                                                                        FILED
                                                                    Jun 30 2020, 6:11 am

                                                                        CLERK
                                                                    Indiana Supreme Court
                                                                       Court of Appeals
                                                                         and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Ruth Johnson                                               Curtis T. Hill, Jr.
Indianapolis, Indiana                                      Attorney General of Indiana
                                                           Ian McLean
                                                           Supervising Deputy Attorney
                                                           General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Robert Coleman,                                            June 30, 2020
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           19A-CR-2336
        v.                                                 Appeal from the Sullivan Superior
                                                           Court
State of Indiana,                                          The Honorable Hugh Hunt, Judge
Appellee-Plaintiff.                                        Trial Court Cause No.
                                                           77D01-1810-F6-771



Pyle, Judge.




Court of Appeals of Indiana | Opinion 19A-CR-2336 | June 30, 2020                           Page 1 of 16
                                          Statement of the Case
[1]   Robert Coleman (“Coleman”) was charged with Level 6 felony battery1 based

      on his act of placing bodily fluid on a public safety official when he spit on a

      correctional officer at the prison where he was an inmate. A jury convicted

      Coleman of the offense, and he now appeals his conviction. He argues that,

      because the term “bodily fluid” is undefined in the battery statute, the battery

      statute was unconstitutionally vague and denied him due process. At the trial

      court level, Coleman used the lack of statutory definition as a defense theory to

      argue to the jury that the evidence was insufficient. Coleman, however, neither

      filed a motion to dismiss the charge against him nor otherwise raised a

      constitutional vagueness or due process challenge to the trial court. As a result,

      he has waived any such challenges on appeal. Waiver notwithstanding, we

      conclude that Coleman has failed to show that the statute was

      unconstitutionally vague and that he was not denied due process. Accordingly,

      we affirm his conviction.


[2]   We affirm.




      1
        IND. CODE § 35-42-2-1. We note that our legislature amended the battery statute during the 2020 legislative
      session. The amended statute, which has an effective date of July 1, 2020, does not affect our analysis in this
      appeal.

      Court of Appeals of Indiana | Opinion 19A-CR-2336 | June 30, 2020                                  Page 2 of 16
                                                       Issue
                   Whether the lack of a statutory definition of the term “bodily
                   fluid” in the battery statute subjected Coleman to an
                   unconstitutionally vague statute and denied him due process.


                                                      Facts
[3]   On September 24, 2018, Coleman was an inmate at the Wabash Valley

      Correctional Facility (“WVCF”), serving his sentence for his 2017 convictions

      of conspiracy to commit armed robbery and false identity statement.

      Correctional Officers Dalton Rhinehart (“Officer Rhinehart”) and Cole Banta

      (Officer Banta”) were on duty at the prison that day. Coleman was housed in a

      secured housing unit of WVCF and was in a cell by himself. Inmates who are

      in the secured housing unit are required to remain in their cells all day except

      for taking a shower or having one hour of recreation per day. Unlike the

      general population cell doors, which contained a window, the secured housing

      unit cell doors are “honeycombed,” containing “a lot of small holes all over

      them.” (Tr. Vol. 2 at 61). The secure housing cell door also contains a “cuff

      port” that “has a locking mechanism on it that [is] turn[ed] with a key and

      when [it is] unlock[ed] . . . , it pulls out to be served a meal or . . . to apply

      restraints.” (Tr. Vol. 2 at 61-62). The cuff port, otherwise, remains secured by

      being closed and locked.


[4]   As Officer Banta was picking up a dinner tray from Coleman through the cuff

      port, Coleman took “the cuff port hostage” by sticking his arm in the cuff port

      and not allowing Officer Banta to secure it. (Tr. Vol. 2 at 90). Officer Banta

      Court of Appeals of Indiana | Opinion 19A-CR-2336 | June 30, 2020             Page 3 of 16
      instructed Coleman to remove his arm, and Coleman told Officer Banta that he

      wanted to speak with Officer Rhinehart. When Officer Rhinehart arrived at

      Coleman’s cell, Coleman put his arm inside his cell, thereby allowing Officer

      Banta to secure the cuff port. Officer Rhinehart asked Coleman, “what’s going

      on?” and Coleman “hocked a loogie” and “spit through the door[.]” (Tr. Vol. 2

      at 64, 90, 102). Officer Banta saw “some fluid come out through th[e]

      perforations [of Coleman’s cell door] and hit Officer Rhinehart in the face.”

      (Tr. Vol. 2 at 90). After Officer Rhinehart felt the “warm and thick and bubbly”

      fluid on his face, he went to the control room where photographs were taken of

      his face, showing saliva on the officer’s eyebrow, forehead, temple, and bridge

      of his nose. (Tr. Vol. 2 at 64).


[5]   The State charged Coleman with Level 6 felony battery by bodily fluid or waste

      against a public safety official. Specifically, the State alleged that Coleman

      knowingly or intentionally, in a rude, insolent, or angry manner placed “bodily

      fluid” on Officer Rhinehart’s face when Coleman “spit” on the officer while he

      was engaged in his official duties. (App. Vol. 2 at 18). Prior to trial, Coleman

      neither filed a motion to dismiss the charge against him nor otherwise raised a

      constitutional vagueness or due process challenge to the battery statute.


[6]   On August 14, 2019, the trial court held a jury trial. Coleman had alternative

      theories for his defense. During opening arguments, Coleman’s attorney stated

      that the State would not be presenting any DNA evidence to prove that the

      fluid on Officer Rhinehart’s face was saliva, and he suggested that it could have

      been perspiration. His counsel also contended that, even if the fluid were

      Court of Appeals of Indiana | Opinion 19A-CR-2336 | June 30, 2020         Page 4 of 16
      saliva, the evidence would not be sufficient because: (1) the statute did not

      define the term bodily fluid, suggesting that the legislature only meant the term

      bodily fluid to apply only to fluids containing “communicable diseases” such

      blood, urine, or feces and not saliva; (2) any saliva that Coleman may have

      gotten on Officer Rhinehart was merely an accident; (3) a fellow prison inmate

      would testify that he did not hear or see Coleman spit on Officer Rhinehart; and

      (4) the prison did not take a “corrective action” against Coleman such as

      putting up a plexiglass door or making him wear a mask. (Tr. Vol. 2 at 54).


[7]   The State presented testimony from Officer Rhinehart and Officer Banta, who

      testified to the facts of the offense as set forth above. Additionally, Officer

      Rhinehart specifically testified that the fluid on his face was Coleman’s saliva

      and not perspiration. The State also introduced, without objection, exhibits

      that included the photographs of Officer Rhinehart’s face and a surveillance

      video taken from the prison’s camera stationed near Coleman’s cell.


[8]   Coleman presented testimony from a prison inmate, who was in the prison cell

      next to Coleman’s cell and who testified that he did not see or hear Coleman

      spit on Officer Rhinehart. Coleman also testified on his own behalf. Coleman

      admitted that he had stuck his hand in the cuff port but denied that he had spit

      on Officer Rhinehart. He also testified that he had been angry with Officer

      Rhinehart for refusing his previous request to pass an envelope to another

      inmate and that he “could have got [sic] some spit on [Officer Rhinehart]”

      when he was “cursing” and “talking loud” at the officer. (Tr. Vol. 2 at 115).

      Additionally, Coleman testified that he had been convicted of conspiracy to

      Court of Appeals of Indiana | Opinion 19A-CR-2336 | June 30, 2020          Page 5 of 16
       commit armed robbery and false identity statement in 2017, false informing in

       2013, and robbery in 2011.


[9]    During closing argument, Coleman’s counsel challenged the sufficiency of the

       evidence in the case, arguing that the State had failed to establish that the liquid

       on Officer Rhinehart was actually saliva instead of perspiration. His counsel

       argued the State was attempting to prove the case “with very little or no

       evidence” and that it should have DNA tested the liquid. (Tr. Vol. 2 at 123).

       Coleman’s counsel also pointed out that the battery statute did not define the

       term “bodily fluid” and that the statute should be applied only to “blood, urine,

       feces; things that can cause infectious diseases.” (Tr. Vol. 2 at 123). Counsel

       also argued that the statute was “overly broad” and told the jury that “it’s up to

       you folks as to how you weigh this evidence and then look at the law and see if

       it’s being fairly applied or . . . if it’s overly broad that means it’s

       unconstitutional[.]” (Tr. Vol. 2 at 124, 127). The jury found Coleman guilty as

       charged.


[10]   During the September 2019 sentencing hearing, Coleman’s counsel asked to

       make a “statement” in which he argued that the evidence was insufficient and

       that “saliva does not qualify as bodily waste.” (Tr. Vol. 2 at 138). Counsel

       argued that the statute was “overly broad” and “arbitrarily applied[,]” and he

       opined that the statute was intended to apply to “blood and feces and urine;

       bodily fluids such as that, to prevent infectious diseases.” (Tr. Vol. 2 at 138).

       Additionally, Coleman’s counsel argued that the statute was “vague in that



       Court of Appeals of Indiana | Opinion 19A-CR-2336 | June 30, 2020          Page 6 of 16
       regard when it says bodily fluid, with saliva being included as one of the bodily

       fluids[.]” (Tr. Vol. 2 at 138).


[11]   The trial court imposed a two (2) year sentence at the Indiana Department of

       Correction and ordered Coleman to serve it consecutively to the sentence he

       had been serving. Coleman now appeals.


                                                          Decision
[12]   Coleman challenges his Level 6 felony battery conviction, arguing that, because

       the term “bodily fluid” was not defined in the battery statute, the battery statute

       was unconstitutionally vague and denied him due process. In response, the

       State cites to INDIANA CODE § 35-34-1-42 and contends that Coleman has

       waived these arguments because he failed to file a motion to dismiss the

       charging information or to otherwise raise those arguments, before or during

       trial, to the trial court for a ruling on such arguments. Coleman acknowledges




       2
           INDIANA CODE § 35-34-1-4 provides, in relevant part, that:

                (a) The court may, upon motion of the defendant, dismiss the indictment or information upon
                any of the following grounds:
                                                           *****
                  (4) The indictment or information does not state the offense with sufficient certainty.

                  (5) The facts stated do not constitute an offense.

                                                           *****
                (b) Except as otherwise provided, a motion under this section shall be made no later than:

                  (1) twenty (20) days if the defendant is charged with a felony; or . . .

                prior to the omnibus date. A motion made thereafter may be summarily denied if based upon a
                ground specified in subdivision (a)(1), (a)(2), (a)(3), (a)(4), or (a)(5) of this section. . . .

       Court of Appeals of Indiana | Opinion 19A-CR-2336 | June 30, 2020                                     Page 7 of 16
       that he did not raise the arguments at trial but argues that the constitutionality

       of a statute may be raised at any stage of the proceeding, including on appeal.


[13]   Our Indiana Supreme Court has held that “[g]enerally, the failure to file a

       proper motion to dismiss raising the Constitutional challenge waives the issue

       on appeal.” Payne v. State, 484 N.E.2d 16, 18 (Ind. 1985). See also Plank v.

       Cmty. Hosps. of Ind., Inc., 981 N.E.2d 49, 53 (Ind. 2013); Baumgartner v. State,

       891 N.E.2d 1131, 1135 (Ind. Ct. App. 2008) (citing I.C. §§ 35-34-1-4 and -6).3

       However, our supreme court has also held that “the constitutionality of a

       statute may be raised at any stage of the proceeding including raising the issue

       sua sponte by this Court.” Morse v. State, 593 N.E.2d 194, 197 (Ind. 1992)

       (addressing a defendant’s challenge to the constitutionality of a statute even

       though the issue was raised for the first time in a pro se motion filed with the

       Court by a defendant who was represented by appellate counsel who did not

       raise the issue in the appellant’s brief), reh’g denied. “Essentially, Morse stands for

       the proposition that appellate courts are not prohibited from considering the

       constitutionality of a statute even though the issue otherwise has been waived[,]

       [a]nd indeed a reviewing court may exercise its discretion to review a




       3
           INDIANA CODE § 35-34-1-6 provides, in relevant part, that:

                (a) An indictment or information is defective when:
                  (1) it does not substantially conform to the requirements of section 2(a) of this chapter;
                                                             *****
                  (3) the statute defining the offense charged is unconstitutional or otherwise invalid.



       Court of Appeals of Indiana | Opinion 19A-CR-2336 | June 30, 2020                                       Page 8 of 16
       constitutional claim on its own accord.” Plank, 981 N.E.2d at 53-54. See also

       McBride v. State, 94 N.E.3d 703, 709-10 (Ind. Ct. App. 2018) (listing cases from

       the Indiana Supreme Court and our Court in which constitutional challenges to

       a statute were addressed despite the failure to file a motion to dismiss).

       Accordingly, we will address the merits of Coleman’s arguments, waiver

       notwithstanding.


[14]   Although we will address Coleman’s arguments, we note that our decision to

       do so does not equate to an endorsement of a defendant’s failure to file a

       motion to dismiss when he has a constitutional challenge to a statute. Indeed,

       we echo the prudent warning set forth by our Court in Tooley v. State: “We

       caution that our decision to reach the merits is not an invitation to neglect to

       file a motion to dismiss and then argue for the first time on appeal that the

       statute is unconstitutional.” Tooley v. State, 911 N.E.2d 721, 723 n.3 (Ind. Ct.

       App. 2009), trans. denied.


[15]   The constitutionality of statutes is reviewed de novo. Conley v. State, 972 N.E.2d

       864, 877 (Ind. 2012), reh’g denied. “Such review is ‘highly restrained’ and ‘very

       deferential,’ beginning ‘with [a] presumption of constitutional validity, and

       therefore the party challenging the statute labors under a heavy burden to show

       that the statute is unconstitutional.’” Id. (quoting State v. Moss-Dwyer, 686

       N.E.2d 109, 110 (Ind. 1997)). “[I]f a statute has two reasonable interpretations,

       one constitutional and the other not, we will choose the interpretation that will




       Court of Appeals of Indiana | Opinion 19A-CR-2336 | June 30, 2020            Page 9 of 16
       uphold the constitutionality of the statute.” Morgan v. State, 22 N.E.3d 570,

       573-74 (Ind. 2014) (internal quotation marks and citations omitted).


[16]   “A fundamental aspect of our nation’s jurisprudence is that criminal statutes

       must give a person of ordinary intelligence fair notice that his contemplated

       conduct is forbidden so that no man shall be held criminally responsible for

       conduct which he could not reasonably understand to be proscribed.” Lock v.

       State, 971 N.E.2d 71, 74 (Ind. 2012) (internal quotation marks and citations

       omitted). “[D]ue process requires that a penal statute clearly define its

       prohibitions.” Id. (internal quotation marks and citations omitted).


[17]   “A criminal statute can be found unconstitutionally vague: (1) for failing to

       provide notice enabling ordinary people to understand the conduct that it

       prohibits[;] or (2) for the possibility that it authorizes or encourages arbitrary or

       discriminatory enforcement.” Morgan, 22 N.E.3d at 573 (internal quotation

       marks and citations omitted). Here, Coleman does not argue that there was

       arbitrary enforcement; instead, he argues that the statute did not provide him

       with “notice that his conduct was criminally proscribed.” (Coleman’s Br. 12).

       A statute, however, “need only inform the individual of the generally

       proscribed conduct; it need not list with exactitude each item of prohibited

       conduct.” Baumgartner, 891 N.E.2d at 1136. “A statute will not be held to be

       unconstitutionally vague if individuals of ordinary intelligence would

       comprehend it adequately to inform them of the proscribed conduct.” Id. “[A]

       statute is void for vagueness only if it is vague as applied to the precise

       circumstances of the present case.” Id. Additionally, a “defendant is not at

       Court of Appeals of Indiana | Opinion 19A-CR-2336 | June 30, 2020             Page 10 of 16
       liberty to devise hypothetical situations which might demonstrate vagueness.”

       Id.


[18]   Turning to the facts and circumstances of the present case, Coleman challenges

       the constitutionality and the due process implications of the battery statute,

       INDIANA CODE § 35-42-2-1, which provides, in relevant part:


               (c) Except as provided in subsections (d) through (k), a person
               who knowingly or intentionally:

                        (1) touches another person in a rude, insolent, or angry
                        manner; or

                        (2) in a rude, insolent, or angry manner places any bodily
                        fluid or waste on another person;

               commits battery, a Class B misdemeanor.

                                                      *****

               (e) The offense described in subsection (c)(1) or (c)(2) is a Level 6
               felony if one (1) or more of the following apply:

                                                      *****

                        (2) The offense is committed against a public safety official
                        while the official is engaged in the official’s official duty.

       IND. CODE § 35-42-2-1 (emphasis added). To convict Coleman for battery as

       charged, the State was required to establish beyond a reasonable doubt that

       Coleman knowingly or intentionally, in a rude, insolent, or angry manner,

       placed bodily fluid on Officer Rhinehart when he spat on him.




       Court of Appeals of Indiana | Opinion 19A-CR-2336 | June 30, 2020             Page 11 of 16
[19]   We first address Coleman’s constitutional vagueness challenge. Coleman

       generally argues that “[w]ithout a statutory definition that specifically includes

       saliva as a bodily fluid, [he] was not on notice that his conduct was criminally

       proscribed, thus the statute is unconstitutionally vague as applied to [him.]”

       (Coleman’s Br. 12). He asserts that bodily fluid “could include many things

       such as tears or mucus, and reasonable minds can differ as to whether saliva is a

       ‘bodily fluid.’” (Coleman’s Br. 12).


[20]   First and foremost, we reject Coleman’s argument that the battery statute is

       unconstitutionally vague because it does not define saliva as a bodily fluid.

       “[A] criminal statute does not need to provide an express or explicit list of

       prohibited conduct with scientific precision, however much we might think it

       helpful.” Lock, 971 N.E.2d at 75. Indeed, “[c]ondemned to the use of words,

       we can never expect mathematical certainty from our language.” Id. (quotation

       marks and citation omitted).


[21]   Additionally, we reject Coleman’s suggestion that the battery statute is vague

       because other fluids, which are not at issue in this case, may be included as a

       bodily fluid. Coleman “is not at liberty to devise hypothetical situations which

       might demonstrate vagueness.” Baumgartner, 891 N.E.2d at 1136. Instead, we

       focus on the precise circumstances of the present case and whether a person of

       ordinary intelligence would comprehend the battery statute to adequately

       inform him/her that spitting, or placing saliva, on another person’s face was

       included in the proscribed conduct. Because our analysis centers on how an

       ordinary person would interpret the statute, we turn to standard language

       Court of Appeals of Indiana | Opinion 19A-CR-2336 | June 30, 2020        Page 12 of 16
       dictionaries definitions of bodily fluid. See Lock, 971 N.E.2d at 75. These

       dictionary definitions make clear that saliva is a bodily fluid.4 Thus, a person of

       ordinary intelligence would, from the phrase “bodily fluid” as used in the

       battery statute, know that spitting or placing saliva, on another person’s face

       was included in the proscribed conduct of placing bodily fluid on another

       person. Accordingly, Coleman’s argument that the battery statute is

       unconstitutionally vague fails. See, e.g., Tooley, 911 N.E.2d at 723 (rejecting the

       defendant’s argument that undefined terms in a statute rendered the statute

       unconstitutionally vague); Boyd v. State, 889 N.E.2d 321, 325 (Ind. Ct. App.

       2008) (rejecting the defendant’s claim that domestic battery statute was

       unconstitutionally vague), trans. denied.


[22]   Next, we turn to Coleman’s due process argument. Coleman contends that he

       was denied due process because the legislature’s failure to specifically define

       saliva as being a “bodily fluid” resulted in a conviction based upon less than

       proof beyond a reasonable doubt and insufficient evidence. Coleman has

       abandoned his argument raised below to the jury, asserting that bodily fluid

       should apply only to blood, feces, urine, or any bodily fluids that may pass




       4
         See, e.g., Cambridge Dictionary online, https://dictionary.cambridge.org/us/dictionary/english/bodily
       (last visited June 17, 2020) [https://perma.cc/CP68-D9Z6] (defining “bodily” as “relating to the human
       body” and giving a context example of “bodily fluids (= blood, saliva, etc.)”); American Heritage Dictionary
       of the English Language online, https://ahdictionary.com/word/search.html?q=body+fluid (last visited
       June 17, 2020) [https://perma.cc/2JHV-32X9] (defining “body fluid” as “[a] natural bodily fluid or secretion
       of fluid such as blood, semen, or saliva”); Merriam Webster Dictionary online, https://www.merriam-
       webster.com/medical/body%20fluid (last visited June 17, 2020) [https://perma.cc/PE8Q-VEND] (defining
       “body fluid” as “a fluid or fluid secretion (such as blood, lymph, saliva, semen, or urine) of the body”).


       Court of Appeals of Indiana | Opinion 19A-CR-2336 | June 30, 2020                              Page 13 of 16
       infectious diseases.5 Instead, Coleman contends that the term “bodily fluid” is

       ambiguous. Coleman points out that—for purposes of INDIANA CODE § 35-45-

       16-2, the malicious mischief with food statute—the legislature defined “body

       fluid” as including saliva.6 He asserts that “[i]t would have been simple for the

       legislature to include a definition of bodily fluid in the battery statute” and that

       the legislature’s failure to do so “allow[ed] the jury discretion to determine that

       saliva is a bodily fluid.” (Coleman’s Br. 10). As a result, Coleman asserts that

       he was denied due process because the asserted ambiguity in the battery statute

       allowed the jury to convict him based upon less than proof beyond a reasonable

       doubt.


[23]   Again, we reject Coleman’s argument regarding the lack of definition of bodily

       fluid. See Lock, 971 N.E.2d at 75 (“[A] criminal statute does not need to

       provide an express or explicit list of prohibited conduct with scientific precision,

       however much we might think it helpful.”). Furthermore, Coleman’s argument

       is essentially attacking the sufficiency of the evidence to support his conviction,

       and we will review it as such.


[24]   “When reviewing the sufficiency of the evidence to support a conviction,

       appellate courts must consider only the probative evidence and reasonable




       5
         We note that the battery statute addresses battery that involves diseases. See I.C. §§ 35-42-2-1(f),(h)
       (discussing battery involving hepatitis, tuberculosis, or human immunodeficiency virus).
       6
         INDIANA CODE § 35-45-16-2 defines “body fluid” as blood, saliva, sputum, semen, vaginal secretions,
       human milk, urine, sweat, tears, any other liquid produced by the body, or any aerosol generated form of
       liquids listed.

       Court of Appeals of Indiana | Opinion 19A-CR-2336 | June 30, 2020                                   Page 14 of 16
       inferences supporting the verdict[,]” and we will neither assess witness credibility

       nor reweigh the evidence. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007)

       (internal quotation marks and citation omitted) (emphasis in original). We will

       affirm a conviction “unless no reasonable factfinder could find the elements of

       the crime proved beyond a reasonable doubt.” Id. (internal quotation marks

       and citation omitted). Additionally, our Indiana Supreme Court has explained

       that “when determining whether the elements of an offense are proven beyond

       a reasonable doubt, a fact-finder may consider both the evidence and the resulting

       reasonable inferences.” Thang v. State, 10 N.E.3d 1256, 1260 (Ind. 2014)

       (emphasis in original).


[25]   Here, the evidence showed that when Officer Rhinehart went to see Coleman at

       his secured housing cell door, Coleman “hocked a loogie” and “spit through the

       door[.]” (Tr. Vol. 2 at 64, 90, 102). Officer Banta saw “some fluid come out

       through th[e] perforations [of Coleman’s cell door] and hit Officer Rhinehart in

       the face.” (Tr. Vol. 2 at 90). After Officer Rhinehart felt the “warm and thick

       and bubbly” fluid on his face, he went to the control room where photographs

       were taken of his face, showing saliva on the officer’s eyebrow, forehead,

       temple, and bridge of his nose. (Tr. Vol. 2 at 64). Additionally, the jury was

       specifically instructed that the State had the “strict and heavy” burden to prove

       the elements of the battery offense beyond a reasonable doubt and that the jury

       could find Coleman guilty only if the State had met that burden. (Tr. Vol. 2 at

       130; App. Vol. 2 at 127). Thus, the jury did not apply less proof than beyond a

       reasonable doubt, and Coleman was not denied due process.


       Court of Appeals of Indiana | Opinion 19A-CR-2336 | June 30, 2020          Page 15 of 16
[26]   The jury, as finder of fact, determined that the State had met its burden of

       proving beyond a reasonable doubt that Coleman knowingly or intentionally

       placed bodily fluid on Officer Rhinehart in a rude, insolent, or angry manner

       when he spat on him. Coleman argued to the jury that the fluid may have been

       perspiration instead of saliva, that saliva was not a bodily fluid, and that he

       never intentionally spat on the officer; but the jury, by its verdict, rejected his

       arguments. Coleman’s argument is simply a request to reweigh the evidence

       and reassess the trial court’s credibility determination, which we will not do.

       See Drane, 867 N.E.2d at 146. Accordingly, we affirm Coleman’s battery

       conviction. See, e.g., Warr v. State, 877 N.E.2d 817, 824 (Ind. Ct. App. 2007)

       (affirming a defendant’s battery conviction where—based on the evidence that

       the defendant “spat” on an officer’s face—“the jury could conclude that [the

       defendant] knowingly placed a body fluid on a law enforcement officer in a

       rude, insolent, or angry manner while the officer was engaged in the

       performance of official duties”), trans. denied.


[27]   Affirmed.


       May, J., and Crone, J., concur.




       Court of Appeals of Indiana | Opinion 19A-CR-2336 | June 30, 2020          Page 16 of 16
