MEMORANDUM DECISION                                                         FILED
Pursuant to Ind. Appellate Rule 65(D),                                 Aug 12 2016, 9:40 am

this Memorandum Decision shall not be                                       CLERK
                                                                        Indiana Supreme Court
regarded as precedent or cited before any                                  Court of Appeals
                                                                             and Tax Court
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
Joseph P. Hunter                                         Gregory F. Zoeller
Muncie, Indiana                                          Attorney General of Indiana

                                                         Michael Gene Worden
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Bryan Modglin,                                           August 12, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A02-1512-CR-2113
        v.                                               Appeal from the Delaware Circuit
                                                         Court
State of Indiana,                                        The Honorable John M. Feick,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         18C04-1309-FA-5



Altice, Judge.


                                         Case Summary




Court of Appeals of Indiana | Memorandum Decision 18A02-1512-CR-2113 | August 12, 2016          Page 1 of 10
[1]   Bryan Modglin appeals his convictions for class A felony attempted murder,

      class C felony battery resulting in serious bodily injury, class D felony battery

      resulting in bodily injury, and class A misdemeanor battery. With respect to

      the attempted murder conviction, Modglin contends that the State failed to

      present sufficient evidence that he intended to kill the victim. Modglin also

      makes a claim, applicable to all of his convictions, that the trial court abused its

      discretion when it excluded defense evidence regarding prior statements of a

      witness.


[2]   We affirm.


                                       Facts & Procedural History


[3]   Just before 2:00 a.m. on September 22, 2013, a bar fight broke out at Cruisers

      Bar in Muncie, Indiana. Modglin was one of about fifteen involved in the

      melee, which was recorded on video. Several individuals called 911 to report

      the fight. Modglin was eventually escorted out by a bouncer, and he left the bar

      in his white minivan. It is unclear whether he was accompanied by the friends

      he came with and whether he was the one driving the van away from the bar.

      Modglin, however, was clearly intoxicated.


[4]   Several officers responded to the scene as Modglin’s van was about to pull out

      of the parking lot. A witness alerted officers that the van contained a suspect.

      Officer Richard Little, who had just arrived on the scene, then backed out of the

      lot to pursue the van. After quickly finding the van parked in a nearby

      residential driveway, Little activated the emergency lights of his marked police

      Court of Appeals of Indiana | Memorandum Decision 18A02-1512-CR-2113 | August 12, 2016   Page 2 of 10
      vehicle and informed dispatch that he was exiting his vehicle. Little, in full

      uniform, approached the driver’s side of the van. Modglin, the only occupant,

      was sitting in the passenger seat slumped back. Little asked Modglin where

      everyone else had gone, and Modglin replied in a slurred manner, “I don’t

      know what the f*ck you’re talking about, Little.” Transcript at 152. Little, who

      did not recognize Modglin, asked the question again and received the same

      loud, curt response.


[5]   Little then walked around the front of the van to detain Modglin. He ordered

      Modglin out of the van and opened the passenger door. As Modglin “slid out”

      of the van, Little grabbed Modglin’s left wrist to take him under control. Id. at

      170. Modglin then immediately struck Little in the head, knocking Little’s

      glasses off. Modglin continued to repeatedly punch Little about the head and

      face. Little tried unsuccessfully to get some distance from Modglin during the

      relentless attack. Little was bloodied, could not open his left eye, and felt

      himself weakening as backup arrived.


[6]   Upon witnessing the attack in progress, Officer Shane Finnegan radioed

      dispatch and jumped out of his police vehicle. In full police uniform, he made

      multiple demands for Modglin to get on the ground. Modglin, however, simply

      turned his attention to Finnegan, took a fighting stance, and stated, “let’s go,

      big guy.” Id. at 188. He swung at Finnegan but missed, and Finnegan then

      punched Modglin, knocking him back a step or two. Finnegan dropped his

      hand to secure Modglin, but Modglin managed to punch Finnegan in the

      mouth. Finnegan’s mouth filled with blood and he became disoriented for a

      Court of Appeals of Indiana | Memorandum Decision 18A02-1512-CR-2113 | August 12, 2016   Page 3 of 10
      second or two. Modglin came at Finnegan and grabbed him by the throat with

      both hands, pushing him backward until Finnegan hit a chain-link fence on the

      property. Modglin bent Finnegan back over the fence as he squeezed his neck.

      Finnegan could not breathe and struggled unsuccessfully to get free. As he got

      dizzy and lightheaded and things started to go black, Finnegan reached for his

      service weapon and shot Modglin twice in the chest. Modglin fell to the

      ground. The entire encounter between Modglin and Finnegan took less than

      thirty seconds.


[7]   Other officers arrived on the scene almost immediately. According to the first

      responding officer, Finnegan was stumbling, gasping for breath, and hunched

      over. Another officer noted that Finnegan’s voice was “impaired and raspy”

      and that he was staggering and breathing hard. Id. at 254. Other officers gave

      similar accounts of Finnegan’s condition immediately after the attack. Both

      Modglin and Little were taken by ambulance to the hospital due to their serious

      injuries. Among his injuries, Little sustained an orbital fracture to his left eye

      and a laceration requiring stitches above that eye.


[8]   On September 27, 2013, the State charged Modglin with: Count 1, class A

      felony attempted murder; Count 2, class C felony battery resulting in serious

      bodily injury; Count 3, class D felony battery resulting in bodily injury; Count 4

      and Count 5, class A misdemeanor battery; and Count 6, class C misdemeanor

      operating with a schedule I or II controlled substance or its metabolite in the




      Court of Appeals of Indiana | Memorandum Decision 18A02-1512-CR-2113 | August 12, 2016   Page 4 of 10
       body.1 The State also alleged Modglin to be a habitual offender. Thereafter,

       the State added Count 7, Class A misdemeanor operating while intoxicated.

       The State later dismissed Counts 5 and 6.


[9]    Modglin’s three-day bench trial commenced on September 28, 2015. The trial

       court entered judgments of conviction on October 2, 2015, on Counts 1 through

       4 and found Modglin to be a habitual offender. The court found him not guilty

       on Count 7. Thereafter, Modglin was sentenced to an aggregate term of eighty-

       one years in prison. He now appeals. Additional facts will be provided below

       as needed.


                                             Discussion & Decision


                                                 Sufficiency Claim


[10]   Modglin argues that the State presented insufficient evidence to support his

       conviction for attempted murder. More precisely, he contends that the

       evidence was lacking regarding specific intent to kill Officer Finnegan. While

       Modglin acknowledges that intent may be inferred from the nature of the attack

       and the surrounding circumstances, he notes that the strangulation lasted only

       about ten seconds, no weapon was involved, and Finnegan was a large man

       with twelve years on the police force.




       1
         The alleged victims were Finnegan (Counts 1 and 3), Little (Count 2), and two individuals from the bar
       fight (Counts 4 and 5).

       Court of Appeals of Indiana | Memorandum Decision 18A02-1512-CR-2113 | August 12, 2016          Page 5 of 10
[11]   Our standard of review for sufficiency of the evidence claims is well settled.

       We consider only the probative evidence and reasonable inferences supporting

       the conviction. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do not

       assess the credibility of witnesses or reweigh evidence, and we will affirm unless

       no reasonable fact-finder could find the elements of the crime proven beyond a

       reasonable doubt. Id. It is not necessary that the evidence overcome every

       reasonable hypothesis of innocence; rather, the evidence will be found sufficient

       if an inference may reasonably be drawn from it to support the conviction. Id.

       at 147.


[12]   A person who knowingly or intentionally kills another human being commits

       murder. Ind. Code § 35-42-1-1. A person attempts to commit a crime when,

       acting with the culpability required for commission of the crime, the person

       engages in conduct that constitutes a substantial step toward commission of the

       crime. Ind. Code § 35-41-5-1. Although the culpability requirement for murder

       includes the lesser standard of knowingly, a conviction of attempted murder

       requires proof of a specific intent to kill. Henley v. State, 881 N.E.2d 639, 652

       (Ind. 2008).


[13]   Because intent is a mental state, “the trier of fact often must infer its existence

       from surrounding circumstances when determining whether the requisite intent

       exists.” Goodner v. State, 685 N.E.2d 1058, 1062 (Ind. 1997). See also Long v.

       State, 935 N.E.2d 194, 197 (Ind. Ct. App. 2010) (without a confession, intent

       must be determined from a consideration of the conduct and the natural

       consequences of the conduct), trans. denied. Specific intent to kill can be

       Court of Appeals of Indiana | Memorandum Decision 18A02-1512-CR-2113 | August 12, 2016   Page 6 of 10
       established in a number of ways, not just through use of a deadly weapon. See

       Nunn v. State, 601 N.E.2d 334, 339 (Ind. 1992). Intent may be inferred from the

       nature of the attack and the circumstances surrounding the crime. Pilarski v.

       State, 635 N.E.2d 166, 172 (Ind. 1994); Nunn, 601 N.E.2d at 339. Such

       consideration may include, among other things, the duration of the attack, its

       brutality, and the relative strengths of the defendant and victim. Nunn, 601

       N.E.2d at 339. Additionally, where blows of magnitude are repeated, a trier of

       fact may conclude that the defendant had an intent to kill. Id.


[14]   The facts favorable to the conviction establish that during Modglin’s brutal

       attack on Officer Little, Officer Finnegan arrived on the scene and Modglin

       quickly redirected his rage.2 Finnegan’s encounter with Modglin was brief but

       violent. After forcefully striking Finnegan in the mouth, Modglin wrapped his

       hands around Finnegan’s throat and squeezed so much that Finnegan could not

       breathe. While strangling him, Modglin backed Finnegan up to a fence and

       bent him backward, limiting Finnegan’s ability to escape Modglin’s grip and

       fight him off.3 Fearing for his life, Finnegan resorted to the use of deadly force,

       which finally ended the attack.




       2
        The trial court observed at sentencing: “I think had not Officer Finnegan [] showed up, Officer Little would
       not be here today.” Transcript at 594.
       3
        On appeal, Modglin notes Finnegan’s large stature. The record, however, establishes that Modglin and
       Finnegan were “both large men”. Id. at 219.

       Court of Appeals of Indiana | Memorandum Decision 18A02-1512-CR-2113 | August 12, 2016          Page 7 of 10
[15]   The brutality of the attack is evident. Moreover, like use of a deadly weapon, it

       is reasonable to infer an intent to kill from the act of choking someone,

       especially where the assailant’s grip is ended only upon being shot by the

       victim. Under the circumstances presented, we conclude that the trial court, as

       trier of fact, was permitted to make an inference of Modglin’s specific intent to

       kill Finnegan.


                                                 Evidentiary Claim


[16]   During trial, Modglin proffered evidence of a prior confrontation between

       Modglin and Finnegan that took place at Cruisers Bar two weeks before the

       instant encounter. Modglin’s friend, James Nichols, indicated that during a

       verbal confrontation in the bar’s parking lot, Finnegan told Modglin that “[h]e

       was going to f*ck him up, and that he was going to find him, he was going to

       bust his a**.” Transcript at 448. The trial court struck the testimony as

       irrelevant and treated it as an offer to prove.


[17]   On appeal, as below, Modglin asserts that the evidence was admissible under

       Ind. Evidence Rule 616 for the purpose of attacking Finnegan’s credibility with

       evidence of his bias against Modglin.4 We cannot agree with Modglin’s bald

       assertion that this evidence was “highly relevant”. Appellant’s Brief at 9.




       4
        Evid. Rule 616 provides: “Evidence that a witness has a bias, prejudice, or interest for or against any party
       may be used to attack the credibility of the witness.”

       Court of Appeals of Indiana | Memorandum Decision 18A02-1512-CR-2113 | August 12, 2016            Page 8 of 10
[18]   Even assuming that the trial court erred in excluding the evidence, we find that

       any error was harmless. See Hubbell v. State, 754 N.E.2d 884, 890 (Ind. 2001)

       (“Errors in the admission or exclusion of evidence are to be disregarded as

       harmless error unless they affect the substantial rights of a party”). Immediately

       prior to Nichols’s proffered testimony, another defense witness, Jessica

       Lemaster, testified regarding the verbal confrontation at Cruisers. She indicated

       that it involved Modglin, Nichols, Finnegan, and a few others. According to

       Lemaster, “everybody was kind of yelling and threatening one another”.

       Transcript at 443. When the State questioned this evidence as a violation of an

       order in limine, the trial court indicated that the evidence “didn’t mean much”

       to the court as trier of fact. Id.


[19]   Indeed, the relevance of the prior confrontation was, at most, negligible. This is

       not a case where Finnegan sought out Modglin. On the contrary, the evidence

       establishes that Finnegan responded to a report of a bar fight and then went to

       back up another officer, whom he found being brutally attacked by Modglin.

       The aggression was then turned on Finnegan, and ample evidence outside of

       Finnegan’s own testimony indicates that Modglin was strangling Finnegan

       during the attack. Under the circumstances, we can say with confidence that

       admission of Nichols’s testimony would have had no impact on the trial court’s

       determination of guilt.


[20]   Judgment affirmed.


[21]   Bailey, J. and Bradford, J. concur.


       Court of Appeals of Indiana | Memorandum Decision 18A02-1512-CR-2113 | August 12, 2016   Page 9 of 10
Court of Appeals of Indiana | Memorandum Decision 18A02-1512-CR-2113 | August 12, 2016   Page 10 of 10
