitted Exhibit 37 only for the photo, not the name under the photo.

[13] It may be tempting to write off the trial court’s ruling as a technicality, since the

Exhibit 37 ultimately admitted into evidence (and included in the record on

Court of Appeals of Indiana | Opinion 23A-CR-2503 | June 24, 2024 Page 6 of 10 appeal) shows the name “Browning, Lawon.” But that is simply a function of

this being a bench trial. If this had been a jury trial, the court’s evidentiary

ruling would have led to the name being redacted from the document. In other

words, the trial court’s ruling means that it proceeded as if there was no name

on the document. In reviewing the sufficiency of the State’s evidence, we must

do the same. As Freeman puts it, “What the State is left with in its Exhibit 37 is

a picture offering no more evidentiary value than a picture of the victim at a

family picnic.” Appellant’s Br. p. 13.

[14] That leaves the BMV registration showing that the car the victim was driving

was owned by “Lawon Edward Browning.” But that document doesn’t prove

Browning was driving the car at the time of the shooting. The driver may have

borrowed the car from Browning, or recently purchased the car from Browning

but not yet updated the registration, or stolen the car from Browning. The BMV

registration, standing alone, does not prove beyond a reasonable doubt that

Browning was the victim.

[15] The State cites Owens v. State, 224 N.E.3d 984 (Ind. Ct. App. 2023), trans.

denied, but that case is distinguishable. Owens was charged with and convicted

of battering a man named Jacob Dugas. On appeal, Owens argued that there

was insufficient evidence of the victim’s identity because the victim’s full name

was never established at trial. We disagreed, noting that (1) the State presented

evidence that the victim’s name was “Jacob” and (2) during closing arguments

defense counsel referred to the victim as both “Mr. Dugas” and “Jacob.” We

concluded, “Taken together, although Dugas was never identified by his full

Court of Appeals of Indiana | Opinion 23A-CR-2503 | June 24, 2024 Page 7 of 10 name at trial, the State’s evidence and defense counsel’s reference to the victim

as ‘Mr. Dugas’ were sufficient for the jury to find that the victim referenced at

trial was ‘Jacob Dugas,’ as named in the charging information.” Id. at 994.

Here, on the other hand, neither the evidence admitted nor defense counsel’s

argument established the first, last, or full name of the victim.

[16] Assuming that Lawon Browning was the victim of the shooting, the State could

have proven his identity in several ways. For example, if the State had a

booking photo of Browning, it could have presented a certified copy with

proper foundation. Or it could have presented medical records from the day of

the shooting or the testimony of someone who provided medical care. The State

didn’t present any evidence like this and instead relied solely on the purported

booking photo and the BMV registration.

[17] The State is correct that proving a victim’s identity doesn’t always require

direct evidence of the victim’s name. In Davis v. State, 796 N.E.2d 798 (Ind. Ct.

App. 2003), trans. denied, a woman named Lucy Scott reported that the

defendant had attacked her while she was holding her three-year-old daughter,

D.S. The State charged the defendant with domestic battery as to Scott and

battery as to D.S. At trial, D.S.’s name was never mentioned, but Officer Susan

Reidenbach testified that Scott was holding her three-year-old daughter at the

time of the attack. The defendant was found guilty and appealed, arguing that

the evidence was insufficient to identify the victim of the battery. We disagreed,

explaining:

Court of Appeals of Indiana | Opinion 23A-CR-2503 | June 24, 2024 Page 8 of 10 [T]he evidence is sufficiently clear to establish that the charging information relating to D.S., a three-year-old child, refers to the same three-year-old child who Officer Reidenbach testified was being held by Scott when she was attacked and thrown onto the bed. Officer Reidenbach also established that the three-year-old child who Scott was holding was Scott’s own daughter. This evidence was sufficient for the trial court to conclude that D.S. was the child who was being held by Scott and who was injured in the altercation.

Id. at 806.

[18] Here, though, no such identifying information about the victim was admitted

into evidence. While multiple witnesses identified the shooting victim in

photos, their testimony didn’t link the photos to the person named in the

charging information and the BMV registration.

[19] Because the State failed to prove the identity of the victim beyond a reasonable

doubt, we must reverse Freeman’s battery conviction. We affirm Freeman’s

conviction and one-year sentence for carrying a handgun without a license.

[20] Affirmed in part and reversed in part.

Weissmann, J., and Foley, J., concur.

ATTORNEY FOR APPELLANT Matthew D. Anglemeyer Marion County Public Defender Appellate Division Indianapolis, Indiana

Court of Appeals of Indiana | Opinion 23A-CR-2503 | June 24, 2024 Page 9 of 10 ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General J.T. Whitehead Deputy Attorney General Indianapolis, Indiana

Court of Appeals of Indiana | Opinion 23A-CR-2503 | June 24, 2024 Page 10 of 10