MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                    Aug 07 2015, 9:43 am
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
                                                          Gregory F. Zoeller
Barbara J. Simmons                                        Attorney General of Indiana
Oldenburg, Indiana
                                                          Karl M. Scharnberg
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

E.C. Brown,                                              August 7, 2015

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A04-1501-CR-7
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable William Nelson,
Appellee-Plaintiff                                       Judge
                                                         The Honorable David Hooper,
                                                         Judge Pro-Tem

                                                         Cause No. 49F18-1402-FD-5896




Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1501-CR-7 | August 7, 2015      Page 1 of 5
                                          Case Summary
[1]   E.C. Brown (“Brown”) appeals his convictions for Pointing a Firearm, as a

      Class A misdemeanor,1 and Battery, as a Class B misdemeanor.2 He alleges

      that there is insufficient evidence to support either conviction. We affirm.



                                   Facts and Procedural History
[2]   During the evening of February 5, 2014, Brown and his grand-daughter, Lasey

      Brizendine (“Brizendine”), began to argue about Brizendine’s dog. Brown,

      who had been yelling and cursing, “ran at” Brizendine, hitting her in her face.

      (Tr. at 42.) Brizendine pushed Brown, who stumbled back into a chair. The

      two briefly “tussled” until Brizendine’s friend, Kearra Coles (“Coles”),

      intervened. (Tr. at 43.)


[3]   Brizendine and Coles decided to leave Brown’s residence and they went into

      Brizendine’s room to gather their belongings. Brown entered the room holding

      a shotgun. Brown attempted to cock the rifle, but the safety mechanism was

      engaged. Brizendine and Coles left and summoned police assistance.


[4]   Brown was charged with pointing a firearm at Brizendine and battering her, as

      a Class D felony and a Class A misdemeanor, respectively. On October 16,

      2014, Brown was tried in a bench trial and convicted of lesser-included



      1
          Ind. Code § 35-47-4-3.
      2
          I.C. § 35-42-2-1(a)(1)(A).


      Court of Appeals of Indiana | Memorandum Decision 49A04-1501-CR-7 | August 7, 2015   Page 2 of 5
      misdemeanors. He received an aggregate sentence of 365 days, with credit for

      eight days incarceration, and the balance suspended. Brown was placed on

      non-reporting probation. This appeal ensued.



                                 Discussion and Decision
[5]   Brown claims that the State failed to present sufficient evidence to support his

      convictions. When reviewing the sufficiency of the evidence to support a

      conviction, we will consider only the probative evidence and reasonable

      inferences supporting the conviction. Lock v. State, 971 N.E.2d 71, 74 (Ind.

      2012). We will neither assess witness credibility nor reweigh the evidence. Id.

      We will affirm a conviction unless no reasonable fact-finder could have found

      the elements of the crime proven beyond a reasonable doubt. Id.


[6]   A person commits Battery, as a Class B misdemeanor, when he knowingly or

      intentionally touches another person in a rude, insolent, or angry manner. I.C.

      § 35-42-2-1(b). Brizendine testified that Brown, who was “really mad, like

      yelling and cussing,” ran toward her and hit her in the face. (Tr. at 42.) Brown

      testified that he hit Brizendine on her shoulder. This is sufficient evidence from

      which the fact-finder could conclude that Brown knowingly or intentionally

      touched Brizendine in a rude, insolent, or angry manner.


[7]   Brown now suggests that he did not commit a battery because he and his grand-

      daughter were engaged in “mutual combat.” (Appellant’s Br. at 11.) This is a

      concept potentially relevant when the defense of self-defense has been raised.


      Court of Appeals of Indiana | Memorandum Decision 49A04-1501-CR-7 | August 7, 2015   Page 3 of 5
       See Tharpe v. State, 955 N.E.2d 836, 844 (Ind. 2011) (recognizing that an initial

       aggressor or a mutual combatant must withdraw from the encounter and

       communicate the intent to do so “before he may claim self-defense”). Brown,

       whose own testimony indicates that he was the aggressor, did not attempt to

       raise the defense of self-defense. A reasonable fact-finder could have found the

       elements of Battery proven beyond a reasonable doubt.


[8]    A person who knowingly or intentionally points a firearm at another person

       commits Pointing a Firearm, as a Class A misdemeanor. I.C. § 35-47-4-3(b).

       Coles testified that Brown held his shotgun “down” and “pointed right in-

       between the both of us.” (Tr. at 59.)


[9]    Brown claims that, because none of the witnesses testified that Brown had

       pointed his shotgun “at the women,” his conviction is not supported by

       sufficient evidence. (Appellant’s Br. at 12.) Essentially, his claim is that his

       conduct of pointing a shotgun down and between the women is not “pointing

       at” within the meaning of the statute he was charged with violating. He thus

       presents an issue of statutory interpretation, whether the statute at issue

       criminalizes pointing a firearm in the general direction of another person.


[10]   “Penal statutes are to be strictly construed against the State and should be held

       to prohibit only that conduct which is clearly within the spirit and letter of the

       statutory language.” Starr v. State, 928 N.E.2d 876, 878 (Ind. Ct. App. 2010).

       However, criminal statutes are not to be narrowed such that they exclude cases

       which the language fairly covers. Id. Penal statutes should be interpreted so as


       Court of Appeals of Indiana | Memorandum Decision 49A04-1501-CR-7 | August 7, 2015   Page 4 of 5
       to give efficient operation to the expressed intent of the legislature. Id. The best

       evidence of legislative intent is the language of the statute, giving all words their

       plan and ordinary meaning unless otherwise indicated by statute. Id.


[11]   This Court has previously recognized that a firearm is a lethal weapon and the

       potential for harm exists any time a firearm is pointed at a person. Armstrong v.

       State, 742 N.E.2d 972, 976 (Ind. Ct. App. 2001). Our Legislature – without

       further embellishment – criminalized pointing a firearm at another person.

       Brown seeks to impose a requirement that the pointing be equivalent to taking

       direct aim at a person. We do not agree with this extremely narrow

       construction. Rather, the potential for harm sought to be addressed by our

       Legislature existed when Brown pointed his firearm in the general direction of

       and in close proximity to his grand-daughter and her friend. We conclude that

       the statute under which Brown was convicted fairly covers the act of pointing a

       firearm in-between persons.



                                               Conclusion
[12]   Brown’s convictions for Battery and Pointing a Firearm are supported by

       sufficient evidence of probative value.


[13]   Affirmed.


       Baker, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1501-CR-7 | August 7, 2015   Page 5 of 5
