Pursuant to Ind. Appellate Rule 65(D), this
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:

MICHAEL B. TROEMEL                                  GREGORY F. ZOELLER
Lafayette, Indiana                                  Attorney General of Indiana

                                                    KATHERINE MODISETT COOPER
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana

                                                                                     FILED
                               IN THE                                             Apr 18 2012, 9:40 am

                     COURT OF APPEALS OF INDIANA
                                                                                          CLERK
                                                                                        of the supreme court,
                                                                                        court of appeals and
                                                                                               tax court



JASON MYERS,                                        )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )      No. 09A02-1105-CR-598
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                       APPEAL FROM THE CASS SUPERIOR COURT
                         The Honorable Richard A. Maughmer, Judge
                               Cause No. 09D02-1007-FB-22



                                          April 18, 2012


                MEMORANDUM DECISION - NOT FOR PUBLICATION


KIRSCH, Judge
       Following a jury trial, Jason Myers appeals his convictions for battery resulting in

serious bodily injury,1 a Class C felony, and aggravated battery,2 a Class B felony. He raises

four issues that we restate as:

       I.        Whether the trial court erred by denying Myers’s motion alleging
                 prosecutorial vindictiveness;

       II.       Whether the trial court erred when it permitted the State to amend its
                 charging information for aggravated battery;

       III.      Whether the trial court abused its discretion when it excluded the
                 testimony of Myers’s proffered expert witness Brandon Sieg; and

       IV.       Whether the State presented sufficient evidence to rebut Myers’s claim
                 of self-defense.

       We affirm.

                            FACTS AND PROCEDURAL HISTORY

       On the evening of August 22, 2009, Myers was at the US 24 Speedway (“the

Raceway”) in Cass County, Indiana. Terry Wilson (“Wilson”) also was at the Raceway, but

not with Myers. Myers and Wilson shared the mutual interest of car racing and knew each

other from having regularly seen each other at racing events for a number of years. Both men

had sons who were involved in racing mini-midget cars. That night, Wilson’s son, Trent,

was participating in a race, in which Myers was also participating. At some point in the race,

Trent was in second place, and Myers was the “lap car,” at or near the back of the group of

drivers. Tr. at 70. Myers’s vehicle came into contact with the rear of Trent’s vehicle,


       1
           See Ind. Code § 35-42-2-1(a)(3).
       2
           See Ind. Code § 35-42-2-1.5(2)


                                               2
causing him to spin into the infield, and Trent was eliminated from the race. When the race

concluded, Wilson left the stands, where he had been watching the race, in order to find and

confront Myers about his driving. Wilson was angry and was yelling as he approached

Myers. Somewhere along the way, Wilson’s seventeen-year-old son, N.W., and his friend,

W.L., saw Wilson walk past, and they followed him.

       Wilson found Myers in a common area and confronted him, yelling and cursing at

Myers about his driving in the race that caused Trent to spin out and be eliminated. Wilson

either pushed or attempted to push Myers. Myers turned to walk away, and Wilson raised his

arm toward Myers, who then grabbed Wilson’s arm and forcefully threw him to the ground.

Wilson got to his hands and knees, and Myers kicked Wilson in the head, on the side of the

face, so that Wilson flipped over backward. Myers walked away. Wilson’s son, N.W., and

his friend, who had witnessed the altercation from approximately sixty or seventy feet away,

came to assist Wilson and helped him back to his trailer, where Wilson discovered he had “a

mouth full of teeth and blood.” Id. at 75. A man who had observed the fight went to the

track’s owner to make him aware that “a pretty big incident” had occurred. Id. at 137.

Wilson’s wife transported him to the hospital. As a result of the incident with Myers, Wilson

suffered injuries, including three or four broken teeth, three cracked ribs, a crushed

cheekbone that required placement of a plate in Wilson’s face, and an eye socket injury,

which eventually required multiple surgeries to keep the eye correctly placed in its socket.

       In September 2009, the State charged Myers with one count of Class A misdemeanor

battery; however, in February 2010, the State dismissed the misdemeanor charge and re-filed


                                             3
the charge as a Class C felony battery resulting in serious bodily injury. Thereafter, in July

2010, the State filed an additional count of Class B felony aggravated battery. In August

2010, Myers filed a motion to dismiss Count II, aggravated battery; the trial court did not

grant the motion to dismiss, but rather ordered the State to amend Count II to provide more

specificity as to the injured “bodily member or organ.” Appellant’s App. at 21. In response,

the State filed in September 2010 an amended information that included one count of Class C

felony battery resulting in serious bodily injury and four separate counts of Class B felony

aggravated battery (one each for: broken facial bone, nasal and sinus damage, protracted

visual impairment, and broken tooth).

       On January 25, 2011, the first day of the scheduled jury trial, Myers filed a motion to

dismiss counts III, IV, and V on double jeopardy grounds. Myers also filed a Notice of

Defense of Prosecutorial Vindictiveness and requested a continuance of trial. The State did

not object to a continuance, and trial was rescheduled to April 2011. On March 11, 2011, the

State amended its five-count information, changing the cited statute for the four aggravated

battery counts from Indiana Code section 35-42-2-1.5(1), which alleges “serious permanent

impairment” to subsection 1.5(2), which alleges “protracted loss or impairment of the

function of a bodily member or organ.”

       The trial court conducted a hearing on March 14, 2011 and denied Myers’s motion to

dismiss and Myers’s claim of prosecutorial vindictiveness. The trial court also ordered that

the State condense the four aggravated battery charges (Counts II, III, IV and V) into one

count of aggravated battery. Accordingly, on March 15, the State amended its charges to


                                              4
allege one count of Class C felony battery and one count of Class B felony aggravated

battery.3

        Myers consistently maintained that he acted in self-defense that night. During his

case-in-chief, Myers sought to present the testimony of a martial arts expert, Brandon Sieg

(“Sieg”), concerning the reasonableness of the force used by Myers in response to Wilson.

The court conducted a hearing out of the jury’s presence during which Myers made an offer

of proof, having Sieg testify. The trial court determined that, although Sieg qualified as an

expert witness under Indiana Evidence Rule 702, Sieg did not personally witness the

altercation and his testimony would not assist the trier of fact, concluding that a juror could

reach the same conclusion without the expert’s testimony. Tr. at 340. The trial court

excluded Sieg’s proposed testimony.

        Following the jury trial, Myers was found guilty of both counts. The trial court

merged the Class C felony battery conviction with the Class B felony aggravated battery

conviction, and it imposed an executed sentence of six years to be served on in-home

detention. Myers now appeals.4

                                 DISCUSSION AND DECISION

                               I.      Prosecutorial Vindictiveness




        3
         Two days before trial, the State re-filed the exact same two charges, but replacing a handwritten
numeral two in Indiana Code section 35-42-2-1.5(2) with a typed numeral “2.” Appellant’s App. at 46, 51.
        4
          We remind Myers that Indiana Appellate Rule 46(A)(6)(b) requires that the statement of facts in a
party’s brief shall be stated in accordance with the standard of review appropriate to the judgment being
appealed. We caution Myers to be mindful in the future of this requirement.

                                                    5
       A few months prior to trial, Myers filed a Notice of Defense of Prosecutorial

Vindictiveness, in which he outlined his intention to present evidence to the jury to support

his claim the State had engaged in vindictiveness. In particular, Myers intended to show the

jury that the State “escalated the Defendant’s jeopardy” on several occasions, namely when it

dismissed the misdemeanor charge and re-filed it as a Class C felony battery, and thereafter

added the Class B felony aggravated battery charge, which was then extended to four

separate aggravated battery counts and eventually returned to one aggravated battery count.

Appellant’s App. at 30. The trial court conducted a hearing and denied Myers’s motion to the

extent it requested permission to present such evidence to the jury. On appeal, Myers claims

the various amendments and re-filings “of increasing seriousness” were not because of new

evidence, but rather were because Myers had maintained his innocence. Appellant’s Br. at

13. He asserts that the trial court erred when it ruled against his intent to pursue a claim of

prosecutorial vindictiveness. We, however, find no error.

       The Due Process clauses of Article I, section 12, of the Indiana Constitution and the

Fourteenth Amendment to the United States Constitution prohibit prosecutorial

vindictiveness. Owens v. State, 822 N.E.2d 1075, 1077 (Ind. Ct. App. 2005). Prosecutorial

vindictiveness is a due process concept, allowing a defendant to attempt to establish that the

State’s charging decision was motivated by a desire to punish a defendant after the defendant

did what the law allowed him to do. United States v. Goodwin, 457 U.S. 368, 384 (1982).

       Here, the State dismissed and re-filed charges prior to trial. There is no presumption

of prosecutorial vindictiveness where additional charges are filed prior to trial. Danks v.


                                              6
State, 733 N.E.2d 474, 483 (Ind. Ct. App. 2000), trans. denied. As our Supreme Court has

said:

        [A] prosecutor should remain free before trial to exercise the broad discretion
        entrusted to him to determine the extent of the societal interest in the
        prosecution. An initial decision should not freeze future conduct . . . . [T]he
        initial charges filed by a prosecutor may not reflect the extent to which an
        individual is legitimately subject to prosecution.

Penley v. State, 506 N.E.2d 806, 811 (Ind. 1987) (quoting Goodwin, 457 U.S. at 382). Once

an information has been dismissed by the State, it may re-file an information against the

defendant, subject to certain conditions. Ind. Code § 35-34-1-13; Davenport v. State, 689

N.E.2d 1226, 1229 (Ind. 1997), clarified on reh’g, 696 N.E.2d 870 (Ind. 1998). The State

may not re-file if doing so will prejudice the substantial rights of the defendant. Id.; see also

Johnson v. State, 740 N.E.2d 118, 121 (Ind. 2001) (State may not circumvent adverse court

order or prejudice defendant’s substantial rights).

        Here, Myers argues that “[t]he State’s constant addition, subtraction and amendment

of the various charges against [Myers] prejudiced his substantial rights in that [he] had to

keep changing his trial strategy and defense to the charges as they were constantly changed

by the State.” Appellant’s Br. at 15. We disagree. The record before us reflects that in July

2010 the State advised counsel for Myers that the case had been undercharged as a Class C

felony and also informed Myers’s counsel about the State’s intent to add a charge of

aggravated battery. Appellant’s App. at 36. The parties attempted plea negotiations, which

ultimately were not successful. The State proceeded to file the Class B felony. The reason

that the State thereafter split that charge into four separate Class B felony counts was in


                                               7
response to the trial court’s directive to be more specific about injuries to Wilson.

Thereafter, the trial court ordered the State to condense it back to one Class B felony count,

which the State did. The Class B felony aggravated battery charge was filed in July 2010,

nine months before trial; consequently, Myers “had adequate time to prepare a defense and

was not forced to prepare anew on the eve of trial.” Hollowell v. State, 773 N.E.2d 326, 331

(Ind. Ct. App. 2002). Furthermore, the Class B felony aggravated battery charge was based

on the same facts and circumstances supporting the Class C felony battery charge, namely the

fight at the Raceway. Accordingly, Myers was not “forced to discard his prior preparation

for trial and begin all over” with different strategies and defenses. Id. Myers has not

established that his substantial rights were prejudiced when the State dismissed the

misdemeanor charge and re-filed it as a Class C felony, nor when it thereafter added a Class

B felony aggravated battery count. See Hollowell, 773 N.E.2d at 331 (enhanced charges after

plea negotiations failed were not product of prosecutorial vindictiveness). The trial court did

not err when it denied Myers’s request to pursue a claim of prosecutorial vindictiveness.

                   II.    Amendment to Aggravated Battery Charge

       Myers claims that the trial court erred when it allowed the State to amend Count II, the

aggravated battery count, on April 4, 2011, two days before trial. He asserts that the

amendment “changed the entire theory of the State’s case” because it changed the element

alleging “serious permanent disfigurement” to a “protracted loss or impairment of a function

of a member or bodily organ.”         Appellant’s Br. at 16.     We disagree with Myers’s

characterization of the effect of the April 4 amendment, and we find no error.


                                              8
       In reaching our decision, we review the procedural history of the Class B felony

aggravated battery charge. The State filed the Class B felony aggravated battery charge on

July 27, 2010. It alleged that Myers knowingly or intentionally inflicted injury upon Wilson

“that caused protracted loss or impairment of the function of a bodily member or organ”

contrary to Indiana Code section 35-42-2-1.5(2) (“Subsection 2”). Appellant’s App. at 10.

Then, about two months later, on September 28, 2010, and in response to the trial court’s

order for more specificity, the State filed an amended charging information that essentially

divided the aggravated battery charge into four separate counts, naming a separate injury in

each one. However, in addition to separating out the counts, that September amended

charging information alleged that Myers knowingly inflicted injury on Wilson that “caused

serious permanent disfigurement” contrary to Indiana Code section 35-42-2-1.5(1)

(“Subsection 1”). Id. at 26. Thus, the element changed from “protracted loss” language of

Subsection 2, to “permanent disfigurement” of Subsection 1. However, on March 11, 2011,

still almost one month before trial, the State amended the aggravated battery charges yet

again, to allege a violation of Subsection 2, i.e., that Myers caused “protracted loss or

impairment of the function of a bodily member or organ,” which was what the July 2010

original charging information had alleged. A few days later, on March 15, 2011, the State

condensed the four separate aggravated battery counts into one, still alleging a violation of

Subsection 2, protracted loss or impairment. The April 4 amendment, which Myers now

alleges changed the entire theory of the case, only replaced a handwritten numeral “2” with a

typewritten numeral “2.” Id. at 46, 51.


                                             9
       In his brief, Myers relies upon Indiana Code section 35-34-1-5(b), which permits

amendment to charging information up to thirty days before the omnibus date. However, the

April 4 amendment at issue clearly was not an amendment of substance; it was an

amendment to form, governed by Indiana Code section 35-34-1-5(c), which states:

       Upon motion of the prosecuting attorney, the court may, at any time before,
       during, or after the trial, permit an amendment to the indictment or information
       in respect to any defect, imperfection, or omission in form which does not
       prejudice the substantial rights of the defendant.

Ind. Code § 35-34-1-5(c).

       We acknowledge that the State’s circuitous charging pattern of the aggravated battery

count – which began under Subsection 2, was amended to Subsection 1, and reverted back to

Subsection 2 – was not a model in clarity or procedure. That said, Myers knew the alleged

injuries and, other than for a period of less than six months (from September 28, 2010 to

March 11, 2011 when the Subsection 1 charges were pending), Myers was charged with

causing “protracted loss or impairment.” Moreover, as the State observes, Myers’s claim of

self-defense, which he consistently asserted before and during trial, “was still available to

him after the amendment, and his evidence applied equally to the information in either form.”

Appellee’s Br. at 12. The trial court did not err by allowing the April 4, 2011 amendment to

change a handwritten “2” to a typewritten “2.”

                       III.   Proffered Defense Testimony of Sieg

       Myers asserts that the trial court abused its discretion when it disallowed the testimony

of proposed defense witness Sieg, who was presented as a skilled or expert witness. Indiana

Evidence Rule 702, the evidentiary rule concerning expert testimony, provides:

                                              10
        (a) If scientific, technical or other specialized knowledge will assist the trier of
        fact to understand the evidence or to determine a fact in issue, a witness
        qualified as an expert by knowledge, skill, experience, training, or education,
        may testify thereto in the form of an opinion or otherwise.

        (b) Expert scientific testimony is admissible only if the court is satisfied that
        the scientific principles upon which the expert testimony rests are reliable.

A trial court judge has broad discretion to admit or exclude the testimony of an expert

witness under Rule 702. Carter v. State, 766 N.E.2d 377, 380 (Ind. 2002). The trial court’s

decision will only be reversed for an abuse of that discretion. Id.

        At trial, Myers desired to have Sieg, who is trained in martial arts and teaches self-

defense classes, testify about what would have constituted a reasonable response to the

situation that Myers faced on the night in question. Myers’s counsel argued that Sieg’s

testimony would be helpful to the jury because Sieg would explain to the jury that when a

person is faced with multiple attackers,5 it is reasonable for that person to “take out the leader

of the group.” Tr. at 306-07; see also id. at 324. The State opposed Sieg’s testimony,

arguing that Myers was not trained in martial arts, had not taken self-defense classes and,

consequently, Sieg’s testimony about how a person with martial arts training might react to

the situation was not relevant or applicable to Myers. Ultimately, the trial court determined

that Sieg’s testimony would not assist the jury and was inadmissible, but permitted Myers to

make an offer of proof for the record by having Sieg testify out of the jury’s presence. At the

conclusion, the trial court affirmed its prior decision, finding that Sieg’s testimony was


        5
         Myers testified that he felt confronted with multiple attackers because as Wilson approached him and
reached out at him, Wilson’s teenaged son and friend were following some yards behind. However, Myers
conceded that the two young men did not speak or shout to him at any time or in any way physically become
involved. As Myers walked away, they helped Wilson to his feet and assisted him to his racing trailer.

                                                     11
inadmissible under Rule 702 because it was not likely to assist the trier of fact and was

further inadmissible under Rule 704 because it related to Myers’s intent.6 Id. at 340.

        On appeal, Myers contends that, by precluding Sieg from testifying, the trial court

effectively impeded his opportunity to present his defense, which was that he acted in self-

defense, and more specifically, that his response to Wilson was a “natural reaction” and he

did not intend to harm him. Appellant’s Br. at 20. We are not persuaded, however, that any

error occurred with regard to the exclusion of Sieg’s testimony. First, as the State observes,

Sieg had no specialized training in “perception or decision-making that would qualify him to

testify about the reasonableness of [] responding to a threat.” Appellee’s Br. at 14. Second,

Sieg was a skilled martial arts expert, but Myers had never trained in martial arts or attended

any self-defense class taught by Sieg or anyone else, so Sieg’s perceptions or opinions about

what was a reasonable response had little, if any, bearing on Myers’s situation. Third, Sieg’s

opinions about what constituted a reasonable reaction to the situation were based upon the

premise that Myers was confronted by multiple attackers, the accuracy of which is debatable

since Wilson acted alone when he confronted and engaged Myers that night. Wilson’s son,

N.W., observed his father walk past, and he followed him to see where he was going;

however, no one testified that N.W. or his friend became involved either verbally or

physically in the altercation between Myers and Wilson or in any way threatened Myers. In

fact, the evidence most favorable to the judgment is that the boys were sixty to seventy feet



        6
          Rule 704(b) provides that “[w]itnesses may not testify to opinions concerning intent, guilt, or
innocence in a criminal case; the truth or falsity of allegations; whether a witness has testified truthfully; or
legal conclusions.”

                                                       12
away when Myers threw Wilson to the ground and kicked him. Under the facts of this case,

the trial court did not err in determining that Sieg’s testimony would not have assisted the

trier of fact and thereby failed to satisfy the standards of Rule 702 for admissibility. See

F.A.C.E. Trading, Inc. v. Carter, 821 N.E.2d 38, 44 (Ind. Ct. App. 2005) (no error where trial

court struck expert affidavits because opinions would not have assisted trier of fact), trans.

denied. Moreover, the exclusion of Sieg’s testimony did not prejudice Myers’s ability to

present his claim of self-defense; at trial, Myer cross-examined all the State’s witnesses, he

presented the testimony of several individuals who witnessed the incident, and he testified in

his own behalf giving his version of events and stating that he did not intend to harm Wilson.

       Finally, we also agree with the trial court that Sieg’s proffered testimony concerning

the reasonableness of Myers’s response – which according to Sieg was a tactical decision

when faced with multiple attackers to take out the leader in order to diffuse the situation –

effectively was testimony as to Myers’s intent, and inadmissible under Evidence Rule 704(b).

The trial court did not abuse its discretion when it excluded Sieg’s proffered testimony.

                                    IV.     Self-Defense

       Myers claims the evidence was not sufficient to negate his claim of self-defense.

Appellant’s Br. at 1. A valid claim of self-defense provides a legal justification for a person

to use force against another to protect himself from what he reasonably believes to be the

imminent use of unlawful force. Ind. Code § 35-41-3-2(a); Wilson v. State, 770 N.E.2d 799,

800 (Ind. 2002); Carroll v. State, 744 N.E.2d 432, 433 (Ind. 2001). If a defendant is

convicted despite his claim of self-defense, we will reverse only if no reasonable person


                                              13
could say that self-defense was negated by the State beyond a reasonable doubt. Wilson, 770

N.E.2d at 800-01. The standard of review for a challenge to the sufficiency of evidence to

rebut a claim of self-defense is the same as the standard for any sufficiency of the evidence

claim. Wilson, 770 N.E.2d at 801 (citing Sanders v. State, 704 N.E.2d 119, 123 (Ind. 1999)).

We neither reweigh the evidence nor judge the credibility of witnesses. Id. If there is

sufficient evidence of probative value to support the conclusion of the trier of fact, then the

verdict will not be disturbed. Id.

       In order to prevail on a self-defense claim, the defendant must show that he: (1) was

in a place where he had a right to be; (2) did not provoke, instigate, or participate willingly in

the violence; and (3) had a reasonable fear of death or great bodily harm. Id. at 800.

Furthermore, a mutual combatant, whether or not he is the initial aggressor, must declare an

armistice before he or she may claim self-defense. Id. at 801 (citing Ind. Code § 35-41-3-

2(e)(3)). Once a defendant claims self-defense, the State must disprove, beyond a reasonable

doubt, at least one element of self-defense. Carroll, 744 N.E.2d at 433. The State may meet

its burden by either rebutting the defense or relying on the sufficiency of evidence in its case-

in-chief. Id. at 434.

       In challenging the sufficiency of the evidence that was presented to rebut his claim of

self-defense, Myers primarily relies on the fact that Wilson provoked the confrontation and

was the initial aggressor. It is not disputed that Wilson left his seat in the stands after the

race with an intention to find Myers and confront him about his driving, which ultimately

resulted in Wilson’s son being eliminated from the race. When Wilson located Myers in a


                                               14
common area, Wilson was angry, yelling, and swearing. Wilson approached Myers, and

either pushed him or attempted to push him. There was some testimony that, initially, Myers

began to walk away, i.e. withdraw from the encounter. Under these circumstances, there can

be little dispute that Myers was in a place he had a right to be and that Myers did not provoke

or instigate the violence. However, it is subsequent events that are most relevant to our

analysis.

       At the point when Myers turned to walk away, Wilson reached for Myers, who turned

around, grabbed Wilson’s arm, and forcefully either threw Wilson to the ground or “cold

cocked” him with a punch. Tr. at 133. Wilson was on the ground “kind of in a daze,” on his

hands and knees, patting the ground looking for his glasses. Id. One observer testified that,

at that point, he thought the fight “was over.” Id. at 166, 176. However, while Wilson was

still on his hands and knees, Myers, who was wearing his racing boots, kicked Wilson in the

head, on the side of the face, with such force that Wilson flipped over backward, which one

witness likened to a punter kicking a football. Id. at 134. Myers then walked away. Under

these circumstances, the State disproved the self-defense element that Myers did not

willingly participate in the violence. On this basis alone, the State rebutted Myers’s self-

defense claim.

       As to whether Myers had a reasonable fear of death or great bodily harm, Myers

testified that, when he saw Wilson approaching, cussing and yelling, with N.W. and his

friend some yards behind, Myers anticipated that “I was about to get the tar beat out of me.”

Id. at 247. Even assuming that Myers had a reasonable fear of death or great bodily injury as


                                              15
Wilson was approaching him, Myers could not have been in fear of death or great bodily

harm at the point in time when Wilson was on the ground on his hands and knees in a dazed

state looking for his glasses. Rather, the reasonable inference is that Myers was angry at

Wilson for the initial confrontation and was retaliating.7 See Wilson, 770 N.E.2d at 801

(although Wilson was not initial aggressor, evidence showed Wilson continued shooting after

other party ceased shooting and was leaving area in car). The State presented sufficient

evidence to rebut Myers’s claim of self-defense.

        Affirmed.

BARNES, J., and BRADFORD, J., concur.




        7
         Myers conceded at trial to being aware of a high probability that serious injury could result if a
person was kicked in the head. Tr. at 281.

                                                    16
