                                                             FILED
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                                                           Jan 09 2013, 8:44 am
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ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

LISA DIANE MANNING                              GREGORY F. ZOELLER
Manning Law Office                              Attorney General of Indiana
Danville, Indiana
                                                IAN MCLEAN
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

AARON JOHNSON,                                  )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )       No. 32A01-1206-CR-270
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                    APPEAL FROM THE HENDRICKS SUPERIOR COURT
                        The Honorable Stephenie LeMay-Luken, Judge
                               Cause No. 32D05-1101-FD-30



                                      January 9, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


BROWN, Judge
       Aaron Johnson appeals his conviction for battery as a class D felony.1 Johnson

raises one issue, which we restate as whether the evidence is sufficient to sustain his

conviction. We affirm.

       The relevant facts follow. On September 13, 2010, Correctional Officer Paul

Gamroth, an employee of the Indiana Department of Correction (the “DOC”), was

assigned to the east dorm of the Plainfield Correctional Facility. At some point, Officer

Gamroth noticed a disturbance in Unit Q, and radioed for assistance.2

       Officer Gamroth observed five offenders “yelling back and forth at each other”

and officers “pulled those five (5) basically out and put the rest of the offenders on their

bunks.” Transcript at 132. One of the offenders was moved into segregation and four of

the offenders, including Johnson and Adrian Lotaki, were moved to the east dorm

dayroom of the facility, which is a common area shared by Units P and Q, and the four

men sat at a table. The Captain was contacted and ordered the officers to place the

offenders in restraints or handcuffs for safety reasons.

       Sergeant Powell, also an employee of the DOC, approached Lotaki to place

restraints on him and asked Lotaki to stand up and place his hands on his head. As

Lotaki stood up, he turned and struck Sergeant Powell on the jaw.                      Other officers

immediately attempted to restrain Lotaki and struggled with him.



       1
            Ind. Code § 35-42-2-1 (Supp. 2009) (subsequently amended by Pub. L. No. 114-2012, § 137
(eff. Jul. 1, 2012)).
       2
          At the time, three officers, including Officers Gamroth and Tony Walden were stationed in this
particular area of the Plainfield Correctional Facility, and Units P and Q housed approximately 244
offenders.

                                                   2
        As officers were assisting with Lotaki, Johnson “came out of his chair and

charged” and attempted to strike Officer Gamroth. Id. at 146. At that time, Officer Tony

Walden entered the dayroom and began to attempt to subdue Johnson. At some point,

Johnson was able to place Officer Walden “in a headlock.” Id. at 172. After a struggle,

and after Sergeant Powell deployed pepper spray at Lotaki’s eyes, officers were able to

subdue Johnson and Lotaki.

        Officer Gamroth noticed that Officer Walden had blood on his lower gum or lip.

Officer Walden and Sergeant Powell were transported to an outside medical treatment

facility.     During a subsequent interview in connection with an investigation of the

incident, Johnson admitted to striking staff members during the altercation.

        On January 12, 2011, the State filed an information charging Johnson with battery

as a class D felony, and on January 3, 2012, the State filed an amended information to

specifically allege that Walden was an employee of the DOC. At a jury trial on April 9,

2012,3 evidence was presented that Johnson physically struggled with Officer Walden

and was able to place him in a headlock. Officer Gamroth testified that, following the

altercation, “it looked like [Officer Walden] might of taken a hit in the mouth, he had a

little bit of blood like, on his lower gum around there.” Id. at 148. When asked if he

observed blood on Officer Walden’s lower lip, Officer Gamroth responded affirmatively.

When asked if he had an opportunity to observe Officer Walden on September 13, 2010,

prior to the altercation, Officer Gamroth answered “Yeah,” and when asked if he recalled

any injuries to Officer Walden’s face, Officer Gamroth answered “No.” Id. at 170.


        3
            Johnson and Lotaki were tried together.
                                                      3
Officer Gamroth also indicated that it is not common for a corrections officer to be

bleeding while on duty and that such a situation would be unusual and would be

something he would recall. The court also admitted a video recording which showed the

altercation. The jury found Johnson guilty as charged. The court sentenced Johnson to

1095 days in the DOC to run consecutive to the sentence Johnson was currently serving.

         The sole issue is whether the evidence is sufficient to sustain Johnson’s conviction

for battery as a class D felony. When reviewing the sufficiency of the 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. It is well established that “circumstantial evidence will be deemed

sufficient if inferences may reasonably be drawn that enable the trier of fact to find the

defendant guilty beyond a reasonable doubt.” Pratt v. State, 744 N.E.2d 434, 437 (Ind.

2001).

         The offense of battery is governed by Ind. Code § 35-42-2-1(a), which provides in

part that “[a] person who knowingly or intentionally touches another person in a rude,

insolent, or angry manner commits battery, a Class B misdemeanor” and that “[h]owever,

the offense is . . . a Class D felony if it results in bodily injury to . . . an employee of the

department of correction while the employee is engaged in the execution of the

employee’s official duty.” “‘Bodily injury’ means any impairment of physical condition,

                                               4
including physical pain.” Ind. Code § 35-41-1-4 (now found at Ind. Code 35-31.5-2-29

(eff. Jul. 1, 2012)). We also note that “[t]he degree of injury is a question of fact for the

jury.”    Gebhart v. State, 525 N.E.2d 603, 604 (Ind. 1988).         The State’s amended

information alleged that Johnson “did knowingly touch Tony Walden, a an [sic]

employee of the department of correction, in a rude insolent or angry manner resulting in

injury while Tony Walden was engaged in the execution of his official duty.”

Appellant’s Appendix at 30.

         Johnson concedes that there is no dispute that the alleged victim in this case was

an employee of the DOC engaged in his official duties at the time of the incident and that

a witness testified that he observed Johnson place Officer Walden in a headlock and thus

that there was sufficient evidence of rude, insolent or angry touching. Johnson maintains,

however, that there was insufficient evidence that the touching resulted in bodily injury to

Officer Walden. Johnson argues that Officer Walden did not testify at trial, that the only

testimony that there was a battery was from Officer Gamroth, that none of the other

officers were able to testify as to what happened between Officer Walden and Johnson

during the incident, that the jury viewed a video showing still frame photographs that

shows Johnson engaged physically with Officer Walden, that no medical reports from

Officer Walden’s treatment were admitted into evidence, and that no evidence was

presented that Johnson’s battery resulted in bodily injury to Officer Walden. Johnson

argues that he suffered injuries to his head and was not moving for about three minutes

and that the State presented no evidence that the blood on Officer Walden’s lip was a

result of the headlock as opposed to Officer Walden initially tackling or successfully

                                              5
subduing Johnson. Johnson also argues that it is possible that the blood on Officer

Walden’s lip was Johnson’s blood as he suffered an injury to his head.

       The State argues that eyewitness testimony and a video recording of events proved

that Johnson, who later admitted to striking DOC employees during the altercation,

grabbed Officer Walden’s head and knocked him into a wall and floor. The State asserts

that eyewitness evidence also proved that Officer Walden did not exhibit bleeding prior

to the altercation. The State maintains that this evidence was sufficient to permit the jury

to conclude that Johnson’s violent contact with Officer Walden’s head and face resulted

in bleeding and therefore bodily injury. The State further argues that Johnson’s argument

to the contrary incorrectly contends that the State is required to disprove any speculation

Johnson may wish to make at trial or on appeal regarding alternative explanations for

Officer Walden’s injury, and that Johnson’s arguments effectively ask this court to

determine if other explanations for Officer Walden’s injuries are more or less plausible

than the explanation supporting the conviction.

       In his reply brief, Johnson argues that Officer Gamroth specifically testified that

he did not see Officer Walden sustain an injury and did not know what caused the blood

on Officer Walden’s lip. Johnson states that there was no evidence that Officer Walden

was transported to a medical facility for treatment of his injuries, that the presence of

blood alone does not constitute evidence that an injury resulted from the touching, and

that there was no evidence that Johnson’s actions resulted in injury to Officer Walden.

       The record reveals that Officer Walden had a physical altercation with Johnson in

an attempt to restrain Johnson and that Johnson was able to place Officer Walden in a

                                             6
headlock. The evidence also includes testimony that Officer Walden had some blood on

his lower gum area or lip and was transported to an outside medical treatment facility.

Officer Gamroth testified that he did not notice any injuries to Officer Walden’s face

prior to the altercation. We will not reweigh the evidence, see Bailey, 907 N.E.2d at

1005, and we note that “in reviewing the sufficiency of the evidence supporting a

conviction it is not necessary for that evidence to overcome every conceivable hypothesis

of innocence, and we look only at the probative evidence supporting the conviction.”

Lock v. State, 971 N.E.2d 71, 77-78 (Ind. 2012).

       Based upon the record in this case, we conclude that the State presented evidence

of probative value from which a reasonable trier of fact could have found Johnson guilty

beyond a reasonable doubt of battery as a class D felony. See Tucker v. State, 725

N.E.2d 894, 898 (Ind. Ct. App. 2000) (holding that a bruise is a physical impairment and

thus constitutes bodily injury), trans. denied; Hanic v. State, 406 N.E.2d 335, 337-

338 (Ind. Ct. App. 1980) (noting that the victim testified that she and the defendant had

been fighting and that the defendant had grabbed, pulled, and knocked her down several

times and that police officers testified that the victim had red marks on her arms and

bruises on her arm and other minor scratches, and holding that the evidence was

sufficient to support a finding by the trial court of bodily injury); see also Marsh v. State,

818 N.E.2d 143, 148 (Ind. Ct. App. 2004) (noting the elements of battery as a class D

felony under Ind. Code § 35-42-2-1, that there was evidence that Marsh struck a person

in the mouth with enough force to cause swelling and bleeding, and that Marsh’s action

constituted battery supporting the revocation of Marsh’s probation).

                                              7
      For the foregoing reasons, we affirm Johnson’s conviction for battery as a class D

felony.

      Affirmed.

BAILEY, J., and VAIDIK, J., concur.




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