MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any                            Jul 16 2020, 10:33 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
Scott H. Duerring                                         Curtis T. Hill, Jr.
South Bend, Indiana                                       Attorney General of Indiana

                                                          Steven J. Hosler
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Brian K. Gates, Jr.,                                      July 16, 2020
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          20A-CR-119
        v.                                                Appeal from the St. Joseph
                                                          Superior Court
State of Indiana,                                         The Honorable Jeffrey L. Sanford,
Appellee-Plaintiff                                        Judge
                                                          Trial Court Cause No.
                                                          71D03-1909-CM-3143



Altice, Judge.


                                          Case Summary


Court of Appeals of Indiana | Memorandum Decision 20A-CR-119 | July 16, 2020                  Page 1 of 5
[1]   Following a bench trial, Brian Gates was convicted of battery as a Class B

      misdemeanor. On appeal, he argues the State presented insufficient evidence to

      support his conviction.


[2]   We affirm.


                                   Facts & Procedural History


[3]   Prior to August 2019, Gates had known Anthony Gidley and James Ragen for

      a number of years. Both men had lived with Gates on separate occasions and

      were also dating two of his cousins. In fact, when Gates moved into his

      stepfather’s home a few months before the incident at issue, Ragen was also

      living there. A few weeks prior to August, a disagreement between Gates and

      his stepfather caused him to move out and relocate to LaPorte, Indiana.


[4]   On August 9, 2019, Ragen, his girlfriend Tracy Himes (who is also Gates’s

      cousin), Gidley, and Koa Ramos were dining at Arby’s in South Bend, Indiana.

      As the group was beginning to leave, Gates arrived. Tracy “ran up, gave him a

      hug,” and shortly afterwards Gates “started running his mouth.” Transcript Vol.

      2 at 4. Gidley approached Gates, who swung, and struck him once on the left

      side of the face. Both men “started trading words” before Gates returned to his

      car and drove away. Id. Following Gates’s departure, Ramos called 9-1-1.

      Shortly thereafter, Officer Zackary Overton responded to the scene and spoke

      with Ragen and Gidley. Officer Overton observed a small bump in the middle

      of Gidley’s left cheek.



      Court of Appeals of Indiana | Memorandum Decision 20A-CR-119 | July 16, 2020   Page 2 of 5
[5]   On September 10, 2019, the State charged Gates with battery as a Class B

      misdemeanor. A bench trial was held on December 19, 2019, at which Ragen

      and Officer Overton testified for the State. Ragen placed Gates at the scene as

      being the assailant who struck Gidley. Although adamant that he remembered

      the incident, Ragen admitted during cross-examination that he did not know

      whether Gates is right or left-handed. Gates testified on his own behalf and put

      forth one central claim that he is left-handed. Gates elaborated that because of a

      physical disability, he has limited use of his right arm and has “basically no grip

      in it.” Id. at 16. In closing arguments, the State contested Gates’s claim. The

      State pointed out how Gates manipulated his hands and arms, specifically using

      his right arm to support himself in court. The State concluded that this was a

      case that would come down to competing witness credibility.


[6]   Ultimately, the trial court found Gates guilty as charged and sentenced him to

      30 days incarceration, all suspended, with 180 days of probation. Gates now

      appeals, challenging the sufficiency of the evidence.


                                      Decision & Discussion


[7]   In reviewing a challenge to the sufficiency of the evidence, this court will not

      reweigh the evidence nor judge the credibility of witnesses. Atteberry v. State, 911

      N.E.2d 601, 609 (Ind. Ct. App. 2009). Instead, we consider only the evidence

      which supports the conviction, along with the reasonable inferences to be

      drawn therefrom. Id. We will affirm if “there is substantial evidence of

      probative value supporting each element of the crime from which a reasonable


      Court of Appeals of Indiana | Memorandum Decision 20A-CR-119 | July 16, 2020   Page 3 of 5
      trier of fact could have found the defendant guilty beyond a reasonable doubt.”

      Davis v. State, 813 N.E.2d 1176, 1178 (Ind. 2004).


[8]   The heart of Gates’s argument on appeal is that the State failed to produce

      evidence consisting of “substantial proof of credible facts to convict him beyond

      a reasonable doubt”. Appellant’s Brief at 7-8. Gates challenges Ragen’s credibility

      as the State’s sole eyewitness, noting that Ragen had no independent

      recollection of the date or time of the incident at issue. Furthermore, Ragen

      could not say whether Gates is left or right-handed. Gates testified that he is

      left-handed and has limited use of his right arm. An injury to the left side of

      Gidley’s face would likely have required Gates to strike using his right hand.

      Gates’s explanation that he “has basically no grip” in his right arm is meant to

      imply that he could not have caused Gidley’s injury. Transcript Vol. 2 at 16.


[9]   Gates asks us to reweigh the evidence and evaluate witness credibility, which

      we will not do. The extent of Gates’s claimed disability was questioned at trial.

      The determination of whether or not Gates could use his right hand was

      directly observed and decided by the trial court. Furthermore, Ragen’s

      testimony supports the judgment. Although he was unsure about some details,

      Ragan’s testimony of the incident was unequivocal. Ragen placed Gates at the

      scene and stated that he saw Gates, whom he knew well, strike Gidley once in

      the face. Officer Overton’s own observations revealed that Gidley had a small

      injury to his left cheek.




      Court of Appeals of Indiana | Memorandum Decision 20A-CR-119 | July 16, 2020   Page 4 of 5
[10]   The state aptly concluded that this is a case that would be determined by

       competing witness credibility. However, it is not for this court to evaluate

       witness credibility. It is the duty of the fact finder “to determine not only whom

       to believe, but also what portions of conflicting testimony to believe.” Perry v.

       State, 78 N.E.3d 1, 8 (Ind. App. 2017) (quoting Wood v. State, 999 N.E.2d 1054,

       1064 (Ind. Ct. App. 2013), trans. denied (2014), cert. denied).


[11]   Judgment affirmed.


       Bailey, J. and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A-CR-119 | July 16, 2020   Page 5 of 5
