MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Aug 07 2015, 9:43 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
Gregory F. Zoeller
Barbara J. Simmons Attorney General of Indiana
Oldenburg, Indiana
Karl M. Scharnberg
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
E.C. Brown, August 7, 2015
Appellant-Defendant, Court of Appeals Case No.
49A04-1501-CR-7
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable William Nelson,
Appellee-Plaintiff Judge
The Honorable David Hooper,
Judge Pro-Tem
Cause No. 49F18-1402-FD-5896
Bailey, Judge.
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Case Summary
[1] E.C. Brown (“Brown”) appeals his convictions for Pointing a Firearm, as a
Class A misdemeanor,1 and Battery, as a Class B misdemeanor.2 He alleges
that there is insufficient evidence to support either conviction. We affirm.
Facts and Procedural History
[2] During the evening of February 5, 2014, Brown and his grand-daughter, Lasey
Brizendine (“Brizendine”), began to argue about Brizendine’s dog. Brown,
who had been yelling and cursing, “ran at” Brizendine, hitting her in her face.
(Tr. at 42.) Brizendine pushed Brown, who stumbled back into a chair. The
two briefly “tussled” until Brizendine’s friend, Kearra Coles (“Coles”),
intervened. (Tr. at 43.)
[3] Brizendine and Coles decided to leave Brown’s residence and they went into
Brizendine’s room to gather their belongings. Brown entered the room holding
a shotgun. Brown attempted to cock the rifle, but the safety mechanism was
engaged. Brizendine and Coles left and summoned police assistance.
[4] Brown was charged with pointing a firearm at Brizendine and battering her, as
a Class D felony and a Class A misdemeanor, respectively. On October 16,
2014, Brown was tried in a bench trial and convicted of lesser-included
1
Ind. Code § 35-47-4-3.
2
I.C. § 35-42-2-1(a)(1)(A).
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misdemeanors. He received an aggregate sentence of 365 days, with credit for
eight days incarceration, and the balance suspended. Brown was placed on
non-reporting probation. This appeal ensued.
Discussion and Decision
[5] Brown claims that the State failed to present sufficient evidence to support his
convictions. When reviewing the sufficiency of the evidence to support a
conviction, we will consider only the probative evidence and reasonable
inferences supporting the conviction. Lock v. State, 971 N.E.2d 71, 74 (Ind.
2012). We will neither assess witness credibility nor reweigh the evidence. Id.
We will affirm a conviction unless no reasonable fact-finder could have found
the elements of the crime proven beyond a reasonable doubt. Id.
[6] A person commits Battery, as a Class B misdemeanor, when he knowingly or
intentionally touches another person in a rude, insolent, or angry manner. I.C.
§ 35-42-2-1(b). Brizendine testified that Brown, who was “really mad, like
yelling and cussing,” ran toward her and hit her in the face. (Tr. at 42.) Brown
testified that he hit Brizendine on her shoulder. This is sufficient evidence from
which the fact-finder could conclude that Brown knowingly or intentionally
touched Brizendine in a rude, insolent, or angry manner.
[7] Brown now suggests that he did not commit a battery because he and his grand-
daughter were engaged in “mutual combat.” (Appellant’s Br. at 11.) This is a
concept potentially relevant when the defense of self-defense has been raised.
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See Tharpe v. State, 955 N.E.2d 836, 844 (Ind. 2011) (recognizing that an initial
aggressor or a mutual combatant must withdraw from the encounter and
communicate the intent to do so “before he may claim self-defense”). Brown,
whose own testimony indicates that he was the aggressor, did not attempt to
raise the defense of self-defense. A reasonable fact-finder could have found the
elements of Battery proven beyond a reasonable doubt.
[8] A person who knowingly or intentionally points a firearm at another person
commits Pointing a Firearm, as a Class A misdemeanor. I.C. § 35-47-4-3(b).
Coles testified that Brown held his shotgun “down” and “pointed right in-
between the both of us.” (Tr. at 59.)
[9] Brown claims that, because none of the witnesses testified that Brown had
pointed his shotgun “at the women,” his conviction is not supported by
sufficient evidence. (Appellant’s Br. at 12.) Essentially, his claim is that his
conduct of pointing a shotgun down and between the women is not “pointing
at” within the meaning of the statute he was charged with violating. He thus
presents an issue of statutory interpretation, whether the statute at issue
criminalizes pointing a firearm in the general direction of another person.
[10] “Penal statutes are to be strictly construed against the State and should be held
to prohibit only that conduct which is clearly within the spirit and letter of the
statutory language.” Starr v. State, 928 N.E.2d 876, 878 (Ind. Ct. App. 2010).
However, criminal statutes are not to be narrowed such that they exclude cases
which the language fairly covers. Id. Penal statutes should be interpreted so as
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to give efficient operation to the expressed intent of the legislature. Id. The best
evidence of legislative intent is the language of the statute, giving all words their
plan and ordinary meaning unless otherwise indicated by statute. Id.
[11] This Court has previously recognized that a firearm is a lethal weapon and the
potential for harm exists any time a firearm is pointed at a person. Armstrong v.
State, 742 N.E.2d 972, 976 (Ind. Ct. App. 2001). Our Legislature – without
further embellishment – criminalized pointing a firearm at another person.
Brown seeks to impose a requirement that the pointing be equivalent to taking
direct aim at a person. We do not agree with this extremely narrow
construction. Rather, the potential for harm sought to be addressed by our
Legislature existed when Brown pointed his firearm in the general direction of
and in close proximity to his grand-daughter and her friend. We conclude that
the statute under which Brown was convicted fairly covers the act of pointing a
firearm in-between persons.
Conclusion
[12] Brown’s convictions for Battery and Pointing a Firearm are supported by
sufficient evidence of probative value.
[13] Affirmed.
Baker, J., and Mathias, J., concur.
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