MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                  FILED
this Memorandum Decision shall not be                              Sep 23 2016, 10:27 am
regarded as precedent or cited before any                               CLERK
court except for the purpose of establishing                        Indiana Supreme Court
                                                                       Court of Appeals
the defense of res judicata, collateral                                  and Tax Court


estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Donald J. Frew                                           Gregory F. Zoeller
Fort Wayne, Indiana                                      Attorney General of Indiana
                                                         Richard C. Webster
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

John E. Gray,                                            September 23, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         02A03-1603-CR-708
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable Wendy W. Davis,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         02D05-1409-F6-224



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A03-1603-CR-708 | September 23, 2016    Page 1 of 4
[1]   John Gray appeals his conviction for Level 5 Felony Battery,1 arguing that there

      is insufficient evidence supporting the conviction. Finding the evidence

      sufficient, we affirm.


                                                     Facts
[2]   On July 16, 2014, Gray, Robert Bentz, and Don Taflinger were in the garage of

      Taflinger’s Fort Wayne house. Bentz was planning to sell some tools to buyers

      who had arranged to come by the garage. Meanwhile, Gray was working on a

      bicycle and listening to music.


[3]   Bentz asked Gray to turn the volume down on the CD player. Gray responded,

      “I’ll turn that mother f**ker down,” and smashed the CD player. Tr. p. 133.

      Gray then turned to Bentz and shoved him backwards. Bentz’s arm became

      entangled in the legs of the stool on which he was sitting, and as he hit the

      ground, his left wrist fractured. Bentz stood up and began running.


[4]   Gray followed Bentz, and as Bentz attempted to call the police on his cell

      phone, Gray grabbed a hammer and yelled, “You call the police you mother

      f**ker and I’ll kill you, you son of a b**ch, I’ll crack your f**king skull.” Id. at

      137. Gray caught up to Bentz and pushed him to the ground again, which

      caused Bentz’s wrist to fracture a second time. Bentz was able to get up and

      keep running, and as he ran he called the police.




      1
          Ind. Code § 35-42-2-1.


      Court of Appeals of Indiana | Memorandum Decision 02A03-1603-CR-708 | September 23, 2016   Page 2 of 4
[5]   As a result of this attack, Bentz incurred a severely broken wrist that required

      surgery; two damaged vertebrae, which will also require surgery to repair; a

      large bruise on his left leg; a large bruise in the middle of his back; bruises on

      his arms; and severe pain that was ongoing at the time of the trial.


[6]   On September 17, 2014, the State charged Gray with criminal recklessness, a

      Level 6 felony, and misdemeanor battery, a class A misdemeanor. The State

      later amended the battery charge to allege a Level 5 felony battery.


[7]   After a February 3, 2016, trial, a jury found Gray guilty of felony battery but

      not guilty of criminal recklessness. On March 4, 2016, the trial court sentenced

      Gray to five years, with three years executed and two years suspended to

      probation. Gray now appeals.


                                   Discussion and Decision
[8]   Gray argues that there is insufficient evidence supporting his conviction. When

      reviewing a claim of insufficient evidence, we do not reweigh the evidence, nor

      do we judge the credibility of witnesses. McHenry v. State, 820 N.E.2d 124, 126

      (Ind. 2005). We consider only the probative evidence and the reasonable

      inferences drawn therefrom that support the verdict. Id.


[9]   In order to convict Gray of Level 5 felony battery, the State was required to

      prove beyond a reasonable doubt that Gray knowingly or intentionally touched

      Bentz in a rude, insolent, or angry manner that resulted in serious bodily injury

      to Bentz. I.C. § 35-42-2-1. The parties stipulated that Bentz’s injuries

      constituted serious bodily injuries. State’s Ex. 11.
      Court of Appeals of Indiana | Memorandum Decision 02A03-1603-CR-708 | September 23, 2016   Page 3 of 4
[10]   In this case, the jury heard the testimony of Bentz, who recounted Gray’s

       battery in detail. Bentz’s testimony, that Gray “turned on me and shoved me

       over backwards,” tr. p. 133, alone would be sufficient evidence from which the

       jury could conclude beyond a reasonable doubt that Gray knowingly touched

       Bentz in a rude, insolent, or angry manner. Further, Taflinger also testified and

       told the jury that Gray shoved Bentz. Finally, the jury saw photographs of

       Bentz’s extensive injuries, which are circumstantial evidence of Gray’s guilt.2


[11]   In sum, there is a wealth of direct and circumstantial evidence supporting

       Gray’s conviction for Level 5 felony battery, and his arguments to the contrary

       are unavailing.


[12]   The judgment of the trial court is affirmed.


       Vaidik, C.J., and Najam, J., concur.




       2
         Gray makes reference to the incredible dubiosity rule in his appeal. However, as our Supreme Court has
       instructed us to only apply that doctrine “where a sole witness presents inherently contradictory testimony . . .
       and there is a complete lack of circumstantial evidence of the appellant’s guilt,” Moore v. State, 27 N.E.3d 749, 755
       (Ind. 2015) (emphases original), the doctrine does not apply to this case, which involves the presence of a
       second witness and circumstantial evidence.

       Court of Appeals of Indiana | Memorandum Decision 02A03-1603-CR-708 | September 23, 2016                  Page 4 of 4
