John E. Gray v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: September 23, 2016
• Docket: 02A03-1603-CR-708
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Sep 23 2016, 10:27 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Donald J. Frew Gregory F. Zoeller Fort Wayne, Indiana Attorney General of Indiana Richard C. Webster Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

John E. Gray, September 23, 2016 Appellant-Defendant, Court of Appeals Case No. 02A03-1603-CR-708 v. Appeal from the Allen Superior Court State of Indiana, The Honorable Wendy W. Davis, Appellee-Plaintiff Judge Trial Court Cause No. 02D05-1409-F6-224

Baker, Judge.

Court of Appeals of Indiana | Memorandum Decision 02A03-1603-CR-708 | September 23, 2016 Page 1 of 4 [1] John Gray appeals his conviction for Level 5 Felony Battery,1 arguing that there

is insufficient evidence supporting the conviction. Finding the evidence

sufficient, we affirm.

Facts [2] On July 16, 2014, Gray, Robert Bentz, and Don Taflinger were in the garage of

Taflinger’s Fort Wayne house. Bentz was planning to sell some tools to buyers

who had arranged to come by the garage. Meanwhile, Gray was working on a

bicycle and listening to music.

[3] Bentz asked Gray to turn the volume down on the CD player. Gray responded,

“I’ll turn that mother f**ker down,” and smashed the CD player. Tr. p. 133.

Gray then turned to Bentz and shoved him backwards. Bentz’s arm became

entangled in the legs of the stool on which he was sitting, and as he hit the

ground, his left wrist fractured. Bentz stood up and began running.

[4] Gray followed Bentz, and as Bentz attempted to call the police on his cell

phone, Gray grabbed a hammer and yelled, “You call the police you mother

f**ker and I’ll kill you, you son of a b**ch, I’ll crack your f**king skull.” Id. at

137. Gray caught up to Bentz and pushed him to the ground again, which

caused Bentz’s wrist to fracture a second time. Bentz was able to get up and

keep running, and as he ran he called the police.

1 Ind. Code § 35-42-2-1.

Court of Appeals of Indiana | Memorandum Decision 02A03-1603-CR-708 | September 23, 2016 Page 2 of 4 [5] As a result of this attack, Bentz incurred a severely broken wrist that required

surgery; two damaged vertebrae, which will also require surgery to repair; a

large bruise on his left leg; a large bruise in the middle of his back; bruises on

his arms; and severe pain that was ongoing at the time of the trial.

[6] On September 17, 2014, the State charged Gray with criminal recklessness, a

Level 6 felony, and misdemeanor battery, a class A misdemeanor. The State

later amended the battery charge to allege a Level 5 felony battery.

[7] After a February 3, 2016, trial, a jury found Gray guilty of felony battery but

not guilty of criminal recklessness. On March 4, 2016, the trial court sentenced

Gray to five years, with three years executed and two years suspended to

probation. Gray now appeals.

Discussion and Decision [8] Gray argues that there is insufficient evidence supporting his conviction. When

reviewing a claim of insufficient evidence, we do not reweigh the evidence, nor

do we judge the credibility of witnesses. McHenry v. State, 820 N.E.2d 124, 126

(Ind. 2005). We consider only the probative evidence and the reasonable

inferences drawn therefrom that support the verdict. Id.

[9] In order to convict Gray of Level 5 felony battery, the State was required to

prove beyond a reasonable doubt that Gray knowingly or intentionally touched

Bentz in a rude, insolent, or angry manner that resulted in serious bodily injury

to Bentz. I.C. § 35-42-2-1. The parties stipulated that Bentz’s injuries

constituted serious bodily injuries. State’s Ex. 11. Court of Appeals of Indiana | Memorandum Decision 02A03-1603-CR-708 | September 23, 2016 Page 3 of 4 [10] In this case, the jury heard the testimony of Bentz, who recounted Gray’s

battery in detail. Bentz’s testimony, that Gray “turned on me and shoved me

over backwards,” tr. p. 133, alone would be sufficient evidence from which the

jury could conclude beyond a reasonable doubt that Gray knowingly touched

Bentz in a rude, insolent, or angry manner. Further, Taflinger also testified and

told the jury that Gray shoved Bentz. Finally, the jury saw photographs of

Bentz’s extensive injuries, which are circumstantial evidence of Gray’s guilt.2

[11] In sum, there is a wealth of direct and circumstantial evidence supporting

Gray’s conviction for Level 5 felony battery, and his arguments to the contrary

are unavailing.

[12] The judgment of the trial court is affirmed.

Vaidik, C.J., and Najam, J., concur.

2 Gray makes reference to the incredible dubiosity rule in his appeal. However, as our Supreme Court has instructed us to only apply that doctrine “where a sole witness presents inherently contradictory testimony . . . and there is a complete lack of circumstantial evidence of the appellant’s guilt,” Moore v. State, 27 N.E.3d 749, 755 (Ind. 2015) (emphases original), the doctrine does not apply to this case, which involves the presence of a second witness and circumstantial evidence.

Court of Appeals of Indiana | Memorandum Decision 02A03-1603-CR-708 | September 23, 2016 Page 4 of 4