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                 Dec 12 2013, 10:15 am
the defense of res judicata, collateral
estoppel, or the law of the case.



ATTORNEY FOR APPELLANT:                             ATTORNEYS FOR APPELLEE:

YVETTE M. LAPLANTE                                  GREGORY F. ZOELLER
Keating & LaPlante, LLP                             Attorney General of Indiana
Evansville, Indiana

                                                    JUSTIN F. ROEBEL
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana


                                IN THE
                      COURT OF APPEALS OF INDIANA

JEFFREY ALLEN THOMAS,                               )
                                                    )
        Appellant-Defendant,                        )
                                                    )
                vs.                                 )    No. 82A01-1304-CR-175
                                                    )
STATE OF INDIANA,                                   )
                                                    )
        Appellee-Plaintiff.                         )


                   APPEAL FROM THE VANDERBURGH CIRCUIT COURT
                           The Honorable David D. Kiely, Judge
                             Cause No. 82C01-1211-FD-1394


                                         December 12, 2013

                 MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge
                                      Case Summary

       Jeffrey Thomas appeals his conviction for Class D felony battery upon a law

enforcement officer. We affirm.

                                            Issue

       The sole issue before us is whether there is sufficient evidence to support Thomas’s

conviction.

                                            Facts

       The evidence most favorable to the conviction reveals that, on November 2, 2011,

Thomas was arrested for an alleged domestic violence incident and transported to the

Vanderburgh County Jail. At the jail’s holding area, Officer Andy Carlile of the Evansville

Police Department began processing Thomas for confinement. As part of the booking

process, Thomas’s handcuffs were removed, and he was instructed to take off his belt and

place it in a bin. Thomas initially refused to do so, but he eventually removed his belt and

threw it on the floor instead of placing it in the bin. Officer Carlile instructed Thomas to

pick up the belt and place it in the bin. Thomas, who was being belligerent at this point,

picked up the belt but, instead of immediately placing it in the bin, he turned toward Officer

Carlile and raised it towards Officer Carlile’s face.

       Given Thomas’s increasing uncooperativeness and belligerence, Officer Carlile

decided that Thomas needed to be placed back in handcuffs. Officer Carlile took hold of

Thomas’s shoulder and arm and pushed him up against a wall, face first, in order to

handcuff him. Thomas began shouting, “you’re not strong enough.” Tr. p. 86. Officer

Carlile described what happened next as follows:

                                              2
                I pushed him into the wall and immediately upon coming in
                contact with the [wall], the defendant pushed off the wall and
                started to turn into me, just through training and experience,
                typically we’ll like take subjects to the ground so that we can
                gain control over them, as he pushed off the wall and started to
                spin towards me, I was going to use his momentum to take him
                to the ground, as he did and I stepped my knee just buckled
                below me and we fell to the ground and he fell on top of me.

Id. Several officers then assisted Officer Carlile in restraining Thomas. As a result of this

incident, Officer Carlile tore a ligament in his right knee.

        The State charged Thomas with Class D felony strangulation, Class D felony

criminal confinement, two counts of Class D felony battery upon a law enforcement officer,

and one count of Class B misdemeanor battery. The strangulation, confinement, and

misdemeanor battery counts were related to the alleged domestic violence incident for

which Thomas originally was arrested. The felony battery counts were related to alleged

batteries upon Officer Carlile and another officer who helped subdue Thomas. The State

later dismissed the strangulation, confinement, and misdemeanor battery counts. A jury

found Thomas guilty of Class D felony battery with respect to Officer Carlile and not guilty

with respect to the other remaining battery charge. Thomas now appeals.

                                                Analysis

        Thomas asserts that there is insufficient evidence to support his conviction for Class

D felony battery.1 When reviewing the sufficiency of the evidence, we examine only the



1
  Thomas conceded at trial and on appeal that there would have been sufficient evidence to convict him of
resisting law enforcement, but the State chose not to charge him with that offense. Even if a charge of
resisting law enforcement might have been appropriate here, it does not negate the possibility that another
crime, such as battery, may also have been committed.


                                                    3
probative evidence and reasonable inferences therefrom supporting a guilty verdict or

finding. Lock v. State, 971 N.E.2d 71, 74 (Ind. 2012). We will not assess witness

credibility, nor reweigh the evidence to determine if it was sufficient to support a

conviction. Id. Those roles are reserved exclusively for the finder of fact, not appellate

courts. Id. We must consider only the evidence most favorable to the conviction and will

affirm unless no reasonable fact-finder could have found the crime proven beyond a

reasonable doubt. Id.

        A person who knowingly or intentionally touches a law enforcement officer

engaged in the officer’s official duty in a rude, insolent, or angry manner, resulting in

bodily injury to the officer, commits Class D felony battery. Ind. Code § 35-42-2-1(2)(A).

Thomas specifically claims there is insufficient evidence that he initiated any “touching”

that resulted in Officer Carlile’s knee injury. He contends that the injury occurred when

Officer Carlile attempted to wrestle him to the ground to place him in handcuffs.2

        Any touching, no matter how slight, may constitute battery. K.D. v. State, 754

N.E.2d 36, 40 (Ind. Ct. App. 2001). A defendant need not directly touch a victim, so long

as he or she touches something, such as apparel, that is intimately connected with the

victim. Id. Also, the touching may be accomplished directly by the defendant or by any

other substance put in motion by the defendant. Matthews v. State, 476 N.E.2d 847, 850

(Ind. 1985).


2
  Thomas has urged that we view a video recording of the incident made by the jail’s security system. We
have done so but found the video to be of limited benefit, given the very low frame rate of the recording,
causing the video to be very “jumpy” and omitting much of what happened. Judging by the time stamp on
the video, it has a frame rate of only about one frame per second.


                                                    4
       It is true that here, Officer Carlile initiated physical contact with Thomas by pushing

him against the wall in order to try to handcuff him. There is no dispute, however, that

Officer Carlile was entitled to initiate that touching as part of the performance of his duties.

Instead of submitting to Officer Carlile, Thomas “pushed off the wall and started to turn

into” him. Tr. p. 86. Officer Carlile also described Thomas as “push[ing] off on me . . . .”

Id. at 95. This push led to both Officer Carlile and Thomas falling backwards onto the

floor, and Officer Carlile injuring his knee as a result. In other words, Thomas responded

to Officer Carlile’s legitimate touching with an illegitimate touching of his own, by pushing

himself back into Officer Carlile. There also is no question that Thomas’s touching was

done in a rude, insolent, or angry manner, given the circumstances and his belligerent

manner and words immediately beforehand. The State sufficiently proved the elements of

the charged offense.

                                         Conclusion

       There is sufficient evidence to support Thomas’s conviction for Class D felony

battery upon a law enforcement officer. We affirm.

       Affirmed.

CRONE, J., and PYLE, J., concur.




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