MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be                                  Feb 11 2020, 8:34 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
James A. Hanson                                          Curtis T. Hill, Jr.
Fort Wayne, Indiana                                      Attorney General of Indiana
                                                         Benjamin J. Shoptaw
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Willie L. Vertison,                                      February 11, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-947
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable David M. Zent,
Appellee-Plaintiff,                                      Judge
                                                         Trial Court Cause No.
                                                         02D06-1710-F3-60



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-947 | February 11, 2020               Page 1 of 8
                                    Case Summary and Issue
[1]   Following a jury trial, Willie Vertison was convicted of aggravated battery, a

      Level 3 felony, and sentenced to serve fifteen years in the Indiana Department

      of Correction (“DOC”). Vertison appeals and raises one issue for our review,

      namely whether the evidence was sufficient to support his conviction.

      Concluding the State presented sufficient evidence to support Vertison’s

      aggravated battery conviction, we affirm.



                                Facts and Procedural History
[2]   The facts most favorable to the verdict are as follows. Videl Peaches and

      Vertison are cousins. On April 16, 2017, Vertison was staying with Videl’s

      mother in Fort Wayne. That evening, Videl and his wife, Jennifer, picked

      Vertison up and went back to their apartment to hang out. At the time, Lois,

      the mother of one of Videl’s friends, was staying at the apartment with Videl

      and Jennifer. A.M., the minor daughter of Jennifer’s best friend, was close with

      Jennifer and frequently spent time with Jennifer at the apartment; the two had

      gone to the salon earlier in the day and A.M. planned to hang out at the

      apartment that evening.


[3]   Videl, Vertison, Jennifer, and Lois hung out at the apartment for a while.

      Around 8:00 p.m., the four of them went out to drink1; they visited Videl’s




      1
          Jennifer does not drink but accompanied the group that night.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-947 | February 11, 2020   Page 2 of 8
      friend’s home, then stopped by a bar, and then went by another cousin’s barber

      shop. Later that night, the group returned to the apartment and continued to

      talk, listen to music, and drink. As the others hung out, A.M. was in Jennifer’s

      bedroom texting her boyfriend.


[4]   Vertison stated that his cell phone was missing and accused all of the others of

      stealing it. Vertison was intoxicated and began “acting a little off, . . . he was

      argumentative, [and] being disrespectful toward everybody.” Transcript,

      Volume 1 at 159. Videl asked Vertison to stop several times and then asked

      him to leave the apartment, which only caused Vertison to become even more

      argumentative. As Vertison and Videl argued, Jennifer went into another

      room. Videl got up and walked toward the door to escort Vertison out. As

      Videl went to open the door, “all hell broke loose.” Id. at 144. Vertison

      attacked Videl with a knife. The two began wrestling and Videl attempted to

      push the knife away. Jennifer could hear Lois “screaming and yelling at

      [Vertison],” and walked into the room where Lois was trying to break up the

      fight. Id. at 161. A.M. heard “some ruckus” from the bedroom. Id. at 134. As

      A.M. walked out of the bedroom, she witnessed Vertison stab Videl in the

      stomach with a knife at least twice. Lois was able to successfully push Vertison

      out the door and he left.


[5]   The police were called and around 4:00 a.m., officers arrived on scene and

      found Videl in a bathroom incoherent and covered in blood. Officer Daniel

      Hartman of the Fort Wayne Police Department spoke with Jennifer, Lois, and

      A.M. Jennifer indicated that Vertison was the individual who stabbed Videl.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-947 | February 11, 2020   Page 3 of 8
      Officer Hartman relayed this information through dispatch and roughly twenty

      to twenty-five minutes later, officers apprehended Vertison.


[6]   When paramedics arrived, Videl had lost a significant amount of blood and was

      in critical condition; Vertison had stabbed him twelve times. Videl was

      transported to Lutheran Hospital where he stayed through the end of July.

      During his stay, Videl underwent fifteen to twenty procedures and surgeries and

      actively died six times2 but ultimately survived. On October 25, 2017, the State

      charged Vertison with aggravated battery, a Level 3 felony, and a jury trial was

      held on February 5 and 6, 2019. The jury found Vertison guilty as charged and

      the trial court sentenced Vertison to fifteen years in the DOC. Vertison now

      appeals.3



                                   Discussion and Decision
                                        I. Standard of Review
[7]   Our standard of reviewing a sufficiency claim is well-settled. Brent v. State, 957

      N.E.2d 648, 649 (Ind. Ct. App. 2011), trans. denied. We do not reweigh the

      evidence or assess the credibility of the witnesses. Purvis v. State, 87 N.E.3d




      2
        Dr. Pradeesh George, a trauma surgeon at Lutheran Hospital who treated Videl, testified that this “means
      that he had at least six (6) times during the hospital stay for his heart to stop, and then we had to actively
      work to get his heart back[.]” Tr., Vol. 2 at 9.
      3
        Appellant’s Statement of Facts is not in narrative form but merely a recitation of each witnesses’ testimony,
      in violation of Indiana Appellate Rule 46(A)(6)(c), which explicitly requires a party’s Statement of the Facts
      contained in his or her appellate brief to be in narrative form, not “a witness by witness summary of the
      testimony.” We take this opportunity to strongly encourage counsel to comply with this rule in future cases.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-947 | February 11, 2020                    Page 4 of 8
      1119, 1124 (Ind. Ct. App. 2017). Instead, we consider only the evidence most

      favorable to the verdict and the reasonable inferences supporting it. Id.

      Therefore, it is not necessary that the evidence overcome every reasonable

      hypothesis of innocence. Gray v. State, 957 N.E.2d 171, 174 (Ind. 2011). “[W]e

      will affirm the conviction unless no reasonable trier of fact could have found the

      elements of the crime beyond a reasonable doubt.” Id.


                              II. Sufficiency of the Evidence
[8]   Vertison challenges the sufficiency of the evidence supporting his conviction for

      aggravated battery. Indiana Code section 35-42-2-1.5 provides:


              A person who knowingly or intentionally inflicts injury on a
              person that creates a substantial risk of death or causes:


                      (1) serious permanent disfigurement;


                      (2) protracted loss or impairment of the function of a
                          bodily member or organ; or


                      (3) the loss of a fetus;


              commits aggravated battery, a Level 3 felony.


[9]   The State alleged that Vertison knowingly or intentionally inflicted an injury on

      a person that created a substantial risk of death. See [Confidential] Appendix to

      Appellant’s Brief, Volume 2 at 2. Therefore, to convict Vertison of aggravated

      battery, a Level 3 felony, the State had to prove beyond a reasonable doubt that:


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-947 | February 11, 2020   Page 5 of 8
       (1) Vertison; (2) knowingly or intentionally; (3) inflicted injury on Videl; and (4)

       that injury created a substantial risk of death. Ind. Code § 35-42-2-1.5; Ind.

       Code 35-41-4-1(a) (“A person may be convicted of an offense only if his guilt is

       proved beyond a reasonable doubt.”). “A person engages in conduct

       ‘intentionally’ if, when he engages in the conduct, it is his conscious objective to

       do so. A person engages in conduct ‘knowingly’ if, when he engages in the

       conduct, he is aware of a high probability that he is doing so.” Ind. Code § 35-

       41-2-2(a)-(b).


[10]   Vertison concedes that the injury suffered by Videl created a substantial risk of

       death. However, Vertison contends that aggravated battery is a specific intent

       crime rather than a general intent crime. “Specific intent is present when from

       the circumstances the offender must have subjectively desired the prohibited

       result. General criminal intent exists when from the circumstances the

       prohibited result may reasonably be expected to follow from the offender’s

       voluntary act, irrespective of a subjective desire to have accomplished such

       result.” Hooker v. State, 180 Ind.App. 222, 229 n.1, 387 N.E.2d 1354, 1358 n.1

       (1979).4


[11]   Vertison maintains that the mens rea element of aggravated battery is akin to

       the intent element of an inchoate offense, which is defined as “[a] step toward

       the commission of another crime, the step in itself being serious enough to merit



       4
        The adoption of the 1977 Indiana Penal Code codified the various degrees of mens rea required for the
       commission of the crime. Id.; see also Ind. Code § 35-41-2-2.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-947 | February 11, 2020                Page 6 of 8
       punishment. The three inchoate offenses are attempt, conspiracy, and

       solicitation.” Black’s Law Dictionary (11th ed. 2019). In support of his

       argument, Vertison provides the example of attempted murder, which requires

       the State to prove the defendant acted with the specific intent to kill and took a

       substantial step toward the commission of the crime. See Spradlin v. State, 569

       N.E.2d 948, 949 (Ind. 1991); see also Ind. Code § 35-41-5-1(a). Therefore, in

       essence, he argues that because aggravated battery is a specific intent crime, the

       mens rea – knowing or intentional culpability –applies both to the act and to the

       inflicted injury element of the crime. We disagree and conclude that Vertison’s

       argument is contrary to our caselaw.


[12]   First, with respect to Vertison’s argument that the intent element of aggravated

       battery is akin to the intent element of attempted murder, Vertison

       acknowledges that aggravated battery is not an inchoate offense thus

       undercutting his own argument. See Appellant’s Brief at 42. Moreover, our

       supreme court has expressly limited the specific intent element in Spradlin not

       just to attempt crimes but specifically to attempted murder. Richeson v. State,

       704 N.E.2d 1008, 1009-11 (Ind. 1998).


[13]   Second, this court has already rejected Vertison’s very position and held that

       the mens rea does not apply to the severity of the injury under the aggravated

       battery statute. Lowden v. State, 51 N.E.3d 1220, 1223 (Ind. Ct. App. 2016),

       trans. denied. Instead, this court concluded that “[t]he culpability requirement

       applies to the conduct prohibited by the statute, not to the result of that

       conduct. The prohibited conduct in the aggravated-battery statute is to inflict

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-947 | February 11, 2020   Page 7 of 8
       injury on another.” Id. (emphasis added) (citation and quotation omitted).

       Furthermore, the severity of the injury is not an element of the prohibited

       conduct, but a result of it. Id. Accordingly, the State was required to prove

       only that Vertison knowingly or intentionally inflicted injury upon Videl and

       not that Vertison knew he would create a substantial risk of death. See id. And

       a jury could reasonably conclude from these facts that Vertison knowingly or

       intentionally inflicted injury on Videl by stabbing him twelve times with a knife

       and therefore, was guilty of Level 3 felony aggravated battery.5



                                                   Conclusion
[14]   We conclude the evidence is sufficient to sustain Vertison’s conviction for

       aggravated battery, a Level 3 felony. Accordingly, we affirm.


[15]   Affirmed.


       Bradford, C.J., and Altice, J., concur.



       5
         Vertison also argues the trial court improperly instructed the jury on the intent element of aggravated
       battery and his state of intoxication undermines any intent under the statute. See Appellant’s Br. at 37-41, 43-
       44. The validity of these arguments hinges on our acceptance of Vertison’s underlying argument that the
       intent element applies to the resulting injury, which as discussed above is contrary to our caselaw.
       Additionally, we note that Vertison failed to object to the trial court’s preliminary or final jury instructions;
       therefore, he has waived appellate review of any alleged error and he does not argue fundamental error.
       Brown v. State, 691 N.E.2d 438, 444 (Ind. 1998); Tr., Vol. 1 at 5, 118; Tr., Vol. 2 at 97, 112. Waiver
       notwithstanding, having concluded the intent element does not apply to the inflicted injury, Vertison’s
       remaining arguments fail. See Pattison v. State, 54 N.E.3d 361, 365 (Ind. 2016) (in reviewing a trial court’s
       decision to give or refuse a tendered jury instruction, appellate courts consider (among other things) whether
       the instruction correctly states the law); see also Ind. Code § 35-41-3-5 (intoxication is a defense only where
       the person engaged in prohibited conduct while he was intoxicated and his intoxication was the result of the
       introduction of a substance into his body without consent or when he lacked knowledge that the substance
       might cause intoxication).

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-947 | February 11, 2020                     Page 8 of 8
