      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                         FILED
      regarded as precedent or cited before any                                 Jan 31 2019, 8:44 am

      court except for the purpose of establishing                                  CLERK
      the defense of res judicata, collateral                                   Indiana Supreme Court
                                                                                   Court of Appeals
                                                                                     and Tax Court
      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Brandon E. Murphy                                        Curtis T. Hill, Jr.
      Cannon Bruns & Murphy                                    Attorney General
      Muncie, Indiana
                                                               Caroline G. Templeton
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Robert L. Wine,                                          January 31, 2019
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               18A-CR-2186
              v.                                               Appeal from the Blackford
                                                               Superior Court
      State of Indiana,                                        The Honorable Nick Barry, Judge
      Appellee-Plaintiff                                       Trial Court Cause No.
                                                               05D01-1804-CM-111



      Crone, Judge.


[1]   Robert L. Wine appeals his conviction for level 6 felony battery by bodily

      waste, claiming that the charging information was deficient. Because Wine has

      waived this argument, we affirm.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2186 | January 31, 2019                  Page 1 of 3
[2]   On March 6, 2018, Aaron Morris was working as an emergency medical

      services provider and was dispatched to the Blackford County Jail on a report

      that Wine, an inmate, had consumed hand sanitizer and orange juice. Morris

      and his partner loaded Wine into the ambulance and hooked him up to an IV.

      As the ambulance neared the hospital, Wine became agitated and tried to rip

      out the IV. When the ambulance reached the hospital, Morris secured the IV

      and turned to leave the vehicle. Wine spat on the back of Morris’s head.


[3]   The State charged Wine with class B misdemeanor battery by bodily waste and

      class B misdemeanor disorderly conduct. One week later, the State amended

      the battery charge to a level 6 felony, alleging that Wine “did knowingly or

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

      on Aaron Morris while the said official was engaged in the official’s official

      duty ….” Appellant’s App. Vol. 2 at 15; see Ind. Code § 35-42-2-1(e)(2) (stating

      that battery is a level 6 felony if it “is committed against a public safety official

      while the official is engaged in the official’s official duty”); Ind. Code § 35-42-2-

      1(a)(10) (defining “public safety official” in pertinent part as “an emergency

      medical services provider”). Wine failed to appear at his bench trial. At the

      close of evidence, Wine’s counsel argued for the first time that Wine could not

      be convicted of battery because the charging information did not allege “that

      Aaron Morris was a public safety official.” Tr. Vol. 2 at 33. The trial court

      rejected this argument, found Wine guilty of level 6 felony battery, and

      sentenced him to 910 days.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2186 | January 31, 2019   Page 2 of 3
[4]   On appeal, Wine argues that his conviction should be reversed because “the

      State’s amended charge failed to allege all elements necessary for a

      conviction[.]” Appellant’s Br. at 8. The State contends that this argument is

      waived because Wine failed to file a motion to dismiss the charge. We agree.

      “The proper method to challenge deficiencies in a charging information is to

      file a motion to dismiss the information, no later than twenty days before the

      omnibus date.” Miller v. State, 634 N.E.2d 57, 60 (Ind. Ct. App. 1994). Failure

      to do so results in waiver of the issue absent fundamental error, id., and Wine

      alleges no fundamental error here. Therefore, we affirm.


[5]   Affirmed.


      Vaidik, C.J., and Mathias, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2186 | January 31, 2019   Page 3 of 3
