MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any                           May 29 2019, 10:53 am

court except for the purpose of establishing                              CLERK
                                                                      Indiana Supreme Court
the defense of res judicata, collateral                                  Court of Appeals
                                                                           and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Deborah Markisohn                                       Curtis T. Hill, Jr.
Indianapolis, Indiana                                   Attorney General of Indiana
                                                        Erik J. Bryant
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Oshae Simmons,                                          May 29, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-2103
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Jeffrey Marchal,
Appellee-Plaintiff.                                     Magistrate
                                                        Trial Court Cause No.
                                                        49G06-1803-F5-9838



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2103 | May 29, 2019                  Page 1 of 11
                               STATEMENT OF THE CASE
[1]   Appellant-Defendant, Oshae Simmons (Simmons), appeals his conviction for

      attempted battery by means of a deadly weapon, a Level 5 felony, Ind. Code §§

      35-42-2-1(c)(1), -(g)(2); 35-41-5-1.


[2]   We affirm.


                                                   ISSUE
[3]   Simmons presents three issues on appeal, which we consolidate and restate as:

      Whether the State produced sufficient evidence to prove beyond a reasonable

      doubt that Simmons attempted battery by means of a deadly weapon.


                      FACTS AND PROCEDURAL HISTORY
[4]   On March 1, 2018, a team of police officers and United States marshals

      conducted surveillance of a home in the 2900 block of North Chester Street in

      Indianapolis attempting to serve an outstanding warrant on Simmons. Tim

      Leachman (Leachman) exited the home and stood on the porch talking on his

      cell phone. The officers believed that Leachman was Simmons, so they

      prepared to serve the warrant while he was outside on the porch. In the

      meantime, Carlos Moore (Moore) approached Leachman on foot and was

      talking to him from the sidewalk leading up to the home’s front door.


[5]   Detective Garth Schwomeyer (Detective Schwomeyer) walked up quickly on

      Moore and Leachman with his rifle drawn to serve the warrant. Detective

      Schwomeyer was identifiable as a police officer by his tactical vest which bore

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2103 | May 29, 2019   Page 2 of 11
      the word “Police” on its front and by his badge which hung around his neck.

      Detective Schwomeyer ordered Leachman and Moore to the ground. Moore

      immediately complied; however, Leachman did not. Leachman stepped off of

      the porch and began walking away, putting his hands in and out of his pockets,

      and daring the officers to come get him and shoot him. Detective Schwomeyer

      believed that Leachman was engaging in this behavior as a delay tactic.


[6]   Detective Schwomeyer closed in on Leachman and reached the sidewalk

      leading up to the home such that he was directly facing the front door of the

      home. Detective Schwomeyer heard the front door open and turned to assess

      the threat. Detective Schwomeyer observed Simmons open the door, releasing

      a large pit bull that charged directly at Detective Schwomeyer’s left thigh. After

      releasing the dog, Simmons immediately closed the door and locked it.

      Detective Schwomeyer attempted to retreat but was unable to out-maneuver the

      dog. Detective Schwomeyer shot and killed the pit bull in order to prevent

      being bitten. Simmons remained in the home despite being directed over a loud

      speaker to come out and surrender himself. Simmons ultimately exited the

      home when a SWAT team arrived.


[7]   On March 22, 2018, the State filed an Information, charging Simmons with

      attempted battery by means of a deadly weapon. On July 9, 2018, in a separate

      Information, the State alleged that Simmons was an habitual offender. On July

      18, 2018, the trial court conducted Simmons’ bench trial. Detective

      Schwomeyer testified that approximately ten seconds elapsed between the time

      he approached the home to serve the warrant and the time he shot the dog.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2103 | May 29, 2019   Page 3 of 11
       Another officer with training and experience in handling dogs testified that the

       dog shot by Detective Schwomeyer was a large pit bull with strong jaws that

       was capable of injuring a person because pit bulls bite down, lock on, and do

       not let go.


[8]    The trial court found Simmons guilty of attempted battery by means of a deadly

       weapon. On August 8, 2018, Simmons pleaded guilty to being an habitual

       offender. Following his plea, the trial court sentenced him to two years for the

       battery, enhanced by two years for being an habitual offender, with two years

       suspended to probation.


[9]    Simmons now appeals. Additional facts will be provided as necessary.


                               DISCUSSION AND DECISION
[10]   Simmons challenges the evidence supporting his conviction for attempted

       battery by means of a deadly weapon. It is well-established that when we

       review the sufficiency of the evidence to support a conviction, we consider only

       the probative evidence and reasonable inferences supporting the verdict. Drane

       v. State, 867 N.E.2d 144, 146 (Ind. 2007). It is not our role as an appellate court

       to assess witness credibility or to weigh the evidence. Id. We will affirm the

       conviction unless no reasonable fact-finder could find the elements of the crime

       proven beyond a reasonable doubt. Id.


[11]   The State charged Simmons with attempted battery by means of a deadly

       weapon in relevant part as follows:


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2103 | May 29, 2019   Page 4 of 11
                 [Simmons] did attempt to commit the felony of [b]attery by
                 [m]eans of a [d]eadly [w]eapon, which is to knowingly touch
                 [Detective Schwomeyer] in a rude, insolent, or angry manner,
                 said touching being committed with a deadly weapon, to wit, a
                 dog, by engaging in conduct, that is, allowing a dog to attack
                 [Detective Schwomeyer], that constituted a substantial step
                 toward the commission of said crime[.]


       (Appellant’s App. Vol. II, p. 16). 1 Thus, in order to prove the offense, the State

       was required to establish that Simmons knowingly took a substantial step—

       namely, allowing the dog to attack—toward touching Detective Schwomeyer in

       a rude, insolent, or angry manner with a deadly weapon, the dog. A person

       acts knowingly “if, when he engages in the conduct, he is aware of a high

       probability that he is doing so.” I.C. § 35-41-2-2(b).


[12]   A person attempts a crime, when, acting with the same culpability necessary for

       the offense, he engages in conduct constituting a “substantial step” toward the

       commission of the crime. I.C. § 35-41-5-1(a). This substantial step requirement

       is a minimal one which is defined as any overt act in furtherance of a crime.

       B.T.E. v. State, 108 N.E.3d 322, 327 (Ind. 2018). However, the overt act must

       be more than mere preparation. Id. The focus is on what the defendant has

       completed, not on what was left to be done. Id. Whether a substantial step

       toward the commission of a crime has occurred is a question to be determined

       by the fact-finder at trial, based on the particular circumstances of the case. Id.




       1
           All references are to Appellant’s Public Appendix.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2103 | May 29, 2019   Page 5 of 11
       Factors to be considered in rendering this determination include “(1) whether

       the defendant’s acts strongly corroborate his criminal intent; (2) the severity of

       the charged crime; (3) the proximity to the underlying crime; (4) the examples

       listed in Model Penal Code section 5.01(2); and (5) whether the defendant’s

       multiple acts, viewed together, indicate he attempted a crime.” Id. at 328.


[13]   Here, the evidence showed that while Detective Schwomeyer was attempting to

       take Leachman into custody, Detective Schwomeyer observed Simmons open

       the front door to the home, allow the pit bull to exit, and then shut and lock the

       door again. The dog charged directly at Detective Schwomeyer. Simmons did

       not follow the dog out to attempt to restrain it. Indeed, Simmons stayed in the

       home, only obeying orders to come out when threatened with the SWAT

       team’s arrival. This evidence permitted a reasonable inference that Simmons’

       release of the pit bull was not accidental and that Simmons was aware of a high

       probability that he was allowing the pit bull to attack Detective Schwomeyer

       when he opened the door.


[14]   Applying the B.T.E. factors, we also conclude that Simmons took the requisite

       substantial step toward the commission of the battery. Apart from the evidence

       that corroborated Simmons’ knowing intent to allow the dog to attack, the

       offense charged was battery by means of a deadly weapon. This was a

       moderately-severe offense which we conclude permitted a finding of a

       substantial step based on Simmons’ act of opening the door to release the dog,

       even though the same act may not have justified the finding for a less-severe

       offense. See id. at 328. Regarding his proximity to the offense, Simmons was

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2103 | May 29, 2019   Page 6 of 11
       just steps away from Detective Schwomeyer when he released the pit bull and

       mere seconds away from the dog actually biting, which made it more likely that

       he was guilty of the attempted battery. See id. at 329. While we acknowledge

       that none of the Model Penal Code examples such as lying in wait, enticing the

       victim, or reconnaissance of the location of the crime apply here, we conclude

       that the totality of the circumstances demonstrated Simmons’ intent to batter

       Detective Schwomeyer and an overt act in furtherance of that intent. Id.

       Simmons, who presumably knew he had a warrant out for his arrest, released

       the dog just as Detective Schwomeyer, who was readily identifiable as a police

       officer, was mistakenly attempting to serve that warrant on Leachman.

       Simmons’ failure to follow the dog out to restrain it once it was released and the

       fact that he remained in the residence were strongly corroborative of his intent

       to commit the battery as a diversion or to avoid his own arrest. The attempt to

       batter would have been a completed battery if Detective Schwomeyer tragically

       had not been forced to shoot the dog.


[15]   Simmons argues that his conviction cannot stand because the State merely

       alleged that he committed a negligent act for “allowing a dog to attack”

       Detective Schwomeyer, as charged in the Information. (Appellant’s App. Vol.

       II, p. 16). Simmons contends that this “was simply not criminal conduct.”

       (Appellant’s Br. p. 13). Simmons did not seek dismissal of the Information on

       this basis and, therefore, has waived his claim. Hayden v. State, 19 N.E.3d 831,

       841 (Ind. Ct. App. 2014), trans. denied. However, even if he had not waived his


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2103 | May 29, 2019   Page 7 of 11
       claim, it is not well-taken. A battery occurs when a person “knowingly or

       intentionally . . . touches another person in a rude, insolent, or angry

       manner[.]” I.C. § 35-42-2-1(c)(1). Here, the State charged Simmons with

       attempted battery for knowingly allowing the dog to attack, which was

       sufficient to allege the offense. See id.


[16]   Simmons also argues that the State failed to prove that he took any “affirmative

       action to incite or encourage the dog to attack” or that the pit bull “acted at []

       Simmons’ direction rather than of her own accord.” (Appellant’s Br. p. 15).

       He contrasts the circumstances of his case to those of Scott v. State, 859 N.E.2d

       749 (Ind. Ct. App. 2007), in which this court affirmed Scott’s conviction for

       attempted battery by means of a deadly weapon where he provoked his two

       large dogs by pulling them up onto their hind legs, shaking them, and kneeing

       them in the ribs before turning the dogs onto police officers. Id. at 751.

       However, in Scott, the issue on appeal was whether his battery conviction

       violated double jeopardy principles, not a challenge to the sufficiency of the

       evidence, and thus that decision did not establish a threshold or mandatory

       showing for proving the offense. Id. at 752-54. The State was required to show

       that Simmons completed an overt act in furtherance of the battery by means of

       a deadly weapon. See B.T.E., 108 N.E.3d at 327. The evidence supported the

       trial court’s reasonable conclusion that Simmons accomplished this overt act



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2103 | May 29, 2019   Page 8 of 11
       when he opened the front door and released the pit bull. This was not a case

       wherein the pit bull opened the front door of its own volition.


[17]   Simmons’ argument that the State failed to prove that he used the pit bull as a

       deadly weapon is equally unavailing. Simmons contention on this point is that

       the State was required to show, but did not, that he knew in advance that the pit

       bull had aggressive or violent tendencies. However, a deadly weapon is defined

       in relevant part as “[a]n animal . . . that is: (A) readily capable of causing

       serious bodily injury; and (B) used in the . . . attempted commission of a

       crime.” I.C. § 35-31.5-2-86(3). Evidence was presented at trial that the pit bull

       at issue was a large dog with powerful jaws that was capable of clamping down

       on Detective Schwomeyer. This evidence supported the trial court’s reasonable

       conclusion that Simmons was aware of a high probability that the pit bull he

       released on Detective Schwomeyer was readily capable of causing serious

       bodily injury, and, as we have already determined, the dog was knowingly used

       in the attempted battery.


[18]   Lastly, Simmons contends that the State did not show that he engaged in

       conduct constituting a substantial step toward the commission of a battery by

       means of a deadly weapon because none of the factors enumerated by our

       supreme court in B.T.E. were proven at trial or were adequate to sustain his

       conviction. Having already determined that the balance of those factors

       supported the trial court’s judgment, we pause only to address Simmons’
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2103 | May 29, 2019   Page 9 of 11
argument that his actions were inadequately corroborative of his intent. In

order for an alleged act to constitute a substantial step toward the commission

of a crime, it “must be strongly corroborative of the firmness of the defendant’s

criminal intent.” B.T.E., 108 N.E.3d at 328 (quotation omitted). The B.T.E.

court noted that


        [t]he actus reus of an attempt to commit a specific crime is
        constituted when the accused person does an act which is a step
        towards the commission of the specific crime, and the doing of such
        act can have no other purpose than the commission of that specific crime.


Id. (quoting Wayne R. LaFave, Substantive Criminal Law Vol. 2 § 11.4(d) (3d ed.

2017), in turn quoting J.W. Cecil Turner, Attempts to Commit Crimes, 5

Cambridge L.J. 230, 236 (1934)) (emphasis added). Simmons then posits that

his act of opening a door could have had many purposes other than the

commission of the offense, although he does not elucidate what those other

purposes could have been. Be that as it may, we do not understand B.T.E. to

hold that a conviction for an attempt offense may not be upheld if there is any

other way to characterize the evidence on appeal apart from that which

supports the fact-finder’s determination. To so hold would be contrary to our

long-standing standard of review for sufficiency of the evidence cases, wherein

we are required only to consider those reasonable inferences that support the

verdict or judgment. See Drane, 867 N.E.2d at 146. Here, as outlined above,

the State established Simmons’ knowing intent to take a substantial step toward




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2103 | May 29, 2019   Page 10 of 11
       battering Detective Schwomeyer with a deadly weapon, which was sufficient to

       sustain the conviction.


                                             CONCLUSION
[19]   Based on the foregoing, we conclude that the State proved beyond a reasonable

       doubt that Simmons knowingly took a substantial step toward battering

       Detective Schwomeyer by means of a pit bull.


[20]   Affirmed.


[21]   Bailey, J. and Pyle, J. concur




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2103 | May 29, 2019   Page 11 of 11
