MEMORANDUM DECISION Feb 20 2015, 10:01 am 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.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Amanda O. Blackketter Gregory F. Zoeller Blackketter Law Office Attorney General of Indiana Shelbyville, Indiana Graham T. Youngs Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Jesse Edward Atwood, February 20, 2015
Appellant-Defendant, Court of Appeals Case No. 73A01-1407-CR-324 v. Appeal from the Shelby Superior Court The Honorable David N. Riggins, State of Indiana, Judge Appellee-Plaintiff Case No. 73D02-1405-CM-358
Crone, Judge.
Case Summary [1] Jesse Edward Atwood appeals his conviction for class B misdemeanor disorderly
conduct stemming from a physical altercation between him and another jail
inmate. He claims that there was a material variance between the charging
Court of Appeals of Indiana | Memorandum Decision 73A01-1407-CR-324 | February 20, 2015 Page 1 of 7 information and the evidence adduced at trial. He also challenges the sufficiency
of evidence to support his conviction. Finding no material variance and finding
the evidence sufficient to support his conviction, we affirm.
Facts and Procedural History [2] In May 2014, Atwood, Nicholas Rairdon, and Jose Alberto Ozuna-Barrios were
inmates in the work-release section of the Shelby County jail. Although Ozuna-
Barrios was the only one of the three actually on work release, the other two were
being housed in that section due to space constraints. One morning, around 2:00
a.m., while Ozuna-Barrios was sleeping in an upstairs bunk, Atwood and Rairdon
were playing cards and began arguing over the volume of the music playing on the
television. Atwood told Rairdon to turn down the volume, and Rairdon refused.
Both men stood up, and Atwood approached Rairdon and yelled at him. The
closed-circuit video recording shows the taller Atwood leaning over Rairdon
within a couple inches of his face. About a minute later, Atwood placed Rairdon
in a headlock from behind, and the two went to the ground, got back up, and then
went back to the ground, rolling and continuing to strike each other. Awakened by
the commotion, Ozuna-Barrios came downstairs and saw the two men wrestling
on the ground. Moments later, Atwood was crouched over on the floor, and
Rairdon struck him a couple more times. Rairdon then went to the door, pushed
the call button, and notified jail personnel of the altercation. Shortly thereafter,
Deputy Kenneth Carroll and another officer arrived. Atwood and Rairdon were
both bleeding and had sustained injuries.
Court of Appeals of Indiana | Memorandum Decision 73A01-1407-CR-324 | February 20, 2015 Page 2 of 7 [3] The State charged Atwood with class B misdemeanor disorderly conduct and class
A misdemeanor battery. The trial court found him guilty of disorderly conduct
and not guilty of battery. Atwood now appeals. Additional facts will be provided
as necessary.
Discussion and Decision
Section 1 – No material variance exists between the charging information and the evidence adduced at Atwood’s trial. [4] Atwood maintains that there is a material variance between the conduct alleged in
the charging information and the evidence forming the basis for his disorderly
conduct conviction. At the outset, we note that Atwood did not raise an objection
to any variance during his bench trial. As such, he has waived the issue for review.
See Sisson v. State, 985 N.E.2d 1, 12 (Ind. Ct. App. 2012) (holding that issues not
raised in the trial court are waived for purposes of appellate review), trans. denied
(2013); see also Neff v. State, 915 N.E.2d 1026, 1031 (Ind. Ct App. 2009)
(emphasizing that where defendant is confused by language of the charging
information, he must bring any discrepancy to the trial court’s attention at the
Court of Appeals of Indiana | Memorandum Decision 73A01-1407-CR-324 | February 20, 2015 Page 3 of 7 earliest opportunity), trans. denied (2010).1
[5] Waiver notwithstanding, a variance is fatal only if it “either misleads the defendant
in the preparation of his defense resulting in prejudice or leaves the defendant
vulnerable to double jeopardy in a future criminal proceeding covering the same
event and evidence.” Broude v. State, 956 N.E.2d 130, 136 (Ind. Ct. App. 2011),
trans. denied (2012).
[6] With respect to disorderly conduct, the charging information reads in pertinent
part, “Jesse E. Atwood did recklessly, knowingly, or intentionally engage in
fighting or tumultuous conduct, to-wit: Placed in headlock and took to ground, the
same being contrary to the form of the statute, to-wit: I.C. 35-45-1-3(1).”
Appellant’s App. at 14. At trial, the State introduced a DVD showing video
footage of the incident. The recording shows Atwood approaching Rairdon and
leaning down within inches of Rairdon’s face for nearly a minute. The footage
also depicts Atwood grabbing Rairdon from behind and wrapping his arm around
Rairdon’s neck in a maneuver resembling a headlock. State’s Ex. 1. Although the
bottom of the video screen is obstructed, it appears that the two men (still
connected by the headlock) went down toward the floor, momentarily raised up,
and then went all the way to the floor, where they rolled and wrestled for several
1 Having failed to raise the material variance issue at trial, Atwood would be limited to raising the issue as fundamental error. “[F]undamental error is extremely narrow and available only when the record reveals a clearly blatant violation of basic and elementary principles, where the harm or potential for harm cannot be denied, and which violation is so prejudicial to the rights of the defendant as to make a fair trial impossible.” Jewell v. State, 887 N.E.2d 939, 942 (Ind. 2008). As discussed below, we find no variance between the charging information and the evidence adduced at trial, and as such, we find no error at all, let alone fundamental error.
Court of Appeals of Indiana | Memorandum Decision 73A01-1407-CR-324 | February 20, 2015 Page 4 of 7 minutes. The footage lasts almost seven minutes and covers everything from
Atwood’s initial approach to the end of the altercation and the arrival of jail
personnel. Atwood did not object to the State’s introduction of the DVD and
acknowledged having received it prior to trial. Tr. at 9. Having had pretrial access
to the recording, he could view the incident from start to finish and prepare his
defense accordingly.
[7] Rather than focusing his material variance argument on the evidence adduced at
trial, Atwood focuses on the trial court’s closing remarks emphasizing his conduct
in getting in Rairdon’s face, “lording over him and telling him this is how it’s
gonna be in the cell, in the jail block,” and characterizing it as tumultuous. Tr. at
60. However, the test for a material variance measures the allegations contained in
the charging information against the evidence adduced at trial, not against the
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MEMORANDUM DECISION Feb 20 2015, 10:01 am 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.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Amanda O. Blackketter Gregory F. Zoeller Blackketter Law Office Attorney General of Indiana Shelbyville, Indiana Graham T. Youngs Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Jesse Edward Atwood, February 20, 2015
Appellant-Defendant, Court of Appeals Case No. 73A01-1407-CR-324 v. Appeal from the Shelby Superior Court The Honorable David N. Riggins, State of Indiana, Judge Appellee-Plaintiff Case No. 73D02-1405-CM-358
Crone, Judge.
Case Summary [1] Jesse Edward Atwood appeals his conviction for class B misdemeanor disorderly
conduct stemming from a physical altercation between him and another jail
inmate. He claims that there was a material variance between the charging
Court of Appeals of Indiana | Memorandum Decision 73A01-1407-CR-324 | February 20, 2015 Page 1 of 7 information and the evidence adduced at trial. He also challenges the sufficiency
of evidence to support his conviction. Finding no material variance and finding
the evidence sufficient to support his conviction, we affirm.
Facts and Procedural History [2] In May 2014, Atwood, Nicholas Rairdon, and Jose Alberto Ozuna-Barrios were
inmates in the work-release section of the Shelby County jail. Although Ozuna-
Barrios was the only one of the three actually on work release, the other two were
being housed in that section due to space constraints. One morning, around 2:00
a.m., while Ozuna-Barrios was sleeping in an upstairs bunk, Atwood and Rairdon
were playing cards and began arguing over the volume of the music playing on the
television. Atwood told Rairdon to turn down the volume, and Rairdon refused.
Both men stood up, and Atwood approached Rairdon and yelled at him. The
closed-circuit video recording shows the taller Atwood leaning over Rairdon
within a couple inches of his face. About a minute later, Atwood placed Rairdon
in a headlock from behind, and the two went to the ground, got back up, and then
went back to the ground, rolling and continuing to strike each other. Awakened by
the commotion, Ozuna-Barrios came downstairs and saw the two men wrestling
on the ground. Moments later, Atwood was crouched over on the floor, and
Rairdon struck him a couple more times. Rairdon then went to the door, pushed
the call button, and notified jail personnel of the altercation. Shortly thereafter,
Deputy Kenneth Carroll and another officer arrived. Atwood and Rairdon were
both bleeding and had sustained injuries.
Court of Appeals of Indiana | Memorandum Decision 73A01-1407-CR-324 | February 20, 2015 Page 2 of 7 [3] The State charged Atwood with class B misdemeanor disorderly conduct and class
A misdemeanor battery. The trial court found him guilty of disorderly conduct
and not guilty of battery. Atwood now appeals. Additional facts will be provided
as necessary.
Discussion and Decision
Section 1 – No material variance exists between the charging information and the evidence adduced at Atwood’s trial. [4] Atwood maintains that there is a material variance between the conduct alleged in
the charging information and the evidence forming the basis for his disorderly
conduct conviction. At the outset, we note that Atwood did not raise an objection
to any variance during his bench trial. As such, he has waived the issue for review.
See Sisson v. State, 985 N.E.2d 1, 12 (Ind. Ct. App. 2012) (holding that issues not
raised in the trial court are waived for purposes of appellate review), trans. denied
(2013); see also Neff v. State, 915 N.E.2d 1026, 1031 (Ind. Ct App. 2009)
(emphasizing that where defendant is confused by language of the charging
information, he must bring any discrepancy to the trial court’s attention at the
Court of Appeals of Indiana | Memorandum Decision 73A01-1407-CR-324 | February 20, 2015 Page 3 of 7 earliest opportunity), trans. denied (2010).1
[5] Waiver notwithstanding, a variance is fatal only if it “either misleads the defendant
in the preparation of his defense resulting in prejudice or leaves the defendant
vulnerable to double jeopardy in a future criminal proceeding covering the same
event and evidence.” Broude v. State, 956 N.E.2d 130, 136 (Ind. Ct. App. 2011),
trans. denied (2012).
[6] With respect to disorderly conduct, the charging information reads in pertinent
part, “Jesse E. Atwood did recklessly, knowingly, or intentionally engage in
fighting or tumultuous conduct, to-wit: Placed in headlock and took to ground, the
same being contrary to the form of the statute, to-wit: I.C. 35-45-1-3(1).”
Appellant’s App. at 14. At trial, the State introduced a DVD showing video
footage of the incident. The recording shows Atwood approaching Rairdon and
leaning down within inches of Rairdon’s face for nearly a minute. The footage
also depicts Atwood grabbing Rairdon from behind and wrapping his arm around
Rairdon’s neck in a maneuver resembling a headlock. State’s Ex. 1. Although the
bottom of the video screen is obstructed, it appears that the two men (still
connected by the headlock) went down toward the floor, momentarily raised up,
and then went all the way to the floor, where they rolled and wrestled for several
1 Having failed to raise the material variance issue at trial, Atwood would be limited to raising the issue as fundamental error. “[F]undamental error is extremely narrow and available only when the record reveals a clearly blatant violation of basic and elementary principles, where the harm or potential for harm cannot be denied, and which violation is so prejudicial to the rights of the defendant as to make a fair trial impossible.” Jewell v. State, 887 N.E.2d 939, 942 (Ind. 2008). As discussed below, we find no variance between the charging information and the evidence adduced at trial, and as such, we find no error at all, let alone fundamental error.
Court of Appeals of Indiana | Memorandum Decision 73A01-1407-CR-324 | February 20, 2015 Page 4 of 7 minutes. The footage lasts almost seven minutes and covers everything from
Atwood’s initial approach to the end of the altercation and the arrival of jail
personnel. Atwood did not object to the State’s introduction of the DVD and
acknowledged having received it prior to trial. Tr. at 9. Having had pretrial access
to the recording, he could view the incident from start to finish and prepare his
defense accordingly.
[7] Rather than focusing his material variance argument on the evidence adduced at
trial, Atwood focuses on the trial court’s closing remarks emphasizing his conduct
in getting in Rairdon’s face, “lording over him and telling him this is how it’s
gonna be in the cell, in the jail block,” and characterizing it as tumultuous. Tr. at
60. However, the test for a material variance measures the allegations contained in
the charging information against the evidence adduced at trial, not against the
contents of the trial court’s closing remarks. As stated, the video footage spanned
the entire incident, from the approach to the headlock, to the wrestling, crouching,
and separating. As discussed below, the evidence is sufficient to support Atwood’s
conviction, whether based on fighting or tumultuous conduct. See Ind. Code § 35-
45-1-3(1) (defining disorderly conduct as “recklessly, knowingly, or intentionally
… engag[ing] in fighting or in tumultuous conduct”) (emphasis added). Thus, the
trial court’s emphasis on one part of the video evidence over another to conclude
that Atwood engaged in one of the two disjunctive acts comprising disorderly
conduct did not result in Atwood being prejudicially misled in the preparation of
his defense or vulnerable to double jeopardy in a future proceeding.
Court of Appeals of Indiana | Memorandum Decision 73A01-1407-CR-324 | February 20, 2015 Page 5 of 7 Section 2 – The evidence is sufficient to support Atwood’s conviction for disorderly conduct. [8] Atwood challenges the sufficiency of the evidence to support his conviction. When
reviewing a sufficiency of evidence claim, we consider only the probative evidence
and reasonable inferences most favorable to the judgment. Drane v. State, 867
N.E.2d 144, 146 (Ind. 2007). We neither reweigh evidence nor assess witness
credibility. Id. The evidence need not overcome every reasonable hypothesis of
innocence, and we will affirm unless no reasonable factfinder could find the
elements of the crime proven beyond a reasonable doubt. Id.
[9] Atwood was convicted of disorderly conduct. “A person who recklessly,
knowingly, or intentionally … engages in fighting or in tumultuous conduct …
commits disorderly conduct, a class B misdemeanor.” Ind. Code § 35-45-1-3(a)(1).
Tumultuous conduct is conduct that “results in, or is likely to result in, serious
bodily injury to a person or substantial damage to property.” Ind. Code § 35-45-1-
1. “Serious bodily injury” is bodily injury that creates a substantial risk of death or
that causes: serious permanent disfigurement, unconsciousness, extreme pain,
permanent or protracted loss or impairment of the function of a bodily member or
organ, or loss of a fetus. Ind. Code § 35-31.5-2-292.
[10] Atwood focuses his insufficiency argument on the extent of Rairdon’s actual
injuries. In other words, he claims that the bite mark on Rairdon’s bicep, the
bleeding sore inside Rairdon’s mouth, and the red burn marks on Rairdon’s neck
do not amount to “serious bodily injury.” Atwood’s argument fails in two ways:
Court of Appeals of Indiana | Memorandum Decision 73A01-1407-CR-324 | February 20, 2015 Page 6 of 7 (1) it fails to acknowledge that a finding of tumultuous conduct can also be
established by showing that the conduct is likely to result in serious bodily injury;
and (2) it fails to acknowledge that disorderly conduct may be established by
showing that he knowingly engaged in “fighting or … tumultuous conduct.” Ind.
Code § 35-45-1-3(a)(1) (emphasis added).
[11] The video evidence shows the incident from start to finish. The taller Atwood got
within a couple inches of Rairdon’s face and continued to lean in toward him
while Rairdon looked down and away. Atwood then grabbed Rairdon from
behind with his arm locked around Rairdon’s neck. Somehow, the two ended up
on the floor, then back up, and then back on the floor, where they rolled and
wrestled for several minutes. Simply put, the video recording establishes that
Atwood’s conduct was likely to result in serious bodily injury and that he
knowingly or intentionally engaged in fighting. The evidence is sufficient to
support his disorderly conduct conviction. Accordingly, we affirm.
[12] Affirmed.
Friedlander, J., and Kirsch, J., concur.
Court of Appeals of Indiana | Memorandum Decision 73A01-1407-CR-324 | February 20, 2015 Page 7 of 7