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, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT:                             ATTORNEYS FOR APPELLEE:

KELLY N. BRYAN                                      GREGORY F. ZOELLER
Muncie, Indiana                                     Attorney General of Indiana

                                                    KARL M. SCHARNBERG
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana

                                                                             Jan 31 2014, 9:14 am




                               IN THE
                     COURT OF APPEALS OF INDIANA

MATTHEW DANTE BENNETT,                              )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )       No. 18A02-1306-CR-515
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                     APPEAL FROM THE DELAWARE CIRCUIT COURT
                            The Honorable John M. Feick, Judge
                              Cause No. 18C04-1112-FB-22



                                         January 31, 2014


                MEMORANDUM DECISION - NOT FOR PUBLICATION


CRONE, Judge
                                        Case Summary

          Matthew Dante Bennett appeals his convictions for class B felony aggravated battery,

class B felony armed robbery, and class D felony auto theft. Bennett raises four issues for

our review which we restate as: (1) whether his right to a speedy trial was violated; (2)

whether the evidence was sufficient to support his conviction for aggravated battery; (3)

whether his convictions for aggravated battery and armed robbery violate double jeopardy;

and (4) whether the trial court abused its discretion when it refused his tendered jury

instruction regarding his alibi defense. Finding no abuse of discretion or reversible error, we

affirm.

                                Facts and Procedural History

          On August 4, 2011, Doroteo Chavez and Abel Trejo stopped at a gas station in

Muncie where they encountered a woman named Spring Miller. They arranged to meet

Spring later that night so that Spring could dance for them. Spring subsequently met up with

her husband Robert Miller and Bennett. Robert and Bennett informed Spring that they

planned to accompany Spring to her meeting with Chavez and Trejo so that they could rob

them. Spring did not wish to participate in the robbery, but because Bennett was armed with

a handgun and threatened to hurt her children, she agreed to assist the two men.

          Spring texted Chavez and Trejo and asked them to come pick her up at an apartment.

When they arrived, Spring went outside to meet them while Robert and Bennett went to the

alley behind the apartment building. Spring got in a vehicle with Chavez and Trejo and

directed them to drive a very short distance to an address on Celia Avenue where there was a


                                               2
house set back from the road. After arriving at the house, Spring led the men out of the

vehicle and to the porch of the house. It was so dark outside that Spring used the light on her

cell phone to help see where they were going. As they were walking up the steps onto the

porch, Spring heard sticks breaking “like somebody walking . . . coming real fast.” Tr. at

350. Spring then heard a “big woosh” and a “big crunch” as Robert struck Trejo in the head

with a baseball bat. Id. at 350-51. Trejo immediately fell to the ground twitching and

gasping for air. Spring then saw Bennett wrestling with Chavez on the ground. Spring heard

Bennett order Chavez to stay on the ground. Robert and Bennett began searching Trejo’s and

Chavez’s pockets. Trejo testified at trial that the two men took his wallet containing more

than $400, along with identification cards and driver’s licenses.

       Spring ran from the scene. A few minutes later, as she was walking on Jackson Street,

Robert pulled up next to her driving the vehicle that Chavez and Trejo had been driving

earlier. Bennett was in the passenger seat. The men ordered Spring to get into the vehicle.

Spring complied because Bennett was still armed with the handgun. Meanwhile, Chavez and

Trejo managed to get to a nearby fast food restaurant and contacted police to report the

robbery. Officer Ron Miller of the Muncie Police Department responded to the scene. When

he arrived, he observed that both Chavez and Trejo appeared to have suffered head injuries

and their faces were bloody. Trejo was lapsing in and out of consciousness and, due to his

injuries, was unable to communicate with Officer Miller. Officer Miller summoned an

ambulance, and the two victims were taken to Ball Memorial Hospital.




                                              3
       The State charged Bennett with five counts: count I, class B felony aggravated

battery; count II, class C felony battery by means of a deadly weapon; count III, class B

felony armed robbery; count IV, class B felony armed robbery; and count V, class D felony

auto theft. An initial hearing was conducted on May 30, 2012, during which Bennett

requested a speedy trial. Bennett was thereafter held in the Delaware County Jail on $75,000

bond. On July 11, 2012, the State filed a motion to release Bennett, which the trial court

granted. Bennett was released and placed on pretrial supervision, and new trial dates were

set for September 17 and 18, 2012. Bennett objected to the new trial dates as a violation of

his right to a speedy trial, and a hearing was held regarding his objection on July 25, 2012.

During the hearing, Bennett’s counsel properly alerted the trial court to our supreme court’s

recent decision in Cundiff v. State, 967 N.E.2d 1026 (Ind. 2012), and to the fact that although

Bennett was incarcerated, he was no longer incarcerated in the current cause but was being

held on a probation violation in a different cause. Finding no speedy trial violation, the trial

court left the trial dates as scheduled.

       After multiple continuances filed by both Bennett and the State, a three-day jury trial

began on April 8, 2013. The jury found Bennett guilty of class B felony aggravated battery,

class B felony armed robbery, and class D felony auto theft. The trial court sentenced

Bennett to a total of thirty years’ imprisonment. This appeal followed. Additional facts will

be supplied as necessary.




                                               4
                                  Discussion and Decision

                                       I. Speedy Trial

       Bennett first contends that his right to a speedy trial was violated because he was not

brought to trial within seventy days of making his request pursuant to Indiana Criminal Rule

4(B). The Sixth Amendment to the United States Constitution and Article 1, Section 12 of

the Indiana Constitution guarantee the right to a speedy trial. Wilkins v. State, 901 N.E.2d

535, 537 (Ind. Ct. App. 2009), trans. denied. Implementing these protections, Indiana

Criminal Rule 4(B) provides in relevant part:

       If any defendant held in jail on an indictment or an affidavit shall move for an
       early trial, he shall be discharged if not brought to trial within seventy (70)
       calendar days from the date of such motion, except where a continuance within
       said period is had on his motion, or the delay is otherwise caused by his act, or
       there was not sufficient time to try him during the seventy (70) calendar days
       because of the congestion of the court calendar.

Ind. Criminal Rule 4(B)(1).

       The purpose of Criminal Rule 4(B) is to prevent a defendant from being detained in

jail for more than seventy days after requesting an early trial. Parker v. State, 965 N.E.2d 50,

52 (Ind. Ct. App. 2012), trans. denied. Although Criminal Rule 4 places an “affirmative

duty” on the State to bring a defendant to trial, the purpose of the rule is to assure speedy

trials, not to provide defendants with a technical means to avoid trial. Cundiff v. State, 967

N.E.2d 1026, 1028 (Ind. 2012). In Cundiff, the defendant posted bond and was released from

incarceration in one cause but was subsequently incarcerated in a separate probation-

revocation cause. Id. at 1027. While incarcerated in the probation-revocation cause, he filed

a speedy trial motion and a motion for discharge pursuant to Criminal Rule 4(B) in the other

                                               5
cause. Id. Our supreme court affirmed the trial court’s denial of the defendant’s motion for

discharge. Specifically, the court concluded that, in order for Criminal Rule 4(B) to apply,

the defendant must be incarcerated on the charge for which he seeks a speedy trial. Id. at

1031. The court held that Criminal Rule 4(B) is not available to defendants who are

incarcerated, but not on the charge for which they requested a speedy trial. Id.

        Here, prior to expiration of the seventy-day speedy trial period, Bennett was released

from incarceration on the current charges and placed on pretrial probation. Shortly after his

release, Bennett was then incarcerated in a different cause. At the time he objected to the

continuance of his trial date pursuant to Criminal Rule 4(B), although he was again

incarcerated, Bennett was not incarcerated on the current charges for which he had sought a

speedy trial. Thus, as in Cundiff, Criminal Rule 4(B) was not available to him.1 Bennett has

not shown that his right to a speedy trial was violated.

                                  II. Sufficiency of the Evidence

        We next address Bennett’s challenge to the sufficiency of the evidence to support his

conviction for class B felony aggravated battery. When reviewing insufficiency of the

evidence claims, we neither reweigh evidence nor judge witness credibility. Mathews v.

State, 978 N.E.2d 438, 443 (Ind. Ct. App. 2012), trans. denied (2013). Instead, we examine

the evidence and reasonable inferences most favorable to the verdict. Id. If there is evidence

of probative value from which a reasonable trier of fact could find the defendant guilty


        1
          Bennett urges that due to the supervision, restrictions, and obligations involved with pretrial
probation, his release to probation should be considered the same as incarceration pursuant to Criminal Rule
4(B). Bennett directs us to no authority, and we are unaware of any, that supports this novel proposition.


                                                     6
beyond a reasonable doubt, we will affirm. Id. Reversal is appropriate only when reasonable

persons would not be able to form inferences as to each material element of the offense.

Perez v. State, 872 N.E.2d 208, 213 (Ind. Ct. App. 2007), trans. denied.

       To prove the offense of class B felony aggravated battery as charged, the State was

required to prove that Bennett knowingly or intentionally inflicted injury on Trejo that

created a substantial risk of death. See Ind. Code § 35-42-2-1.5. Bennett’s sole argument in

this regard is that the State failed to prove that the injuries inflicted to Trejo created a

substantial risk of death. When reviewing a sufficiency claim concerning whether injuries

created a substantial risk of death, “we look to the observable facts, including the nature and

location of the injury, and the treatment provided.” Oeth v. State, 775 N.E.2d 696, 702 (Ind.

Ct. App. 2002), trans. denied (2003).

       The record indicates that after Trejo was struck in the head with a baseball bat, he

immediately fell to the ground twitching and gasping for air. After arriving at the hospital,

Trejo was intubated and placed on a ventilator because he could not breathe on his own. He

was in and out of consciousness, lethargic, and not able to communicate. He had suffered

two fractures to his skull and had bleeding on the brain and brain swelling. Spinal fluid was

leaking out of his ear, and he was suffering seizures. Doctors also determined that his lungs

were retaining fluid. Trejo spent at least three or four days in the intensive care unit before it

was determined that he was stable enough to breathe on his own. He was then transferred to

the surgical unit where he spent an additional five days. In light of this evidence, the jury

could have reasonably inferred that Trejo’s injuries created a substantial risk of death.


                                                7
       Bennett maintains that “[n]either of the State’s medical experts, Dr. Chan or Dr.

McKnight, testified that [Trejo’s] injuries created a substantial risk of death,” and he implies

that it is possible that Trejo’s injuries would have resolved on their own if left untreated. See

Appellant’s Br. at 10. This Court has held that expert medical testimony is not required to

prove substantial risk of death. Fleming v. State, 833 N.E.2d 84, 88 (Ind. Ct. App. 2005)

(citing Wilcher v. State, 771 N.E.2d 113, 117 (Ind. Ct. App. 2002), trans. denied). Moreover,

Bennett’s argument is merely an invitation for us to reweigh the evidence in his favor, which

is not within our prerogative on appeal. The State presented sufficient evidence to support

Bennett’s conviction for class B felony aggravated battery.

                                    III. Double Jeopardy

       Bennett claims that his convictions for class B felony aggravated battery and class B

felony armed robbery violate Indiana’s prohibition against double jeopardy. Article 1,

Section 14 of the Indiana Constitution provides, “No person shall be put in jeopardy twice for

the same offense.” Our supreme court has held that two or more offenses are the “same

offense” in violation of Indiana’s double jeopardy clause if, with respect to either the

statutory elements of the challenged crimes or the actual evidence used to convict, the

essential elements of one challenged offense also establish the essential elements of another

challenged offense. Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999). We review de novo

whether a defendant’s convictions violate this provision. Spears v. State, 735 N.E.2d 1161,

1166 (Ind. 2000).




                                               8
       Bennett relies on the actual evidence test. Pursuant to the actual evidence test, the

evidence presented at trial is examined to determine whether each challenged offense was

established by separate and distinct facts. Lee v. State, 892 N.E.2d 1231 (Ind. 2008). A

defendant must demonstrate a reasonable possibility that the evidentiary facts used by the

factfinder to establish the essential elements of one offense may also have been used to

establish the essential elements of a second challenged offense. Id. Application of this test

requires the court to identify the essential elements of each of the challenged crimes and to

evaluate the evidence from the factfinder’s perspective. Id. To determine what facts were

used to convict, we consider the evidence, charging informations, final jury instruction, and

arguments of counsel. Davis v. State, 770 N.E.2d 319, 324 (Ind. 2002). There is no double

jeopardy violation when the evidentiary facts establishing the essential elements of one

offense establish only one or even several, but not all, of the elements of a second offense.

Spivey v. State, 761 N.E.2d 831, 832 (Ind. 2002).

       Bennett argues that the State relied on his accomplice’s single act of hitting Trejo with

a baseball bat to establish the essential elements of both the aggravated battery and armed

robbery. The relevant charging informations read as follows:

       Count I, aggravated battery:

       The undersigned says that on or about August 4, 2011, in Delaware County,
       State of Indiana, Matthew Dante Bennett did knowingly inflict injury on Able
       Trejo that created a substantial risk of death, contrary to the form of the
       statutes….




                                               9
          Count III, armed robbery:

          The undersigned says that on or about August 4, 2011, in Delaware County,
          State of Indiana, Matthew Dante Bennett did knowingly take property, to-wit:
          wallet, from another person or the presence of another person, to-wit: Able
          Trejo, by using force; said act being committed while the defendant was armed
          with a deadly weapon, contrary to the form of the statutes….

Appellant’s App. at 20, 22.

          The State presented evidence that Robert was armed with a baseball bat and Bennett

was armed with a handgun during the robbery. The testimony indicates that after Robert hit

Trejo with the baseball bat inflicting injury that created a substantial risk of death, Bennett

used force to wrestle Chavez to the ground. Bennett then ordered Chavez to stay on the

ground while Robert and Bennett searched Trejo’s and Chavez’s pockets and took Trejo’s

wallet.

          Contrary to Bennett’s argument, Robert’s single act of hitting Trejo in the head with

the baseball bat was not the only “conduct” used to establish the essential elements of both

the aggravated battery and the armed robbery. Appellant’s Br. at 8. Our supreme court has

stated that, as long as each conviction requires proof of at least one unique evidentiary fact,

no violation of the actual evidence principle occurs. Bald v. State, 766 N.E.2d 1170, 1172

(Ind. 2002). To prove that Bennett committed aggravated battery, the State was required to

present evidence that, as an accomplice, Bennett inflicted injury on Trejo that created a

substantial risk of death. To show that Bennett committed armed robbery, the State was

required to present additional evidence that Bennett took property from Trejo by using force,

and that such act was committed while Bennett was armed with a deadly weapon.


                                               10
Accordingly, although Robert’s act of hitting Trejo in the head with a baseball bat and the

resulting injury were used to establish the essential elements of aggravated battery, additional

evidentiary facts were required and used to establish the essential elements of armed robbery.

We find no double jeopardy violation.

                                    IV. Jury Instruction

       Finally, Bennett contends that the trial court abused its discretion when it refused his

proposed jury instruction regarding his alibi defense. Instructing the jury lies within the sole

discretion of the trial court, and we will reverse only upon an abuse of discretion. Schmid v.

State, 804 N.E.2d 174, 182 (Ind. Ct. App. 2004), trans. denied. To determine whether the

trial court abused its discretion in refusing to give a tendered jury instruction, we consider:

(1) whether the instruction correctly states the law; (2) whether there is evidence in the record

to support the instruction; and (3) whether the substance of the instruction is covered by other

instructions. Weida v. State, 778 N.E.2d 843, 847 (Ind. Ct. App. 2002). To obtain reversal

of a conviction based on an instructional error, the defendant must demonstrate a reasonable

probability that the substantial rights of the complaining party have been adversely affected.

Shelby v. State, 986 N.E.2d 345, 360 (Ind. Ct. App. 2013), trans. denied.

       Bennett tendered the following instruction regarding his alibi defense:

              The Defendant has asserted the defense of alibi. Evidence has been
       presented that at the time of the commission of the crime charged in the
       information the defendant was at a different place so remote or distant that he
       could not have committed the crime. The State had the burden of disproving
       this defense beyond a reasonable doubt.




                                               11
Appellant’s App. at 137. The trial court refused that instruction and instead instructed the

jury as follows:

              The Defendant has asserted the defense of alibi. Evidence has been
       presented that at the time of the commission of the crime charged in the
       information, that the Defendant was at a different place so remote or distant
       that he could not have committed that crime. You should consider this
       assertion as you would any other evidence in the case.

Tr. at 486-87. Bennett asserts that his proposed instruction is the more correct statement of

law and that the alibi instruction given to the jury “failed to instruct the jury on the issues of

burden of proof of [his] alibi.” Appellant’s Br. at 11-12. We disagree.

       An alibi is an affirmative defense which, once invoked, the State has the burden of

proving that the defendant was in fact at the scene of the crime and committed the offense.

Harris v. State, 617 N.E.2d 912, 915 (Ind 1993), overruled on other grounds by Wright v.

State, 690 N.E.2d 1098, 1099 (Ind. 1997). Contrary to the implication of the language of

Bennett’s proposed instruction, the State did not bear the burden to directly rebut Bennett’s

alibi but was permitted to rely on its presentation of evidence in its case-in-chief. See Clark

v. State, 431 N.E.2d 112, 115 (Ind. 1982). Here, the State presented eyewitness testimony

placing Bennett at the scene of the crimes and demonstrating that he had in fact participated

in the commission of those crimes. The State was required to do no more. Sangsland v.

State, 715 N.E.2d 875, 880 (Ind. Ct. App. 1999), trans. denied. The record further indicates

that, in addition to the alibi instruction, the jury was given extensive instruction regarding the

presumption of innocence and the State’s burden to prove each essential element of the

crimes charged beyond a reasonable doubt. Tr. at 484-86. Under the circumstances, the jury


                                               12
was adequately instructed regarding the State’s burden of proof, and Bennett has failed to

establish that the trial court abused its discretion when it refused his proposed jury

instruction.

       Affirmed.

BAKER, J., and NAJAM, J., concur.




                                           13
