                                                                                FILED
                                                                           Apr 06 2017, 10:05 am

                                                                                CLERK
                                                                            Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Timothy J. Burns                                           Curtis T. Hill, Jr.
Indianapolis, Indiana                                      Attorney General of Indiana
                                                           Tyler G. Banks
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Donald Anderson,                                           April 6, 2017
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           49A05-1609-CR-2081
        v.                                                 Appeal from the Marion Superior
                                                           Court
State of Indiana,                                          The Honorable Barbara Cook-
Appellee-Plaintiff                                         Crawford, Judge
                                                           The Honorable Ronnie Huerta,
                                                           Commissioner
                                                           Trial Court Cause No.
                                                           49G09-1605-CM-16861



Baker, Judge.




Court of Appeals of Indiana | Opinion 49A05-1609-CR-2081 | April 6, 2017                            Page 1 of 7
[1]   Donald Anderson appeals his conviction for Battery by Bodily Waste, a Class B

      Misdemeanor.1 He argues that the evidence supporting his conviction is

      insufficient and that there is a material variance between the charging

      information and the evidence presented at trial. Finding no material variance

      and that the evidence is sufficient, we affirm.


                                                       Facts
[2]   On May 4, 2016, Anderson was using a computer at a branch of the

      Indianapolis Public Library. He began arguing with another patron, whom he

      accused of looking over his shoulder at his computer screen. Laura Johnson, a

      security officer at the branch, intervened and told Anderson that disputes

      should be handled through her. Johnson escorted Anderson out of the building.

      When they reached the door, another patron, Kishawna Hicks, was entering.

      As Anderson passed by Hicks, he spit in her face.


[3]   On May 5, 2016, the State charged Anderson with battery by bodily waste, a

      class B misdemeanor. A bench trial was held on August 17, 2016. At the trial,

      there were some discrepancies regarding the name of the victim. Although the

      charging information correctly spelled Kishawna Hicks’s name, Johnson

      referred to her as “Tashanna.” Tr. p. 28. Anderson testified in his own

      defense, but repeatedly referred to the victim as “Ms. Ticks,” despite reading

      the correctly-spelled name off of the charging information. Id. at 38. Anderson




      1
          Ind. Code § 35-42-2-1(c)(2).


      Court of Appeals of Indiana | Opinion 49A05-1609-CR-2081 | April 6, 2017   Page 2 of 7
      proffered a somewhat unique theory of self-defense: “So, when I was about to

      pass Ms. Ticks, she lifted up so quickly like so rapidly and like had the most

      wickedness smile on her face . . . like a jack-o-lantern smile . . . . I do admit the

      spitting or whatever, but . . . I would like to claim that as self-defense.” Id. at

      38-39. The trial court found Anderson guilty as charged and imposed a time-

      served sentence. Anderson now appeals.


                                    Discussion and Decision
[4]   Anderson argues that there is insufficient evidence supporting his conviction.

      He contends that the State failed at trial to prove the identity of his victim and

      that there is a material variance of proof between the charging information and

      the testimony presented at trial.


[5]   When reviewing the sufficiency of the evidence supporting a conviction, we will

      neither reweigh the evidence nor assess witness credibility. Harbert v. State, 51

      N.E.3d 267, 275 (Ind. Ct. App. 2016). We will consider only the evidence

      supporting the judgment and any reasonable inferences that may be drawn

      therefrom, and we will affirm if a reasonable trier of fact could have found the

      defendant guilty beyond a reasonable doubt. Id. Moreover, to successfully

      claim a variance between the charging information and the evidence at trial, a

      defendant must show that he was misled in the preparation and maintenance of

      his defense or that he will be vulnerable to double jeopardy in a future criminal

      proceeding covering the same events, facts, and evidence. Winn v. State, 748

      N.E.2d 352, 356 (Ind. 2001).


      Court of Appeals of Indiana | Opinion 49A05-1609-CR-2081 | April 6, 2017     Page 3 of 7
[6]   To convict Anderson of class B misdemeanor battery by bodily waste, the State

      was required to prove beyond a reasonable doubt that Anderson knowingly or

      intentionally, in a rude, insolent, or angry manner, placed bodily fluid or waste

      on another person. I.C. § 35-42-2-1(c)(2). At trial, Anderson himself testified

      that he did exactly that, and his testimony was corroborated by the testimony of

      the library security officer. His argument that there is insufficient evidence fails.


[7]   Nor was there a material variance between the charging information and the

      evidence presented at trial. Although Anderson testified that he spit at “Ms.

      Ticks,” he was reading the name off of the charging information, which

      correctly identified the victim. The security officer misstated a single syllable of

      the victim’s name. There is no indication that Anderson would or could have

      prepared a different defense had the officer said the victim’s name correctly, nor

      is there any possibility that Anderson will be charged and convicted of spitting

      at a “Tishawna Ticks” in the future. Therefore, Anderson’s argument regarding

      this minor discrepancy is unavailing.


[8]   The judgment of the trial court is affirmed.


      Pyle, J., concurs.
      Mathias, J., concurs with a separate opinion.




      Court of Appeals of Indiana | Opinion 49A05-1609-CR-2081 | April 6, 2017    Page 4 of 7
                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Donald Anderson,                                           Court of Appeals Case No.
                                                                 49A05-1609-CR-2081
      Appellant-Defendant,

              v.

      State of Indiana,
      Appellee-Plaintiff




      Mathias, Judge, concurring.


[9]   I concur with the majority’s conclusion that the evidence sufficient to support

      Anderson’s conviction for Class B misdemeanor battery by bodily waste.

      However, I write separately to express my ongoing concern that Indiana’s

      criminal justice system continues to turn a blind eye to individuals suffering

      from mental illness who would be better served by commitment to a mental

      health treatment facility instead of incarceration in a local jail or the

      Department of Correction.




      Court of Appeals of Indiana | Opinion 49A05-1609-CR-2081 | April 6, 2017               Page 5 of 7
[10]   There is a “large and ironic lapse in the logic of our criminal justice system,” in

       which the “initial imperative is to determine the competency of defendants

       prospectively, to assist counsel at trial,” not to promptly consider whether the

       defendant was competent at the time the crime was committed. Habibzadah v.

       State, 904 N.E.2d 367, 370-71 (Ind. Ct. App. 2009) (Mathias, J., concurring); see

       also A.J. v. Logansport State Hosp., 956 N.E.2d 96, 117-18 (Ind. Ct. App. 2011)

       (Mathias, J., concurring); Gross v. State, 41 N.E.3d 1043, 1051-52 (Ind. Ct. App.

       2015) (Mathias, J., concurring); Robinson v. State, 53 N.E.3d 1236, 1243-44 (Ind.

       Ct. App. 2016) (Mathias, J., concurring) (all citing my concurring opinion in

       Habibzadah).


[11]   “I continue to believe that our criminal procedure should permit a psychiatric

       examination of a defendant who likely suffers from serious mental illness very

       early after arrest to determine whether the defendant could have possibly had

       the requisite scienter or mens rea at the time of the crime.” Gross, 42 N.E.3d at

       1052 (Mathias, J., concurring). I repeat my mantra yet again:

               Our criminal justice system needs an earlier and intervening
               procedure to determine competency retroactively to the time of
               the alleged crime. Perhaps we as a society need to consider the
               concept of a defendant being unchargeable because of mental
               illness under Indiana Code section 35-41-3-6, and not just guilty
               but mentally ill under Indiana Code section 35-36-2-1, et seq. In
               either case, the commitment proceedings provided for in Indiana
               Code section 35-36-2-4 would both protect society and best care
               for the defendant involved.




       Court of Appeals of Indiana | Opinion 49A05-1609-CR-2081 | April 6, 2017    Page 6 of 7
               [I]t is time for the truly long-term, incompetent criminal
               defendant to have an earlier and intervening opportunity for a
               determination of his or her competency at the time of the crime
               alleged. Such a procedure convened soon after arrest, rather than
               years later when stale evidence and dim or non-existent
               memories are all that are left, or never, would best serve society
               and the defendant.


       Habibzadah, 904 N.E.2d at 371 (Mathias, J., concurring). The Supreme Court

       recently acknowledged my concerns in Wampler v. State, 67 N.E.3d 633, 634-35

       (2017).


[12]   Based upon the record before us, I believe it is likely that Anderson was

       suffering from paranoia and/or schizophrenia at the time he committed his

       offense. Hoosiers would be better served if persons such as Anderson were

       provided with needed mental health treatment instead of being criminally

       charged and incarcerated, and this is especially so for a low-level offense such

       as a Class B Misdemeanor.




       Court of Appeals of Indiana | Opinion 49A05-1609-CR-2081 | April 6, 2017     Page 7 of 7
