MEMORANDUM DECISION May 19 2015, 10:09 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 Sean P. Hilgendorf Gregory F. Zoeller South Bend, Indiana Attorney General of Indiana
Karl M. Scharnberg Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Thomas J. Mure, May 19, 2015
Appellant-Defendant, Court of Appeals Cause No. 71A05-1407-CR-336 v. Appeal from the St. Joseph Superior Court Cause No. 71D03-1211-FC-281 State of Indiana, Appellee-Plaintiff. The Honorable Jerome Frese, Judge
Barnes, Judge.
Court of Appeals of Indiana | Memorandum Decision 71A05-1407-CR-336 | May 19, 2015 Page 1 of 7 Case Summary
[1] Thomas Mure appeals his conviction for battery, a Class C felony. We affirm.
Issue
[2] The issue before us is whether there is sufficient evidence to support Mure’s
conviction.
Facts
[3] The evidence most favorable to the conviction is that Mure was living across
the street from Joseph Walasinski in South Bend when his house caught fire
and became uninhabitable. Walasinski, with whom Mure was somewhat
acquainted, told Mure that Mure could stay with him. Walasinski explained
that he would not charge Mure rent for the first month. Mure moved into
Walasinski’s house in early November 2012.
[4] On November 19, 2012, Mure and Walasinski argued about the payment of
rent and, early the following morning, Walasinski called the police,
complaining of an unwanted person in his home. The next day, Officer Keith
Vergon of the South Bend Police Department was dispatched to the call at
around 6:30 a.m. Officer Vergon instructed Mure to leave the residence. Mure
was “visibly upset,” but he complied. Tr. p. 69. When Officer Vergon and
Mure got outside, Mure discovered that the windows to his Cadillac were
smashed out. Mure, believing Walasinski had smashed out the windows,
punched Walasinski in the face in Officer Vergon’s presence. Officer Vergon
Court of Appeals of Indiana | Memorandum Decision 71A05-1407-CR-336 | May 19, 2015 Page 2 of 7 intervened, separated Mure and Walasinski, and allowed Mure to collect the
remainder of his belongings and leave in the Cadillac.
[5] A short time later, Mure returned to Walasinski’s house. Walasinski was on
the porch and, when Mure approached, retreated into the front doorway and
attempted to shut the door. Mure testified that he shoved the door in
Walasinski’s face—propelling Walasinski backward and shattering the door’s
glass inlay—and then hit Walasinski once. Mure claims that after Walasinski
“went down,” Mure retrieved the keys to his motorcycle and drove away. Id. at
170.
[6] At around 11:40 a.m., Officer Vergon was again dispatched to Walasinski’s
residence. Another officer and medical responders were already at Walasinski’s
house, and Walasinski was being wheeled out on a gurney. Walasinski was
unconscious, his eyes were swollen shut, and he had bruises and cuts on his
face. Walasinski sustained two rib fractures, a pulmonary contusion, and
subdural hematomas, caused by hemorrhaging. Officer Vergon entered the
house and found it had been ransacked, with furniture in disarray. On an
overturned refrigerator were splotches of what appeared to be blood. While
gathering information for the report, Officer Vergon was advised over the radio
that Mure was at Murphy’s bar in South Bend.
[7] Officer Vergon went to Murphy’s and noticed Mure’s Cadillac in the parking
lot. Officer Vergon went inside the bar, at which point Mure, seated at the
counter, “got up abruptly” and headed for the exit. Id. at 85. Officer Vergon
Court of Appeals of Indiana | Memorandum Decision 71A05-1407-CR-336 | May 19, 2015 Page 3 of 7 detained Mure in the parking lot. Mure had cuts on his face, knuckles, and
palms and had spots of blood on his sweatshirt and jeans. Blood was also
visible on the Cadillac’s steering wheel and fender. Mure was transported to
the police station and arrested.
[8] Because Walasinski was intoxicated, he could not recall what happened during
the assault or the identity of the assailant. A Murphy’s bartender testified that
she asked Mure about the smashed-out windows and blood on his Cadillac, to
which he explained “that it was his roommate’s blood and that he had got him
back for smashing his windows out.” Id. at 18. Another Murphy’s bartender
testified that she heard Mure tell other bar patrons that he had beaten up his
roommate for smashing out the windows of his car.
[9] DNA analysis was conducted on blood samples obtained from Mure’s
sweatshirt, Walasinski’s refrigerator, the steering wheel of Mure’s Cadillac, and
the fender of Mure’s Cadillac. The analyses revealed both Mure’s and
Walasinski’s blood on Mure’s sweatshirt; Mure’s blood on the refrigerator and
the steering wheel; and Walasinski’s blood on the fender.
[10] At a bench trial, Mure’s counsel argued that after Mure’s retrieval of his
motorcycle and before the second police dispatch, someone other than Mure
had entered Walasinski’s house and battered Walasinski. The trial court
rejected this theory, and Mure was convicted of battery as a Class C felony.
Mure now appeals.
Analysis
Court of Appeals of Indiana | Memorandum Decision 71A05-1407-CR-336 | May 19, 2015 Page 4 of 7 [11] Mure argues that there is insufficient evidence to support his conviction. When
reviewing a challenge to the sufficiency of the evidence, we neither reweigh the
evidence nor assess the credibility of the witness. Bailey v. State, 979 N.E.2d
133, 135 (Ind. 2012). We review all evidence—even if conflicting—and
reasonable inferences drawn therefrom in a light most favorable to the
conviction. Id. We affirm if there is substantial evidence of probative value
supporting each element of the crime from which a reasonable trier of fact
could have found the defendant guilty beyond a reasonable doubt. Id.
[12] To convict Mure of battery as a Class C felony, the State was required to prove
that he knowingly or intentionally touched Walasinski in a “rude, insolent, or
angry manner . . . result[ing] in serious bodily injury.” Ind. Code § 35-42-2-
1(a)(3).
[13] There is substantial evidence to conclude that Mure returned to Walasinski’s
home and battered him, causing Walasinski to suffer serious bodily injury.
Mure contends that because his conviction was “based solely upon suspicion,
opportunity, probability, conjecture or unreasonable inferences of guilt gleaned
from vague evidence,” the trial court ruling cannot be sustained. Appellant’s
Br. p. 5 (quoting Durham v. State, 238 N.E.2d 9, 13 (1968)). The compelling
evidence of Mure’s guilt negates that his conviction was based on mere
suspicion or conjecture. Even wholly circumstantial evidence is sufficient “if
inferences may reasonably be drawn that enable the trier of fact to find the
defendant guilty beyond a reasonable doubt.” Pierce v. State, 761 N.E.2d 821,
826 (Ind. 2002).
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MEMORANDUM DECISION May 19 2015, 10:09 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 Sean P. Hilgendorf Gregory F. Zoeller South Bend, Indiana Attorney General of Indiana
Karl M. Scharnberg Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Thomas J. Mure, May 19, 2015
Appellant-Defendant, Court of Appeals Cause No. 71A05-1407-CR-336 v. Appeal from the St. Joseph Superior Court Cause No. 71D03-1211-FC-281 State of Indiana, Appellee-Plaintiff. The Honorable Jerome Frese, Judge
Barnes, Judge.
Court of Appeals of Indiana | Memorandum Decision 71A05-1407-CR-336 | May 19, 2015 Page 1 of 7 Case Summary
[1] Thomas Mure appeals his conviction for battery, a Class C felony. We affirm.
Issue
[2] The issue before us is whether there is sufficient evidence to support Mure’s
conviction.
Facts
[3] The evidence most favorable to the conviction is that Mure was living across
the street from Joseph Walasinski in South Bend when his house caught fire
and became uninhabitable. Walasinski, with whom Mure was somewhat
acquainted, told Mure that Mure could stay with him. Walasinski explained
that he would not charge Mure rent for the first month. Mure moved into
Walasinski’s house in early November 2012.
[4] On November 19, 2012, Mure and Walasinski argued about the payment of
rent and, early the following morning, Walasinski called the police,
complaining of an unwanted person in his home. The next day, Officer Keith
Vergon of the South Bend Police Department was dispatched to the call at
around 6:30 a.m. Officer Vergon instructed Mure to leave the residence. Mure
was “visibly upset,” but he complied. Tr. p. 69. When Officer Vergon and
Mure got outside, Mure discovered that the windows to his Cadillac were
smashed out. Mure, believing Walasinski had smashed out the windows,
punched Walasinski in the face in Officer Vergon’s presence. Officer Vergon
Court of Appeals of Indiana | Memorandum Decision 71A05-1407-CR-336 | May 19, 2015 Page 2 of 7 intervened, separated Mure and Walasinski, and allowed Mure to collect the
remainder of his belongings and leave in the Cadillac.
[5] A short time later, Mure returned to Walasinski’s house. Walasinski was on
the porch and, when Mure approached, retreated into the front doorway and
attempted to shut the door. Mure testified that he shoved the door in
Walasinski’s face—propelling Walasinski backward and shattering the door’s
glass inlay—and then hit Walasinski once. Mure claims that after Walasinski
“went down,” Mure retrieved the keys to his motorcycle and drove away. Id. at
170.
[6] At around 11:40 a.m., Officer Vergon was again dispatched to Walasinski’s
residence. Another officer and medical responders were already at Walasinski’s
house, and Walasinski was being wheeled out on a gurney. Walasinski was
unconscious, his eyes were swollen shut, and he had bruises and cuts on his
face. Walasinski sustained two rib fractures, a pulmonary contusion, and
subdural hematomas, caused by hemorrhaging. Officer Vergon entered the
house and found it had been ransacked, with furniture in disarray. On an
overturned refrigerator were splotches of what appeared to be blood. While
gathering information for the report, Officer Vergon was advised over the radio
that Mure was at Murphy’s bar in South Bend.
[7] Officer Vergon went to Murphy’s and noticed Mure’s Cadillac in the parking
lot. Officer Vergon went inside the bar, at which point Mure, seated at the
counter, “got up abruptly” and headed for the exit. Id. at 85. Officer Vergon
Court of Appeals of Indiana | Memorandum Decision 71A05-1407-CR-336 | May 19, 2015 Page 3 of 7 detained Mure in the parking lot. Mure had cuts on his face, knuckles, and
palms and had spots of blood on his sweatshirt and jeans. Blood was also
visible on the Cadillac’s steering wheel and fender. Mure was transported to
the police station and arrested.
[8] Because Walasinski was intoxicated, he could not recall what happened during
the assault or the identity of the assailant. A Murphy’s bartender testified that
she asked Mure about the smashed-out windows and blood on his Cadillac, to
which he explained “that it was his roommate’s blood and that he had got him
back for smashing his windows out.” Id. at 18. Another Murphy’s bartender
testified that she heard Mure tell other bar patrons that he had beaten up his
roommate for smashing out the windows of his car.
[9] DNA analysis was conducted on blood samples obtained from Mure’s
sweatshirt, Walasinski’s refrigerator, the steering wheel of Mure’s Cadillac, and
the fender of Mure’s Cadillac. The analyses revealed both Mure’s and
Walasinski’s blood on Mure’s sweatshirt; Mure’s blood on the refrigerator and
the steering wheel; and Walasinski’s blood on the fender.
[10] At a bench trial, Mure’s counsel argued that after Mure’s retrieval of his
motorcycle and before the second police dispatch, someone other than Mure
had entered Walasinski’s house and battered Walasinski. The trial court
rejected this theory, and Mure was convicted of battery as a Class C felony.
Mure now appeals.
Analysis
Court of Appeals of Indiana | Memorandum Decision 71A05-1407-CR-336 | May 19, 2015 Page 4 of 7 [11] Mure argues that there is insufficient evidence to support his conviction. When
reviewing a challenge to the sufficiency of the evidence, we neither reweigh the
evidence nor assess the credibility of the witness. Bailey v. State, 979 N.E.2d
133, 135 (Ind. 2012). We review all evidence—even if conflicting—and
reasonable inferences drawn therefrom in a light most favorable to the
conviction. Id. We affirm if there is substantial evidence of probative value
supporting each element of the crime from which a reasonable trier of fact
could have found the defendant guilty beyond a reasonable doubt. Id.
[12] To convict Mure of battery as a Class C felony, the State was required to prove
that he knowingly or intentionally touched Walasinski in a “rude, insolent, or
angry manner . . . result[ing] in serious bodily injury.” Ind. Code § 35-42-2-
1(a)(3).
[13] There is substantial evidence to conclude that Mure returned to Walasinski’s
home and battered him, causing Walasinski to suffer serious bodily injury.
Mure contends that because his conviction was “based solely upon suspicion,
opportunity, probability, conjecture or unreasonable inferences of guilt gleaned
from vague evidence,” the trial court ruling cannot be sustained. Appellant’s
Br. p. 5 (quoting Durham v. State, 238 N.E.2d 9, 13 (1968)). The compelling
evidence of Mure’s guilt negates that his conviction was based on mere
suspicion or conjecture. Even wholly circumstantial evidence is sufficient “if
inferences may reasonably be drawn that enable the trier of fact to find the
defendant guilty beyond a reasonable doubt.” Pierce v. State, 761 N.E.2d 821,
826 (Ind. 2002).
Court of Appeals of Indiana | Memorandum Decision 71A05-1407-CR-336 | May 19, 2015 Page 5 of 7 [14] Although Walasinski was unable to verify that Mure was the assailant, this lack
of direct evidence does not undermine the judgment of the trial court. See, e.g.,
Campbell v. State, 266 N.E.2d 797, 799 (Ind. 1971); Scott v. State, 234 N.E.2d
474, 477 (Ind. 1968) (“It is not essential, in order to sustain the conviction of
appellant, that he should have been identified at the trial, by positive or direct
evidence, as the guilty person.”) (internal citation omitted). The evidence shows
that Mure and Walasinski argued the night before the incident and that Mure
subsequently punched Walasinski in Officer Vergon’s presence. Mure also
admitted to pushing the door in on Walasinski and punching him again when
Mure returned to retrieve his motorcycle. DNA evidence reveals that Mure’s
blood was on the overturned refrigerator and that Walasinski’s blood was found
on Mure’s sweatshirt. Mure, furthermore, freely made incriminating statements
to employees and patrons at Murphy’s bar the day of the incident.
[15] Mure argues that his blood on the overturned refrigerator could be attributed to
some other incident during his stay at Walasinski’s house. Mure also advances
the theory that someone else could have entered Walasinski’s house and beat
him after Mure left on his motorcycle and left the front door ajar. In our review
for sufficient evidence, however, it is “not necessary that the evidence overcome
every reasonable hypothesis of innocence.” Drane v. State, 867 N.E.2d 144, 147
(Ind. 2007). Suggesting that we now consider the reasonableness of Mure’s
theory essentially asks this court to reassess the credibility of the witness, an
enterprise barred by the applicable standard of review.
Conclusion Court of Appeals of Indiana | Memorandum Decision 71A05-1407-CR-336 | May 19, 2015 Page 6 of 7 [16] There is sufficient evidence to support Mure’s conviction. We affirm.
[17] Affirmed.
May, J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 71A05-1407-CR-336 | May 19, 2015 Page 7 of 7