Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
                                                                 FILED
                                                              Jul 03 2012, 9:28 am
collateral estoppel, or the law of the
case.                                                                 CLERK
                                                                    of the supreme court,
                                                                    court of appeals and
                                                                           tax court




ATTORNEY FOR APPELLANT:                           ATTORNEYS FOR APPELLEE:

JOEL SCHUMM                                       GREGORY F. ZOELLER
Appellate Clinic                                  Attorney General of Indiana
Indiana University Robert H. McKinney
School of Law                                     BRIAN REITZ
Indianapolis, Indiana                             Deputy Attorney General
                                                  Indianapolis, Indiana
JONATHAN HARWELL
Certified Legal Intern
Appellate Clinic
Indiana University Robert H. McKinney
School of Law
Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

ANTWUAN BROWN,                                    )
                                                  )
       Appellant,                                 )
                                                  )
              vs.                                 )      No. 49A02-1108-CR-726
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee.                                  )


                      APPEAL FROM THE MARION SUPERIOR COURT
                          The Honorable Becky Pierson-Treacy, Judge
                    The Honorable Shatrese M. Flowers, Master Commissioner
                              Cause No. 49F19-1102-CM-10236
                                         July 3, 2012

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

DARDEN, Judge



                                   STATEMENT OF THE CASE

      Antwuan Brown appeals his convictions for class A misdemeanor resisting law

enforcement1 and class B misdemeanor disorderly conduct.2

      We affirm.

                                           ISSUES

                1.      Whether the trial court erred in denying Brown’s objection to
                        the State’s use of peremptory challenges to strike an African–
                        American from the jury venire.

                2.      Whether the trial court abused its discretion in excluding
                        evidence.

                                            FACTS

      Lanatasha Jones first met Brown the morning of February 14, 2011, when she

woke up after staying at the apartment of a friend, Virgie Coleman. Brown also had

stayed at the apartment but left in the morning to “go to the blood bank.” (Tr. 30).

Brown later returned to the apartment and began drinking, imbibing approximately two


      1
          Ind. Code § 35-44-3-3.
      2
          I.C. § 35-45-1-3.

                                               2
pints of gin or vodka. Brown then began talking to Jones about Jones’s boyfriend and

something the boyfriend had said about Coleman.

       Brown again left the apartment only to return still upset “about what [Jones’s]

boyfriend had said.” (Tr. 32). After telling Jones to tell her boyfriend to “stay out of

[his] business,” Brown once again left the apartment.       (Tr. 32).   Brown, however,

returned with a friend, John Covington, and “started drinking” some gin he had

purchased earlier. (Tr. 33).

       Brown, still angry, told Jones to tell her boyfriend to “meet [him] out on the

street.” (Tr. 34). When Jones refused to call her boyfriend, Brown threw the phone at

her and again left the apartment. Brown returned shortly thereafter with more alcohol,

which he drank. Brown became belligerent toward Jones and pushed her head with his

open hand, which gave Jones a headache.

       After pushing Jones’s head several times, Brown left the room. When he came

back, however, he got “in [Jones’s] face.” (Tr. 40). At that point, Covington “pushed

him away from [Jones] and told him, ‘Man, she’s a girl.’” (Tr. 40). Covington began to

struggle with Brown, trying to keep him away from Jones. As Covington restrained

Brown, Jones fled the apartment and called the police.

       Indianapolis Metropolitan Police Officers Adam Mengerink, Christopher Carlson,

and Steven Gray responded to the call “within minutes,” at approximately 10:00 p.m.

(Tr. 60). When the officers arrived at the scene, they observed a distraught Jones waiting

outside the apartment building. The officers had Jones wait downstairs while they went

                                            3
up to Coleman’s apartment. When Brown came to the door, Officer Mengerink observed

that he was wearing only a pair of pants and a pair of shoes. Brown’s “demeanor initially

was very aggressive. He had his chest puffed out, he had his fi[s]ts clamped up.” (Tr.

66). Brown’s eyes appeared “glassy” and bloodshot, and the odor of alcohol emanated

from him. (Tr. 66). The officers believed Brown to be intoxicated.

       Brown refused to respond to the officers’ questions and made threatening gestures.

For the officers’ safety, they placed Brown in handcuffs and led him downstairs.

       When they returned downstairs, they led a handcuffed Brown outside, where

Brown kept yelling loudly, “‘We [sic] at war, we [sic] at war.’” (Tr. 43). Despite being

told to calm down, Brown kept yelling and cursing at the officers. Officer Mengerink

attempted to pat Brown down, again for officer safety, but because Brown was “moving

around real figidety [sic] and wasn’t being real cooperative” and because it was a cold

night, Officer Mengerink decided to place Brown in one of the marked patrol vehicles.

(Tr. 69).

       As Officer Mengerink started to place Brown in the vehicle, Brown “put one leg in

and then he started pushing back towards [Officer Mengerink] as if to get away or not get

in the vehicle.” (Tr. 69). Brown pushed Officer Mengerink into the vehicle’s door. The

officers then tried to sit Brown down on the curb, but Brown “was still very non

compliant. He was “yelling obscenities” and “moving around.” (Tr. 71). Brown started

“swinging” his head “back and forth” and “stood up against Officer Mengerink,” as he

attempted to keep Brown in a seated position. (Tr. 109). The officers told Brown several

                                            4
times to sit down, calm down, and be still. They also warned Brown to stop yelling,

indicating that they would arrest him for being disorderly because Brown’s behavior was

drawing a crowd.

       Afraid that Brown, in his intoxicated and agitated state, might hit his head on the

curb, the officers moved him to a grassy area. As the officers placed Brown on the

ground, he began “to kick to get away” and “twist[] his body one direction to the other.”

(Tr. 110). Brown also began cursing.

       The officers requested that a police wagon be sent “because of the commotion and

the crowd that [Brown] was drawing.” (Tr. 75). When the wagon arrived, the officers

asked Brown to get into the wagon, but he did not comply. The officers then “picked him

up to put him in the wagon at which time [he] had apparently passed out.” (Tr. 75). One

of the officers therefore requested that paramedics be dispatched.

       Brown appeared to be unconscious when paramedics arrived. The paramedics

performed a finger prick on Brown and determined that he should be transported to

Wishard Hospital.    Once in the ambulance, Brown regained consciousness whereupon,

he “spit on one of the medics” and began “kicking his legs all over . . . .” (Tr. 113).

Officers then used shackles to restrain Brown before the paramedics transported him to

the hospital.

       On February 15, 2011, the State charged Brown with Count 1, class A

misdemeanor battery; Count 2, class A misdemeanor resisting law enforcement; and

Count 3, class B misdemeanor disorderly conduct. On April 20, 2011, the State filed a

                                            5
motion in limine, seeking to exclude any reference to, or testimony regarding, Brown’s

blood sugar level on the night of February 14, 2011. The trial court granted the motion.

         The trial court held a jury trial on July 21, 2011. During voir dire, the State asked

the prospective jurors “[w]hat kind of touching” they would “require in order for

somebody to be found guilty of battery[.]” (Tr. 287). The following colloquy then took

place:

                Prospective Juror [J-D.]: Whether it causes bodily harm as far as
                touching, not necessarily to restrain a person . . . .

                [State]:     So you would want to see bruising, scratching, cutting
                some kind of physical injury?

                Prospective Juror [J-D.]:    Yes.

                ....

                [State]:      . . . What if they just said it hurt, would that be enough
                for you?

                Prospective Juror [J-D.]:    No.

                [State]:     That would not be enough. Okay. Miss [Br.], I see
                you shaking your head, do you agree with Miss [J-D.] that you
                would require more than just—

                Prospective Juror [Br.]:     Yeah.

                [State]:      --just pain?

                Prospective Juror [Br.]:     Yeah,   I want to—yeah to do it
                aggressively.

(Tr. 287-88).

         Next, Brown’s counsel engaged in voir dire with the prospective jurors as follows:

                                               6
[Counsel]: . . . I’m asking you guys if someone is accused of a
battery what kind of investigation would you like to see the police
do? What kind of investigation should the police be doing if there’s
a battery. What do you think Miss [Br.]?

Prospective Juror [Br.]:    Talk to witnesses. And look for physical
evidence.

[Counsel]:    What kind of evidence would you as a juror like to
see?

....

Prospective Juror [Br.]:    Any—any bruising or any mark left or
by talking to the person the battery was supposedly put upon, you
know. Listening to their side of the story and hearing how they feel.

....

[Counsel]: Sure, okay. Miss [Z.], you heard what Miss [Br.] said
about what she would like to see. Okay, what did you hear her say?

Prospective Juror [Z.]:     She said bruising, talking to witnesses . .
..

[Counsel]:    Okay, okay.

Unidentified Prospective Juror: If they could possibly see if there
were any hospital reports, doctors reports, statements that may be
part of . . . .

[Counsel]:    Okay.

Unidentified Prospective Juror: Pictures, because bruising goes
away.      Pictures of the area.    I would want to know the
circumstances. And the history of the two people involved in order
to . . . .

[Counsel]: Okay, and these are the things that you would want to
know before you decide if you can judge a person guilty of that
battery or not, is that what I’m hearing?

                              7
(Tr. 308-10). The unidentified prospective juror did not give an audible answer, if any.

       The State used its peremptory challenges to strike five prospective jurors,

including Prospective Juror J-D., an African-American woman, and Prospective Juror

Br., from the venire. The State did not strike Prospective Juror S. As to Prospective

Juror J-D., Brown raised a Batson challenge, alleging that the State had used its

peremptory challenge for a racially discriminatory purpose.

       The State argued that it had a racially-neutral basis for striking Prospective Juror

J-D.; specifically, that the State “struck her due to her answer on the battery element . . . .

She said that she wanted to see some type of injury and that pain would not be enough to

find a conviction of bodily injury.” (Tr. 318). The trial court overruled Brown’s Batson

challenge, finding that J-D. “did say that pain was not enough.” (Tr. 319).

       Brown’s counsel then seemed to argue that the State’s reason for striking J-D.

applied just as well to another panelist, who was permitted to serve, stating, “that was the

same answer given by Miss S. and Miss—who was the other person, I don’t remember.

But I think that it’s on the record so . . . .” (Tr. 319). Neither party made any further

argument, and the trial court made no further ruling.

       During the trial, Brown made an offer to prove regarding statements made by the

paramedics at the scene to Officer Carlson. During the offer to prove, Officer Carlson

testified that paramedics informed him that they had tested Brown’s blood sugar and that

his blood sugar level was “extremely low.”           (Tr. 138).    He further testified that


                                              8
paramedics wanted to transport Brown to Wishard Hospital, which has a “wing or an area

for prisoners . . . in custody receiving medical treatment . . . under the direction of . . .

IMPD[.]” (Tr. 138).

       Brown then argued that the paramedics were acting as the State’s agents, and

therefore, their statements to Officer Carlson should be admitted as that by a party-

opponent. The trial court affirmed its original ruling and excluded the testimony.

       The jury found Brown guilty of Count 2, class A misdemeanor resisting law

enforcement and Count 3, class B misdemeanor disorderly conduct.               Following a

sentencing hearing, the trial court sentenced Brown to concurrent sentences of 365 days,

with 335 days suspended, on Count 2; and 180 days, with 150 days suspended, on Count

3.

       Additional facts will be provided as necessary.

                                        DECISION

1. Batson Challenge

       Brown asserts that the trial court erred in overruling his Batson objection.

       “Purposeful racial discrimination in selection of the venire violates a
       defendant’s right to equal protection because it denies him the protection
       that a trial by jury is intended to secure. The exclusion of even a sole
       prospective juror based on race, ethnicity, or gender violates the Fourteenth
       Amendment’s Equal Protection Clause.”

              Pursuant to Batson and its progeny, a trial court must engage in a
       three-step process in evaluating a claim that a peremptory challenge was
       based on race. “First, a defendant must make a prima facie showing that a
       peremptory challenge has been exercised on the basis of race; second, if
       that showing has been made, the prosecution must offer a race-neutral basis

                                             9
       for striking the juror in question; and third, in light of the parties’
       submissions, the trial court must determine whether the defendant has
       shown purposeful discrimination.” A step two explanation is considered
       race-neutral if, on its face, it is based on something other than race.
       Although the burden of persuasion on a Batson challenge rests with the
       party opposing the strike, the third step—determination of discrimination—
       is the “duty” of the trial judge. The trial court evaluates the persuasiveness
       of the step two justification at the third step. It is then that “implausible or
       fantastic justifications may (and probably will) be found to be pretexts for
       purposeful discrimination.” Also, at the third stage, the defendant may
       offer additional evidence to demonstrate that the proffered justification was
       pretextual.

               “Upon appellate review, a trial court’s decision concerning whether
       a peremptory challenge is discriminatory is given great deference, and will
       be set aside only if found to be clearly erroneous.”

Cartwright v. State, 962 N.E.2d 1217, 1220-21 (Ind. 2012) (internal citations omitted).

       Here, the record is not clear whether J-D. was the only African-American

prospective juror. Thus, we cannot say that Brown made a prima facie showing of

discrimination based on race with regard to J-D.3 See Addison v. State, 962 N.E.2d 1202,

1208-09 (Ind. 2012) (stating that the removal of the only African-American juror raises

an inference of racial discrimination). Nevertheless, this preliminary issue is moot as the

State advanced as the reason for striking J-D. the fact that she would require the State to

prove more than pain in order to convict Brown of battery, and the trial court, proceeding

under the third step, determined that the State’s challenge was not discriminatory. See id.

at 1209 n.2 (noting that where the State offers a race-neutral explanation for its challenge,




3
  The record is not clear whether J-D. was the only prospective African-American on the panel. Without
citation to the record, Brown asserts that prospective jurors Br. and S. were Caucasian.
                                                 10
and the trial court rules on whether it is intentional discrimination, the preliminary issue

of whether the defendant made a prima facie showing of discrimination is moot).

        On rebuttal, Brown’s counsel noted that S. and another prospective juror, the name

of whom counsel could not remember, had given the same answer. Again, the State did

not strike S. from the panel. It is upon this basis that Brown asserts the trial court erred,

and he therefore is entitled to a new trial.4

        “‘[I]f a prosecutor’s proffered reason for striking a black panelist applies just as

well to an otherwise-similar nonblack who is permitted to serve, that is evidence tending

to prove purposeful discrimination to be considered at Batson’s third step.’” Collier v.

State, 959 N.E.2d 326, 328-29 (Ind. Ct. App. 2011) (quoting Miller-El v. Dretke, 545

U.S. 231, 241 (2005)).

        We recognize, as has the Supreme Court, that “a retrospective comparison
        of jurors based on a cold appellate record may be very misleading when
        alleged similarities were not raised at trial. In that situation, an appellate
        court must be mindful that an exploration of the alleged similarities at the
        time of trial might have shown that the jurors in question were not really
        comparable.”

Addison, 962 N.E.2d at 1216 (quoting Snyder v. Louisiana, 552 U.S. 472, 483 (2008)).



4
  We note that Brown states that the unidentified prospective juror to which his trial counsel referred was
S. Although it is true that “neither the court nor the State disputed this at trial,” (Brown’s br. at 5), Brown
nevertheless makes an assumption as to the identity of the unidentified prospective juror. Brown’s
assumption is especially troubling because in response to the State’s argument that S. was the unidentified
prospective juror who responded that pain alone “would constitute battery,” (tr. 289) (emphasis added),
Brown points out that “[t]here is no indication that it was juror S. who made the quoted statement.”
Brown’s Reply Br. 3. Nevertheless, whether S. indeed was the unidentified prospective juror does not
impact our decision. Thus, for the sake of argument, we proceed as if the unidentified prospective juror
to whom Brown refers indeed was S. but that S. was not the unidentified prospective juror to whom the
State refers.
                                                     11
          Here, the record shows that both J-D. and Br. stated that they would require that an

alleged victim suffer more than pain in order to convict a defendant of battery.

Specifically, J-D. affirmed that she would “want to see bruising, scratching, cutting, some

kind of physical injury[.]” (Tr. 287). Br. agreed that she would require more than “just

pain[.]” (Tr. 287). Br. later reiterated that she would require the State to present

evidence such as “any bruising or any mark left . . . .” (Tr. 309). It is clear from the

record that both J-D. and Br., both of whom the State struck as jurors,5 would have

required evidence of more than physical pain to convict Brown of battery.

          In response to Brown’s counsel’s question to another prospective juror regarding

what she heard Br. say, an unidentified prospective juror—presumably S.—stated, “If

they could possibly see if there were any hospital reports, doctors reports, statements that

may be part of . . .” and “[p]ictures, because bruising goes away. Pictures of the area. I

would want to know the circumstances. And the history of the two people involved . . . .”

(Tr. 309-10). The unidentified prospective juror gave no apparent answer when asked

whether those were “the things that [she] would want to know before [she] decide[d] if

[she] c[ould] judge a person guilty of that battery or not[.]” (Tr. 310).

          We cannot say that the State’s proffered reason for striking J-D. applies just as

well to S. A review of the answers given by S. reveals that her answers were not truly

comparable to those of J-D. or even Br. She did not definitively state that she would

require evidence of more than physical pain before finding Brown guilty of battery.
5
    The record does not indicate the reason for striking Br. from the jury.

                                                      12
Accordingly, we cannot say that the State’s proffered reason for striking J-D. applied as

well to S.

       Based upon the foregoing, we find that the State’s proffered reason for

peremptorily challenging J-D. were facially valid, and we find no inherent racially

discriminatory intent. We therefore cannot say that the trial court erred in rejecting

Brown’s Batson challenge.

2. Admission of Evidence

       Brown also asserts that the trial court abused its discretion in excluding the

statements made by paramedics to Officer Carlson that Brown’s blood sugar level was

low the night of February 14, 2011. Brown offered the statement “to rebut the State’s

repeated references to [his] supposed intoxication.” Brown’s Br. at 8. Brown contends

that the paramedics were acting as an agent of the State, and therefore, the statement was

admissible as that made by a party-opponent pursuant to Indiana Evidence Rule

801(d)(2).

              We note that the admission or exclusion of evidence is within the
       sound discretion of the trial court, and we will reverse the trial court’s
       determination only for an abuse of that discretion. An abuse of discretion
       occurs when a decision is clearly against the logic and effect of the facts
       and circumstances before the trial court. In reviewing the admissibility of
       evidence, we consider only the evidence in favor of the trial court’s ruling
       and any unrefuted evidence in the appellant’s favor. As a rule, errors in the
       admission or exclusion of evidence are to be disregarded as harmless unless
       they affect the substantial rights of a party. In determining whether an
       evidentiary ruling affected a party’s substantial rights, we assess the
       probable impact of the evidence on the trier of fact.



                                            13
Redding v. State, 844 N.E.2d 1067, 1069 (Ind. Ct. App. 2006) (internal citations omitted),

reh’g denied.

       In his brief, Brown cites to several internet sources for the proposition that low

blood sugar levels may result in symptoms that mimic intoxication.6 Brown, however,

did not present this as evidence at trial. We therefore will not consider it. See R.R.F. v.

L.L.F., 956 N.E.2d 1135, 1142 n.4 (Ind. Ct. App. 2011) (noting that this court cannot

consider matters outside the record).

       The jury, however, did hear extensive testimony regarding Brown’s alcohol

consumption and behavior the night of February 14, 2011.                      Jones, Coleman and

Covington all testified that Brown had been drinking throughout the day prior to his

altercation with Jones. Officers Mengerink and Gray testified that an odor of alcohol

emanated from Brown. All three responding officers testified that Brown appeared

intoxicated.

       The officers further testified that Brown exhibited aggressive behavior toward the

officers, including pushing Officer Mengerink. They also testified that Brown drew a

large crowd outside by yelling and cursing and continued yelling despite being told to

stop by the officers.

       Given the above evidence, we cannot say that Brown was prejudiced or his

substantial rights affected by the trial court’s exclusion of the paramedics’ statements.

6
  We note that Brown was not charged with public intoxication and that intoxication is not an element of
either resisting law enforcement or disorderly conduct. It is not clear from either the trial or Brown’s
brief whether Brown sought to introduce evidence regarding his blood sugar levels to raise the issue of
whether his conduct was voluntary.
                                                  14
Although Brown presented evidence that the paramedics told Officer Carlson that

Brown’s blood sugar level was low, Brown failed to establish by an offer of proof that

there was a nexus between Brown’s blood sugar level and his behavior on the night of the

offense. In addition, Brown had ample opportunity to examine the witnesses, and the

jury had ample opportunity to judge the witnesses’ credibility. Thus, any alleged error in

excluding testimony was harmless.

      Affirmed.

RILEY, J., and NAJAM, J., concur.




                                           15
