Pursuant to Ind.Appellate Rule 65(D), this Jul 24 2013, 6:25 am
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:
PETER L. BOYLES GREGORY F. ZOELLER
Rhame & Elwood Attorney General of Indiana
Portage, Indiana
KARL M. SCHARNBERG
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
CHRISTOPHER BATTISHILL, )
)
Appellant-Defendant, )
)
vs. ) No. 64A05-1211-CR-589
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE PORTER SUPERIOR COURT
The Honorable William E. Alexa, Judge
Cause No. 64D02-1204-FC-3371
July 24, 2013
MEMORANDUM DECISION – NOT FOR PUBLICATION
RILEY, Judge
STATEMENT OF THE CASE
Appellant-Defendant, Christopher Battishill (Battishill), appeals his conviction for
one Count of intimidation, a Class C felony, Ind. Code § 35-45-2-1, and one Count of
disorderly conduct, a Class B misdemeanor, I.C. § 35-45-1-3.
We affirm.
ISSUES
Battishill raises four issues on appeal, which we restate as follows:
(1) Whether the State presented sufficient evidence of probative value to
sustain his conviction for intimidation;
(2) Whether the trial court properly excluded Battishill’s YouTube video
depicting a prior arrest of Battishill;
(3) Whether Battishill’s conviction was subject to mandatory minimum
sentencing; and
(4) Whether the trial court abused its discretion when it failed to advise
Battishill of his right to allocution prior to his sentencing.
FACTS AND PROCEDURAL HISTORY
On March 31, 2012, Battishill’s mother, Karen Carlson (Carlson), contacted the
Porter County Sheriff Department and reported that Battishill was acting erratically and
was concerned for his well-being. She told the Sheriff’s department that Battishill had
been making delusional statements and had threatened her life. Not knowing where the
house was, Officer Brian Gill (Officer Gill) and Sergeant Mathew Edwards (Sergeant
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Edwards) followed Carlson to Battishill’s residence. When Officer Gill and Sergeant
Edwards pulled up on the drive way, Battishill came out of the house, started waving his
hands in the air, and started screaming nonsensical statements. He thereafter ran back to
the house, locked himself in, and barricaded the door. Officer Gill and Sergeant Edwards
went to the front door and attempted to speak with Battishill. They knocked several
times. They could hear Battishill breaking things inside and shouting. He was screaming
that he was the reincarnation of Jesus Christ and that his mother, Carlson, was the devil.
He also made a comment that if Officer Gill and Sergeant Edwards entered the house
they would have to kill him because he was going to kill them.
At that point, Officer Gill and Sergeant Edwards felt that Battishill was a threat to
himself or to someone else and they decided to enter the house. They obtained a key
from Carlson and attempted to open the door but were unable to since Battishill had
barricaded the door. Sergeant Edwards then instructed Officer Gill to go around the
house to the back door and see whether he could gain access to the house there.
Meanwhile, Sergeant Edwards remained at the front door. Sergeant Edwards once again
tried opening the front door. He lunged into it and this time, the door flung open. When
Officer Gill heard the commotion, he ran back to the front of the house and found that
Sergeant Edwards and his K-9 partner, Joker, were already in the house.
As soon as he got in, Sergeant Edwards observed that Battishill was standing with
his “body bladed with his left hand behind his back, holding some kind of silver object
protruding out of the back.” (Transcript p. 110) He noticed that the object was a samurai
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sword. Upon seeing this, Sergeant Edwards released Joker. Joker lunged at Battishill
and bit his left arm. The samurai sword fell on the ground. Sergeant Edwards then
proceeded to handcuff Battishill. Battishill refused and a tussle ensued between him and
Sergeant Edwards where he also tried to bite Sergeant Edwards’ right hand. Battishill
was later transported to Porter County Hospital, where he continued making delusional
statements and became uncooperative. He began thrashing around, punched two of the
security guards, punched Officer Gill, and kicked Sergeant Edwards in the hand.
On April 2, 2012, the State filed Information, charging Battishill with: Count I,
intimidation, a Class C felony, I.C. § 35-45-2-1; Count II, disarming a law enforcement
officer, a Class C felony, I.C. § 35-44-3-3-5; Counts III and IV, battery, Class D felonies,
I.C. § 35-42-2-1; Counts V and VI, battery, Class A misdemeanors, I.C. § 35-42-2-1;
Count VII, resisting law enforcement, a Class A misdemeanor, I.C. § 35-44-3-3; and
Count VIII, disorderly conduct, a Class B misdemeanor, I.C. § 35-45-1-3.
On May 4, 2012, Battishil notified the court that he was going to proceed pro se.
On June 25, 2012, the State filed a motion for psychiatric examination and a hearing was
held on June 29, 2012, where the trial court appointed doctors to determine Battishill’s
competency to stand trial. On August 31, 2012, the trial court found that Battishill was
competent to stand trial and appointed a public defender to act as a standby counsel. On
September 17 -19, 2012, a jury trial was conducted. The jury found Battishill guilty of
intimidation and disorderly conduct and not guilty on all other charges. On October 19,
2012, the trial court held a sentencing hearing and Battishill was sentenced to four years
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in the Indiana Department of Correction with two years suspended on the intimidation
offense. The trial court also sentenced him to 180 days for disorderly conduct. These
sentences were to run concurrently.
Battishill now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Sufficiency
Battishill contends that the State’s evidence was insufficient to establish beyond a
reasonable doubt his conviction for intimidation. In reviewing a sufficiency of the
evidence claim, this court does not reweigh the evidence or judge the credibility of the
witness. Perez v State, 872 NE.2d 208, 212-13 (Ind. Ct. App. 2000), trans denied. We
will consider only the evidence most favorable to the judgment and the reasonable
inferences to be drawn therefrom and will affirm if the evidence and those inferences
constitute substantial evidence of probative value to support the judgment. See id. at
213. Reversal is appropriate only when a person would not be able to form inferences as
to each material element of the offense. Id.
To convict Battishill of intimidation, a Class C felony, the State was required to
establish that Battishill communicated a threat to another person, namely Sergeant
Edwards, with the intent to place him in fear of retaliation for a prior lawful act. See I.C.
§ 35-45-2-1(a)(2). Battishill now maintains that the threat was conditioned upon future
conduct and did not in any way place Sergeant Edwards in fear or retaliation for a prior
lawful act. We disagree.
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The record shows that there was sufficient evidence establishing that Battishill’s
threat placed Sergeant Edwards in fear. Carlson contacted the Sherriff’s Department and
asked them to check up on Battishill since he had been making delusional statements and
had threatened her life. Officer Gill and Sergeant Edwards followed Carlson to
Battishill’s residence. At trial, Officer Gill testified that Battishill “also made a comment
that if we entered the house we would have to kill him because he was going to attempt to
kill us.” (Tr. p 68). Further, Sergeant Edwards testified that:
I observed Mr. Battishill standing with his body bladed with his left hand behind
his back with some kind of silver object protruding out of the back. At that point
in time, you only have split seconds. I [perceived] him to be a threat by the
statement he had made that if we entered we would have to kill him or he would
kill us.
(Tr. p. 110).
Battishill argues that the threat was futuristic and it did not in any way mean that
he was going to act on it. In Norris v. State, 755 N.E.2d 190 (Ind. Ct. App. 2001), trans.
Denied, this court affirmed a conviction for intimidation base upon Norris’s threat to the
victim that he was “going to get” her for having denied him custody of his children.
Consequently, we conclude, that the threats were communicated within the meaning of
I.C. § 35-45-2-1(a)(2), and that the State presented sufficient evidence for the jury to find
Battishill guilty of the intimidation offense.
II. Admission of Evidence
Battishill contends that the trial court abused its discretion when it failed to admit
his YouTube video as evidence. Our standard of review in this area is well settled. The
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admission of evidence is within the sound discretion of the trial court, and the decision
whether to admit evidence will not be reversed absent a showing of manifest abuse of the
trial court resulting in the denial of a fair trial. Spires v. State, 670 N.E.2d 1313, 1315
(Ind. Ct. App. 1996). In determining the admissibility of evidence, the reviewing court
will only consider the evidence in favor of the trial court’s ruling and unrefuted evidence
in the defendant's favor. Reaves v. State, 586 N.E.2d 847, 857 (Ind. 1992).
In the present case, the State filed a motion in limine requesting that Battishill’s
YouTube video entitled ‘Arrested for Videotaping the Police’, be prohibited from
presentation to the jury. (Tr. pp. 2-3) The video depicted a prior unrelated arrest of
Battishill by the same police department. In response, Battishill argued that:
It’s a video of me being arrested for videotaping. It is an old charge from 2007. I
wanted it [] I originally want it in this case, and it was denied by the judge. I
couldn’t even make mention of it. But that’s what that is the relevance of it is the
video. I was arrested for resisting law enforcement. It’s the same police
department. It’s Porter County police. It shows that I’ve had prior incidents with
this police department. It helps to explain why I was barricading the door, you
know, in an attempt to not having anything to do with the police. I was scared. So
that’s what it shows.
(Tr. pp. 173-74). (emphasis added).
To determine the relevancy of the YouTube video, we rely on Ind. Evidence Rule
401 which provides that relevant evidence is that evidence having any tendency to make
the existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence. The standard under
Evidence Rule 401 is a liberal one, and an appellate court reviews the trial court’s
determination as to relevance for an abuse of discretion. Jackson v. State, 712 N.E.2d
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986, 988 (Ind. 1999). However, relevant evidence “may be excluded if its probative
value is substantially outweighed by the danger of unfair prejudice, confusion of issues,
or misleading the jury, or by considerations of undue delay, or needless presentation of
cumulative evidence.” Id. (citing Evid. R. 403).
We find Battishill’s argument unpersuasive. He argues that the video would show
why he was barricading the door. However, Battishill was not charged with refusing to
open the door. Therefore, Battishill’s video would not have helped in determining the
issues before the trial court as being more probable or less probable under the
circumstances. We, therefore, conclude that the trial court properly exercised its
discretion by not admitting the YouTube video as evidence.
III. Mandatory Minimum Sentencing
Next, Battishill alleges that the trial court abused its discretion when it concluded
that he was subject to mandatory minimum sentencing. Sentencing decisions are within
the sound discretion of the trial court and are reviewed only for an abuse of that
discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind.2007), clarified on reh’g, 875
N.E.2d 218. An abuse of discretion occurs if the decision is clearly against the logic and
effect of the facts and circumstances before the court, or the reasonable, probable, and
actual deductions to be drawn therefrom. Id.
Batttishill argues that the trial court abused its discretion when it relied on the pre-
sentence investigation report. He argues that the report relates a “Hot Check Violation, a
Class C felony”, he committed between March 8, 2000 and March 9, 2000 in Green
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County, Arkansas, and which states that he had been sentenced to a fine, court costs, and
60 months of unsupervised probation. (Appellant’s App. p. 290) Battishill main
contention focuses on the additional information in the pre-sentence report which stated
that:
The Green County Probation Department or Clerk’s Office were unable to provide
a release date, therefore it’s believed his Probation was terminated on 6-4-08.
(App. p. 290).
Ind. Code section 35-50-2-2 provides in pertinent part that:
Sec. 2. (a) The court may suspend any part of a sentence for a felony, except as
provided in this section []
(b) [] with respect to the following crimes listed in this subsection, the court
may suspend only that part of the sentence that is in excess of the minimum
sentence, []:
(2) The crime committed was a Class C felony and less than seven
(7) years have elapsed between the date the person was discharged
from probation, imprisonment, or parole, whichever is later, for a
prior unrelated felony conviction and the date the person committed
the Class C felony for which the person is being sentenced.
Here, Battishill had been previously convicted for a hot check violation and
ordered to serve 60 months of unsupervised probation. The additional information
provided for in the pre-sentencing report stated that his probation was to be terminated on
June 4, 2008. Battishill committed the current intimidation offense on March 31, 2012.
Only four years have lapsed since Battishill got discharged from his probation. Even if
the probation date was miscalculated, any error in calculation would not have spanned
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more than three years. Battishill intimidation offense puts him well within the seven year
period, thus the trial court had to sentence him to at least two years.
Furthermore, at trial, Battshill’s counsel affirmed that the information in the pre-
sentence report as being correct:
[TRIAL COURT]: Are there any changes, corrections, or additions that need to
be made in that report, or is everything in there correct?
[BATTISHILL]: No changes, corrections or addition at all.
[TRIAL COURT]: Everything is fine?
[BATTISHILL]: Everything is fine.
(Sent. Tr. p 4).
Accordingly, we conclude that the trial court did not abuse its discretion by
concluding that Battishill was subject to mandatory minimum sentencing.
IV. Right of allocution
Lastly, Battishill argues that his sentence should be set aside because the trial court
failed to grant his counsel or himself an opportunity to speak before the trial court
imposed the sentence. I.C. § 35-38-1-5, provides in pertinent part that:
[t]he court shall inform the defendant of the verdict of the jury or the finding of the
court. The court shall afford counsel for the defendant an opportunity to speak on
behalf of the defendant. The defendant may also make a statement personally in
the defendant’s own behalf and, before pronouncing sentence, the court shall ask
the defendant whether the defendant wishes to make such a statement.
Battishill relies on Fields v. State, 676 N.E.2d 27, 31 (Ind. Ct. App. 1997), trans.
denied, where this court remanded the case for resentencing when the trial court did not
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inquire of the defendant as to whether he desired to make a statement at sentencing.
Here, the record shows that the following exchange occurred at the sentencing trial:
[TRIAL COURT]: Mr. Battishill the recommendation of my probation office is
that on Count I, intimidation, a class D felony, that the sentence be four years in
the department of corrections [sic] with two years suspended, which is the
minimum mandatory, which is what you’re eligible for, with two years of formal
probation. And also substance abuse and mental health evaluation and treatment.
[] Do you have any thoughts or comments on that sentence, Mr. Boyles?
[BATTISHILL]: Judge, we actually have witness []
[TRIAL COURT]: That’s fine and dandy. []
(Sent. Tr. p. 7).
While the record reflects that Battishill’s counsel was afforded an opportunity to
make a statement before the sentencing, Battishill himself was not given an opportunity
to make a statement. However, he waived this right when he failed to pose an objection
during sentencing. In Robles v. State, 705 N.E.2d 183, 187 (Ind. Ct. App. 1998), this
court noted that a person cannot sit idly by, permit the trial court to make an error, and
attempt to take advantage of the error at a later time. We find no error here and confirm
the trial court’s sentence.
CONCLUSION
Based on the foregoing, we conclude that: (1) the State presented sufficient
evidence to sustain Battishill’s conviction for intimidation; (2) the trial court properly
excluded Battishill’s YouTube video as evidence; (3) the trial court properly imposed a
mandatory minimum sentence for his intimidation offense; and (4) the trial court did not
abuse its discretion during Batttishill’s sentencing.
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Affirmed.
KIRSCH, J. and VAIDIK, J. concur
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