MEMO RANDUM DECISION
                                                                 FILED
Pursuant to Ind. Appellate Rule 65(D), this
                                                            Mar 09 2017, 7:15 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the               CLERK
                                                             Indiana Supreme Court
purpose of establishing the defense of res judicata,            Court of Appeals
                                                                  and Tax Court
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Jennifer L. Koethe                                       Curtis T. Hill, Jr.
LaPorte, Indiana                                         Attorney General of Indiana
                                                         Ellen H. Meilaender
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

Alan Ponce-Gomez,                                        March 9, 2017

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         46A05-1606-CR-1285
        v.                                               Appeal from the LaPorte Superior
                                                         Court.
                                                         The Honorable Michael S.
State of Indiana,                                        Bergerson, Judge.
Appellee-Plaintiff.                                      Cause No. 46D01-1511-F2-953




Barteau, Senior Judge




Court of Appeals of Indiana | Memorandum Decision 46A05-1606-CR-1285 | March 9, 2017   Page 1 of 8
                                          Statement of the Case
[1]   Alan Ponce-Gomez appeals from his convictions of two counts of Level 5
                   1
      battery, contending the evidence is insufficient. We affirm.


                                   Facts and Procedural History
[2]   On November 10, 2015, at around 6:45 a.m., Terri Tomassi stepped outside her

      house where she lived with her friend, Deb, to smoke a cigarette and start up

      her truck. She and Deb had plans to leave their house on 713 York St. in

      Michigan City to take Tomassi’s sister to a medical appointment. Once

      outside, Tomassi observed a Hispanic man, later identified as Ponce-Gomez, a

      person she had never seen before, standing beside his truck, which was parked

      in her driveway, talking on his cell phone. She told him to get off of her

      property because she needed to leave and his vehicle was blocking her exit.

[3]   Ponce-Gomez ignored Tomassi and kept talking in Spanish to someone on his

      cell phone. Tomassi persisted, instructing Ponce-Gomez to get off her property

      because she needed to leave. After continuing to ignore her repeated requests

      to leave, Ponce-Gomez then told her, in English, to shut up. Tomassi believed

      there was something strange about the man’s behavior, surmising that he was

      possibly high on illegal drugs. During the encounter, he focused on her

      property not on her.




      1
          Ind. Code § 35-42-2-1(f)(5)(A) (2014).

      Court of Appeals of Indiana | Memorandum Decision 46A05-1606-CR-1285 | March 9, 2017   Page 2 of 8
[4]   After going inside and discussing the situation with Deb, Tomassi decided to

      call the police. She went outside again, holding up her phone and saying

      “policia” multiple times to let Ponce-Gomez know what she was doing. Tr. p.

      58. Undeterred, Ponce-Gomez remained standing by his vehicle in her

      driveway. Against the 911 operator’s advice, Tomassi went to the rear of

      Ponce-Gomez’s green Ford Escalade, described the vehicle to her, and provided

      the license plate number.


[5]   As Tomassi was talking to the operator, Ponce-Gomez got into his vehicle and

      started backing it up toward her. He then stopped and exited his vehicle on the

      passenger’s side. A school bus had approached behind the two. The bus driver

      could not get around Tomassi or Ponce-Gomez. Ponce-Gomez stopped talking

      on his cell phone, looked toward the school bus, got into his vehicle and left.


[6]   Tomassi went into her house thinking that the incident was over. She then

      called her sister to let her know that they were going to have to miss her

      medical appointment. The operator had told Tomassi that police were on the

      way to the scene and that she should remain there until officers arrived.


[7]   While she was waiting inside her kitchen for law enforcement, Tomassi

      observed Ponce-Gomez’s vehicle. She went outside to investigate, but did not

      see him. Deb came outside to let her know that Ponce-Gomez was inside their

      shed and that she had noticed the lock to the shed was broken.


[8]   Shortly thereafter, Officers Bruce Krause and Larry Young, Jr., of the Michigan

      City Police Department arrived in uniform at the scene. Tomassi explained to

      Court of Appeals of Indiana | Memorandum Decision 46A05-1606-CR-1285 | March 9, 2017   Page 3 of 8
       the officers what had happened and told them that she did not know Ponce-

       Gomez, she did not give him permission to be in her shed, and she wanted him

       removed from her property.


[9]    Officer Krause proceeded to the storage shed where he saw Ponce-Gomez

       pushing a lawnmower out of the shed while holding a gas can. Officer Krause

       then asked Ponce-Gomez what he was doing and requested to see

       identification. Ponce-Gomez mumbled something in Spanish. After several

       requests for identification, each without a response, Officer Krause motioned

       for him to exit the shed. Ponce-Gomez complied, but told the officer that he

       had “No. I.D.”. Id. at 138. Officer Krause then asked him to put his hands on

       the fence, and placed his hand on Ponce-Gomez’s shoulder to motion him

       toward the fence. The officer did so, given the seeming communication issues

       between the two.

[10]   Ponce-Gomez then grabbed Officer Krause’s arm and wrist, resulting in a

       struggle. Ponce-Gomez retreated into the shed pulling Officer Krause with

       him. Officer Young ended up inside the shed as well. Once there, Ponce-

       Gomez told the officers in English, “You don’t want to do this.” Id. at 106.


[11]   He continued to struggle with both officers by grabbing, pushing, pulling, and

       tugging them. He used his body weight to force them into objects, throw them

       around the shed, and cause them to fall to the ground. He lowered his center of

       gravity, pushing himself against both officers and using his shoulders to do so.




       Court of Appeals of Indiana | Memorandum Decision 46A05-1606-CR-1285 | March 9, 2017   Page 4 of 8
       He grabbed Officer Young’s vest, pulling down on it, grabbed his wrist and

       hands, and forced the officer to the ground.

[12]   Although the officers repeatedly asked Ponce-Gomez to put his hands behind

       his back and to stop resisting arrest, he never complied. According to the

       officers, Ponce-Gomez physically fought with the officers for around ten

       minutes before they were able to handcuff him, after tasing him multiple times

       and other officers arrived to offer assistance.


[13]   As a result of the altercation, Officer Young suffered a ripped pectoral muscle

       and aggravated a prior neck injury, causing him extreme pain. Officer Krause

       suffered cuts, bruises, and bleeding. The officers arrested Ponce-Gomez for

       resisting arrest.


[14]   The State charged Ponce-Gomez with one count of Level 2 felony burglary

       resulting in serious bodily injury, one count of Level 3 felony burglary resulting

       in serious bodily injury, and three counts of Level 5 felony battery against a
                                     2
       public safety officer. Ponce-Gomez appeals, challenging his convictions of

       Level 5 felony battery against Officers Krause and Young.




       2
           The jury found Ponce-Gomez not guilty of the injuries sustained by the third officer.

       Court of Appeals of Indiana | Memorandum Decision 46A05-1606-CR-1285 | March 9, 2017        Page 5 of 8
                                    Discussion and Decision
[15]   Ponce-Gomez contends that the evidence is insufficient to sustain his

       convictions because the officers were injured while he resisted law enforcement,

       a crime for which he was arrested, but was not charged or convicted.

[16]   Although Ponce-Gomez was arrested for resisting arrest, he was charged with

       and convicted of two counts of battery against a law enforcement officer as a

       Level 5 felony. “The prosecutor has broad discretion in determining what

       crimes to prosecute and what penalties to seek.” Boss v. State, 702 N.E.2d 782

       (Ind. Ct. App. 1998). Here, the State elected to proceed with the battery

       charges. Therefore, we will review Ponce-Gomez’s convictions for battery

       against a law enforcement officer for the sufficiency of the evidence.

[17]   In order to convict Ponce-Gomez of battery against Officers Krause and Young,

       the State was required to establish beyond a reasonable doubt that he

       knowingly or intentionally touched, in a rude, insolent, or angry manner, a

       public safety official, while the official was engaged in the official’s official

       duties. Ind. Code § 35-42-2-1(f)(5)(A).


[18]   Ponce-Gomez argues that there is insufficient evidence that he knowingly or

       intentionally battered the officers. When we review a claim challenging the

       sufficiency of the evidence we neither reweigh the evidence nor assess the

       credibility of the witnesses. Treadway v. State, 924 N.E.2d 621, 639 (Ind. 2010).

       Instead, we consider only the evidence and reasonable inferences drawn

       therefrom that support the verdict. Id. We will affirm the conviction if there is

       Court of Appeals of Indiana | Memorandum Decision 46A05-1606-CR-1285 | March 9, 2017   Page 6 of 8
       probative evidence from which a reasonable jury could have found the

       defendant guilty beyond a reasonable doubt. Id.


[19]   There is no dispute that the officers were acting in their official capacity as

       officers of the Michigan City Police Department, responding to Tomassi’s call

       for assistance. Further, there is no dispute that the officers suffered injuries

       from the early morning incident with Ponce-Gomez. Nonetheless, he argues

       that there is insufficient evidence to support his convictions.


[20]   The issue here is whether Ponce-Gomez knowingly or intentionally committed

       the offenses. “Intent, being a mental state, can only be established by

       considering the behavior of the relevant actor, the surrounding circumstances,

       and the reasonable inferences to be drawn from them.” Davis v. State, 791

       N.E.2d 266, 270 (Ind. Ct. App. 2003), trans. denied. Further, “a person engages

       in conduct ‘intentionally’ if, when he engages in the conduct, it is his conscious

       objective to do so.” Ind. Code § 35-41-2-2(a) (1977). “A person engages in

       conduct ‘knowingly’ if, when he engages in the conduct, he is aware of a high

       probability that he is doing so.” Ind. Code § 35-41-2-2(b) (1977).


[21]   The record reflects that Ponce-Gomez initiated the struggle with Officer Krause

       when he grabbed the officer’s wrist and forearm and pulled him back into the

       shed. In addition to that evidence, Ponce-Gomez stated to the officers, “You

       don’t want to do this.” Tr. p. 106. He then continued the skirmish by grabbing

       and pushing, using his body weight to force the officers into objects, and

       throwing the officers around the shed. He used his shoulders to force himself


       Court of Appeals of Indiana | Memorandum Decision 46A05-1606-CR-1285 | March 9, 2017   Page 7 of 8
       against the officers, causing both officers to fall to the ground, and he wrestled

       with them. This evidence is sufficient to support the convictions.


                                                Conclusion
[22]   Based on the foregoing, we affirm the trial court’s decision.


[23]   Affirmed.


       Bradford, J., and Altice, J., concur.




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