MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                             Nov 13 2015, 8:55 am
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Megan Shipley                                           Gregory F. Zoeller
Marion County Public Defender                           Attorney General of Indiana
Indianapolis, Indiana
                                                        Tyler G. Banks
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Lamont Hudgins,                                         November 13, 2015
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        49A02-1505-CR-332
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Lisa F. Borges,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        49G04-1407-F5-36316



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1505-CR-332 | November 13, 2015   Page 1 of 17
[1]   Lamont Hudgins appeals his conviction for battery against a public safety

      official as a level 5 felony, and his sentence for two counts of battery against a

      public safety official as level 5 felonies and one count of battery against a public

      safety official as a level 6 felony. Hudgins raises two issues which we revise and

      restate as:


        I.    Whether the evidence is sufficient to sustain his conviction for one
              count of battery against a public safety official as a level 5 felony; and

       II.    Whether his sentence is inappropriate in light of the nature of the
              offense and the character of the offender.



      We affirm.

                                      Facts and Procedural History

[2]   Hudgins was a resident or inmate of Duvall Residential Center (the “Center”),

      which is a “Community Corrections facility where offenders are finishing out or

      also transitioning into the community while they finish out their sentence.”

      Transcript at 6. Officer Brian Erdmann, a police officer for the Clermont Police

      Department, did part-time work at the Center through Protection Plus which

      has a contract through Marion County Community Corrections. While

      working at the Center, Officer Erdmann retained his arrest and police powers,

      and his duties included assisting the staff in any of their duties and handling

      warrants or arrests.


[3]   On July 21, 2014, Hudgins came in from work and complained that he wanted

      a “lunch sack, breakfast sack, or a sack for him . . . to eat.” Id. at 7. Frank

      Gunn, a shift supervisor at the Center, advised Hudgins that pursuant to the
      Court of Appeals of Indiana | Memorandum Decision 49A02-1505-CR-332 | November 13, 2015   Page 2 of 17
      Center’s policy he could not obtain a sack but they “were getting ready to have

      chow so he would be able to eat then.” Id. Hudgins went “in the back” and

      instead of “eating his tray, he actually threw his tray up against the wall.” Id. at

      8.


[4]   Officer Erdmann was in the control room and heard a radio call through the

      Center that there was a disruptive resident in the cafeteria and assistance was

      needed. He proceeded down the hallway with Supervisor Gunn. Officer

      Erdmann observed Hudgins enter the cafeteria, turn, run to the furthest

      entrance into the hallway, and approach him. He and Hudgins stood face to

      face, Officer Erdmann asked him what the problem was, and Hudgins said that

      “he hadn’t gotten a sack lunch the night before and he was angry about that.”

      Id. at 19. Officer Erdmann told Hudgins that he needed to calm down and

      relax and said: “That was last night. You’ve got a hot meal now. Sorry that it

      happened but why get rid of your hot food that you have just received over

      being upset about a sack lunch the night before?” Id. Hudgins was “pretty

      agitated,” “didn’t want to hear” what Officer Erdmann had to say, and did not

      want to have a conversation with him. Id. Officer Erdmann told Hudgins that

      he needed to go down to the holding cell and calm down, and warned him that

      if he did not, he would be arrested for disorderly conduct because he was

      causing quite a disturbance within the facility.


[5]   At some point, Anthony Pappas, a police officer who was working as a shift

      supervisor at the Center, heard the commotion, went down the hallway,

      observed that Hudgins was highly agitated, and attempted to calm him down.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1505-CR-332 | November 13, 2015   Page 3 of 17
      Hudgins eventually walked to the holding cell escorted by Officer Erdmann,

      Supervisor Gunn, Officer Pappas, and Officer Timothy Moore, a residential

      officer at the Center.


[6]   Once they arrived at the holding cell, Hudgins was still irritated, cursing, and

      being loud. Officer Pappas offered a compromise of being handcuffed in front

      instead of in the back, but Hudgins did not accept the offer. Officer Erdmann

      said: “Look. You need to turn around and get cuffed up. You know it is policy

      and you know that you have to be cuffed to the bench and all we are trying to

      do is get you to calm down and not escalate the situation.” Id. at 22. Hudgins

      continued shouting and cursing, and Officer Erdmann retrieved his pepper

      spray and told him at least three times that he needed to be handcuffed to the

      bench or he would be sprayed. Hudgins said he was “pretty much getting ready

      to throw down with” them, “[i]f you spray me, I am kicking your ass,” and

      “[y]ou cuff me, it’s going to be on.” Id. at 10, 23.


[7]   Officer Erdmann sprayed Hudgins in his right eye, and Hudgins “really blew up

      then” and was “very agitated and upset.” Id. at 23. He made fists, lunged at

      the officers, started swinging violently, and struck Officer Erdmann’s upper

      torso, arms, and shoulder area with both of his fists, and on the left jaw which

      caused pain, bruising, and a small amount of swelling. Hudgins struck Officer

      Pappas, who was wearing glasses, between the eyes and on the side of the face,

      causing a cut across the bridge of his nose and swelling. Hudgins also struck

      the left side of Officer Moore’s face and grazed the side of his jaw.



      Court of Appeals of Indiana | Memorandum Decision 49A02-1505-CR-332 | November 13, 2015   Page 4 of 17
[8]    Officer Erdmann and the others struggled with Hudgins and eventually

       subdued his arms and placed him in handcuffs, took him to the medical area,

       and decontaminated his face and eyes. In the process, Hudgins said to Officer

       Erdmann: “I’m sorry. That wasn’t meant for you guys.” Id. at 33. Hudgins

       said that it was meant for Supervisor Gunn. He also apologized to Officer

       Pappas for striking him and told Officer Moore that “it was not against” him.

       Id. at 55.


[9]    On July 22, 2015, the State charged Hudgins with: Count I, battery against a

       public safety official as a level 5 felony relating to Hudgins’s acts against Officer

       Erdmann; Count II, battery against a public safety official as a level 5 felony for

       his acts against Officer Pappas; and Count III, battery against a public safety

       official as a level 6 felony for his acts against Officer Moore. On March 27,

       2015, the court held a bench trial and found Hudgins guilty as charged.


[10]   On April 22, 2015, the court held a sentencing hearing in this case as well as

       cause number 49G04-1408-F4-39542 (“Cause No. 542”).1 The prosecutor

       argued for a sentence of four years in this case and ten years in Cause No. 542,

       for an aggregate sentence of fourteen years. Defense counsel requested a

       sentence of three years in this case and six years in Cause No. 542, for an

       aggregate sentence of nine years.




       1
        Cause No. 542 involved charges of prisoner possessing a deadly weapon, battery by means of a deadly
       weapon, and battery resulting in serious bodily injury.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1505-CR-332 | November 13, 2015      Page 5 of 17
[11]   The court found the fact that Hudgins was serving an executed sentence at the

       time of the offenses and had a criminal history as aggravating factors, stating, “I

       was trying to sort out some of the reasons that might have been behind some of

       the criminal activity. I do see that the defendant has had not really a whole lot

       of support.” Id. at 85. The court also stated that Hudgins had a “rocky time

       getting out of school, probably partly because of the ADHD that [he] was

       diagnosed with early on” and that “without any special ed classes [it was]

       harder for you to maybe mainstream and do the same thing that some of the

       guys that you were in school with were doing . . . .” Id. at 86. The court

       observed that Hudgins started using marijuana and drinking alcohol and had

       used heroin, K-2 or Spice, and Xanax, and sentenced him to five years each for

       the two level 5 felonies and one year for the level 6 felony, all concurrent for an

       aggregate sentence of five years in this case. The court also ordered that

       Hudgins serve six consecutive years for Cause No. 542 for a total aggregate

       sentence of eleven years.


                                                   Discussion

                                                         I.


[12]   The first issue is whether the evidence is sufficient to sustain Hudgins’s

       conviction for Count I, battery against a public safety official as a level 5 felony




       Court of Appeals of Indiana | Memorandum Decision 49A02-1505-CR-332 | November 13, 2015   Page 6 of 17
       for his acts against Officer Erdmann.2 When reviewing the sufficiency of the

       evidence to support a conviction, we must consider only the probative evidence

       and reasonable inferences supporting the verdict. Drane v. State, 867 N.E.2d

       144, 146 (Ind. 2007). We do not assess witness credibility or reweigh the

       evidence. Id. We consider conflicting evidence most favorably to the trial

       court’s ruling. Id. We affirm the conviction unless “no reasonable fact-finder

       could find the elements of the crime proven beyond a reasonable doubt.” Id.

       (quoting Jenkins v. State, 726 N.E.2d 268, 270 (Ind. 2000)). It is not necessary

       that the evidence overcome every reasonable hypothesis of innocence. Id. at

       147. The evidence is sufficient if an inference may reasonably be drawn from it

       to support the verdict. Id.


[13]   Ind. Code § 35-42-2-1(b) governs the offense of battery and provides that “a

       person who knowingly or intentionally: (1) touches another person in a rude,

       insolent, or angry manner . . . commits battery, a Class B misdemeanor.” “The

       offense described in subsection (b)(1) . . . is a Level 5 felony if . . . [t]he offense

       results in bodily injury to . . . [a] public safety official while the official is

       engaged in the official’s official duties.” Ind. Code § 35-42-2-1(f). A “public

       safety official” means




       2
        Hudgins does not challenge his convictions for Counts II and III related to his acts against Officer Pappas
       and Officer Moore.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1505-CR-332 | November 13, 2015           Page 7 of 17
               (1) a law enforcement officer, including an alcoholic beverage
               enforcement officer;


               (2) an employee of a penal facility or a juvenile detention facility
               (as defined in IC 31-9-2-71);


               (3) an employee of the department of correction;


                                                    *****


               (6) a community corrections worker . . . .


       Ind. Code § 35-42-2-1(a).


[14]   Hudgins cites Cupello v. State, 27 N.E.3d 1122 (Ind. Ct. App. 2015), in which a

       panel of this court addressed a conviction for battery on a law enforcement

       officer and held that “it is the State’s burden to prove by objective evidence that

       a citizen who has encountered a law enforcement officer either knew or should

       have known that he was dealing with an officer . . . .” 27 N.E.3d at 1128. The

       court also held:

               [W]here the State seeks to prove that an off-duty law
               enforcement officer is engaged in the execution of his official
               duties, it must satisfy a two part test: the State must prove by
               objective evidence that (1) the nature of the acts performed
               demonstrate that the officer sought to enforce the law to maintain
               peace and order for the benefit of the public; and (2) the citizen
               knew or should have known both that the person was an officer
               and that the officer was acting in his official, and not his private,
               capacity.



       Court of Appeals of Indiana | Memorandum Decision 49A02-1505-CR-332 | November 13, 2015   Page 8 of 17
       Id.


[15]   Hudgins argues that the State “did not prove Erdmann was a law enforcement

       officer engaged in his official duties.” Appellant’s Brief at 6. He concedes that

       Officer Erdmann was a law enforcement officer but asserts that it is not

       sufficient because the “issue is whether he was engaged in his official duties as a

       police officer when he was working off-duty for Protection Plus at [the Center]

       at the time of the battery.” Id. Hudgins then asserts that “the State has met

       only the first prong of the Cupello two-part test” and “concedes the State proved

       that Erdmann acted as a police officer because the evidence showed he sought

       to enforce the law and to maintain peace and order when he responded to the

       radio call to deal with a disruptive inmate.” Id. at 8. He contends that

       “[b]ecause of the lack of evidence that Hudgins knew or should have known

       Erdmann was a police officer, the State has failed to meet the second prong of

       Cupello and cannot show Erdmann was a law enforcement officer engaged in

       his official duties.” Id. at 9. Hudgins then asserts that the State did not prove

       Officer Erdmann was a community corrections worker engaged in his official

       duties because there was no evidence that Officer Erdmann worked for the

       Center or had any employment or agency relationship with the Center that

       would make him a community corrections worker. His position is that Officer

       Erdmann’s relationship with the Center is similar to that of a handyman

       employed by an outside company that contracts with the Center to make

       repairs, and that there would be no reason to consider a handyman to be a

       community corrections worker under the statute.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1505-CR-332 | November 13, 2015   Page 9 of 17
[16]   The State argues that the evidence was sufficient to show that Officer Erdmann

       was a public safety official because he was a law enforcement officer and a

       community corrections worker. The State discusses Cupello and observes that

       the court in Cupello formulated a two-part test. The State points out that Officer

       Erdmann warned Hudgins that he would be arrested for disorderly conduct,

       and that Officer Erdmann was carrying handcuffs and pepper spray, items

       typically carried by law enforcement officers. The State also asserts that Officer

       Erdmann was a community corrections worker engaged in his official duties

       and that off-duty police officers that are hired to work security at a community

       corrections work release facility are within the realm of those intended to be

       protected by the public safety official designation because they work with

       inmates. It states that Hudgins attempts to create an artificial distinction

       between those whose paychecks are actually signed by the community

       corrections facility and those who are contracted to work there by a third party.


[17]   We note that neither party cites Owens v. State, 742 N.E.2d 538, 540 (Ind. Ct.

       App. 2001), trans. denied, which reached a different result than that in Cupello.3

       In Owens, an undercover officer was battered by Eltonyo Owens. 742 N.E.2d at

       540. After being convicted of battery resulting in bodily injury to a law

       enforcement officer, Owens argued on appeal that the State was required to

       prove that he knew that the undercover officer was a law enforcement officer




       3
           The panel in Cupello did not discuss Owens.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1505-CR-332 | November 13, 2015   Page 10 of 17
when he struck him in order to convict him for battery of a law enforcement

officer. Id. at 540-542. A panel of this court held that “because we find that the

State was not required to prove that Owens knew that [the officer] was a police

officer, we find that the evidence is sufficient to convict Owens for battery of a

law enforcement officer.” Id. at 542-543. The court held:


           In making this determination, we must consider two statutes.
           Ind. Code § 35-41-2-2(d) provides that “if a kind of culpability is
           required for commission of an offense, it is required with respect
           to every material element of the prohibited conduct.”[4] Ind.
           Code § 35-42-2-1(a)(2) provides that:


                   a person who knowingly or intentionally touches
                   another person in a rude, insolent, or angry manner
                   commits battery, a Class B misdemeanor. However,
                   the offense is: a Class D felony if it results in bodily
                   injury to a law enforcement officer while the officer is
                   engaged in the execution of his official duty.


           The conduct prohibited in a battery is the rude, insolent, or angry
           touching, and this is the conduct that must be done knowingly or
           intentionally by the actor. Markley v. State, 421 N.E.2d 20, 21
           (Ind. Ct. App. 1981). Moreover, “bodily injury to a law
           enforcement officer” is an element of the battery offense and it
           must be proven beyond a reasonable doubt before there can be a
           battery conviction resulting in injury to a law enforcement
           officer. See id.




4
    Ind. Code § 35-41-2-2 has not been amended since Owens.


Court of Appeals of Indiana | Memorandum Decision 49A02-1505-CR-332 | November 13, 2015   Page 11 of 17
               In Markley, we noted that “prohibited conduct” and “element”
               within Ind. Code § 35-41-2-2(d) are not synonymous and if the
               legislature had intended culpability to apply to every material
               element, the phrase “of the prohibited conduct” would be
               superfluous. Markley, 421 N.E.2d at 21. We agree and hold that
               the element of “bodily injury to a law enforcement officer” is an
               aggravating circumstance, which, if proven beyond a reasonable
               doubt, increases the penalty for the offense committed without
               proof of any culpability separate from the culpability required for
               the conduct elements of the offense. See id. Therefore, the
               legislature determined that the aggravating circumstance of
               battery resulting in bodily injury to a law enforcement officer was
               sufficient to increase the gravity of a battery offense because of
               the increased threat of injury to law enforcement officers.
               Moreover, this reasoning, coupled with the fact that “results in
               bodily injury to a law enforcement officer” is just that, a result,
               rather than prohibited conduct, leads us to the conclusion that
               Ind. Code § 35-41-2-2(d) does not apply to the “results in bodily
               injury to a law enforcement officer” element of a Class D felony
               battery.


               Thus, the State was not required to prove beyond a reasonable
               doubt that Owens knew that Officer Hamner was a law
               enforcement officer when Owens struck him in the face.
               Moreover, the evidence is sufficient to convict Owens for battery
               of [a] law enforcement officer as a Class D felony.


       Id. at 543.


[18]   While we recognize there is tension between Cupello and Owens, we conclude

       that Hudgins is not entitled to reversal under either approach. Under Owens,

       Hudgins is not entitled to reversal because he concedes that the State

       demonstrated that the nature of Officer Erdmann’s acts demonstrated that he


       Court of Appeals of Indiana | Memorandum Decision 49A02-1505-CR-332 | November 13, 2015   Page 12 of 17
       was acting as a law enforcement officer, and Owens does not require that

       Hudgins knew that Officer Erdmann was a public safety official, i.e., either a

       law enforcement officer or a community corrections worker.


[19]   Under the test mentioned in Cupello, we observe that there was no discussion in

       that case regarding whether the public safety official was a law enforcement

       officer or a community corrections worker as is the case here.                   Thus, we

       conclude that the appropriate test under Cupello would be whether the State

       proved that Officer Erdmann was a public safety official engaged in his official

       duties and whether Hudgins knew or should have known that Officer Erdmann

       was a public safety official acting in his official capacity. We note that the

       charging information did not allege whether Officer Erdmann was a law

       enforcement officer or a community corrections worker. Rather, the State

       charged that Hudgins “did knowingly or intentionally touch Brian Erdmann, a

       public safety officer, in a rude, insolent, or angry manner, while Brian Erdmann

       was engaged in the execution of his official duties, resulting in bodily injury,

       that is: swelling and pain to left side of face and/or jaw.” Appellant’s Appendix

       at 17 (emphasis added). As noted, Ind. Code § 35-42-2-1(a) defines a “public

       safety official” as including a law enforcement officer or a community

       corrections worker. Further, even assuming that the word “knowingly” applied

       to Hudgins’s understanding that Officer Erdmann was a public safety official,

       we observe that Ind. Code § 35-41-2-2(b) provides that “[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.”


       Court of Appeals of Indiana | Memorandum Decision 49A02-1505-CR-332 | November 13, 2015   Page 13 of 17
[20]   Based upon the record, we conclude that the State presented evidence of a

       probative nature from which a reasonable trier of fact could have found that

       Hudgins was aware of a high probability that Officer Erdmann was a public

       safety official and was acting in his official capacity, and committed battery

       against a public safety official as a level 5 felony for his acts against Officer

       Erdmann.


                                                        II.


[21]   The next issue is whether Hudgins’s sentence is inappropriate in light of the

       nature of the offense and the character of the offender. Ind. Appellate Rule

       7(B) provides that we “may revise a sentence authorized by statute if, after due

       consideration of the trial court’s decision, [we find] that the sentence is

       inappropriate in light of the nature of the offense and the character of the

       offender.” Under this rule, the burden is on the defendant to persuade the

       appellate court that his or her sentence is inappropriate. Childress v. State, 848

       N.E.2d 1073, 1080 (Ind. 2006).


[22]   Hudgins asks that we revise his total sentence from five years to four years, the

       sentence requested by the prosecutor at the sentencing hearing. He argues that

       his offenses in this case are not more egregious than a typical battery on a public

       safety official, and that the injuries suffered by Officer Erdmann and Officer

       Pappas were relatively minor. He also contends that his criminal history is

       offset by the mitigating circumstances of his untreated mental health issues and

       related substance abuse.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1505-CR-332 | November 13, 2015   Page 14 of 17
[23]   Our review of the nature of the offense reveals that Hudgins, a resident or

       inmate of the Center, a community corrections facility, complained that he

       wanted a lunch sack and threw his tray against the wall. After being told to

       calm down, he remained agitated, caused a disturbance, cursed, and shouted.

       Officer Erdmann warned him at least three times that he needed to be

       handcuffed or he would be sprayed, and Hudgins said he was “pretty much

       getting ready to throw down with” them, “[i]f you spray me, I am kicking your

       ass,” and “[y]ou cuff me, it’s going to be on.” Transcript at 10, 23. After being

       sprayed, Hudgins made fists, lunged at the officers, started swinging violently,

       and struck Officer Erdmann, Officer Pappas, and Officer Moore. Officer

       Erdmann suffered pain, a bruise, and swelling, and Officer Pappas suffered a

       cut across the bridge of his nose and swelling.


[24]   Our review of the character of the offender reveals that Hudgins apologized to

       the officers after the offenses but said that his actions were meant for Supervisor

       Gunn. As a juvenile, Hudgins was adjudicated delinquent for two counts of

       criminal mischief in 2000. As an adult, Hudgins was convicted of carrying a

       handgun without a license as a class A misdemeanor in 2003; “Auto Theft;

       Receiving Stolen Property” as a class D felony in 2004; “Theft; Receiving

       Stolen Property” as a class D felony in 2006; “Theft; Receiving Stolen

       Property” as a class D felony in 2007; two counts of carrying a handgun

       without a license in 2008; and operating a vehicle never having received a

       license as a class C misdemeanor, two counts of possession of cocaine as class

       D felonies, resisting law enforcement as a class A misdemeanor, and two


       Court of Appeals of Indiana | Memorandum Decision 49A02-1505-CR-332 | November 13, 2015   Page 15 of 17
       counts of carrying a handgun without a license in 2011. Appellant’s Appendix

       at 55-56. At the sentencing hearing, Hudgins was also sentenced in Cause No.

       542, which involved another battery.


[25]   The presentence investigation report (“PSI”) reveals that Hudgins described

       family life throughout his childhood as fair and that his childhood was good

       until he became a teenager when he “tried to choose [his] own path.” Id. at 59.

       He credited his grandmother as the person most responsible for his upbringing

       and denied he was ever the victim of any type of abuse or neglect. He reported

       that he moved from his home when he was fifteen years old to stay with friends

       and that much of his childhood was “spent living on the streets, fending for

       himself.” Id.


[26]   The PSI also states that Hudgins was enrolled in special education classes due

       to an ADHD diagnosis, and that Hudgins completed the eleventh grade at

       Northwest High School prior to being “shot getting off the school bus” and

       refusing to return to school. Id. at 60. A prior report reflected that high school

       staff believed the shooting was gang-related and Hudgins was subsequently

       expelled. Hudgins reported that his last period of employment was at Saran

       Industries where he worked for one day in July 2014 prior to being arrested for

       the instant offenses. He rated his mental health as fair and stated that he had

       been previously diagnosed with depression.


[27]   He reported using alcohol and marijuana beginning when he was fifteen years

       old, smoking two or three joints per day prior to his arrest, using heroin while


       Court of Appeals of Indiana | Memorandum Decision 49A02-1505-CR-332 | November 13, 2015   Page 16 of 17
       serving executed time in the Department of Correction, using Xanax in work

       release, and using synthetic marijuana on the date of the instant offense. His

       overall risk assessment score puts him in the high risk category to reoffend.


[28]   After due consideration of the trial court’s decision, we cannot say that the

       sentence imposed by the trial court is inappropriate in light of the nature of the

       offenses and the character of the offender.


                                                   Conclusion

[29]   For the foregoing reasons, we affirm Hudgins’s convictions and sentence.


[30]   Affirmed.


       Riley, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1505-CR-332 | November 13, 2015   Page 17 of 17
