Robert A. Johnson, Jr. v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: July 27, 2017
• Docket: 71A04-1702-CR-298
• Status: Published

Opinion

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jul 27 2017, 9:59 am

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 Sean P. Hilgendorf Curtis T. Hill, Jr. South Bend, Indiana Attorney General of Indiana Michael Gene Worden Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Robert A. Johnson, Jr., July 27, 2017 Appellant-Defendant, Court of Appeals Case No. 71A04-1702-CR-298 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable Elizabeth C. Appellee-Plaintiff. Hurley, Judge Trial Court Cause No. 71D08-1604-F6-363

Mathias, Judge.

[1] Robert A. Johnson, Jr. (“Johnson”) was convicted in St. Joseph Superior Court

of Level 6 felony battery against a public safety officer, Level 6 felony resisting

Court of Appeals of Indiana | Memorandum Decision 71A04-1702-CR-298 | July 27, 2017 Page 1 of 9 law enforcement, and Class B misdemeanor criminal recklessness. Johnson

appeals, claiming that the State presented insufficient evidence to support his

convictions. We affirm.

Facts and Procedural History [2] On the evening of March 7, 2016, Officer Terry Beck (“Officer Beck”) of the St.

Joseph County Police Department was informed that Johnson had an active

warrant for his arrest and was instructed to keep an eye out for Johnson while

on patrol. Later that night, Officer Beck saw what he believed to be Johnson’s

car parked at Johnson’s mother’s house. Officer Beck radioed for assistance,

and Corporal Nicholas Johnson (“Corporal Johnson”)1 arrived on the scene.

[3] Unsure of whether the car belonged to Johnson, the two police officers kept

watch on the vehicle from behind a nearby fence. At some point thereafter,

Johnson came out of his mother’s house and got into the car. The officers were

then able to identify Johnson and came out from behind the fence to approach

the car. Corporal Johnson went up to the driver’s side of the car, and Officer

Beck went to the passenger seat. The area was lighted by a light on a telephone

pole, and the headlights on Johnson’s car were on. Additionally, the police

officers had flashlights that they turned on as they approached the car. Both

officers shined their lights into the car. Johnson looked at both officers, who

were wearing their patrol uniforms. Upon seeing the officers, Johnson

1 There is no indication in the record that Corporal Johnson is related to the defendant.

Court of Appeals of Indiana | Memorandum Decision 71A04-1702-CR-298 | July 27, 2017 Page 2 of 9 immediately put the car in reverse and quickly began to back the car away from

the police. Both officers loudly commanded Johnson to stop and identified

themselves as police officers. Officer Beck hit the hood of Johnson’s car with his

flashlight to get Johnson’s attention. As Johnson pulled the car back, the car

bumped into Officer Beck at least twice. Johnson then put his car into drive and

drove straight at Corporal Johnson, who had to move out of the way to avoid

the car. Still, as Johnson drove by, the car struck Corporal Johnson on his left

hip. Johnson then sped away from his mother’s home. The two officers

attempted to chase down Johnson in their patrol cars but were unable to

apprehend him at the time.

[4] In the meantime, Officer Joshua Harmon (“Officer Harmon”) arrived on the

scene and spoke with Johnson’s mother, Jean Reinhart (“Reinhart”). Reinhart

called her son on his mobile phone and allowed Officer Harmon to speak with

him. At first, Johnson told Officer Harmon that he had not been at his mother’s

house that night. When Officer Harmon told Johnson that his mother had

confirmed that he was, in fact, at her house that night, Johnson admitted that

he had been there, but claimed that he fled because he did not recognize the

officers as police and thought someone was attempting to rob him. Later,

however, Johnson told Officer Harmon that he knew the people at his mother’s

house were police officers and that he had fled because he knew he had active

warrant for his arrest and did not want to go to jail. Johnson, however, did not

return to his mother’s house that night and was apprehended later.

Court of Appeals of Indiana | Memorandum Decision 71A04-1702-CR-298 | July 27, 2017 Page 3 of 9 [5] On April 21, 2016, the State charged Johnson with four counts: Count I, Level

6 felony battery against a public safety officer (Officer Beck); Count II, Level 6

felony battery against a public safety officer (Corporal Johnson); Count III,

Level 6 felony resisting law enforcement by fleeing in a vehicle; and Count IV,

Class B misdemeanor criminal recklessness. A two-day jury trial commenced

on December 19, 2016. At the conclusion of the trial, the jury found Johnson

not guilty on Count I but guilty on the remaining counts. On February 2, 2017,

the trial court sentenced Johnson to concurrent terms of 18 months on both

Level 6 felony convictions and “merged” the Class B misdemeanor conviction

with the resisting law enforcement conviction for sentencing purposes. Johnson

now appeals.

Standard of Review [6] When reviewing a claim of insufficient evidence to sustain a conviction, we

consider only the probative evidence and reasonable inferences supporting the

verdict. Meehan v. State, 7 N.E.3d 255, 257 (Ind. 2014). It is the jury’s role, not

ours, to assess witness credibility and weigh the evidence to determine whether

it is sufficient to support a conviction. Id. We will affirm the conviction unless

no reasonable fact-finder could find the elements of the crime proven beyond a

reasonable doubt. Id. It is therefore not necessary that the evidence overcome

every reasonable hypothesis of innocence. Id. A reasonable inference of guilt

must be more than a mere suspicion, conjecture, conclusion, guess,

opportunity, or scintilla. Id.

Court of Appeals of Indiana | Memorandum Decision 71A04-1702-CR-298 | July 27, 2017 Page 4 of 9 Discussion and Decision [7] Johnson challenges the sufficiency of the evidence supporting all of his

convictions. We address each in turn.

A. Battery Against a Public Safety Officer

With regard to the evidence supporting his conviction for battery against

Corporal Johnson, the State was required to prove beyond a reasonable doubt

that Johnson knowingly or intentionally touched Corporal Johnson in a rude,

insolent, or angry manner and that Corporal Johnson was a public safety officer

engaged in his official duties. Ind. Code § 35-42-2-1(b)(1), (d)(2).2 “‘A person

engages in conduct ‘intentionally’ if, when he engages in the conduct, it is his

conscious objective to do so,” and “[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(a), (b).

[8] Johnson argues that there was insufficient evidence to show that his car actually

struck Corporal Johnson.3 In support of his argument, he refers to the testimony

2 Johnson makes no argument that Corporal Johnson was not a public safety officer engaged in his official duties, nor would any such argument be successful, as the evidence clearly showed that Corporal Johnson was an officer of the St. Joseph County Police Department and was on duty when he attempted to apprehend Johnson. See Ind. Code § 35-42-2-1(a)(1) (defining a “public safety officer” to include a “law enforcement officer”). 3 It has long been settled that battery may be committed by hitting another with an automobile. Schneider v. State, 181 Ind. 218, 104 N.E. 69, 69 (1914) (citing Luther v. State, 177 Ind. 619, 624, 98 N.E. 640, 641-42 (1912)); see also Matthews v. State, 476 N.E.2d 847, 850 (Ind. 1985) (noting that defendant need not personally touch another person because battery may be committed by the unlawful touching by defendant or by any other substance put in motion by defendant).

Court of Appeals of Indiana | Memorandum Decision 71A04-1702-CR-298 | July 27, 2017 Page 5 of 9 of Officer Beck, who testified that Johnson “almost” hit Corporal Johnson

when he backed away in his car. He notes that Corporal Johnson testified the

car struck him as he swung his flashlight at the car. Johnson argues that Officer

Beck’s testimony contradicts Corporal Johnson’s testimony. However, any

inconsistency between the testimony of Corporal Johnson and Officer Beck was

for the jury to resolve. See Jordan v. State, 656 N.E.2d 816, 818 (Ind. 1995)

(“Inconsistencies go to the weight and credibility of the testimony, the

resolution of which is within the province of the trier of fact.”).

[9] Johnson also argues that the physics of the situation, with Corporal Johnson on

the driver’s side of the car, makes it “impossible” for there to have been

anything other than “incidental” contact between Johnson’s car and Corporal

Johnson. He argues that the mens rea element is absent because Corporal

Johnson’s own testimony shows that he was swinging his flashlight at the car

when it struck him. We disagree.

[10] The evidence favoring the jury’s verdict includes Corporal Johnson’s testimony

that Johnson’s car struck him in the hip as it pulled forward after having first

backed up. Indeed, after Johnson backed the car up, Corporal Johnson was at

first directly in front of the car and had to quickly move out of the way to avoid

being directly struck as Johnson sped away. Despite Corporal Johnson’s evasive

acts, Johnson’s car struck his left hip. Moreover, there was evidence that

Johnson saw the police officers, who were in full uniform, recognized that they

were police officers, and fled because he did not want to be arrested and go to

jail.

Court of Appeals of Indiana | Memorandum Decision 71A04-1702-CR-298 | July 27, 2017 Page 6 of 9 [11] Johnson’s action of driving his car directly at Corporal Johnson in an attempt to

flee the officers is sufficient to show that he knowingly used his car to touch

Corporal Johnson in a rude, insolent, or angry manner. See Beach v. State, 512

N.E.2d 440, 445 (Ind. Ct. App. 1987) (holding that evidence was sufficient to

support defendant’s conviction for attempted battery where he drove his car on

the sidewalk, nearly striking several people); Green v. State, 159 Ind. App. 68,

81, 304 N.E.2d 845, 853 (1973) (holding that evidence was sufficient to support

conviction for battery where defendant drove his car at deputy attempting to

block his escape, striking the deputy in the leg).

B. Resisting Law Enforcement

[12] Johnson next argues that the State failed to prove that he resisted law

enforcement. A person who “knowingly or intentionally . . . flees from a law

enforcement officer after the officer has, by visible or audible means, including

operation of the law enforcement officer’s siren or emergency lights, identified

himself or herself and ordered the person to stop,” commits resisting law

enforcement as a Class A misdemeanor. Ind. Code § 35-44.1-3-1(a)(3) (2014).

The offense is elevated to a Level 6 felony if “the person uses a vehicle to

commit the offense.” Id. at § 1(b)(1)(A).

[13] Johnson again contends that there was inconsistent testimony with regard to

what the officers said and did to show that they were in fact police officers.

Again, this is irrelevant to our review. Jordan, 656 N.E.2d at 818. Although

Officer Beck testified that he did not have time to announce himself as an

officer before Johnson began to back his car up and further testified that he Court of Appeals of Indiana | Memorandum Decision 71A04-1702-CR-298 | July 27, 2017 Page 7 of 9 could not recall if he told Johnson to stop, Corporal Johnson unequivocally

testified that he and Officer Beck yelled at Johnson and announced themselves

as police officers. Both officers were dressed in uniform, and both testified that

Johnson looked directly at them. Corporal Johnson also testified that he told

Johnson to stop several times to no avail. Officer Harmon testified that, during

his telephone conversation with Johnson, Johnson admitted that he knew that it

was the police who approached his car and fled because he knew that he had a

warrant for his arrest and did not want to go to jail. From this evidence, the jury

could reasonably conclude that Johnson knowingly fled from the police, using a

vehicle, after the police identified themselves by visual and audible means and

ordered Johnson to stop.

C. Criminal Recklessness

[14] “A person who recklessly, knowingly, or intentionally performs an act that

creates a substantial risk of bodily injury to another person commits criminal

recklessness.” Ind. Code § 35-42-2-2(a). Johnson’s argument regarding the

sufficiency of the evidence to convict him for criminal recklessness is that a

finding of guilt for criminal recklessness is inconsistent with the jury’s act of

acquitting him of battery against Officer Beck.

[15] However, our supreme court has explicitly held that, in criminal cases, jury

verdicts “‘are not subject to appellate review on grounds that they are

inconsistent, contradictory, or irreconcilable.’” McWhorter v. State, 993 N.E.2d

1141, 1146 (Ind. 2013) (quoting Beattie v. State, 924 N.E.2d 643, 649 (Ind.

2010)). Instead, we tolerate such verdicts, acknowledging that they conceivably Court of Appeals of Indiana | Memorandum Decision 71A04-1702-CR-298 | July 27, 2017 Page 8 of 9 could be “‘due to a compromise among disagreeing jurors, or to expeditiously

conclude a lengthy deliberation, or to avoid an all-or-nothing verdict, or for

other reasons.’” Id. (quoting Beattie, 924 N.E.2d at 649).

[16] Accordingly, the fact that the jury acquitted Johnson of battering Officer Beck is

immaterial to the question of whether there was sufficient evidence to find him

guilty of criminal recklessness in his conduct toward both officers. Furthermore,

the jury could reasonably conclude that, by driving a car straight at a police

officer attempting to effectuate an arrest, causing the officer to have to quickly

move out of the way of the approaching car, Johnson recklessly performed an

act that created a substantial risk of bodily injury to Corporal Johnson.

Conclusion [17] Considering only the evidence favorable to the jury’s verdicts, we conclude that

the State presented evidence sufficient to support Johnson’s convictions.

[18] Affirmed.

Kirsch, J., and Altice, J., concur.

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