Pursuant to Ind. Appellate Rule 65(D),

                                                             FILED
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of                        Aug 17 2012, 8:41 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.                      CLERK
                                                                of the supreme court,
                                                                court of appeals and
                                                                       tax court




ATTORNEY FOR APPELLANT:                           ATTORNEYS FOR APPELLEE:

SUZY ST. JOHN                                     GREGORY F. ZOELLER
Marion County Public Defender                     Attorney General of Indiana
Indianapolis, Indiana
                                                  RICHARD C. WEBSTER
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

DARRELL HALL,                                     )
                                                  )
       Appellant-Defendant,                       )
                                                  )
              vs.                                 )      No. 49A02-1201-CR-5
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee-Plaintiff.                        )


                     APPEAL FROM THE MARION SUPERIOR COURT
                    The Honorable Deborah J. Shook, Master Commissioner
                             Cause No. 49F08-1110-CM-70391



                                       August 17, 2012


                MEMORANDUM DECISION - NOT FOR PUBLICATION


BARTEAU, Senior Judge
       Darrell Hall was charged with Class A misdemeanor battery for an incident

involving his sister Tammy Hall and convicted of the lesser included offense of Class B

misdemeanor battery. He now appeals the accuracy of the abstract of judgment, which

shows that he was convicted of Class A misdemeanor battery. We remand.

       In October 2011, the State charged Hall with Class A misdemeanor battery. The

information alleged that he knowingly touched Tammy in a rude, insolent, or angry

manner and that the touching resulted in bodily injury to Tammy in the form of pain.

       Tammy did not testify at Hall’s bench trial. Instead, Tammy and Hall’s sister,

Latonya Hall, testified for the State. Latonya testified that Hall and Tammy had been

arguing for about fifteen minutes. Tammy threatened to call the police if Hall hit her.

Latonya told Hall to leave Tammy alone and then left the room to get her grandchild

ready for school. When she came back, she saw Tammy up against the wall, and Hall

had the palm of his hand flat against Tammy’s chest, just below her neck.

       After the State rested, Hall moved for involuntary dismissal. The State conceded

that there was not enough evidence to support the Class A misdemeanor, which would

have required evidence of bodily injury, see Ind. Code § 35-42-2-1(a)(1)(A) (2009), but

argued that the evidence supported the lesser included offense of Class B misdemeanor

battery. The trial court denied Hall’s motion.

       After Hall testified in his own defense, the court found him guilty of the lesser

included Class B misdemeanor:

       I don’t have any reason . . . to disbelieve this witness who is reluctant to be
       here and doesn’t want to get her brother into trouble. But he pushed the


                                             2
          woman against the wall, the alleged victim, against the wall and I’m finding
          him guilty [of] the lesser included B misdemeanor battery.

Tr. p. 23. The court sentenced Hall to 180 days, which is the maximum term for a Class

B misdemeanor.1 See Ind. Code § 35-50-3-3 (1977). The judgment of conviction shows

that Hall was convicted of a Class B misdemeanor, but the abstract of judgment shows

that he was convicted of a Class A misdemeanor.

          Hall contends that the abstract of judgment incorrectly shows that he was

convicted of Class A misdemeanor battery. The State agrees. We conclude that the clear

intent of the trial court was to convict Hall of Class B misdemeanor battery.                     We

therefore remand with instructions to correct the abstract of judgment to so reflect. See

Willey v. State, 712 N.E.2d 434, 445 n.8 (Ind. 1999) (“Based on the unambiguous nature

of the trial court’s oral sentencing pronouncement, we conclude that the Abstract of

Judgment and Sentencing Order contain clerical errors and remand this case for

correction of those errors.”).

          Remanded with instructions.

BAKER, J., and VAIDIK, J., concur.




1
    The court ordered 132 days executed, for which Hall had jail credit, and 48 days suspended.
                                                      3
