Pursuant to Ind.Appellate Rule 65(D),                                          Oct 31 2013, 5:33 am
this Memorandum Decision shall not be
regarded as precedent or cited before                                                 Oct 31 2013, 5:33 am




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:

DEBORAH MARKISOHN                                GREGORY F. ZOELLER
Marion County Public Defender Agency             Attorney General of Indiana
Indianapolis, Indiana
                                                 GEORGE P. SHERMAN
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

GEORGE SMALL,                                    )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )       No. 49A05-1304-CR-179
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                    APPEAL FROM THE MARION SUPERIOR COURT
                          The Honorable Amy M. Jones, Judge
                           Cause No. 49F08-1106-FD-40060



                                      October 31, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


BROWN, Judge
       George Small appeals his conviction and sentence for battery by bodily waste as a

class D felony. Small raises two issues, which we revise and restate as:

       I.     Whether the evidence is sufficient to sustain his conviction for
              battery by bodily waste; and

       II.    Whether his sentence is inappropriate in light of the nature of the
              offense and his character.

We affirm.

                       FACTS AND PROCEDURAL HISTORY

       On June 5, 2011, Indianapolis Metropolitan Police Officers Jerome Harrison and

Stephen Smalley were dispatched to the 3300 block of Park Avenue in Indianapolis

responding to a report of a person being shot. The officers assisted in securing the area

around the location of the shooting victim, including using crime scene tape to mark off

the area where the shooting occurred to prevent individuals from interfering with coming

onto 33rd Street. At one point, the officers observed Small “running through the crime

scene tape” by lifting the tape and in “a full sprint” ran underneath it. Transcript at 18.

Small went to the scene after receiving a phone call from his sister that his nephew had

died, and he “ran from the Meadows apartments to the scene” because he wanted to

“[s]ee if it was true . . . .” Id. at 71. Another officer stopped Small and confronted him,

and Small exited the crime scene tape back onto Broadway Street, but “not even two

minutes” later Small came “running back through the crime scene tape onto 33rd Street.”

Id. at 18. The officers also told Small that they would give him more information about

the victim at a later time when such information became available, and Small kept yelling

and screaming, telling the officers that they needed “to let him over on Park to see the


                                            2
homicide victim,” and at one point Small bumped into Officer Harrison to move past

both him and Officer Smalley to go on Park Avenue. Id. at 19. Officers Harrison and

Smalley then stopped Small and informed him that he needed to leave the crime scene,

but Small did not comply, and “[a]fter several attempts to try to get [Small] to leave the

crime scene there was a bunch of yelling and screaming by [him] to the point where

Officer Smalley had to place him in handcuffs in order to get him to leave.” Id.

        As Officer Smalley placed the handcuffs on him, he initially “stiffened up his arms

preventing Officer Smalley from placing the handcuffs on him,” but the officer was

eventually able to do so. Id. at 20. The officers then began to escort Small outside the

crime scene, and as they were doing so Small kept yelling and cursing and at some point

stopped, turned around, and deliberately spat on Officer Harrison’s uniform shirt.

        On June 6, 2011, the State charged Small with Count I, battery by bodily waste as

a class D felony; and Count II, resisting law enforcement as a class A misdemeanor. The

court held a jury trial on February 11, 2013, in which evidence consistent with the

foregoing was presented. At the conclusion of the trial, the jury found Small guilty of

both counts.1 On March 21, 2013, the court sentenced Small to three years in the

Department of Correction (the “DOC”) for Count I and did not impose a sentence on

Count II.

                                                   I.

        The first issue is whether the evidence is sufficient to sustain Small’s conviction

for battery by bodily waste as a class D felony. When reviewing the sufficiency of the


        1
          We note that Small does not challenge on appeal his conviction for resisting law enforcement as
a class A misdemeanor.
                                                   3
evidence needed to support a criminal conviction, we neither reweigh evidence nor judge

witness credibility. Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009). “We consider

only the evidence supporting the judgment and any reasonable inferences that can be

drawn from such evidence.” Id. We will affirm if there is substantial evidence of

probative value such that a reasonable trier of fact could have concluded the defendant

was guilty beyond a reasonable doubt. Id.

       The offense of battery by bodily waste is governed by Ind. Code § 35-42-2-6,

which provides in relevant part that “[a] person who knowingly or intentionally in a rude,

insolent, or angry manner places blood or another body fluid or waste on a law

enforcement officer . . . identified as such and while engaged in the performance of

official duties . . . commits battery by body waste, a Class D felony.” Ind. Code § 35-42-

2-6(e). Here, the State charged that Small “on or about June 5, 2011, did knowingly or

intentionally in a rude, insolent, or angry manner place saliva on a law enforcement

officer . . . empowered by the Indianapolis Metropolitan Police Department, namely: J.

Harrison, identified as such and while J. Harrison was engaged in the performance of his

official duties . . . .” Appellant’s Appendix at 26.

       Small argues that he “was highly emotional as he had just learned that his nephew

had been the victim of a homicide” and “was distraught and not thinking clearly . . . .”

Appellant’s Brief at 6. He argues that “[b]ecause of [his] heightened emotional state and

extreme duress, it was not reasonable for the jury to infer that [he] had the capacity to act

to knowingly or intentionally spit on Officer Harrison.” Id. The State argues that “it was

reasonable for the jury to infer that Small was upset at the officers for requiring him to


                                              4
leave the crime scene and that he acted in a rude, insolent, or angry manner when he spit

on Officer Harrison.” Appellee’s Brief at 4.

        The record reveals that Small was observed by officers “running through the crime

scene tape” by lifting the tape and in “a full sprint” running underneath it. Transcript at

18. Officers Harrison and Smalley stopped him and informed him that he needed to leave

the crime scene, but he did not comply, and “[a]fter several attempts to try to get [Small]

to leave the crime scene there was a bunch of yelling and screaming by [him] to the point

where Officer Smalley had to place him in handcuffs in order to get him to leave.” Id. at

19. As the officers escorted Small outside of the crime scene, Small kept yelling and

cursing and at some point stopped, turned around, and deliberately spat on Officer

Harrison’s uniform shirt. At trial, Officer Smalley testified regarding the spitting incident

that:

        [Small] opened his mouth the way someone would I guess if they were
        going to whistle and blew a large amount of saliva out of his mouth. When
        I say “spit” he didn’t grind the back of his throat and gather mucus like I
        sometimes get in trouble for doing at home and he didn’t…he didn’t make
        the sound like someone does when they say, chew tobacco but there was a
        very clear distinct effort to force that saliva out of his mouth and onto
        Officer Harrison.

Id. at 49.

        Based upon our review of the record, we conclude that evidence of probative value

exists from which the jury could have found that Small committed the offense of battery

by bodily waste as a class D felony.




                                               5
                                             II.

       The next issue is whether Small’s sentence is inappropriate in light of the nature of

the offense and the character of the offender. Ind. Appellate Rule 7(B) provides that we

“may revise a sentence authorized by statute if, after due consideration of the trial court’s

decision, [we find] that the sentence is inappropriate in light of the nature of the offense

and the character of the offender.” Under this rule, the burden is on the defendant to

persuade the appellate court that his or her sentence is inappropriate. Childress v. State,

848 N.E.2d 1073, 1080 (Ind. 2006). Small argues that “[t]he offense was not particularly

egregious,” highlighting that he “was distraught at the death of his nephew and frustrated

the police would not let him see the body,” and that “the maximum three years executed .

. . is unduly harsh . . . .” Appellant’s Brief at 8. Small also argues that “an executed

sentence at the Department of Correction does nothing to address [his] mental health

needs, something which could perhaps be better addressed through placement in

community corrections.” Id. The State argues that “[g]iven Small’s prior convictions,

failure to take advantage of opportunities for rehabilitation, violation of probation,

numerous arrests, and actions in this case, his sentence is not inappropriate.” Appellee’s

Brief at 7.

       Our review of the nature of the offense reveals that Small deliberately spat on

Officer Harrison’s uniform shirt after officers refused to allow him to view the body of a

homicide victim at a crime scene which was being investigated. Our review of the

character of the offender reveals that Small has mental health issues. An attachment to

Small’s presentence investigation report (the “PSI”) of a competency and sanity


                                             6
evaluation completed by Midwest Forensic Services, LLC on December 12, 2012, after

the court ordered a competency evaluation to stand trial, noted that Small “meets criteria

for Schizophrenia, paranoid type manifested by circumstantial thought process, agitation,

auditory hallucinations, paranoid beliefs and suspiciousness.” Midwest Report at 4. He

reported in the PSI that he has been diagnosed with “ADHD and OCD,” that he “has had

hallucinations and delusions,” and that he “participated in mental health counseling at

Midtown as a child.” PSI at 15. The PSI also stated that he reported “he is currently

‘stable’ on his mental health medications; however, he does not know the names of any

of the medications he is taking.” Id. The PSI also notes that Small has had placements

with various mental health organizations including Charter Hospital, Oconomowoc, and

the IDTC, and in 2000 he was placed with the DAWN Project which in turn placed him

at Resource, Evan’s House, and DAMAR.

      The PSI also reveals that Small has an extensive criminal history. In 1995, when

he was ten years old, he was charged with an offense which would be theft as a class D

felony if committed by an adult. In 1996, counts of residential entry and attempted theft

were found true, and Small was ordered to probation including home detention and

formal probation. In 1997, a charge of aggravated battery against Small was found true,

and he ultimately served a commitment to the DOC as punishment. In 2001 charges of

theft and disorderly conduct were found true. In 2008, he was arrested on three separate

occasions and was found guilty of two counts of receiving stolen property as class D

felonies and burglary as a class B felony. A sentencing hearing on all three convictions

occurred in October of 2008, and Small was sentenced to one year in the DOC followed


                                            7
by two years on community corrections with a mental health component on the burglary

conviction, as well as 545 days suspended for each of the receiving stolen property

convictions, and he was released from the DOC on January 28, 2009.

        However, on August 27, 2009, a community corrections violation hearing was

held and Small’s sentence was modified to 730 days executed with credit for time served,

and he was released on May 14, 2010 and placed on 100 days probation with a mental

health component. While Small was receiving mental health treatment at “Gallahue,” a

notice of probation violation was filed on July 13, 2010 alleging that he had been arrested

on June 16, 2010 for criminal trespass, and on July 7, 2010 for criminal trespass and

resisting law enforcement. PSI at 8. Small was “given an unsatisfactory discharge from

probation” on his burglary conviction on August 12, 2010, but he was still on probation

for the receiving stolen property convictions when he committed the instant offenses.2

Id. Small’s PSI also indicates that he is a member of a group called “The O,” in which



             2
               The PSI notes that on September 10, 2012, the State filed a final amended notice of
     probation violation containing the following allegations:

        1.       on or about 4/26/11, was charged with criminal trespass/MA . . . .
        2.       on 6/5/11 was arrested and charged with [the instant offenses].
        3.       on 7/16/11 was arrested and charged with Domestic Battery (FD), Battery (FD),
                 Domestic Battery (MA) and Battery (MA) . . . .
        4.       on 4/5/12 was arrested and charged with Possession of Marijuana/Hash/Synthetic
                 Cannabinoid (MA) . . . .
        5.       on or about 4/25/2012 was arrested and charged with Disorderly Conduct/MB . . .
                 .
        6.       on or about 5/3/12 was arrested and charged with Dealing in Marijuana or Hash
                 (MA) and Possession of Marijuana/Hash/Syn. Cannabinoid (MA) . . . .
        7.       on or about 5/6/12 was arrested and charged with Dealing in Marijuana or Hash
                 (MA) and Possession of Marijuana/Hash/Syn. Cannabinoid (MA) . . . .
        8.       on or about 5/12/12 was arrested and charged with disorderly conduct (MB) . . . .
        9.       on 9/2/12 was arrested and charged with Battery (MB) . . . .

PSI at 8.
                                                    8
the members “shoot dice, gamble, and fight each other” in order “to prove their strength.”

Id. at 13.

       After due consideration of the trial court’s decision, we cannot say that the

sentence imposed by the trial court is inappropriate in light of the nature of the offense

and the character of the offender.

                                       CONCLUSION

       For the foregoing reasons, we affirm Small’s conviction and sentence for battery

by bodily waste as a class D felony.

       Affirmed.

NAJAM, J., and MATHIAS, J., concur.




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