MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Dec 29 2016, 8:08 am regarded as precedent or cited before any court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Kurt A. Young Gregory F. Zoeller Nashville, Indiana Attorney General of Indiana
Chandra K. Hein Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Michael Glenn, December 29, 2016 Appellant-Defendant, Court of Appeals Case No. 49A04-1511-CR-2015 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Lisa Borges, Judge Appellee-Plaintiff. Trial Court Cause No. 49G04-1311-FA-73295
May, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A04-1511-CR-2015 | December 29, 2016 Page 1 of 7 [1] Michael Glenn appeals his conviction of Class B felony aggravated battery. 1
Glenn argues there was a material variance between the charge and the
evidence at trial. He also alleges there was insufficient evidence to prove his
intent beyond a reasonable doubt. We affirm.
Facts and Procedural History [2] Glenn is an experienced mixed martial arts (“MMA”) 2 fighter who has fought
professionally several times. On the night of July 21, 2013 and into the
morning of July 22, 2013, Glenn worked security at the door of a nightclub in
Indianapolis. As part of his job, he collected the club’s cover charge.
[3] Felix Achoch arrived at the nightclub at around 1:00 a.m. but refused to pay the
cover charge. The promoter of the night’s event told Glenn to let Achoch in
without paying because he was a regular customer. Achoch decided not to stay
at the nightclub. As Achoch left, Glenn grabbed Achoch and threw him out the
door. Achoch landed on his feet and continued walking away from the club.
Glenn followed Achoch and talked about how Achoch did not want to pay the
cover charge. Glenn “pick[ed] [Achoch] up off the ground by his waist and
slam[med] him over [Glenn’s] back,” (Tr. at 134), a maneuver the MMA
community refers to as a “suplex.” (Id. at 127-28.) Achoch landed on his head
1 Ind. Code § 35-42-2-1.5 (1997). 2 MMA “involves different martial arts. Primarily, it is striking, which could be boxing or kickboxing. Then there is the take-down aspect which can involve wrestling, judo, anything involving throws, take-downs. Then there is grappling, again, with wrestling or Russian Sambo or Brazilian jujitsu.” (Tr. at 159.)
Court of Appeals of Indiana | Memorandum Decision 49A04-1511-CR-2015 | December 29, 2016 Page 2 of 7 and started twitching. Glenn then repeatedly punched Achoch in the face and
kicked him. By the time Glenn stopped, Achoch was bleeding from the ears.
Glenn then said, “I told you I was going to have to flex somebody.” (Id. at
121.) An on-looker equated the word “flex” with “flatten.” (Id.) Glenn also
yelled “[r]oll the dice, you lose your life.” (Id. at 124.)
[4] Someone flagged down Officer Scott Rodriguez. Officer Rodriguez found
Achoch standing underneath an awning. Achoch was bleeding from his ears,
appeared unsteady on his feet, and did not respond to questions. Police
summoned an ambulance. Achoch spent eight days in the hospital and
ultimately died from “complications of multiple blunt force traumatic injuries to
the head.” (State’s Ex. 21, Dr. Randy Tashjian deposition at 24:14-25:21.) As
a result of the multiple impacts to Achoch’s head, his brain swelled and his
skull was fractured in three places.
[5] On November 13, 2013, the State charged Glenn with Class A felony robbery 3
and Class B felony aggravated battery. 4 The robbery charge was dismissed.
The Information regarding the battery charge alleged “Michael Glenn . . . did
knowingly inflict injury, that is: multiple blunt force injuries, on another person,
namely: Felix Achoch, that created a substantial risk of death to Felix Achoch,
by striking and/or kicking at and against the person of Felix Achoch.” (App.
3 Ind. Code § 35-42-5-1 (1984). 4 Ind. Code § 35-42-2-1.5 (1997).
Court of Appeals of Indiana | Memorandum Decision 49A04-1511-CR-2015 | December 29, 2016 Page 3 of 7 Vol. 1 at 31.) On August 24, 2015, the court conducted a bench trial. The trial
court found Glenn guilty of aggravated battery and said: “Even if there weren’t
testimony that supported the language ‘striking at,’ there is testimony that
supports the suplex maneuver which would have, and could have, in that
situation, caused an injury that could later turn to be fatal.” (Tr. at 222.)
Discussion and Decision I. Variance
[6] “A variance is an essential difference between proof and pleading.” Reinhardt v.
State, 881 N.E.2d 15, 17 (Ind. Ct. App. 2008). To produce reversible error, a
variance must mislead the defendant in formulating a defense, which causes
prejudice or harm, or it must pose a double jeopardy risk. Winn v. State, 748
N.E.2d 352, 356 (Ind. 2001). A double jeopardy risk may arise when the State
charges a person several times with crimes based on the same set of operative
facts, as the successive charging may violate the continuing crime doctrine.
Walker v. State, 932 N.E.2d 733, 736-737 (Ind. Ct. App. 2010), reh’g denied.
[7] Glenn notes the State charged him with “multiple blunt force injuries . . . that
created a substantial risk of death . . . by striking and/or kicking at and against .
. . Achoch,” (App. Vol. 1 at 31), and he argues the State proved only the suplex
maneuver created a substantial risk of death. We disagree.
[8] The evidence demonstrated that, after Glenn dropped Achoch onto his head,
Glenn punched Achoch in the face multiple times. After the suplex, Achoch
Court of Appeals of Indiana | Memorandum Decision 49A04-1511-CR-2015 | December 29, 2016 Page 4 of 7 was twitching, but after the punches, Achoch was bleeding from his ears.
Achoch suffered multiple brain hemorrhages, skull fractures, and contusions on
the left and frontal lobes of his brain. The forensic pathologist testified Achoch
died from “complications of multiple blunt force traumatic injuries to the
head.” (State’s Ex. 21, Dr. Randy Tashjian deposition at 24:14-25:21). That
testimony demonstrates Achoch died from multiple injuries to his brain, which
would have included Glenn’s strikes to Achoch’s face while Achoch lay on the
pavement after Glenn performed the suplex maneuver. Thus, there was no
variance between the charging information and the evidence presented at trial.
See, e.g., Matthews v. State, 978 N.E.2d 438, 446 (Ind. Ct. App. 2012)
(misstatement of street on which defendant had been in public for purposes of
public intoxication charge was not material variance where charged street was
one of several involved in the series of events for which Matthews was
charged), trans. denied.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Dec 29 2016, 8:08 am regarded as precedent or cited before any court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Kurt A. Young Gregory F. Zoeller Nashville, Indiana Attorney General of Indiana
Chandra K. Hein Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Michael Glenn, December 29, 2016 Appellant-Defendant, Court of Appeals Case No. 49A04-1511-CR-2015 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Lisa Borges, Judge Appellee-Plaintiff. Trial Court Cause No. 49G04-1311-FA-73295
May, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A04-1511-CR-2015 | December 29, 2016 Page 1 of 7 [1] Michael Glenn appeals his conviction of Class B felony aggravated battery. 1
Glenn argues there was a material variance between the charge and the
evidence at trial. He also alleges there was insufficient evidence to prove his
intent beyond a reasonable doubt. We affirm.
Facts and Procedural History [2] Glenn is an experienced mixed martial arts (“MMA”) 2 fighter who has fought
professionally several times. On the night of July 21, 2013 and into the
morning of July 22, 2013, Glenn worked security at the door of a nightclub in
Indianapolis. As part of his job, he collected the club’s cover charge.
[3] Felix Achoch arrived at the nightclub at around 1:00 a.m. but refused to pay the
cover charge. The promoter of the night’s event told Glenn to let Achoch in
without paying because he was a regular customer. Achoch decided not to stay
at the nightclub. As Achoch left, Glenn grabbed Achoch and threw him out the
door. Achoch landed on his feet and continued walking away from the club.
Glenn followed Achoch and talked about how Achoch did not want to pay the
cover charge. Glenn “pick[ed] [Achoch] up off the ground by his waist and
slam[med] him over [Glenn’s] back,” (Tr. at 134), a maneuver the MMA
community refers to as a “suplex.” (Id. at 127-28.) Achoch landed on his head
1 Ind. Code § 35-42-2-1.5 (1997). 2 MMA “involves different martial arts. Primarily, it is striking, which could be boxing or kickboxing. Then there is the take-down aspect which can involve wrestling, judo, anything involving throws, take-downs. Then there is grappling, again, with wrestling or Russian Sambo or Brazilian jujitsu.” (Tr. at 159.)
Court of Appeals of Indiana | Memorandum Decision 49A04-1511-CR-2015 | December 29, 2016 Page 2 of 7 and started twitching. Glenn then repeatedly punched Achoch in the face and
kicked him. By the time Glenn stopped, Achoch was bleeding from the ears.
Glenn then said, “I told you I was going to have to flex somebody.” (Id. at
121.) An on-looker equated the word “flex” with “flatten.” (Id.) Glenn also
yelled “[r]oll the dice, you lose your life.” (Id. at 124.)
[4] Someone flagged down Officer Scott Rodriguez. Officer Rodriguez found
Achoch standing underneath an awning. Achoch was bleeding from his ears,
appeared unsteady on his feet, and did not respond to questions. Police
summoned an ambulance. Achoch spent eight days in the hospital and
ultimately died from “complications of multiple blunt force traumatic injuries to
the head.” (State’s Ex. 21, Dr. Randy Tashjian deposition at 24:14-25:21.) As
a result of the multiple impacts to Achoch’s head, his brain swelled and his
skull was fractured in three places.
[5] On November 13, 2013, the State charged Glenn with Class A felony robbery 3
and Class B felony aggravated battery. 4 The robbery charge was dismissed.
The Information regarding the battery charge alleged “Michael Glenn . . . did
knowingly inflict injury, that is: multiple blunt force injuries, on another person,
namely: Felix Achoch, that created a substantial risk of death to Felix Achoch,
by striking and/or kicking at and against the person of Felix Achoch.” (App.
3 Ind. Code § 35-42-5-1 (1984). 4 Ind. Code § 35-42-2-1.5 (1997).
Court of Appeals of Indiana | Memorandum Decision 49A04-1511-CR-2015 | December 29, 2016 Page 3 of 7 Vol. 1 at 31.) On August 24, 2015, the court conducted a bench trial. The trial
court found Glenn guilty of aggravated battery and said: “Even if there weren’t
testimony that supported the language ‘striking at,’ there is testimony that
supports the suplex maneuver which would have, and could have, in that
situation, caused an injury that could later turn to be fatal.” (Tr. at 222.)
Discussion and Decision I. Variance
[6] “A variance is an essential difference between proof and pleading.” Reinhardt v.
State, 881 N.E.2d 15, 17 (Ind. Ct. App. 2008). To produce reversible error, a
variance must mislead the defendant in formulating a defense, which causes
prejudice or harm, or it must pose a double jeopardy risk. Winn v. State, 748
N.E.2d 352, 356 (Ind. 2001). A double jeopardy risk may arise when the State
charges a person several times with crimes based on the same set of operative
facts, as the successive charging may violate the continuing crime doctrine.
Walker v. State, 932 N.E.2d 733, 736-737 (Ind. Ct. App. 2010), reh’g denied.
[7] Glenn notes the State charged him with “multiple blunt force injuries . . . that
created a substantial risk of death . . . by striking and/or kicking at and against .
. . Achoch,” (App. Vol. 1 at 31), and he argues the State proved only the suplex
maneuver created a substantial risk of death. We disagree.
[8] The evidence demonstrated that, after Glenn dropped Achoch onto his head,
Glenn punched Achoch in the face multiple times. After the suplex, Achoch
Court of Appeals of Indiana | Memorandum Decision 49A04-1511-CR-2015 | December 29, 2016 Page 4 of 7 was twitching, but after the punches, Achoch was bleeding from his ears.
Achoch suffered multiple brain hemorrhages, skull fractures, and contusions on
the left and frontal lobes of his brain. The forensic pathologist testified Achoch
died from “complications of multiple blunt force traumatic injuries to the
head.” (State’s Ex. 21, Dr. Randy Tashjian deposition at 24:14-25:21). That
testimony demonstrates Achoch died from multiple injuries to his brain, which
would have included Glenn’s strikes to Achoch’s face while Achoch lay on the
pavement after Glenn performed the suplex maneuver. Thus, there was no
variance between the charging information and the evidence presented at trial.
See, e.g., Matthews v. State, 978 N.E.2d 438, 446 (Ind. Ct. App. 2012)
(misstatement of street on which defendant had been in public for purposes of
public intoxication charge was not material variance where charged street was
one of several involved in the series of events for which Matthews was
charged), trans. denied.
II. Sufficiency of the Evidence
[9] We do not evaluate the credibility of witnesses or reweigh the evidence when
reviewing a trial court’s decision. McHenry v. State, 820 N.E.2d 124, 126 (Ind.
2005). We “must consider only the probative evidence and reasonable
inferences supporting the verdict.” Id. We must affirm if a reasonable fact-
finder could find guilt beyond a reasonable doubt. Id.
[10] Class B felony aggravated battery occurs when “a person . . . knowingly or
intentionally inflicts injury on a person that creates a substantial risk of death.”
Ind. Code § 35-42-2-1.5 (1997). When the State charged Glenn, it alleged only Court of Appeals of Indiana | Memorandum Decision 49A04-1511-CR-2015 | December 29, 2016 Page 5 of 7 that he acted “knowingly.” (App. Vol. 1 at 31.) “A person engages in conduct
‘knowingly’ if, when he engages in the conduct, he is aware of a high
probability that he is doing so.” Ind. Code § 35-41-2-2(b).
[11] Glenn contends the State did not prove he knowingly created a substantial risk
of death because he fights all the time and has not killed anyone. However,
Glenn is an experienced MMA fighter who has fought multiple times. Glenn
dropped Achoch onto his head on pavement, which caused him to begin
twitching, and then Glenn punched and kicked Achoch until he had blood
coming out of his ears. If that weren’t enough to demonstrate Glenn knew he
created a substantial risk of death, Glenn’s own words at the scene contradict
his argument. Glenn bragged about knowing he would “flex somebody,” (Tr.
at 121), and announced if you “roll the dice, you lose your life.” (Id. at 124.) A
reasonable fact-finder could find beyond a reasonable doubt that Glenn
knowingly created a substantial risk of death. See Owens v. State, 659 N.E.2d
466, 473 (Ind. 1995) (explaining how a reasonable jury could have found
beyond a reasonable doubt the defendant knowingly killed the victim because of
the brutality of the beating combined with threats to witnesses), reh’g denied.
Conclusion [12] There was no variance between the charge and proof at trial, and there was
sufficient evidence Glenn knowingly created a substantial risk of death.
Accordingly, we affirm.
Court of Appeals of Indiana | Memorandum Decision 49A04-1511-CR-2015 | December 29, 2016 Page 6 of 7 [13] Affirmed.
Baker, J., and Brown, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A04-1511-CR-2015 | December 29, 2016 Page 7 of 7