FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
VICTORIA L. BAILEY GREGORY F. ZOELLER
Indianapolis, Indiana Attorney General of Indiana
AARON J. SPOLARICH
Deputy Attorney General
Indianapolis, Indiana
Jul 28 2014, 10:28 am
IN THE
COURT OF APPEALS OF INDIANA
BOBBY ALEXANDER, )
)
Appellant-Defendant, )
)
vs. ) No. 49A04-1207-CR-351
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Lisa Borges, Judge
Cause No. 49G04-1103-FA-15328
July 28, 2014
OPINION – FOR PUBLICATION
PYLE, Judge
STATEMENT OF THE CASE
Bobby Alexander (“Alexander”) appeals, following a jury trial, one of his two
convictions for Class B felony aggravated battery. 1
We reverse and remand.
ISSUE
Whether sufficient evidence supports one of Alexander’s aggravated
battery convictions.
FACTS
On March 4, 2011, Alexander used a semiautomatic rifle to shoot at a car
containing four individuals. As a result of the shooting, Alexander injured two of the
individuals, Ryan Little (“Little”), who was driving the car, and Robert Seger (“Seger”),
who was in the front passenger seat. The State charged Alexander with two counts of
Class A felony attempted murder and two counts of Class B felony aggravated battery.
In relevant part for this appeal, the State charged Alexander with aggravated battery as
follows:
Count III
Bobby Alexander, on or about March 4, 2011, did knowingly inflict
injury, that is: a grazing gunshot wound to the back, on another person,
namely: Ryan Little, that created a substantial risk of death to Ryan Little,
by shooting with a gun numerous times at and towards the person of Ryan
Little[.]
(App. 43).
1
IND. CODE § 35-42-2-1.5 (2011). We note that, effective July 1, 2014, a new version of this aggravated
battery statute was enacted and that Class B felony aggravated battery is now a Level 3 felony. Because
Alexander committed his crimes in 2011, we will apply the statute in effect at that time.
2
On June 4, 2012, the trial court commenced a two-day jury trial. Alexander’s
defense at trial was that he shot at Little’s vehicle in self-defense. Little was not a
cooperative witness. Prior to Little’s testimony and upon a request from the State, the
trial court admonished Little about contempt. When on the stand, Little admitted that he
did not want to testify, claimed that he did not remember the details of the events
surrounding the crimes, and did not testify about his injury. The State provided minimal
evidence regarding the injury sustained by Little, other than testimony from other
witnesses that Little was grazed by a bullet on his back and a photograph of his graze
wound. (State’s Ex. 21). Additionally, the evidence does not indicate that Little received
any medical attention for his injury.
During closing argument, the State focused its argument on the two attempted
murder charges against Alexander. When the State did address the aggravated battery
charges, it erroneously argued that Alexander’s act of shooting at Little’s car was
sufficient to show that Alexander had created a substantial risk of death. Specifically, the
prosecutor stated: “I think all of us can agree that we are aware that shooting in a car at
that close of a distance at people has a high probability of creating a substantial risk of
death or serious bodily injury. That’s sort of a no-brainer, ladies and gentlemen.” (Tr.
539-40).
During Alexander’s closing argument, his counsel did not alleviate the
misinformation regarding what needed to be shown to prove that Alexander had created a
substantial risk of death. Specifically, his counsel stated that the jury “still ha[d] to ask
the question as to whether or not [Alexander] intentionally or knowingly created a
3
substantial risk of bodily injury or death because of acting . . . the way he did in firing the
weapon and causing an aggravated battery.” (Tr. 548).
The trial court did, however, correctly instruct the jury that, to prove aggravated
battery, the State needed to prove that Alexander knowingly inflicted an injury on Little
and that the injury created a substantial risk of death. The jury found Alexander guilty of
the two Class B felony aggravated battery charges and not guilty of the two Class A
felony attempted murder charges.
On June 20, 2012, the trial court held a sentencing hearing. During the hearing,
the State requested restitution in the amount of $96,674.53 for Seger and introduced
copies of Seger’s medical bills. Before pronouncing Alexander’s sentence, the trial court
made the following statement regarding Alexander’s aggravated battery convictions:
First of all, the State did say that you could -- that aggravated battery would
be supported by just shooting at or near a person and I disagree with that
and I have to make the record clear. Aggravated battery says: A person
who knowingly or intentionally inflicts injury on a person that creates a
substantial risk of death, or causes serious permanent disfigurement,
protracted loss, or impairment of the function of a bodily member or organ,
or the loss of a fetus commits aggravated battery, a class B felony. So just
shooting at somebody isn’t going to be enough and shooting near
somebody’s not going to be enough for that. The situation is just one that is
very difficult to explain. I can’t pretend to understand it or explain it in any
way . . . There was a lot of damage to Mr. Seger. He was -- he was --
nearly did lose his life. It meets the elements of aggravated battery.
(Tr. 629-30). The trial court then imposed a six (6) year executed sentence for
Alexander’s Class B felony aggravated battery conviction relating to Little and imposed
an eight (8) year sentence with six (6) years executed and two (2) years suspended to
probation for Alexander’s Class B felony aggravated battery conviction relating to Seger.
4
The trial court ordered the sentences to be served consecutively at the Department of
Correction. As for restitution, Alexander’s counsel asked the trial court if it could
conduct a restitution hearing at a later date because counsel wanted to “follow up” on
“discounts” for Seger’s medical bills. (Tr. 579). The trial court granted Alexander’s
request. Alexander then filed a notice of appeal and commenced this appeal.
After Alexander filed his Appellant’s Brief, the State filed a motion to dismiss the
appeal, arguing that this Court did not have jurisdiction because the trial court had not
resolved the issue of restitution prior to Alexander’s filing of his notice of appeal. The
State relied on this Court’s recent opinion in Haste v. State, 967 N.E.2d 576 (Ind. Ct.
App. 2012), in which this Court sua sponte dismissed the defendant’s appeal where the
trial court entered sentencing but took the issue of restitution under advisement. The
Haste Court explained that because “the requirement that a defendant pay restitution is as
much a part of a criminal sentence as any fine or other penalty” and because the trial
court had not ruled on restitution, the order imposing sentence was not a final appealable
order under Appellate Rule 2(H). Haste, 967 N.E.2d at 576 (citing Wilson v. State, 688
N.E.2d 1293 (Ind. Ct. App. 1997) (citing Kotsopoulos v. State, 654 N.E.2d 44 (Ind. Ct.
App. 1995), trans. denied)). In response to the State’s motion to dismiss, Alexander
“concede[d] that Haste says what the State says it says” but argued that Haste was
“wrongly decided.” (Alexander’s Objection at 3). On February 4, 2013, this Court’s
motions panel denied the State’s motion to dismiss.
The State subsequently filed its Appellee’s Brief. In its brief, the State did not
address Alexander’s sufficiency argument; instead, the State asked this Court to reverse
5
the motions panel’s ruling. The State argued that, under Haste, Alexander’s appeal
should be dismissed because Alexander did not have a final judgment under Appellate
Rule 2(H). Alexander then filed a motion for oral argument, asking this Court to address
the issue of whether this appeal should be dismissed.
This Court did not hold an oral argument but issued an opinion addressing the
State’s dispositive argument that this appeal should be dismissed for lack of appellate
jurisdiction. Given the specific circumstances and “procedural limbo” of Alexander’s
case and relying on Haste and existing caselaw explaining that an order of restitution is
part of a criminal sentence, we dismissed Alexander’s appeal and remanded to the trial
court to enter a restitution order within thirty days so that Alexander could have a final
judgment and thereafter proceed with his direct appeal. See Alexander v. State, 987
N.E.2d 182, 185-86 (Ind. Ct. App. 2013), trans. granted.
Upon Alexander’s filing of a transfer petition, our Indiana Supreme Court granted
transfer and, in a per curiam opinion, vacated this panel’s opinion. See Alexander v.
State, 4 N.E.3d 1169, 1170-71 (Ind. 2014). Our Supreme Court did not overrule the
holding in Haste; instead, it distinguished Alexander’s specific procedural circumstances
from the “reported facts” in Haste and remanded Alexander’s case to this Court for
consideration of his argument raised in his Appellant’s Brief. 2 We now address
Alexander’s challenge to one of his two aggravated battery convictions.
2
The Indiana Supreme Court further held that “given the unusual procedural history of this case, a future
order of restitution once jurisdiction returns to the trial court w[ould] not be precluded.” Alexander, 4
N.E.3d at 1171.
6
DECISION
Alexander argues that the evidence was insufficient to support his aggravated
battery conviction relating to Little.
When reviewing the sufficiency of the evidence to support a conviction,
appellate courts must consider only the probative evidence and reasonable
inferences supporting the verdict. It is the fact-finder’s role, not that of
appellate courts, to assess witness credibility and weigh the evidence to
determine whether it is sufficient to support a conviction. To preserve this
structure, when appellate courts are confronted with conflicting evidence,
they must consider it most favorably to the [jury’s verdict]. Appellate
courts affirm the conviction unless no reasonable fact-finder could find the
elements of the crime proven beyond a reasonable doubt . . . The evidence
is sufficient if an inference may reasonably be drawn from it to support the
verdict.
Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (internal quotation marks, citations,
and footnote omitted) (emphasis in original).
Here, the State filed an Appellee’s Brief but did not respond to Alexander’s
challenge to his conviction. “An appellee’s failure to respond to an issue raised in an
appellant’s brief is, as to that issue, akin to failing to file a brief.” Cox v. State, 780
N.E.2d 1150, 1162 (Ind. Ct. App. 2002). Thus, Alexander need only establish prima
facie error. See id. Prima facie error is error “at first sight, on first appearance, or on the
face of it.” Id. The prima facie error standard relieves us of the burden of controverting
Alexander’s arguments, but it does not relieve us of our obligation to properly decide the
law as applied to the facts of the case. See id.
Turning to Alexander’s challenge to his aggravated battery conviction, we note
that INDIANA CODE § 35-42-2-1.5 (2011) provides that a person commits Class B felony
aggravated battery when he “knowingly or intentionally inflicts injury on a person that
7
creates a substantial risk of death or causes: (1) serious permanent disfigurement; (2)
protracted loss or impairment of the function of a bodily member or organ; or (3) the loss
of a fetus[.]” Thus, to convict Alexander of Class B felony aggravated battery, the State
was required to prove beyond a reasonable doubt that Alexander knowingly inflicted an
injury on Little that created a substantial risk of death to Little.
Alexander concedes that the State proved beyond a reasonable doubt that
Alexander shot at Little’s car and knowingly inflicted an injury on Little. Instead,
Alexander’s sole argument on appeal is that the evidence presented by the State was
insufficient to prove that Little’s injury created a substantial risk of death.
We will uphold Alexander’s conviction if we can conclude that the jury could
have reasonably inferred, based upon the evidence presented at trial, that the injury
Alexander inflicted on Little created a substantial risk of death to Little. “[I]n reviewing
a sufficiency claim concerning whether the injuries created a substantial risk of death, we
look to the observable facts, including the nature and location of the injury, and the
treatment provided.” Oeth v. State, 775 N.E.2d 696, 702 (Ind. Ct. App. 2002) (citing
Tingle v. State, 632 N.E.2d 345, 354 (Ind. 1994); Wilcher v. State, 771 N.E.2d 113, 117
(Ind. Ct. App. 2002), trans. denied), reh’g denied; trans. denied.
Here, the State presented limited evidence regarding the nature of Little’s injury,
other than testimony indicating that Little had sustained a graze wound to his back and a
photograph of the graze wound. Furthermore, Little received no medical treatment for
the wound. Indeed, the record before us reveals that the State appears to have been
confused on this substantial risk of death element for the Class B felony aggravated
8
battery charge. In both the charging information and the State’s closing argument, the
State asserted that it needed to prove that Alexander’s actions of shooting at Little’s car
created a substantial risk of death. However, the aggravated battery statute clearly
provides that it is the injury inflicted upon the victim—not the defendant’s actions—that
that must create a substantial risk of death. Thus, the State was required to prove that the
Little’s injury created a substantial risk of death to Little. Here, however, the State’s
evidence was not sufficient to prove Little’s injury created a substantial risk of death. See
e.g., Tingle, 632 N.E.2d at 354 (holding that the evidence of victim’s injuries was
insufficient to support an aggravated battery conviction because the evidence showed
only a “possibility but not a substantial risk of death”). See also Neville v. State, 802
N.E.2d 516, 519 (Ind. Ct. App. 2004) (reversing a defendant’s aggravated battery
conviction because the State did not prove that the victim’s injury caused a protracted
loss or impairment of the function of a bodily member), trans. denied. Cf. Beanblossom
v. State, 530 N.E.2d 741, 742–43 (Ind. 1988) (holding that the evidence that the victim
received a blow to the back of the head that was strong enough to knock him down to his
hands and knees and cause him to remain in a semiconscious state for a short period of
time was sufficient to show that the victim’s injury created a substantial risk of death,
which was required to show a serious bodily injury); Mateo v. State, 981 N.E.2d 59, 72
(Ind. Ct. App. 2012) (holding that there was sufficient evidence of substantial risk of
death where the State presented evidence that the victim had eight stab wounds and was
hit on the head with a baseball bat and that his “medical condition was sufficiently grave
so as to necessitate his transfer to a Fort Wayne hospital via helicopter”), trans. denied;
9
Oeth, 775 N.E.2d at 702 (holding that the jury could reasonably infer that the victim’s
injuries created a substantial risk of death where the victim was struck on the back of the
head with a hatchet, lost consciousness, and had “profuse bleeding from her wounds
which the emergency room doctor had trouble stopping”); Wilcher, 771 N.E.2d at 117
(affirming the defendant’s Class B felony aggravated battery conviction where the victim
was stabbed in the upper-left side of his chest at heart level, was unconscious and had
problems breathing, and remained hospitalized for five days while connected to a lung
machine). Because the State did not present sufficient evidence to prove that Little’s
injury created a substantial risk of death, we must reverse Alexander’s conviction for
Class B felony aggravated battery in Count III.
Nevertheless, when we reverse a conviction for insufficient evidence, we may
remand to the trial court to enter a judgment of conviction upon a lesser-included offense
if the evidence is sufficient to support the lesser offense. Neville, 802 N.E.2d at 519. An
offense is factually included in the crime charged if the means used to commit the crime
charged as alleged in the charging instrument include all of the elements of the alleged
lesser included offense. Id. (citing Wright v. State, 658 N.E.2d 563, 567 (Ind. 1995)).
Here, the State’s charging information alleged that Alexander “did knowingly
inflict injury, that is: a grazing gunshot wound to the back, on another person, namely:
Ryan Little, that created a substantial risk of death to Ryan Little, by shooting with a gun
numerous times at and towards the person of Ryan Little[.]” (App. 43). A person who
knowingly or intentionally touches another person in a rude, insolent, or angry manner by
means of a deadly weapon commits battery as a Class C felony. IND. CODE § 35–42–2–
10
1(a)(3) (2011). Therefore, the manner in which the information in the present case
alleged aggravated battery included the offense of battery as a Class C felony.
Here, the State established—and Alexander does not dispute—that he shot at
Little’s car and inflicted an injury, a gunshot wound, on Little. Thus, Alexander touched
Little in a rude, insolent, or angry manner and did so by means of a deadly weapon. This
is sufficient to prove battery as a Class C felony. See Tingle, 632 N.E.2d at 354 (holding
that, although the evidence of victim’s injuries was insufficient to prove substantial risk
of death element of aggravated battery, it did prove battery as a Class C felony).
Accordingly, we reverse Alexander’s Class B felony aggravated battery conviction and
remand to the trial court with instructions to enter judgment of conviction for battery as a
Class C felony on Count III and to resentence accordingly. See Neville, 802 N.E.2d at
520.
Reversed and remanded.
VAIDIK, C.J., and KIRSCH, J., concur.
11
Bobby Alexander v. State of Indiana
Combined Opinion