MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Sep 23 2016, 10:27 am
regarded as precedent or cited before any CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Donald J. Frew Gregory F. Zoeller
Fort Wayne, Indiana Attorney General of Indiana
Richard C. Webster
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
John E. Gray, September 23, 2016
Appellant-Defendant, Court of Appeals Case No.
02A03-1603-CR-708
v. Appeal from the Allen Superior
Court
State of Indiana, The Honorable Wendy W. Davis,
Appellee-Plaintiff Judge
Trial Court Cause No.
02D05-1409-F6-224
Baker, Judge.
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[1] John Gray appeals his conviction for Level 5 Felony Battery,1 arguing that there
is insufficient evidence supporting the conviction. Finding the evidence
sufficient, we affirm.
Facts
[2] On July 16, 2014, Gray, Robert Bentz, and Don Taflinger were in the garage of
Taflinger’s Fort Wayne house. Bentz was planning to sell some tools to buyers
who had arranged to come by the garage. Meanwhile, Gray was working on a
bicycle and listening to music.
[3] Bentz asked Gray to turn the volume down on the CD player. Gray responded,
“I’ll turn that mother f**ker down,” and smashed the CD player. Tr. p. 133.
Gray then turned to Bentz and shoved him backwards. Bentz’s arm became
entangled in the legs of the stool on which he was sitting, and as he hit the
ground, his left wrist fractured. Bentz stood up and began running.
[4] Gray followed Bentz, and as Bentz attempted to call the police on his cell
phone, Gray grabbed a hammer and yelled, “You call the police you mother
f**ker and I’ll kill you, you son of a b**ch, I’ll crack your f**king skull.” Id. at
137. Gray caught up to Bentz and pushed him to the ground again, which
caused Bentz’s wrist to fracture a second time. Bentz was able to get up and
keep running, and as he ran he called the police.
1
Ind. Code § 35-42-2-1.
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[5] As a result of this attack, Bentz incurred a severely broken wrist that required
surgery; two damaged vertebrae, which will also require surgery to repair; a
large bruise on his left leg; a large bruise in the middle of his back; bruises on
his arms; and severe pain that was ongoing at the time of the trial.
[6] On September 17, 2014, the State charged Gray with criminal recklessness, a
Level 6 felony, and misdemeanor battery, a class A misdemeanor. The State
later amended the battery charge to allege a Level 5 felony battery.
[7] After a February 3, 2016, trial, a jury found Gray guilty of felony battery but
not guilty of criminal recklessness. On March 4, 2016, the trial court sentenced
Gray to five years, with three years executed and two years suspended to
probation. Gray now appeals.
Discussion and Decision
[8] Gray argues that there is insufficient evidence supporting his conviction. When
reviewing a claim of insufficient evidence, we do not reweigh the evidence, nor
do we judge the credibility of witnesses. McHenry v. State, 820 N.E.2d 124, 126
(Ind. 2005). We consider only the probative evidence and the reasonable
inferences drawn therefrom that support the verdict. Id.
[9] In order to convict Gray of Level 5 felony battery, the State was required to
prove beyond a reasonable doubt that Gray knowingly or intentionally touched
Bentz in a rude, insolent, or angry manner that resulted in serious bodily injury
to Bentz. I.C. § 35-42-2-1. The parties stipulated that Bentz’s injuries
constituted serious bodily injuries. State’s Ex. 11.
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[10] In this case, the jury heard the testimony of Bentz, who recounted Gray’s
battery in detail. Bentz’s testimony, that Gray “turned on me and shoved me
over backwards,” tr. p. 133, alone would be sufficient evidence from which the
jury could conclude beyond a reasonable doubt that Gray knowingly touched
Bentz in a rude, insolent, or angry manner. Further, Taflinger also testified and
told the jury that Gray shoved Bentz. Finally, the jury saw photographs of
Bentz’s extensive injuries, which are circumstantial evidence of Gray’s guilt.2
[11] In sum, there is a wealth of direct and circumstantial evidence supporting
Gray’s conviction for Level 5 felony battery, and his arguments to the contrary
are unavailing.
[12] The judgment of the trial court is affirmed.
Vaidik, C.J., and Najam, J., concur.
2
Gray makes reference to the incredible dubiosity rule in his appeal. However, as our Supreme Court has
instructed us to only apply that doctrine “where a sole witness presents inherently contradictory testimony . . .
and there is a complete lack of circumstantial evidence of the appellant’s guilt,” Moore v. State, 27 N.E.3d 749, 755
(Ind. 2015) (emphases original), the doctrine does not apply to this case, which involves the presence of a
second witness and circumstantial evidence.
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