MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                  FILED
this Memorandum Decision shall not be                              Nov 20 2019, 8:10 am
regarded as precedent or cited before any
                                                                        CLERK
court except for the purpose of establishing                        Indiana Supreme Court
                                                                       Court of Appeals
the defense of res judicata, collateral                                  and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
David W. Stone IV                                       Curtis T. Hill, Jr.
Anderson, Indiana                                       Attorney General of Indiana

                                                        Matthew B. MacKenzie
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Josiah L. Boyd,                                         November 20, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-2492
        v.                                              Appeal from the Madison Circuit
                                                        Court
State of Indiana,                                       The Honorable Mark Dudley,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause Nos.
                                                        48C06-1709-F1-2356
                                                        48C03-1612-F5-2552



Barteau, Senior Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2492 | November 20, 2019           Page 1 of 11
                                          Statement of the Case
                                                                                                  1
[1]   Josiah L. Boyd appeals his conviction of attempted murder, a Level 1 felony.

      We affirm and remand with instructions.


                                                         Issues
[2]   Boyd raises two issues, which we restate as:


                 I.       Whether the trial court committed fundamental error in
                          admitting evidence at trial.


                 II.      Whether there is sufficient evidence to support his
                          conviction.


[3]   We raise a third issue on our own: whether Boyd’s convictions of two counts

      of battery, which the trial court deemed merged into the attempted murder

      conviction but did not vacate, violate Boyd’s constitutional protections against

      double jeopardy.


                                   Facts and Procedural History
[4]   On June 13, 2016, Jerry Hooley was at work in the Correctional Industrial

      Facility (CIF) in Pendleton, Indiana. He was a case manager, primarily tasked

      with placing offenders in educational and vocational programs. At that time,




      1
          Ind. Code §§ 35-41-5-1 (2014) (attempt), 35-42-1-1 (2014) (murder).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2492 | November 20, 2019   Page 2 of 11
      Hooley’s office was located in a cell block known as “B unit.” Tr. Vol. I, p.

      235.


[5]   Boyd was incarcerated in B unit, and on June 13 he separately approached

      Officers Tim Neal and Whitney Lyles to complain about being excluded from a

      vocational class that day. Boyd appeared irritated or angry. Next, he entered

      Hooley’s office to complain. He had previously visited Hooley’s office as often

      as once a week, and he had often become upset during visits. Hooley described

      Boyd as “adversarial” and “a bully.” Tr. Vol. II, p. 40.


[6]   Boyd asked Hooley to call another CIF employee to find out why he had been

      excluded, but Hooley emailed the other employee instead. Hooley assured

      Boyd that the other employee would get back to him, and the situation would

      be remedied. Boyd still wanted Hooley to call, but Hooley refused. Boyd left

      Hooley’s office.


[7]   Approximately ten minutes later, Hooley was meeting with a cell block

      representative, with the door closed, when Boyd reentered his office. Boyd was

      angry and stated that he wanted to file a grievance. Hooley directed Boyd’s

      attention to a stack of grievance forms on a shelf. He also gave Boyd “a stern

      lecture about being rude and how he wouldn’t appreciate it if he was talking to

      me and somebody barged in . . . .” Tr. Vol. I, p. 250. Boyd took a grievance

      form and left.


[8]   Five to ten minutes later, Boyd entered Hooley’s office for a third time and sat

      down. The cell block representative had left, and Hooley was alone. Boyd

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2492 | November 20, 2019   Page 3 of 11
       seemed “amped up.” Tr. Vol. II, p. 4. Boyd repeatedly said, “what you gonna

       do,” and Hooley believed that “there was aggression coming.” Id. Hooley

       called Officer Neal to ask for assistance, hoping that making the call would

       cause Boyd to leave.


[9]    Next, as Hooley put the phone down, Boyd came around the desk and struck

       Hooley in the face several times with a closed fist. Hooley’s glasses fell off, and

       he was disoriented. His face was cut, and blood spattered the office. As

       Hooley tried to block the strikes, Boyd got behind him and put his arm around

       his throat. Hooley struggled with Boyd, but Boyd continued to strangle him,

       and “the room started to get dark” because his breathing was restricted. Id. at

       7. Hooley believed he was dying and thought about his family.


[10]   Meanwhile, Officer Neal had dispatched Officers Lyles and Byrd to Hooley’s

       office in response to his phone call. When Officer Lyles entered Hooley’s

       office, she saw Hooley sitting down, and Boyd had him in a choke hold.

       “[T]here was blood all over the office,” as well as Hooley’s head and face. Id.

       at 66. The officers ordered Boyd to release Hooley, but he did not comply.

       Next, Officer Lyles sprayed pepper spray in Boyd’s eyes. Boyd released Hooley

       and backed up against the wall, saying “I’m done, I’m done.” Id. at 70. The

       officers forced Boyd to the floor and placed him in handcuffs.


[11]   Hooley did not remember the guards entering his office. He was struggling

       with Boyd to keep his airway open, and the next thing he remembered was

       being on his knees in front of his desk, holding his eye. Hooley heard guards


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2492 | November 20, 2019   Page 4 of 11
       ordering Boyd to lie on the floor. He also heard Boyd telling the officers that he

       had “tried to stick [Boyd] with a pen.” Id. at 12.


[12]   Other employees escorted Hooley to CIF’s infirmary. Officer Neal saw Hooley

       as he was being escorted from B unit. He was bleeding from his head, and he

       appeared weak and shaken. In addition, Investigator John Poer, a investigator

       employed by CIF, tried to question Hooley on the way to the infirmary, but

       Hooley “appeared incoherent” and did not respond to Poer’s questions. Id. at

       98. At the infirmary, Hooley told Poer that Boyd had attacked him.


[13]   Hooley was later taken to an emergency room. He was diagnosed with a

       fractured eye socket, and his vision was hindered for weeks. In addition,

       Hooley had a “tingling” in his neck for months that required physical therapy.

       Id. at 14. One of his ears was damaged, and his hearing was affected for

       months. He also needed stitches for the cut on his face. Hooley had extensive

       bruising on his throat. Finally, Hooley saw a counselor for six months after

       Boyd’s attack, and he still gets nervous when an offender becomes upset in his

       office.


[14]   CIF officials began an internal disciplinary proceeding against Boyd. On June

       24, 2016, Boyd admitted during a disciplinary hearing that he had attacked a

       CIF employee.


[15]   On December 16, 2016, the State charged Boyd in Cause Number 48C03-1612-

       F5-2552 with battery against a public safety official, a Level 5 felony. The State

       also filed a notice of intent to file an habitual offender sentencing enhancement.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2492 | November 20, 2019   Page 5 of 11
       The trial court appointed a public defender for Boyd. On April 19, 2017,

       Boyd’s public defender filed a motion to withdraw from the case. The trial

       court granted the motion and appointed a new public defender.


[16]   Next, the State moved to amend its charging information, asking permission to

       charge Boyd with attempted murder, a Level 1 felony. On September 12, 2017,

       the court granted the motion after a hearing. The trial court then transferred the

       case to a different court due to the addition of the Level 1 felony, and a new

       cause was opened under Cause Number 48C06-1709-F1-2356.


[17]   In the meantime, Boyd filed pro se motions to dismiss his counsel and dismiss

       the case. The court granted the motion to dismiss counsel after a hearing,

       determining Boyd would proceed pro se. Next, the State filed an objection to

       the motion to dismiss the case, and the court denied Boyd’s motion. Boyd

       appealed the trial court’s ruling, but this Court dismissed his appeal without

       prejudice. Boyd v. State, No. 48A02-1710-CR-2501 (Ind. Ct. App. Jan. 29,

       2018).


[18]   The trial judge recused from the case, and a special judge accepted jurisdiction.

       On April 4, 2018, the court held a status hearing and determined that Boyd

       could continue to represent himself. On July 23, 2018, Boyd filed another

       motion to dismiss, which the trial court denied.


[19]   On August 14, 2018, the State filed a third amended information, charging

       Boyd with attempted murder, a Level 1 felony; aggravated battery, a Level 3

       felony; and battery against a public safety official, a Level 5 felony. On August

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2492 | November 20, 2019   Page 6 of 11
       15, 2018, Boyd filed a request to enter a “no contest” plea in the case.

       Appellant’s App. Vol. II, p. 224. The court held a hearing on the request,

       during which the court informed Boyd that Indiana does not recognize such

       pleas. At the same hearing, Boyd waived his right to be present at trial.


[20]   The court presided over a jury trial on August 20, 21, and 23. Boyd was not

       present. A jury determined Boyd was guilty as charged, and the court entered a

       judgment of conviction on all three counts. On September 11, 2018, Boyd filed

       a third motion to dismiss, which the court denied.


[21]   The trial court held a sentencing hearing, at which Boyd was present. The trial

       court determined the battery convictions “merged” with the attempted murder

       conviction “for sentencing purposes.” Id. at 26. The court imposed a sentence

       for the conviction of attempted murder, and this appeal followed.


                                    Discussion and Decision
                   I. Admission of Evidence – Fundamental Error
[22]   Boyd argues the trial court erred in admitting several of Hooley’s statements

       into evidence. In general, the trial court has broad discretion to rule on the

       admissibility of evidence, and we review the court’s rulings for an abuse of that

       discretion. Weedman v. State, 21 N.E.3d 873, 889 (Ind. Ct. App. 2014), trans.

       denied. Boyd concedes that because he chose not to be present at trial, he failed

       to object to the State’s evidence. Failure to object at trial constitutes a

       procedural default that precludes appellate consideration of an issue, unless the



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2492 | November 20, 2019   Page 7 of 11
       trial court’s ruling amounts to fundamental error. Palilonis v. State, 970 N.E.2d

       713, 730 (Ind. Ct. App. 2012), trans. denied.


[23]   Fundamental error is a substantial, blatant violation of basic principles

       rendering the trial unfair and depriving the defendant of fundamental due

       process. Tate v. State, 835 N.E.2d 499, 505 (Ind. Ct. App. 2005), trans. denied.

       “To qualify as fundamental error, ‘an error must be so prejudicial to the rights

       of the defendant as to make a fair trial impossible.’” Id. (quoting Merritt v. State,

       822 N.E.2d 642, 643 (Ind. Ct. App. 2005)). The fundamental error exception

       applies “only in egregious circumstances.” Palilonis, 970 N.E.2d at 730.


[24]   Boyd argues that the trial court erred in admitting the following evidence: (1)

       Hooley’s characterization of Boyd as a bully; (2) the State asking Hooley to

       describe Boyd’s attack twice, in detail; (3) Hooley’s opinion on Boyd’s intent;

       and (4) Hooley’s opinion that being strangled would result in his death. Boyd

       concludes that the cumulative effect of this evidence rendered the trial unfair

       and deprived him of due process of law.


[25]   In this case, the evidence against Boyd was strong. In addition to Hooley’s

       testimony, Officer Lyles testified that she saw Boyd strangle Hooley, and he

       refused to stop until she used pepper spray. Poer testified that Hooley identified

       Boyd as his attacker. The State presented extensive evidence as to Hooley’s

       injuries, including a neck injury that required months of physical therapy.

       Finally, Boyd admitted during a disciplinary hearing that he had attacked a CIF

       employee.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2492 | November 20, 2019   Page 8 of 11
[26]   Hooley’s statements about Boyd’s character and intent, and his belief that he

       was about to die, were couched as statements of opinion, not fact. Further,

       while it would have been better for the State to avoid repetitive testimony by

       Hooley, Boyd does not identify any inaccuracies or inconsistencies in Hooley’s

       statements. In light of the substantial evidence of Boyd’s guilt, we conclude any

       errors in the admission of the challenged statements were not fundamental. See

       Mendenhall v. State, 963 N.E.2d 553, 567-68 (Ind. Ct. App. 2012) (no error in

       admitting rebuttal testimony; evidence against Mendenhall was extensive),

       trans. denied.


                                 II. Sufficiency of the Evidence
[27]   Boyd claims the State failed to present sufficient evidence to sustain his

       conviction. Specifically, he claims the State did not prove he intended to kill

       Hooley.


[28]   It is well established that the Court will neither reweigh the evidence nor judge

       the credibility of witnesses. Booker v. State, 741 N.E.2d 748, 755 (Ind. Ct. App.

       2000). We will consider only that evidence supporting the jury’s verdict and

       any reasonable inferences to be drawn therefrom. Id. Where there is

       substantial evidence of probative value to support the verdict, it will not be

       disturbed. Elliott v. State, 786 N.E.2d 799, 803 (Ind. Ct. App. 2003).


[29]   To obtain a conviction of attempted murder as charged, the State was required

       to prove beyond a reasonable doubt that (1) Boyd (2) with the specific intent to

       kill Hooley (3) engaged in conduct that constituted a substantial step toward

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2492 | November 20, 2019   Page 9 of 11
       killing Hooley. Ind. Code §§ 35-41-5-1, 35-42-1-1. Intent to kill may be inferred

       from the nature of the attack and the circumstances surrounding the crime.

       Kiefer v. State, 761 N.E.2d 802, 805 (Ind. 2002).


[30]   Here, Boyd struck Hooley in the face several times with a closed fist before

       getting behind him and placing his forearm around his neck, cutting off his air

       supply. He continued to strangle Hooley, despite Hooley’s struggles. Boyd did

       not stop strangling Hooley even after officers ordered him to release Hooley,

       and he had to be subdued with pepper spray. Boyd’s switch from striking

       Hooley to strangling him, and his strangulation of Hooley over an extended

       period of time, are sufficient evidence to establish beyond a reasonable doubt

       that Boyd specifically intended to kill Hooley rather than merely injure him.

       Boyd’s arguments to the contrary are requests to reweigh the evidence.


                      III. Double Jeopardy – Battery Convictions
[31]   Double jeopardy violations implicate fundamental rights that we may review

       sua sponte. Hayden v. State, 19 N.E.3d 831, 842 (Ind. Ct. App. 2014), trans.

       denied. After the jury determined Boyd was guilty of both counts of battery, the

       trial court entered a judgment of conviction on all three counts. Later, during

       the sentencing hearing, the court determined the battery convictions would

       merge into the conviction of attempted murder. A trial court’s act of merging,

       without also vacating a conviction, is not sufficient to cure a double jeopardy

       violation. Gregory v. State, 885 N.E.2d 697, 703 (Ind. Ct. App. 2008), trans.

       denied. We remand with instructions to vacate both of Boyd’s convictions of


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2492 | November 20, 2019   Page 10 of 11
       battery. Cf. Carter v. State, 750 N.E.2d 778, 781 (Ind. 2001) (“a jury verdict on

       which the court did not enter judgment for one reason or another . . . is

       unproblematic . . . .”).


                                                Conclusion
[32]   For the reasons stated above, we affirm the judgment of the trial court and

       remand with instructions.


[33]   Affirmed and remanded with instructions.


       May, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2492 | November 20, 2019   Page 11 of 11
