MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                FILED
court except for the purpose of establishing                         Feb 03 2017, 8:57 am
the defense of res judicata, collateral
                                                                         CLERK
estoppel, or the law of the case.                                    Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Michael G. Moore                                         Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         Jodi Kathryn Stein
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Kenneth Kennedy,                                         February 3, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A05-1607-CR-1613
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Helen W. Marchal,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         49G15-1506-F6-21034



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A05-1607-CR-1613 | February 3, 2017      Page 1 of 8
                                          Case Summary
[1]   On June 12, 2015, Appellant-Defendant Kenneth Kennedy was brought to

      Eskenazi Hospital by ambulance. At some point while at Eskenazi, Kennedy

      became violent. During this violent episode, he encountered Marion County

      Special Deputy Dennis Boyle and Marion County Sheriff Reserve Deputy

      Joshua Tyler, both of whom were working at Eskenazi at the time within their

      capacity as deputies for the Marion County Sheriff’s Department. Before

      eventually being restrained, Kennedy hit and kicked at Deputies Boyle and

      Tyler.


[2]   Appellee-Plaintiff the State of Indiana (“the State”) subsequently charged

      Kennedy with a number of counts, including two counts of Level 6 felony

      battery. Following a jury trial, Kennedy was found guilty as charged. Kennedy

      challenges the sufficiency to sustain his convictions for Level 6 felony battery

      on appeal. Concluding that the evidence is sufficient to sustain the challenged

      convictions, we affirm.



                            Facts and Procedural History
[3]   Kennedy was brought to Eskenazi by ambulance on June 12, 2015. Kennedy

      was accompanied by paramedic Adam Foster. Due the nature of Kennedy’s

      behavior, Foster believed that Kennedy might have been intoxicated, a fact of

      which he informed the staff at the desk.




      Court of Appeals of Indiana | Memorandum Decision 49A05-1607-CR-1613 | February 3, 2017   Page 2 of 8
[4]   As Foster attempted to take Kennedy’s blood pressure, Kennedy stood up and

      began to dance around in a non-threatening manner. Deputy Boyle and

      security officer David Foust, who were stationed at the desk in the emergency

      department, watched on. At the time, Deputy Boyle, who was wearing his full

      special deputy uniform, was working in his capacity as a special deputy of the

      Marion County Sheriff’s Department at Eskenazi and maintained the law

      enforcement powers granted to him by the Marion County Sheriff.


[5]   Deputy Boyle and Foust watched as Kennedy began “air-boxing” with his fists.

      Tr. p. 73. They observed Kennedy’s demeanor change “in a split second” from

      non-threatening to aggressive. Kennedy began pushing on Foster’s chest, at

      which time Foster “was trying to get [Kennedy’s] hands off of [him] by bringing

      them down, trying to keep him at an arms-length away from [him].” Tr. p. 21.

      Kennedy’s behavior became increasingly aggressive and violent, with Kennedy

      grabbing the collar of Foster’s shirt. After observing the change in Kennedy’s

      demeanor, Deputy Boyle verbally ordered Kennedy to stop. Kennedy,

      however, did not comply with this command.


[6]   After Kennedy failed to comply with his command to stop, Deputy Boyle and

      Foust approached Foster and Kennedy. Deputy Boyle and Foust then “moved

      in towards” Kennedy. Tr. p. 78. Deputy Boyle “took control of [Kennedy’s]

      right arm” and Foust “took control of [Kennedy’s] left.” Tr. p. 78. Deputy

      Boyle informed Kennedy that “he needed to stop and stop touching [Foster]

      and place his hands behind his back.” Tr. p. 78. Kennedy violently resisted

      Deputy Boyle’s and Foust’s attempts to retain him, swinging and pulling his

      Court of Appeals of Indiana | Memorandum Decision 49A05-1607-CR-1613 | February 3, 2017   Page 3 of 8
      arms. While resisting Deputy Boyle and Foust, Kennedy also aggressively

      lunged back toward Foster. Deputy Boyle and Foust then “attempted to regain

      control” of Kennedy by executing “a defensive tactic that is taught to us in our

      training known as an arm-bar takedown.” Tr. p. 79. Kennedy continued to

      violently resist, punching Foust in the chest and kicking both Foust and Deputy

      Boyle. During this encounter, Deputy Boyle repeatedly ordered Kennedy to

      stop and called for backup assistance.


[7]   Deputy Tyler arrived at the scene of the altercation as Deputy Boyle deployed

      his Taser on Kennedy. Like Deputy Boyle, Deputy Tyler was working in his

      capacity as a Marion County Sheriff Reserve Deputy at Eskenazi, was in his

      deputy sheriff uniform, and maintained his law enforcement powers at the time.

      Deputy Tyler began assisting Deputy Boyle, after which Kennedy hit and

      kicked at both deputies. Kennedy also tucked both of his arms underneath his

      body as Deputy Tyler attempted to handcuff him. Kennedy was eventually

      restrained in handcuffs. Kennedy was subsequently chemically sedated by a

      physician.


[8]   On June 17, 2015, the State charged Kennedy with two counts of Level 6 felony

      battery against a public safety official, Class A misdemeanor battery, and Class

      A misdemeanor resisting law enforcement. Kennedy was found guilty as

      charged following a jury trial. The trial court subsequently sentenced Kennedy

      to an aggregate term of 545 days, to be served in community corrections. This

      appeal follows.



      Court of Appeals of Indiana | Memorandum Decision 49A05-1607-CR-1613 | February 3, 2017   Page 4 of 8
                                 Discussion and Decision
[9]   Kennedy contends that the evidence is insufficient to sustain his convictions

      under Counts I and II for Level 6 felony battery. Specifically, Kennedy argues

      that the evidence is insufficient to prove the enhancing element, i.e., that he

      committed the batteries at issue against public safety officials.

               When reviewing the sufficiency of the evidence to support a
               conviction, appellate courts must consider only the probative
               evidence and reasonable inferences supporting the verdict. It is
               the fact-finder’s role, not that of appellate courts, to assess
               witness credibility and weigh the evidence to determine whether
               it is sufficient to support a conviction. To preserve this structure,
               when appellate courts are confronted with conflicting evidence,
               they must consider it most favorably to the trial court’s ruling.
               Appellate courts affirm the conviction unless no reasonable fact-
               finder could find the elements of the crime proven beyond a
               reasonable doubt. It is therefore not necessary that the evidence
               overcome every reasonable hypothesis of innocence. The
               evidence is sufficient if an inference may reasonably be drawn
               from it to support the verdict.


      Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (citations, emphasis, and

      quotations omitted). “In essence, we assess only whether the verdict could be

      reached based on reasonable inferences that may be drawn from the evidence

      presented.” Baker v. State, 968 N.E.2d 227, 229 (Ind. 2012) (emphasis in

      original). Upon review, appellate courts do not reweigh the evidence or assess

      the credibility of the witnesses. Stewart v. State, 768 N.E.2d 433, 435 (Ind.

      2002).



      Court of Appeals of Indiana | Memorandum Decision 49A05-1607-CR-1613 | February 3, 2017   Page 5 of 8
[10]   Kennedy was charged under Counts I and II, respectively, as follows:


               On or about June 12, 2015, Kenneth Kennedy did knowingly
               touch Joshua D. Tyler, a public safety official, in a rude, insolent,
               or angry manner, to-wit: hit at and against the person of Joshua
               Tyler with hands, while said official was engaged in the official’s
               official duty;

               On or about June 12, 2015, Kenneth Kennedy did knowingly
               touch Dennis Boyle, a public safety official, in a rude, insolent,
               or angry manner, to-wit: hit at and against the person of Dennis
               Boyle with hands, while said official was engaged in the official’s
               official duty[.]


       Appellant’s App. Vol. 2, p. 28. Generally, “a person who knowingly or

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

       …commits battery, a Class B misdemeanor.” Ind. Code § 35-42-2-1(b)(1)

       (2014). However, the offense is a Level 6 felony if 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(d)(2). “As used in this section, ‘public

       safety official’ means: (1) a law enforcement officer[.]” Ind. Code § 35-42-2-

       1(a)(1).


[11]   In challenging the sufficiency of the evidence to sustain his convictions for

       Level 6 felony battery, Kennedy concedes that the evidence is sufficient to

       support his battery convictions as Class A misdemeanors, but argues that “the

       State failed to prove that [Deputies] Boyle and Tyler were public safety officials

       engaged in their official duties, which is necessary to enhance Counts I and II to

       [L]evel 6 felonies.” Appellant’s Br. p. 7. We disagree.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1607-CR-1613 | February 3, 2017   Page 6 of 8
[12]   Review of the record reveals that both Deputy Boyle and Deputy Tyler testified

       that they were working as public safety officials engaged in their official duties

       when they encountered Kennedy. Deputy Boyle testified that on the date in

       question, he was employed full-time at Eskenazi as a “Marion County Special

       Deputy Sheriff.” Tr. p. 67. Deputy Boyle received his police authority through

       the Sheriff of Marion County and works to “provide a safe environment in the

       public hospital.” Tr. p. 69. Deputy Boyle was working in this capacity and was

       wearing his full special deputy uniform on the date in question when he

       encountered Kennedy at Eskenazi. It is uncontested that Kennedy committed

       the battery at issue during this encounter with Deputy Boyle.


[13]   For his part, Deputy Tyler testified that he is a Reserve Deputy for the Marion

       County Sheriff’s Department and that he works part-time at Eskenazi. While

       working at Eskenazi, Deputy Tyler is working in his capacity as a sheriff’s

       deputy and has the power to make arrests. He wears his full uniform while

       working in his capacity as a Sheriff’s Deputy at Eskenazi. Deputy Tyler was

       working in this capacity on the date in question when he encountered Kennedy

       at Eskenazi. Again, it is uncontested that Kennedy committed the battery at

       issue during this encounter with Deputy Tyler.


[14]   Upon review we conclude that the testimony of Deputies Boyle and Tyler is

       sufficient to prove that each was working in his capacity as a public safety

       official at the time that Kennedy committed his battery on each of the deputies.

       As such, we conclude that the evidence is sufficient to sustain Kennedy’s

       convictions for Level 6 felony battery.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1607-CR-1613 | February 3, 2017   Page 7 of 8
[15]   The judgment of the trial court is affirmed.


       Vaidik, C.J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1607-CR-1613 | February 3, 2017   Page 8 of 8
