                                                              FILED
                                                         Aug 23 2016, 7:09 am

                                                              CLERK
                                                          Indiana Supreme Court
                                                             Court of Appeals
                                                               and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Deborah Markisohn                                          Gregory F. Zoeller
Marion County Public Defender                              Attorney General of Indiana
Appellate Division
Indianapolis, Indiana                                      Michael Gene Worden
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

Jay Lynn,                                                  August 23, 2016
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           49A05-1601-CR-4
        v.                                                 Appeal from the Marion Superior
                                                           Court
State of Indiana,                                          The Honorable David Hooper,
Appellee-Plaintiff                                         Magistrate
                                                           Trial Court Cause No.
                                                           49F08-1312-CM-79123



Crone, Judge.




Court of Appeals of Indiana | Opinion 49A05-1601-CR-4 | August 23, 2016                  Page 1 of 10
                                              Case Summary
[1]   Jay Lynn appeals his convictions, following a jury trial, for battery and

      disorderly conduct, both as class B misdemeanors. He contends that the trial

      court committed fundamental error regarding a preliminary jury instruction and

      that the State did not present sufficient evidence to support his disorderly

      conduct conviction. Finding no fundamental error and concluding that the

      State presented sufficient evidence, we affirm.


                                  Facts and Procedural History
[2]   Andrew Johnson works as a privately contracted security guard at the

      Indianapolis North East social security office. Johnson’s job can be described

      as “crowd control.” Tr. at 87. His duties include sitting at a desk in the main

      lobby, directing people to take numbers, answering any minor questions that

      people may have, and if “someone gets loud … that’s [his] job to escort them

      out of the building.” Id. On December 12, 2013, sixty-one-year-old Lynn went

      to the social security office because “he had locked himself out of his online

      account.” Id. at 92. When Lynn arrived, he told Johnson that “he spoke with

      somebody at the 1-800 number and was told that all he had to do was come in

      and show his I.D.” Id. Johnson told Lynn that he would have to take a number

      and wait because other people were already waiting in line. Lynn became

      agitated and “very aggressive in his demeanor.” Id. He “made it clear that he

      did not want to wait, he did not want to take a number.” Id. at 93. When

      Johnson advised him that “he had to,” Lynn asked to speak to a supervisor. Id.



      Court of Appeals of Indiana | Opinion 49A05-1601-CR-4 | August 23, 2016     Page 2 of 10
[3]   Lynn spoke to the assistant district manager, Robert Gramse. Gramse observed

      that Lynn was upset and angry that he had to take a number and wait. After

      Gramse explained that this was just office procedure, Lynn took a number and

      sat down to wait. Sometime thereafter, one of the clerks called Lynn’s number

      three times, but Lynn did not respond because he was talking to someone. In

      accordance with protocol, the clerk moved on to the next number and helped

      the next individual instead. When Lynn realized that he had missed his

      number being called, he tried to proceed to the clerk’s window. Johnson

      informed Lynn, “Your number was called, so actually you’ll have to take

      another number.” Id. at 95. Lynn became angry and loud and started yelling at

      Johnson. Johnson asked Lynn to “lower his voice,” and Lynn refused, telling

      Johnson over and over again, “You don’t tell me what to do. I tell you what to

      do.” Id. at 97. Johnson told Lynn that if he did not lower his voice that he

      would have to leave the building. Lynn responded that he was “not going

      anywhere.” Id. Because Johnson felt that Lynn was “disrupting operations in a

      federal facility,” he told Lynn that it was time for him to leave, pointed toward

      the door, and began to escort Lynn out of the building. Id. at 99.


[4]   When Johnson gently placed his hand under Lynn’s elbow to direct him toward

      the door, Lynn “struck [Johnson’s] forearm with his – with his closed hand

      knocking [Johnson’s] hand away.” Id. at 100. The closed-fist punch impacted

      Johnson’s mid-forearm and gave him “a pretty good shock.” Id. Lynn then

      raised the cane that he was holding in the other hand and tried to strike

      Johnson in the face. Johnson was able to use his arms to block the cane from


      Court of Appeals of Indiana | Opinion 49A05-1601-CR-4 | August 23, 2016   Page 3 of 10
      hitting him by bringing his hands up and grabbing Lynn’s shirt lapels. The

      scuffle caused Johnson and Lynn to both fall to the ground, with Johnson

      ending up on top of Lynn. Johnson told Lynn that he was being detained and

      needed to put his hands behind his back so that he could be handcuffed. Lynn

      refused and instead placed his hands underneath his body. Johnson asked

      Lynn approximately thirty or forty times to place his hands behind his back, but

      Johnson refused. Lawrence police officers arrived, used “a dry stun” tasering

      technique to obtain Lynn’s compliance with handcuffing, and arrested Lynn.

      Id. at 106. 1


[5]   The State charged Lynn with class A misdemeanor battery and class B

      misdemeanor disorderly conduct. Following a trial, the jury found Lynn guilty

      of battery and disorderly conduct, both as class B misdemeanors. This appeal

      ensued.


                                         Discussion and Decision

          Section 1 – The trial court did not commit fundamental error
                              in instructing the jury.
[6]   We address first Lynn’s assertion that the trial court committed fundamental

      error in instructing the jury. Specifically, Lynn challenges Preliminary




      1
          Johnson explained,
              a dry stun is where you activate, uh, the – taser mechanism so that it creates the arc of electricity
              that flows into the body. They didn’t shoot him with any of the prongs, they just placed it
              against his body, activated the electrical arc and that caused him to bring his arms out.
      Tr. at 106.

      Court of Appeals of Indiana | Opinion 49A05-1601-CR-4 | August 23, 2016                               Page 4 of 10
Instruction 4. Because he admittedly failed to make a contemporaneous

objection to the instruction, he argues that it amounted to fundamental error.

Our supreme court recently explained,

        Because instructing the jury is a matter within the sound
        discretion of the trial court, we will reverse a trial court’s decision
        to tender or reject a jury instruction only if there is an abuse of
        that discretion. We determine whether the instruction states the
        law correctly, whether it is supported by record evidence, and
        whether its substance is covered by other instructions. Jury
        instructions are to be considered as a whole and in reference to
        each other; error in a particular instruction will not result in
        reversal unless the entire jury charge misleads the jury as to the
        law in the case.

        Where, as here, the defendant failed to preserve an alleged
        instructional defect, the objection is waived, and reversal is
        warranted only in instances of fundamental error. Error is
        fundamental if it is a substantial blatant violation of basic
        principles and where, if not corrected, it would deny a defendant
        fundamental due process. This exception to the general rule
        requiring a contemporaneous objection is narrow, providing
        relief only in egregious circumstances that made a fair trial
        impossible.


Pattison v. State, 54 N.E.3d 361, 365 (Ind. 2016) (citations and quotation marks

omitted).




Court of Appeals of Indiana | Opinion 49A05-1601-CR-4 | August 23, 2016       Page 5 of 10
[7]   Lynn concedes that Preliminary Instruction 4 followed Indiana Pattern

      Criminal Jury Instruction 1.0700, 2 which provides how the jury is to be

      instructed as to the charges. However, Lynn complains that the trial court here

      improperly instructed the jury by including the affirmation language from the

      original charging informations. Specifically, Preliminary Instruction 4 provided

      in relevant part:


               In this case, the State of Indiana has charged the Defendant with:

               Count I:          Battery
                                 A Class A Misdemeanor

               Count II:         Disorderly Conduct
                                 A Class B Misdemeanor

               The Charges Read as Follows:

               Count 1, Battery, Class A Misdemeanor

               The undersigned affiant does hereby swear or affirm under the
               penalties of perjury that:

               On or about 12/12/13, in Marion County, State of Indiana, the
               following named defendant, Jay Lynn, did knowingly in a rude,
               insolent or angry manner touch Andrew Johnson, another
               person, and further that said touching resulted in bodily injury to
               the other person, specifically: pain.

               All of which is contrary to the laws of the State of Indiana.




      2
        That instruction states “In this case, the State of Indiana has charged the Defendant with [Count 1: (insert
      Count 1), Count 2: (insert Count 2), etc.] The charge(s) read(s) as follows:         [insert the Charge].”

      Court of Appeals of Indiana | Opinion 49A05-1601-CR-4 | August 23, 2016                            Page 6 of 10
              Count 2, Disorderly Conduct, Class B Misdemeanor

              The undersigned affiant does hereby swear or affirm under the
              penalties of perjury that:

              On or about 12/12/13, in Marion County, State of Indiana, the
              following named defendant, Jay Lynn, did recklessly, knowingly
              or intentionally: engage in fighting or in tumultuous conduct; …

              All of which is contrary to the laws of the State of Indiana.


      Appellant’s App. at 76-78 (captions and underlining omitted).


[8]   Lynn asserts that the “swear or affirm under the penalties of perjury” language

      invaded the province of the jury and deprived him of due process because that

      language constituted a “tacit expression of support for the State’s position”

      regarding “the ultimate question of Lynn’s guilt.” Appellant’s Br. at 14-15.

      Thus, he argues, the trial court’s failure to redact the affirmation language from

      the instruction amounted to fundamental error. We disagree.


[9]   In addition to Preliminary Instruction 4, the jury was specifically instructed that

      “[t]he charges which have been filed are the formal methods of bringing the

      Defendant to Trial. The filing of charges … is not to be considered by you as

      any evidence of guilt.” Appellant’s App. at 84. The jurors were instructed that

      a person charged with a crime is presumed to be innocent and that the State

      bore the burden to prove each element of the crime charged beyond a

      reasonable doubt. Id. at 85. The jurors were also told to consider the

      instructions as a whole and that they were the exclusive judges of the evidence


      Court of Appeals of Indiana | Opinion 49A05-1601-CR-4 | August 23, 2016   Page 7 of 10
       and facts as they found them. Id. at 87, 105, 109. Accordingly, we conclude

       that Preliminary Instruction Number 4 did not invade the province of the jury

       and that the affirmation language did not so affect the entire charge that the jury

       was misled. Indeed, the jury’s decision to find Lynn guilty of the lesser-

       included class B misdemeanor battery rather than the charged A misdemeanor

       indicates that the jury was not substantially influenced by the affirmation

       language such that Lynn was deprived of a fair trial. Under the circumstances,

       Lynn has failed to demonstrate fundamental error.


[10]   Nonetheless, we are compelled to note that, as a general matter, we think that

       such affirmation language has no place in jury instructions and that the best

       practice is for trial courts to redact such language. Inclusion of affirmation

       language of this type raises several potential problems, including that it gives

       the semblance of attribution to the trial court or to an unknown affiant, who

       may or may not be available for cross-examination, as to the veracity of the

       factual basis for the charges. This is undesirable and completely avoidable.

       Thus, while the pattern jury instructions do not clearly require redaction, we

       strongly advise it.


        Section 2 – The State presented sufficient evidence to support
                    Lynn’s disorderly conduct conviction.
[11]   Lynn next contends that the State presented insufficient evidence to support his

       disorderly conduct conviction. When reviewing a claim of insufficient

       evidence, we neither reweigh the evidence nor assess witness credibility. Bell v.

       State, 31 N.E.3d 495, 499 (Ind. 2015). We look to the evidence and reasonable

       Court of Appeals of Indiana | Opinion 49A05-1601-CR-4 | August 23, 2016   Page 8 of 10
       inferences drawn therefrom that support the verdict and will affirm if there is

       probative evidence from which a reasonable factfinder could have found the

       defendant guilty beyond a reasonable doubt. Id. In short, if the testimony

       believed by the trier of fact is enough to support the verdict, then the reviewing

       court will not disturb the conviction. Id. at 500.


[12]   To prove the offense of class B misdemeanor disorderly conduct as charged

       here, the State was required to prove that Lynn recklessly, knowingly, or

       intentionally engaged in fighting or in tumultuous conduct. See Ind. Code § 35-

       45-1-3(a)(1). Although our legislature has not statutorily defined the term

       “fighting,” this Court has stated that the term “fight” refers to “a ‘[h]ostile

       encounter; either physical or verbal in nature.’” J.S. v. State, 843 N.E.2d 1013,

       1016 (Ind. Ct. App. 2006) (quoting BLACK’S LAW DICTIONARY 565 (5th ed.

       1979)), trans. denied.


[13]   Johnson and Gramse testified that Lynn was upset and angry that he had to

       follow procedure by taking a number and waiting his turn. Then, when Lynn

       failed to respond to his number being called, causing him to lose that turn, he

       became extremely agitated and began yelling at Johnson. Johnson requested

       several times for Lynn to quiet down, but Lynn refused. After Johnson

       instructed Lynn that he needed to leave the building and tried to escort him to

       the door by gently placing his hand under Lynn’s elbow, Lynn became

       aggressive and punched Johnson’s forearm. Lynn also tried to strike Johnson

       in the face with his cane, causing Johnson to bring his hands up and grab

       Lynn’s shirt lapels in order to defend himself. When the two men subsequently

       Court of Appeals of Indiana | Opinion 49A05-1601-CR-4 | August 23, 2016    Page 9 of 10
       fell to the ground, Lynn immediately rolled over onto his hands to prevent

       Johnson from handcuffing him. Lynn remained defiant for approximately

       fourteen minutes until the local police arrived, tased him, and arrested him.


[14]   This evidence unquestionably supports a reasonable inference that Lynn

       engaged in a hostile encounter with Johnson that was both physical and verbal

       in nature. Thus, the evidence is sufficient to establish that Lynn engaged in

       fighting. His arguments on appeal are merely a request that we reweigh the

       evidence in his favor, and we will not. The State presented sufficient evidence

       to sustain Lynn’s conviction for disorderly conduct.


[15]   Affirmed.


       Kirsch, J., and May, J., concur.




       Court of Appeals of Indiana | Opinion 49A05-1601-CR-4 | August 23, 2016   Page 10 of 10
