MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                               Oct 03 2019, 8:08 am
court except for the purpose of establishing                                CLERK
the defense of res judicata, collateral                                 Indiana Supreme Court
                                                                           Court of Appeals
estoppel, or the law of the case.                                            and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Mark K. Leeman                                           Curtis T. Hill, Jr.
Logansport, Indiana                                      Attorney General of Indiana
                                                         Samuel J. Dayton
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Zachary Gearring,                                        October 3, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-280
        v.                                               Appeal from the Cass Superior
                                                         Court
State of Indiana,                                        The Honorable Richard A.
Appellee-Plaintiff.                                      Maughmer, Judge
                                                         Trial Court Cause No.
                                                         09D02-1802-F5-11




Tavitas, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-280 | October 3, 2019                  Page 1 of 23
                                               Case Summary

[1]   Zachary Gearring appeals his conviction for battery resulting in bodily injury to

      a public safety officer, a Level 5 felony. We affirm. 1


                                                     Issues

[2]   Gearring raises three issues on appeal, which we restate as follows:


              I.       Whether Gearring knowingly and voluntarily waived his
                       right to counsel.


              II.      Whether Gearring was denied his Sixth Amendment right
                       to present witnesses in his defense.


              III.     Whether the evidence was sufficient to support Gearring’s
                       battery conviction.


                                                      Facts

[3]   On February 9, 2018, Officer Zachary Griffith and Officer Flaude Dillon with

      the Logansport Police Department were dispatched to a possible overdose. The

      officers found Gearring unconscious and unresponsive on the kitchen floor.

      Others present included a “hysterical” Nakoah Langdon and another woman.

      Tr. Vol. II p. 96. After observing Gearring, officers believed Gearring

      overdosed due to Gearring’s “pinpoint pupils [and] shallow breathing.” Id. at

      68. The officers also noticed Gearring had a black eye and blood in his nose.




      1
       Oral argument was held in this matter on September 5, 2019, at Crown Point High School. We thank
      counsel for their presentations and Crown Point High School for its hospitality.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-280 | October 3, 2019             Page 2 of 23
      Officer Griffith and Officer Dillon were informed by Langdon that Langdon

      was not with Gearring prior to discovering Gearring unconscious; however,

      Langdon stated that Gearring possibly consumed methamphetamine and

      marijuana. Langdon also indicated that Gearring has a medical history of

      seizures. 2


[4]   Officer Dillon, who is also an EMT, administered Narcan to Gearring.

      Gearring did not immediately respond to the Narcan. Shortly thereafter,

      medics arrived, and Gearring was placed inside the ambulance where he began

      to gain consciousness. Gearring was very resistant and “lung[ed] at people,”

      including lunging at Officer Griffith while Gearring was handcuffed to the

      siderails on the gurney. Id. at 64. While in the ambulance, Gearring was

      “cursing[] [and] yelling profanities.” Id. As Gearring was taken inside the

      hospital, Gearring continued to yell and scream and was “making animal

      noises.” Id. at 65. Gearring was yelling both profanities and “incoherent

      babbles.” Id.


[5]   Alex Donathen, a Cass County paramedic, testified that, when he arrived on

      the scene, Gearring was handcuffed to his belt. Donathen observed that




      2
        At oral argument, there was some discussion regarding statements Langdon made to officers regarding
      Gearring’s physical state when officers first arrived on the scene. Gearring cross-examined Officer Dillon,
      and during cross examination, Officer Dillon stated that he was told by Langdon that Gearring “possible [sic]
      had consumed methamphetamine and marijuana.” Tr. Vol. II p. 105. Gearring then asked Officer Dillon
      follow up questions, including whether Langdon reported that Gearring “is not high. He has seizures,” to
      which Officer Dillon responded “Correct.” Id. After further questioning, Officer Dillon stated that, despite
      Langdon’s statement that Gearring “has seizures,” the “symptoms [Gearring’s] body was showing was [sic]
      not [consistent with] a seizure state.” Id. at 106.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-280 | October 3, 2019                  Page 3 of 23
      Gearring was becoming combative, which can be common for those suffering

      from an overdose. Donathen also testified: “[o]fficers on-scene had already

      given Narcan and it’s not uncommon when you give Narcan, patients come up

      swinging. They’re upset, they’re disoriented, they don’t know exactly what’s

      going on around them a lot of times.” Id. at 76. Donathen also indicated that

      Gearring tried to “head-butt” Donathen and his partner, but Gearring was

      unable to due to the restraints. Id. at 77. Gearring did, however, rip out the

      intravenous device (“IV”) that emergency personnel placed in his arm.


[6]   Gearring was wheeled into the emergency room and handcuffed to a hospital

      bed, and officers remained outside Gearring’s hospital room as Gearring began

      receiving treatment. Gearring was being treated in the room with paramedic

      Bob Zimmerman and nurse Marie Nichols. While in the room, Zimmerman

      observed Gearring “reach[] up and, and take[] a hold of [Nichols’] arm and

      beg[in] to twist her arm.” Id. at 136. Nichols testified that it “felt like [her]

      wrist was going to snap.” Id. at 173.


[7]   Officer Griffith, Officer Dillon, and Donathen heard Nichols yell, and they

      went into Gearring’s hospital room. There, they observed Gearring holding

      onto Nichols’ arm, and Nichols appeared to be in pain, so officers began to

      restrain Gearring. Officers restrained Gearring so he could be catheterized to

      provide a urine sample. Officer Griffith restrained Gearring by holding

      Gearring’s legs down.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-280 | October 3, 2019   Page 4 of 23
[8]    Gearring’s urine tests came back negative for all substances; however,

       Gearring’s blood was later drawn and tested positive for methamphetamine.

       Before Nichols left her shift, approximately two hours after Gearring was

       admitted, Gearring apologized to Nichols and requested she not file any

       charges against him.


[9]    On February 12, 2018, the State charged Gearring with Count I, battery

       resulting in bodily injury to a public safety officer, a Level 5 felony; and Count

       II, resisting law enforcement, a level 6 felony. On April 5, 2018, public

       defender, Bryan Coulter, filed a motion to withdraw his appearance due to a

       conflict of interest. 3 The same day, public defender, Jay Hirschauer, filed an

       appearance on Gearring’s behalf. On June 18, 2018, Gearring sent the trial

       court a letter requesting termination of his court-appointed legal counsel.


[10]   At the pretrial conference on November 5, 2018, Gearring’s counsel informed

       the trial court that Gearring “want[ed] to defend himself.” Tr. Vol. II p. 24.

       The trial court then asked Gearring directly if he wanted to “go through the

       process of defending [himself]” to which Gearring replied, “Yeah. That, that’s

       fine.” Id. Gearring was then placed under oath, and the trial court asked

       Gearring a series of questions including: his age; whether he was under the

       influence of any drugs or alcohol; if Gearring had been to law school; how

       much school Gearring had attended; how much experience Gearring had with



       3
         The motion to withdraw indicates that Coulter previously prosecuted Gearring and filed charges in a case
       for which Gearring was serving probation at the time of the instant offense.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-280 | October 3, 2019                  Page 5 of 23
the criminal justice system; whether Gearring could read and write; and if

Gearring understood his rights to a speedy trial, as well as his rights: to trial by

jury, to compel evidence, to present witnesses, to have an attorney represent

him, against self-incrimination, to appeal, and the State’s burden of proof. The

trial court then engaged with Gearring in a long exchange as follows:


        THE COURT: Do you understand you have the right to be
        defended in this case by an attorney?


        THE DEFENDANT: Yes, sir.


        THE COURT: And you understand you have the right to
        choose the attorney that you want to defend you if you can afford
        him?


        THE DEFENDANT: That’s the intent. Yes, sir.


                                              *****


        THE COURT: You are going to hire your own attorney?


        THE DEFENDANT: Yes, sir.


        THE COURT: Do you understand by hiring an attorney and
        having a jury trial on the 28th of November you’re probably
        putting yourself in a situation where your attorney’s not going to
        be ready to go but the Prosecutor’s going to go ahead and pursue
        the case?


        THE DEFENDANT: Yes, sir.


Court of Appeals of Indiana | Memorandum Decision 19A-CR-280 | October 3, 2019   Page 6 of 23
        THE COURT: Okay. And you understand that may put you in
        legal jeopardy?


        THE DEFENDANT: I can’t see me being in any worse
        situation that [sic] I’m in now.


        THE COURT: So, what you’re telling me right now, however, is
        is [sic] that you’re going to retain an attorney to represent you?


        THE DEFENDANT: Yes, sir.


        THE COURT: You understand if you cannot afford an attorney
        the Court would appoint one for you?


        THE DEFENDANT: Yes, sir.


        THE COURT: You understand . . . you have a right to an
        attorney provided by the Court even if you’re found guilty of the
        offense charged?


        THE DEFENDANT: Yes, sir.


        THE COURT: Okay. Where you [sic] going to get the money
        to hire a lawyer?


        THE DEFENDANT: My family.


                                         *****


        THE COURT: Do you understand that if you decide to
        represent yourself in this cause of action, you’re not going to get



Court of Appeals of Indiana | Memorandum Decision 19A-CR-280 | October 3, 2019   Page 7 of 23
        any special treatment, or I’m not going to hold your hand
        through the process? I’m going to treat you both equally.


        THE DEFENDANT: Yes, sir.


        THE COURT: And you understand that that [sic] fellow that’s
        going to prosecute the case has been to law school?


        THE DEFENDANT: Yes, sir.


        THE COURT: And he’s going to beat your brains out with the
        rules and procedures that you don’t know?


        THE DEFENDANT: Yes, I understand.


        THE COURT: And you’re willing to throw yourself in, on that
        gauntlet?


                                         *****


        THE DEFENDANT: -- well, it’s not going to be me. It’s going
        to be a hired attorney.


        THE COURT: You’re going to get an attorney? Okay.


        THE DEFENDANT: Yes, sir.


        THE COURT: Do you understand if you don’t hire an attorney,
        however, I’m preparing for that opportunity, that if you don’t
        hire an attorney, that they’re going to go ahead and proceed with
        trial without you being represented by a lawyer?



Court of Appeals of Indiana | Memorandum Decision 19A-CR-280 | October 3, 2019   Page 8 of 23
               THE DEFENDANT: Yes, sir.


               THE COURT: Okay. And you’re willing to accept that risk?


               THE DEFENDANT: Unfortunately, I am.


                                                *****


               THE COURT: Okay. So you’re telling me now on the record
               you do not want to be defended by an attorney in this case?


               THE DEFENDANT: For the time being, no.


               THE COURT: Okay. All right. Show he waived his right to
               counsel. . . .


       Id. at 27-30.


[11]   Gearring’s jury trial began on November 28, 2018; Gearring appeared pro se.

       When the trial court asked Gearring to review the preliminary jury instructions,

       Gearring and the trial court had the following exchange:


               THE DEFENDANT: As I’m sure you know I’m fairly new to
               this. This is pretty much winging it at this point to be honest.


               THE COURT: Well, you told me you didn’t want Mr.
               Hirschauer to represent you under oath. Yes?


               THE DEFENDANT: Yes, sir.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-280 | October 3, 2019   Page 9 of 23
               THE COURT: And you told me that you were going to either
               represent yourself or hire an attorney. Correct?


               THE DEFENDANT: Yes. The intent was to hire an attorney
               but, obviously, I was just bonded out recently in the last two
               weeks or so –


               THE COURT: Okay. You paid $2,000.00 cash you could’ve
               used for an attorney.


               THE DEFENDANT: Well, it was more for a medical issue than
               paying for an attorney. I had medical issues that the jail couldn’t
               accommodate.


               THE COURT: Okay.


       Id. at 34-35.


[12]   At the jury trial, witnesses testified to the foregoing facts. Donathen indicated

       that, based on his experience, Gearring’s behavior was not consistent with a

       seizure and was instead consistent with a “combative patient who lost [his]

       high.” 4 Id. at 82. Donathen also indicated that, when test results show a

       substance in a person’s blood and not their urine, the results indicate that the

       substance “has not been fully processed in the body.” Id. at 83. Donathen also

       indicated, because methamphetamine is not an opiate, Narcan would not

       reverse the effects of methamphetamine; however, officers moving someone



       4
        Officer Dillon and Zimmerman similarly testified that, in their experience, Gearring’s behavior was not
       consistent with a seizure.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-280 | October 3, 2019                 Page 10 of 23
       and causing them to wake while on methamphetamine may result in similar

       anger.


[13]   After the trial commenced, outside the presence of the jury, the State indicated

       that it was advised the day of the trial that Gearring intended to present

       testimony of two witnesses, Pierre Hawkins and Karen Cooper, in his defense.

       The State indicated that the State was able to take brief statements from the

       witnesses, but that the witnesses’ testimony would not be relevant. The State

       orally moved to exclude the witnesses’ testimony. 5 The State argued:


                [Hawkins], I believe would be testifying to, to incidents of dates
                of which he is unable to verify or relate in which he witnessed
                what he believes to be a seizure. He cannot place them in time in
                relation to the case. He also has no medical training to diagnose
                a seizure. So, his diagnosis, such as it is, is based on hearsay, not
                on medical training. . . . [H]e would also add some character
                testimony which is, does not comport with the requirements of
                402. [Cooper] would testify as well to her knowledge of seizures,
                of the Defendant having seizures, but cannot relate them in time
                to this case. She also apparently was a bartender at the Corner
                Pub and remembers an occasion in which Officer Dillon came in
                and was intoxicated and the Defendant feels that’s relevant
                somehow. It’s obviously not and I’m moving that that be
                excluded as well.




       5
         The deputy prosecutor indicated that Hawkins described an incident during which Gearring was having a
       seizure; he was shaking, breathing heavily, got a bloody nose, and Gearring’s words were
       “discombobulated.” Tr. Vol. II p. 124.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-280 | October 3, 2019              Page 11 of 23
       Tr. Vol. II p. 122. The trial court asked Gearring questions regarding the two

       witnesses, and Gearring indicated that Cooper and Hawkins both have seen

       Gearring seize; however, they were not present the evening of the incident.

       Moreover, the prosecutor indicated that Hawkins does not appear to have any

       medical training, aside from a CPR certification. Cooper is a cardiac tech in

       Illinois; however, according to the State’s representation of their discussion

       with Cooper, Cooper’s training did not include diagnosis of seizures. Gearring

       also acknowledged that he did not inform the State of the witnesses until after

       the trial began.


[14]   The trial court granted the State’s oral motion in limine to exclude the witness

       testimony because their testimony is “not relevant to the issue before the jury at

       this time.” Id. at 127. The trial court then asked if Gearring “wish[ed] to make

       any record in that regard or an offer to prove” to which Gearring responded,

       “[n]o.” Id.


[15]   When the jury notified the trial court that a verdict had been reached, the trial

       court contacted Gearring by phone, but Gearring did not appear in court when

       the verdict was rendered. The trial court issued a warrant for Gearring’s arrest.

       The jury found Gearring guilty of both Count I and Count II, which the trial

       court merged. The trial court sentenced Gearring on Count I to 1,460 days

       executed at the Department of Correction.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-280 | October 3, 2019   Page 12 of 23
                                                    Analysis

                                             I.       Right to Counsel

[16]   Gearring first contends that he did not knowingly or intelligently waive his right

       to counsel because he was not advised of the “dangers and disadvantages of

       self-representation.” Appellant’s Br. p. 19. “The Sixth Amendment to the U.S.

       Constitution and Article 1, [S]ection 13 of the Indiana Constitution guarantee a

       criminal defendant the right to appointed counsel.” Jones v. State, 783 N.E.2d

       1132, 1138 (Ind. 2003). “Accordingly, when a criminal defendant waives his

       right to counsel and elects to proceed pro se, we must decide whether the trial

       court properly determined that the defendant’s waiver was knowing, intelligent,

       and voluntary.” Id. “Waiver of assistance of counsel may be established based

       upon the particular facts and circumstances surrounding the case, including the

       background, experience, and conduct of the accused.” Id.


[17]   “It is well established that there is a strong presumption against the waiver of

       the right to counsel, and it is the trial court that bears the ‘serious and weighty

       responsibility to determine whether there was an intelligent and competent

       waiver.’” Wirthlin v. State, 99 N.E.3d 699, 704 (Ind. Ct. App. 2018) (quoting

       Eaton v. State, 894 N.E.2d 213, 217 (Ind. Ct. App. 2008)) (emphasis supplied),

       trans. denied. “‘When a defendant asserts the right to self-representation, the

       court should tell the defendant of the dangers and disadvantages of self-

       representation.’” Wirthlin, 99 N.E.3d at 705 (quoting Poynter v. State, 749

       N.E.2d 1122, 1126 (Ind. 2001)). “Although a trial court need not follow

       specific talking points when advising a defendant of the dangers and

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-280 | October 3, 2019   Page 13 of 23
       disadvantages of proceeding without counsel, a trial court must come to a

       considered determination that the defendant is making a knowing, voluntary,

       and intelligent waiver of his right to counsel.” Id. (internal quotations omitted).


[18]           To determine whether a knowing, voluntary, and intelligent
               waiver has occurred, an appellate court considers these four
               factors: (1) the extent of the trial court’s inquiry into the
               defendant’s decision, (2) other evidence in the record that
               establishes whether the defendant understood the dangers and
               disadvantages of self-representation, (3) the background and
               experience of the defendant, and (4) the context of the
               defendant’s decision to proceed pro se. A lack of any advisement
               regarding the dangers and disadvantages of self-representation
               weighs heavily against finding a knowing and intelligent waiver.
               The importance of the right to counsel cautions that trial courts
               should at a minimum reasonably inform such defendants of the
               dangers and disadvantages of proceeding without counsel.


       Id. (internal quotations omitted).


[19]   Gearring specifically argues that, even though there was some colloquy with the

       trial court on self-representation: (1) the colloquy occurred a few weeks before

       trial; (2) the colloquy occurred while Gearring was still incarcerated; (3) the trial

       court said “nearly nothing” about the dangers and disadvantages of self-

       representation; and (4) the trial court did not renew his questions regarding self-

       representation after it appeared Gearring sought to hire private counsel, but was

       unable to do so. Appellant’s Br. p. 19.


[20]   In Houston v. State, 553 N.E.2d 117, 118 (Ind. 1990), our Supreme Court held

       that the trial court did not err in allowing Houston to represent himself at trial

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-280 | October 3, 2019   Page 14 of 23
       after Houston repeatedly refused to cooperate with counsel and failed to “retain

       private counsel [which] enabled him to frustrate the judicial process and avoid

       being brought to trial.” Houston, 553 N.E.2d at 118. Houston was “adequately

       warned” that if he did not employ private counsel he would represent himself

       with only advisory counsel. Id. Still, Houston later again refused court-

       appointed counsel, and our Supreme Court held that it “must assume that

       appellant elected to waive his right to counsel and proceed pro se.” Id.


[21]   Although we acknowledge the factual difference between this case and

       Houston—namely, that there is no evidence Gearring was uncooperative with

       counsel—the same result is required here. Gearring acknowledged more than

       once that he planned to hire private counsel; however, he was warned by the

       trial court that there may be an occasion which Gearring is unable to hire

       counsel and that Gearring would be required to continue pro se. Gearring

       stated he understood the trial court’s statement that: “if you don’t hire an

       attorney, however, I’m preparing for that opportunity, that if you don’t hire an

       attorney, that they’re going to go ahead and proceed with trial without you

       being represented by a lawyer.” Tr. Vol. II pp. 29-30. See Houston, 553 N.E.2d

       at 118 (“Appellant was adequately warned by the trial court that if he chose not

       to employ private counsel, he would represent himself and would be given

       advisory counsel. Because appellant did not retain private counsel, he must

       have elected to proceed with advisory counsel only.”).


[22]   Based on the record before us, Gearring has not proved that his waiver of

       counsel was not knowingly and voluntary.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-280 | October 3, 2019   Page 15 of 23
                                         II.      Presentation of Witnesses

[23]   Second, Gearring argues that he was unable to present witnesses, which

       violated his Sixth Amendment rights. 6 As discussed above, Gearring sought to

       present two witnesses who would testify regarding Gearring’s history of

       seizures and his typical conduct during seizures in support of Gearring’s

       defense that he was not intoxicated but, instead, suffered a seizure. By all

       accounts, these witnesses were lay witnesses because, as discussed above, while

       one of the witnesses may have had some medical experience, they were not

       introduced as expert witnesses.


[24]   Gearring argues that he was denied the right to present witnesses in violation of

       his Sixth Amendment rights. “The Sixth Amendment to the United States

       Constitution ‘guarantees a defendant the right to present witnesses on his

       behalf.’” Townsend v. State, 26 N.E.3d 619, 627 (Ind. Ct. App. 2015) (quoting

       Farris v. State, 818 N.E.2d 63, 69 (Ind. Ct. App. 2004), trans denied), trans. denied.

       “[W]hile the right to present witnesses is of the utmost importance, it is not

       absolute.” Id. Trial courts “have the discretion to exclude a belatedly disclosed

       witness when there is evidence of bad faith on the part of counsel or a showing

       of substantial prejudice to the State.” Id. In light “of a defendant’s right to




       6
         The State argues that Gearring waived this argument because Gearring did not attempt to introduce the
       witnesses during his presentation of the evidence and because Gearring declined the trial court’s opportunity
       to make an offer of proof regarding the witnesses. There appears to be adequate information in the record
       regarding what the witnesses would have stated during their testimony; therefore, we will address Appellant’s
       arguments on their merits.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-280 | October 3, 2019                 Page 16 of 23
       compulsory process under the federal and state constitutions, there is a strong

       presumption to allow the testimony of even late-disclosed witnesses.” Id.


[25]   “‘The trial court has wide latitude in ruling on the admissibility of evidence in

       determining its relevancy.’” Williams v. State, 749 N.E.2d 1139, 1142 (Ind.

       2001) (quoting Kremer v. State, 514 N.E.2d 1068, 1073 (Ind. 1987)). “We review

       a trial court’s ruling as to relevance for an abuse of discretion.” Williams, 749

       N.E.2d at 1142. “And even if the trial court erroneously excludes admissible

       evidence, we will not reverse a defendant’s conviction unless his substantial

       rights have been affected.” Id. When, however, there is an issue of

       constitutional law, we review those claims de novo. Brittain v. State, 68 N.E.3d

       611, 617 (Ind. Ct. App. 2017), trans. denied.


[26]   Gearring argues, because his witnesses were excluded, he had no evidence to

       support his theory of the case that he was suffering from a seizure and did not

       knowingly or intentionally batter Nichols. The only evidence in the record of

       what these witnesses would have testified to is the State’s characterization of

       the testimony based on the State’s brief conversation with the proffered

       witnesses. Gearring’s witnesses would have testified to the physical

       characteristics they observed with previously seeing Gearring seize, which

       Gearring would have argued was similar to the way officers and paramedics

       described Gearring that evening. Gearring’s witnesses, according to Gearring,




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-280 | October 3, 2019   Page 17 of 23
       would not have been able “to remember exact dates.” 7 Tr. Vol. II p. 123.

       Moreover, the two witnesses were not with Gearring the night of February 9,

       2018, when the underlying events occurred.


[27]   Accordingly, these lay witnesses would only be able to testify to what Gearring

       looked like during and after his previous seizures at some undetermined time in

       the past. These witnesses would not have been able to testify that Gearring was

       seizing the night of the offense, however, because the witnesses were not

       present that evening. 8 Under these circumstances, we cannot say the trial

       court’s exclusion of this evidence constituted a violation of Gearring’s

       constitutional rights.


                                               III.     Sufficient Evidence

[28]   Finally, Gearring argues the evidence was insufficient regarding the intent

       element of the battery. When there is a challenge to the sufficiency of the

       evidence, “[w]e neither reweigh evidence nor judge witness credibility.” Gibson

       v. State, 51 N.E.3d 204, 210 (Ind. 2016) (citing Bieghler v. State, 481 N.E.2d 78,

       84 (Ind. 1985), cert. denied). Instead, “we ‘consider only that evidence most

       favorable to the judgment together with all reasonable inferences drawn




       7
         Gearring notes that he was “incarcerated for the last nine months,” and that he had only been out of jail for
       two weeks, and the prosecutor stated the timeline was “at least nine months prior [to Gearring’s prior
       incarceration],” but there was no other indication of when the witnesses saw Gearring seize. Tr. Vol. II p.
       123.
       8
         Importantly, Officer Dillon, Nichols, Zimmerman, and Donathen, all of whom were present that evening,
       testified that Gearring’s conduct was not consistent with a seizure.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-280 | October 3, 2019                    Page 18 of 23
       therefrom.’” Id. (quoting Bieghler, 481 N.E.2d at 84). “We will affirm the

       judgment if it is supported by ‘substantial evidence of probative value even if

       there is some conflict in that evidence.’” Id. (quoting Bieghler, 481 N.E.2d at

       84); see also McCallister v. State, 91 N.E.3d 554, 558 (Ind. 2018) (holding that,

       even though there was conflicting evidence, it was “beside the point” because

       that argument “misapprehend[s] our limited role as a reviewing court”).

       Further, “[w]e will affirm the conviction unless no reasonable fact-finder could

       find the elements of the crime proven beyond a reasonable doubt.” Love v. State,

       73 N.E.3d 693, 696 (Ind. 2017) (citing Drane v. State, 867 N.E.2d 144, 146 (Ind.

       2007)).


[29]   The charging information for Count I alleges that Gearring “on or about

       February 9, 2018, . . . did knowingly or intentionally touch [Marie] Nichols, a

       public safety officer, in a rude, insolent, or angry manner by grabbing her left

       upper arm” contrary to Indiana Code Sections 35-42-2-1(c)(1) and 35-42-2-1

       (g)(5)(A). Indiana Code Section 35-42-2-1(c)(1) states that a person commits

       battery if the defendant knowingly or intentionally “touches another person in a

       rude, insolent, or angry manner.” The offense becomes a Level 5 felony, if the

       offense is committed against “[a] public safety official while the official is

       engaged in the official’s official duties.” Ind. Code § 35-42-2-1(g)(5)(A).


[30]   The trial court instructed the jury on voluntary intoxication. The instruction

       stated:


               Voluntary intoxication is not a defense to the charge of Battery
               Resulting in Bodily Injury to a Public Safety Officer or Resisting
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-280 | October 3, 2019   Page 19 of 23
               Law Enforcement. You may not take voluntary intoxication into
               consideration in determining whether the Defendant acted
               intentionally, knowingly or recklessly as alleged in the
               information.


       Appellant’s App. Vol. II p. 201. See Ind. Code § 35-41-2-5 (“Intoxication is not

       a defense in a prosecution for an offense and may not be taken into

       consideration in determining the existence of a mental state that is an element

       of the offense unless the defendant meets the requirements of IC 35-41-3-5.”).

       Moreover, Indiana Code Section 35-41-3-5 states:


               It is a defense that the person who engaged in the prohibited
               conduct did so while he was intoxicated, only if the intoxication
               resulted from the introduction of a substance into his body:


                        (1) Without his consent; or


                        (2) When he did not know that the substance might cause
                            intoxication.


[31]   Gearring argues that voluntary intoxication was the State’s theory of mens rea

       and that it was the State’s burden to prove voluntary intoxication. The State,

       however, contends that the State did prove Gearring knowingly or intentionally

       committed the battery and that voluntary intoxication—in the form of

       methamphetamine ingestion—is not a defense.


[32]   We do not agree with Gearring that the State’s case at the trial court was

       predicated solely on a theory of voluntary intoxication. Specifically, on direct



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-280 | October 3, 2019   Page 20 of 23
examination of Zimmerman, who was present when Gearring grabbed Nichols’

arm, the following colloquy occurred:


        Q. Did something happen between the Defendant and Mr.
        Nichols, Ms. Nichols at that point?


        A. Yeah. He, the Defendant, actually had reached up and, and
        taken a hold of her arm and began to twist her arm.


        Q. You personally observed this?


        A. Yes, sir.


        Q. Did it appear, did it appear to be a volitional, intentionally
        [sic] movement?


        A. I believe so.


        Q. Did it, did it appear to be an involuntary spasm?


        A. No, sir.


Tr. Vol. II p. 136. We recognize that the State, in closing argument, argued

voluntary intoxication, and stated: “[voluntary intoxication] is important for

you to consider because unless the meth fairy came down and put it in the

Defendant’s system, he was voluntarily intoxicated and I think the evidence

shows that.” Tr. Vol. II p. 217. Still, our view of the record was that the State

pursued both theories—that Gearring knowingly or intentionally battered



Court of Appeals of Indiana | Memorandum Decision 19A-CR-280 | October 3, 2019   Page 21 of 23
       Nichols or, in the alternative, that Gearring did so while voluntarily

       intoxicated.


[33]   The evidence indicates that, upon arrival, a person at the home where Gearring

       was found indicated that Gearring had possibly consumed methamphetamine

       or marijuana. When officers administered Narcan, the Narcan did not work.

       While being transported to the ambulance, and after being placed in the

       ambulance, Gearring was loudly shouting profanities, shouting other

       statements which were unclear, making animal noises, and even ripped the IVs

       out of his arm. This erratic conduct continued while Gearring was at the

       hospital; he went back and forth between this enraged stage and a calm

       demeanor. When Nichols and Zimmerman were tending to Gearring in the

       room, he grabbed Nichols’ wrist so hard that Nichols thought her wrist was

       going to break. Zimmerman, who was in the room when Gearring grabbed

       Nichols’ wrist, stated that Gearring’s actions appeared to be intentional, and

       not an involuntary spasm. Officers then grabbed Gearring and restrained him

       so the catheter could be placed in Gearring. After the incident, Gearring

       apologized and asked Nichols not to press charges.


[34]   Based on the foregoing, there was sufficient evidence of the mens rea element of

       battery to sustain Gearring’s conviction.


                                                  Conclusion

[35]   Gearring knowingly and voluntarily waived his right to counsel. Furthermore,

       the exclusion of Gearring’s witnesses did not violate his Sixth Amendment


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-280 | October 3, 2019   Page 22 of 23
       rights. Finally, there was sufficient evidence to convict Gearring of battery.

       We affirm.


[36]   Affirmed.


       Vaidik, C.J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-280 | October 3, 2019   Page 23 of 23
