MEMORANDUM DECISION
                                                                Aug 07 2015, 9:58 am
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
Gary Griner                                              Gregory F. Zoeller
Mishawaka, Indiana                                       Attorney General of Indiana

                                                         Karl M. Scharnberg
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Fabian Cruz,                                             August 7, 2015

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         71A03-1501-CR-26
        v.                                               Appeal from the St. Joseph Superior
                                                         Court
State of Indiana,                                        The Honorable John M. Marnocha,
Appellee-Plaintiff                                       Judge

                                                         Cause No. 71D02-1408-F5-24




Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A03-1501-CR-26| August 7, 2015      Page 1 of 5
                                                Case Summary
[1]   After a jury trial, Fabian Cruz (“Cruz”) was convicted of Battery with a Deadly

      Weapon, as a Level 5 felony. 1 Cruz appeals, raising for our review the sole

      question of whether there was sufficient evidence to support the conviction.

      Concluding that there was sufficient evidence introduced at trial, we affirm.



                                Facts and Procedural History
[2]   On August 12, 2014, after working a third-shift job, Jonathon Jackson

      (“Jackson”) asked Cruz, his on-again, off-again boyfriend, to come to Jackson’s

      apartment in South Bend. The two drove separately, and fell asleep on

      Jackson’s bed soon after arriving at Jackson’s apartment.


[3]   On the afternoon of August 12, Cruz and Jackson got into an argument over a

      text message Jackson had received from a friend. The argument escalated into

      a physical confrontation between the two men. Jackson told Cruz to leave, and

      Cruz began to do so. Cruz believed he had left behind a flip-flop shoe,

      however, and wanted to retrieve it. A physical confrontation between Jackson

      and Cruz ensued again.


[4]   Jackson worked in a warehouse setting, and owned a box cutter with a

      retractable razor blade. Upon arriving home, Jackson had tossed the item on




      1
          Ind. Code §§ 35-42-2-1(b) & (f)(2).


      Court of Appeals of Indiana | Memorandum Decision 71A03-1501-CR-26| August 7, 2015   Page 2 of 5
      the floor. At some point during their confrontation, Jackson gained the upper

      hand. Cruz broke free, picked up the box cutter, and began swinging it at

      Jackson. Jackson suffered two injuries: a shallow cut to his chest, and a deeper

      cut to his right arm.


[5]   After Jackson was injured, his roommate, David Cabanaw (“Cabanaw”), called

      police, brought Jackson outside, and took Jackson to the office of the apartment

      complex. Cabanaw then flagged down a detective who had been driving

      nearby. Jackson was transported to a hospital for medical treatment.


[6]   Cruz left the premises, and was arrested later that day. On August 14, 2014,

      Cruz was charged with Battery with a Deadly Weapon. A jury trial was

      conducted on November 18 and 19, 2014. At its conclusion, the jury found

      Cruz guilty, as charged.


[7]   On January 7, 2015, the trial court conducted a sentencing hearing. The court

      entered judgment against Cruz at that time and sentenced him to three years

      imprisonment, with the entirety of the term suspended. The court ordered Cruz

      to serve one year of probation.



                                 Discussion and Decision
[8]   Cruz’s sole contention upon appeal is that the State failed to prove that there

      was sufficient evidence of his intent to commit Battery with a Deadly Weapon,

      as charged.



      Court of Appeals of Indiana | Memorandum Decision 71A03-1501-CR-26| August 7, 2015   Page 3 of 5
[9]    Our standard of review in challenges to the sufficiency of evidence is well

       settled. We consider only the probative evidence and reasonable inferences

       supporting the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do

       not assess the credibility of witnesses or reweigh evidence. Id. We will affirm

       the conviction unless “no reasonable fact-finder could find the elements of the

       crime proven beyond a reasonable doubt.” Id. (quoting Jenkins v. State, 726

       N.E.2d 268, 270 (Ind. 2000)). “The evidence is sufficient if an inference may

       reasonably be drawn from it to support the verdict.” Id. at 147 (quoting Pickens

       v. State, 751 N.E.2d 331, 334 (Ind. Ct. App. 2001)).


[10]   To convict Cruz of Battery with a Deadly Weapon, as charged, the State was

       required to prove beyond a reasonable doubt that Cruz knowingly touched

       Jackson in a rude, insolent, or angry manner, and committed that touching with

       a deadly weapon, namely, a box cutter. I.C. §§ 35-42-2-1(b) & (f)(2); App’x at

       6.


[11]   In his appeal, Cruz’s sole argument is that there was insufficient evidence from

       which a jury could conclude that his touching of Jackson by means of the box

       cutter was knowingly committed. “A person engages in conduct ‘knowingly’ if,

       when he engages in the conduct, he is aware of a high probability that he is

       doing so.” I.C. § 35-41-2-2(b). “Intent can be inferred from a defendant’s

       conduct and the natural and usual sequence to which such conduct logically

       and reasonably points. The fact finder is entitled to infer intent from the

       surrounding circumstances.” Lee v. State, 973 N.E.2d 1207, 1210 (Ind. Ct. App.

       2012) (citations omitted).

       Court of Appeals of Indiana | Memorandum Decision 71A03-1501-CR-26| August 7, 2015   Page 4 of 5
[12]   At trial, Cruz, Jackson, and Cabanaw all testified that Cruz and Jackson

       engaged in a physical confrontation with one another. Jackson testified that

       during this confrontation, he saw Cruz pick up the box cutter and swing it at

       him multiple times. Jackson further testified that he was attempting to leave the

       room when Cruz cut him: “as I ran out the door I got sliced.” Tr. at 155.

       Jackson suffered two injuries from the box cutter: one to his chest, and one to

       his arm. The latter of these injuries caused paramedics to transport Jackson to a

       hospital, where the wound was repaired with twenty four staples.


[13]   Picking up a cutting device from the floor and swinging it multiple times while

       engaged in a fight leads to a reasonable inference that Cruz’s intent was to

       touch Jackson with the box cutter. Cruz’s argument to the contrary draws our

       attention to testimony from Jackson and Cabanaw concerning their impressions

       of Cruz’s demeanor, and Cruz’s claimed inability to remember cutting Jackson

       as a result of injuries from the fight. To the extent Cruz relies on such

       arguments, we note that these are invitations to reweigh evidence or reassess

       witness credibility, which we cannot do.


[14]   There was sufficient evidence to sustain Cruz’s conviction. We accordingly

       affirm the judgment of the trial court.


[15]   Affirmed.


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




       Court of Appeals of Indiana | Memorandum Decision 71A03-1501-CR-26| August 7, 2015   Page 5 of 5
