Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be                                             Nov 13 2013, 5:41 am
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:

ANA M. QUIRK                                     GREGORY F. ZOELLER
Public Defender                                  Attorney General of Indiana
Muncie, Indiana
                                                 GEORGE P. SHERMAN
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

BILLY BULU GERCILUS,                             )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )        No. 18A02-1303-CR-246
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                    APPEAL FROM THE DELAWARE CIRCUIT COURT
                        The Honorable Thomas A. Cannon, Jr., Judge
                             Cause No. 18C05-1208-FD-135



                                      November 13, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


NAJAM, Judge
                            STATEMENT OF THE CASE

      Billy Bulu Gercilus appeals his convictions for two counts of battery resulting in

bodily injury, as Class D felonies, and one count of interference with reporting a crime, a

Class A misdemeanor, following a jury trial. Gercilus presents the following issues for

review:

      1.     Whether the trial court erred when it overruled Gercilus’ objection to
             the jury panel.

      2.     Whether the trial court abused its discretion when it refused
             Gercilus’ request to instruct the jury on lesser included misdemeanor
             batteries.

      3.     Whether the evidence is sufficient to support Gercilus’ conviction
             for interference with the reporting of a crime.

      We affirm.

                      FACTS AND PROCEDURAL HISTORY

      On July 23, 2012, Gercilus was residing in Muncie with Claudette Lawson and her

thirteen-year-old son, D.W., in a two-bedroom apartment. Lawson and Gercilus were

dating and shared one bedroom, while D.W. used the other bedroom.             Lawson and

Gercilus argued that day because Lawson was financially supporting them while Gercilus

“always wanted to go to the bar and get drunk[.]” Transcript at 74-75. Gercilus left for a

bar anyway, and Lawson stayed home.

      When Gercilus returned later that evening, Lawson and D.W. were in their

respective bedrooms. Lawson was trying to sleep, but Gercilus was loud, turned on the

light, and wanted to have sex with Lawson. Lawson refused, and Gercilus left for the bar

again. A short time later, Lawson and D.W. went for a walk. When they returned to the


                                            2
apartment, they found Gercilus there with three other people. Gercilus attempted to

prevent Lawson from entering their bedroom, but she pushed through. In the bedroom

she saw “two guys and a female” sitting on the bed. Id. at 77. Lawson ordered the three

strangers out of the apartment. Gercilus tried unsuccessfully to get them to return.

       When the strangers did not return, Gercilus and Lawson began to argue in the

hallway. Gercilus started “cussing [Lawson] out because [she] had them to leave [sic].”

Id. at 81. Gercilus followed Lawson into the bedroom, where the couple continued

arguing. Gercilus grabbed Lawson and put his hands around her throat. D.W. then

entered the room and said “get off my mom, you bitch,” id. at 85, and “jumped on

[Gercilus’] back,” id. at 82. With D.W. on his back, Gercilus moved backward, slammed

D.W. backward against a wall, and then started hitting D.W. Lawson then started hitting

Gercilus “because he was hitting [her] son.” Id. at 87. Eventually Gercilus stopped

hitting D.W., turned around, and started hitting Lawson. The fight then moved from the

couple’s bedroom into the hallway.

       Lawson’s cell phone, the only phone in the house, was on her dresser. She tried to

“slide it” to D.W. and told him to get out of the house and to call the police. Id. at 88.

Gercilus intercepted the phone and ran out of the house and down the street with it.

Lawson and D.W. then went to a neighbor’s house and called the police. When police

interviewed Lawson and D.W., Lawson was “visibly upset, a little distraught,” had

scratches on both arms and complained of pain in her abdomen, id. at 135, and D.W. had

scratches on his upper right arm, upper left chest, and all over his back. Lawson and

D.W. were examined at a hospital and treated for their pain.


                                             3
       The State charged Gercilus with two counts of battery resulting in bodily injury, as

Class D felonies; strangulation, as a Class D felony; and interference with the reporting

of a crime, a Class A misdemeanor. A jury trial was held January 10 and 11, 2013.

During voir dire, Gercilus objected to the composition of the jury panel, specifically, that

there were no African-Americans on the panel. After hearing testimony as well as

argument from both parties, the trial court overruled the objection and the trial proceeded.

The jury found Gercilus guilty of two counts of battery resulting in bodily injury, as Class

D felonies, and one count of interference with the reporting of a crime, as a Class A

misdemeanor, and it acquitted him of strangulation. The trial court entered judgment of

conviction and sentenced Gercilus accordingly. Gercilus now appeals.

                            DISCUSSION AND DECISION

                             Issue One: Jury Composition

       “The United States Supreme Court has long held that ‘the selection of a petit jury

from a representative cross section of the community is an essential component of the

Sixth Amendment right to a jury trial.’” Bradley v. State, 649 N.E.2d 100, 104 (Ind.

1995) (quoting Taylor v. Louisiana, 419 U.S. 522, 528 (1975)). “While petit juries must

be drawn from a source ‘fairly representative of the community,’ there is no requirement

that they ‘actually . . . mirror the community and reflect the various distinctive groups in

the population.’” Id. (quoting Taylor, 419 U.S. at 538). Defendants “are not entitled to a

jury of any particular composition,” but venire selection systems “must not systematically

exclude distinctive groups in the community and thereby fail to be reasonably

representative thereof.” Id. To show a prima facie violation of the fair cross-section


                                             4
requirement, a defendant must show that: (1) the group being excluded is a distinctive

group in the community; (2) the representation of this group in jury pools from which

juries are being selected is not fair and reasonable in relation to the number of such

persons in the community; and (3) this underrepresentation is caused by systematic

exclusion. Davis v. State, 819 N.E.2d 91, 101 (Ind. Ct. App. 2004) (citing Duren v.

Missouri, 439 U.S. 357, 364 (1979)), trans. denied. Once a defendant has shown a prima

facie case of discrimination in the jury selection process, the burden shifts to the State to

demonstrate that those aspects of the jury-selection process that result in the

disproportionate exclusion of a distinctive group manifestly and primarily advance a

significant state interest. Bradley, 649 N.E.2d at 104.

       Here, there were no African Americans included in the jury venire. Gercilus

contends, and the State does not contest, that African Americans are a distinct group in

the community. But Gercilus has not shown that the underrepresentation was caused by a

systematic exclusion. The Delaware County Court Administrator testified on the jury list

selection process approved by the Indiana Supreme court. And Gercilus acknowledges

that the jury venire is randomly selected from voter registration lists obtained from the

Bureau of Motor Vehicles as well as from lists of those who have filed an Indiana

Department of Revenue tax return and from voter registration records.               Gercilus

contends, however, that “membership on these lists is restricted to persons who own

property, file income tax returns and/or are registered to vote.” Appellant’s Brief at 21.

But the venire is also pulled from lists of those who have obtained a driver’s license or

identification card.    Gercilus has not demonstrated or even argued that African


                                             5
Americans are not included in these lists or that the method of selecting venire members

from these lists excludes African Americans.

       Gercilus was required to satisfy all three prongs of the test in Davis before the

burden would shift to the State. Gercilus has not made a prima facie showing of a

systematic exclusion of African Americans from the jury venire. As such, we need not

consider whether he satisfied the other prongs of the test. Gercilus’ argument that he was

denied a fair trial due to discrimination in the jury selection process must fail.

                              Issue Two: Jury Instructions

       Gercilus next contends that the trial court abused its discretion when it refused his

proffered instructions on lesser-included offenses to battery. As we have discussed:

       “The purpose of a jury instruction ‘is to inform the jury of the law
       applicable to the facts without misleading the jury and to enable it to
       comprehend the case clearly and arrive at a just, fair, and correct verdict.’”
       Dill v. State, 741 N.E.2d 1230, 1232 (Ind. 2001) (quoting Chandler v. State,
       581 N.E.2d 1233, 1236 (Ind. 1991)). Instruction of the jury is left to the
       sound judgment of the trial court and will not be disturbed absent an abuse
       of discretion. Schmidt v. State, 816 N.E.2d 925, 930 (Ind. Ct. App. 2004),
       trans. denied. Jury instructions are not to be considered in isolation, but as
       a whole and in reference to each other. Id. The instructions must be a
       complete, accurate statement of the law which will not confuse or mislead
       the jury. Id. at 930-31.

Williams v. State, 891 N.E.2d 621, 630 (Ind. Ct. App. 2008).

       When a party requests an instruction on an alleged lesser-included offense, the

trial court must use a three-step analysis to determine whether the instruction is

appropriate.

       In the first step, the court must compare the statute defining the crime
       charged and the statute defining the alleged lesser-included offense. If the
       alleged lesser-included offense may be established by proof of all of the
       same or proof of less than all of the same material elements to the crime, or
                                              6
       if the only difference between the two statutes is that the alleged lesser-
       included offense requires proof of a lesser culpability, then the alleged
       lesser-included offense is inherently included in the crime charged.

               In the second step, if the trial court determines that the alleged
       lesser-included offense is not inherently included in the charged crime, it
       must compare the statute defining the alleged lesser-included offense with
       the charging instrument in the case. If all of the elements of the alleged
       lesser-included offense are covered by the allegations in the charging
       instrument, then the alleged lesser-included offense is factually included in
       the charged crime.

              If the trial court has determined that the alleged lesser-included
       offense is either inherently or factually included in the charged crime, then
       it must proceed to the third step. In the third step, the trial court must
       examine the evidence presented by each party and determine whether there
       is a serious evidentiary dispute over the element or elements that
       distinguish the crime charged and the lesser-included offense. If it would
       be possible for a jury to find that the lesser, but not the greater, offense had
       been committed, then the trial court must instruct the jury on both offenses.

Watts v. State, 885 N.E.2d 1228, 1231-32 (Ind. 2008) (citations omitted). The refusal to

instruct a jury on a lesser-included offense in the presence of a serious evidentiary dispute

is reversible error. See id. at 1232.

       Here, Gercilus contends that the trial court abused its discretion when it refused to

instruct the jury on the lesser-included offense of battery, as a Class B misdemeanor, as

to Counts 1 and 2 charged under Indiana Code Section 35-42-2-1(a)(2)(B) and 35-42-2-

1(a)(2)(M) respectively. The State counters that Gercilus has not shown that the jury

should have been instructed on lesser included offenses because he has not demonstrated

a serious evidentiary dispute over the element or elements that distinguish Class D felony

battery resulting in bodily injury from Class B misdemeanor battery under Count 1 or




                                              7
Class A misdemeanor battery under Count 2 of the information.1 We must agree with the

State.

         In Count 1, the State charged Gercilus with Class D felony battery resulting in

bodily injury under Indiana Code Section 35-42-3-1(a)(2)(B). To prove that offense the

State was required to show that Gercilus knowingly or intentionally touched D.W. in a

rude, insolent, or angry manner; that the touching resulted in bodily injury; and that D.W.

was less than fourteen years old and Gercilus was at least eighteen years old at the time

of the offense. And in Count 2, the State charged Gercilus under Section 35-42-2-

1(a)(2)(M), which required the State to show that Gercilus knowingly or intentionally

touched Lawson in a rude, insolent, or angry manner; that the touching resulted in bodily

injury; and that Lawson was a family or household member if (a) Gercilus was at least

eighteen years old and (b) he committed the offense within the presence of a child less

than sixteen years old, knowing that the child was present and might be able to see or

hear the offense.

         Gercilus does not argue that the evidence on any of the elements of Counts 1 and 2

are in dispute. Rather, he argues the existence of a serious evidentiary dispute as follows:

         Further, Claudette Lawson and [D.W.] both had different stories as to what
         they did and where they went during the time Mr. Gercilus returned to the
         house the first time and when he returned the second time. Ms. Lawson
         testified that she and [D.W.] left the house and went for a walk with their
         dog around the neighborhood. [D.W.] testified that they left the house and
         went to the home of a friend of his mother’s. [D.W.] also admitted that he
         told an investigator that they had gone to a VP [Village Pantry] to get a
         fountain soda[.]


         1
            A defendant must prove either the first or second prong under Watts and also the third prong.
Watts, 885 N.E.2d at 1231-32. Because we resolve the issue under the third prong, we need not consider
the first two prongs. See id.
                                                   8
              Thus, there were several discrepancies in the testimony of Ms.
       Lawson and [D.W.] that would lead a jury to not believe their account[s] as
       to the events of that evening. In addition, the jury found Mr. Gercilus not
       guilty of Strangulation. This would indicate that they had some problems
       believing the entire account presented through testimony of [D.W.] and Ms.
       Lawson.

Appellant’s Brief at 25 (citations omitted). The points made by Gercilus do not pertain to

the elements of the offenses charged.       Rather, the arguments pertain merely to the

credibility of Lawson and D.W. in general. Gercilus has not shown a serious evidentiary

dispute regarding elements of the offenses charged, two counts of battery resulting in

bodily injury, as Class D felonies. As such, he has not shown that the trial court abused

its discretion when it refused to instruct the jury on lesser included offenses to those

charges.

                          Issue Three: Sufficiency of Evidence

       Finally, Gercilus contends that the evidence is insufficient to support his

conviction for interference with the reporting of a crime. When the sufficiency of the

evidence to support a conviction is challenged, we neither reweigh the evidence nor judge

the credibility of the witnesses, and we affirm if there is substantial evidence of probative

value supporting each element of the crime from which a reasonable trier of fact could

have found the defendant guilty beyond a reasonable doubt. Wright v. State, 828 N.E.2d

904, 905-06 (Ind. 2005). It is the job of the fact-finder to determine whether the evidence

in a particular case sufficiently proves each element of an offense, and we consider

conflicting evidence most favorably to the trial court’s ruling. Id. at 906.

       To prove the offense of interference with the reporting of a crime, the State was

required to show that Gercilus, “with the intent to commit, conceal, or aid in the
                                              9
commission of a crime, knowingly or intentionally interfere[d] with or prevent[ed] an

individual from . . . using a 911 emergency telephone system.” Ind. Code § 35-45-2-5(1).

Gercilus argues that the

       evidence was unclear as to what happened with the cell phone. Claudette
       Lawson testified that she tried to slide the phone to her son but Mr.
       Gercilus ended up with the phone and running [sic] out of the house.
       [D.W.] testified that he grabbed the phone on the dresser and tried to run
       into his bedroom. [D.W.] stated that he threw the phone to his mom but
       Mr. Gercilus got the phone. It is unclear from this testimony that Mr.
       Gercilus knowingly or intentionally interfered with [D.W.] or Ms. Lawson
       using a 911 telephone system.

Appellant’s Brief at 25-26. However, Lawson testified that she attempted to slide the

phone to D.W. and told him to call the police, but Gercilus intercepted the phone and ran

away with it. Gercilus’ arguments amount to a request that we reweigh the evidence,

which we will not do.        The evidence is sufficient to support his conviction for

interference with the reporting of a crime.

       Affirmed.

MATHIAS, J., and BROWN, J., concur.




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