FILED
Apr 06 2017, 10:05 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Timothy J. Burns Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Tyler G. Banks
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Donald Anderson, April 6, 2017
Appellant-Defendant, Court of Appeals Case No.
49A05-1609-CR-2081
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Barbara Cook-
Appellee-Plaintiff Crawford, Judge
The Honorable Ronnie Huerta,
Commissioner
Trial Court Cause No.
49G09-1605-CM-16861
Baker, Judge.
Court of Appeals of Indiana | Opinion 49A05-1609-CR-2081 | April 6, 2017 Page 1 of 7
[1] Donald Anderson appeals his conviction for Battery by Bodily Waste, a Class B
Misdemeanor.1 He argues that the evidence supporting his conviction is
insufficient and that there is a material variance between the charging
information and the evidence presented at trial. Finding no material variance
and that the evidence is sufficient, we affirm.
Facts
[2] On May 4, 2016, Anderson was using a computer at a branch of the
Indianapolis Public Library. He began arguing with another patron, whom he
accused of looking over his shoulder at his computer screen. Laura Johnson, a
security officer at the branch, intervened and told Anderson that disputes
should be handled through her. Johnson escorted Anderson out of the building.
When they reached the door, another patron, Kishawna Hicks, was entering.
As Anderson passed by Hicks, he spit in her face.
[3] On May 5, 2016, the State charged Anderson with battery by bodily waste, a
class B misdemeanor. A bench trial was held on August 17, 2016. At the trial,
there were some discrepancies regarding the name of the victim. Although the
charging information correctly spelled Kishawna Hicks’s name, Johnson
referred to her as “Tashanna.” Tr. p. 28. Anderson testified in his own
defense, but repeatedly referred to the victim as “Ms. Ticks,” despite reading
the correctly-spelled name off of the charging information. Id. at 38. Anderson
1
Ind. Code § 35-42-2-1(c)(2).
Court of Appeals of Indiana | Opinion 49A05-1609-CR-2081 | April 6, 2017 Page 2 of 7
proffered a somewhat unique theory of self-defense: “So, when I was about to
pass Ms. Ticks, she lifted up so quickly like so rapidly and like had the most
wickedness smile on her face . . . like a jack-o-lantern smile . . . . I do admit the
spitting or whatever, but . . . I would like to claim that as self-defense.” Id. at
38-39. The trial court found Anderson guilty as charged and imposed a time-
served sentence. Anderson now appeals.
Discussion and Decision
[4] Anderson argues that there is insufficient evidence supporting his conviction.
He contends that the State failed at trial to prove the identity of his victim and
that there is a material variance of proof between the charging information and
the testimony presented at trial.
[5] When reviewing the sufficiency of the evidence supporting a conviction, we will
neither reweigh the evidence nor assess witness credibility. Harbert v. State, 51
N.E.3d 267, 275 (Ind. Ct. App. 2016). We will consider only the evidence
supporting the judgment and any reasonable inferences that may be drawn
therefrom, and we will affirm if a reasonable trier of fact could have found the
defendant guilty beyond a reasonable doubt. Id. Moreover, to successfully
claim a variance between the charging information and the evidence at trial, a
defendant must show that he was misled in the preparation and maintenance of
his defense or that he will be vulnerable to double jeopardy in a future criminal
proceeding covering the same events, facts, and evidence. Winn v. State, 748
N.E.2d 352, 356 (Ind. 2001).
Court of Appeals of Indiana | Opinion 49A05-1609-CR-2081 | April 6, 2017 Page 3 of 7
[6] To convict Anderson of class B misdemeanor battery by bodily waste, the State
was required to prove beyond a reasonable doubt that Anderson knowingly or
intentionally, in a rude, insolent, or angry manner, placed bodily fluid or waste
on another person. I.C. § 35-42-2-1(c)(2). At trial, Anderson himself testified
that he did exactly that, and his testimony was corroborated by the testimony of
the library security officer. His argument that there is insufficient evidence fails.
[7] Nor was there a material variance between the charging information and the
evidence presented at trial. Although Anderson testified that he spit at “Ms.
Ticks,” he was reading the name off of the charging information, which
correctly identified the victim. The security officer misstated a single syllable of
the victim’s name. There is no indication that Anderson would or could have
prepared a different defense had the officer said the victim’s name correctly, nor
is there any possibility that Anderson will be charged and convicted of spitting
at a “Tishawna Ticks” in the future. Therefore, Anderson’s argument regarding
this minor discrepancy is unavailing.
[8] The judgment of the trial court is affirmed.
Pyle, J., concurs.
Mathias, J., concurs with a separate opinion.
Court of Appeals of Indiana | Opinion 49A05-1609-CR-2081 | April 6, 2017 Page 4 of 7
IN THE
COURT OF APPEALS OF INDIANA
Donald Anderson, Court of Appeals Case No.
49A05-1609-CR-2081
Appellant-Defendant,
v.
State of Indiana,
Appellee-Plaintiff
Mathias, Judge, concurring.
[9] I concur with the majority’s conclusion that the evidence sufficient to support
Anderson’s conviction for Class B misdemeanor battery by bodily waste.
However, I write separately to express my ongoing concern that Indiana’s
criminal justice system continues to turn a blind eye to individuals suffering
from mental illness who would be better served by commitment to a mental
health treatment facility instead of incarceration in a local jail or the
Department of Correction.
Court of Appeals of Indiana | Opinion 49A05-1609-CR-2081 | April 6, 2017 Page 5 of 7
[10] There is a “large and ironic lapse in the logic of our criminal justice system,” in
which the “initial imperative is to determine the competency of defendants
prospectively, to assist counsel at trial,” not to promptly consider whether the
defendant was competent at the time the crime was committed. Habibzadah v.
State, 904 N.E.2d 367, 370-71 (Ind. Ct. App. 2009) (Mathias, J., concurring); see
also A.J. v. Logansport State Hosp., 956 N.E.2d 96, 117-18 (Ind. Ct. App. 2011)
(Mathias, J., concurring); Gross v. State, 41 N.E.3d 1043, 1051-52 (Ind. Ct. App.
2015) (Mathias, J., concurring); Robinson v. State, 53 N.E.3d 1236, 1243-44 (Ind.
Ct. App. 2016) (Mathias, J., concurring) (all citing my concurring opinion in
Habibzadah).
[11] “I continue to believe that our criminal procedure should permit a psychiatric
examination of a defendant who likely suffers from serious mental illness very
early after arrest to determine whether the defendant could have possibly had
the requisite scienter or mens rea at the time of the crime.” Gross, 42 N.E.3d at
1052 (Mathias, J., concurring). I repeat my mantra yet again:
Our criminal justice system needs an earlier and intervening
procedure to determine competency retroactively to the time of
the alleged crime. Perhaps we as a society need to consider the
concept of a defendant being unchargeable because of mental
illness under Indiana Code section 35-41-3-6, and not just guilty
but mentally ill under Indiana Code section 35-36-2-1, et seq. In
either case, the commitment proceedings provided for in Indiana
Code section 35-36-2-4 would both protect society and best care
for the defendant involved.
Court of Appeals of Indiana | Opinion 49A05-1609-CR-2081 | April 6, 2017 Page 6 of 7
[I]t is time for the truly long-term, incompetent criminal
defendant to have an earlier and intervening opportunity for a
determination of his or her competency at the time of the crime
alleged. Such a procedure convened soon after arrest, rather than
years later when stale evidence and dim or non-existent
memories are all that are left, or never, would best serve society
and the defendant.
Habibzadah, 904 N.E.2d at 371 (Mathias, J., concurring). The Supreme Court
recently acknowledged my concerns in Wampler v. State, 67 N.E.3d 633, 634-35
(2017).
[12] Based upon the record before us, I believe it is likely that Anderson was
suffering from paranoia and/or schizophrenia at the time he committed his
offense. Hoosiers would be better served if persons such as Anderson were
provided with needed mental health treatment instead of being criminally
charged and incarcerated, and this is especially so for a low-level offense such
as a Class B Misdemeanor.
Court of Appeals of Indiana | Opinion 49A05-1609-CR-2081 | April 6, 2017 Page 7 of 7