MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                              Dec 31 2015, 8:40 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
Jane H. Conley                                          Gregory F. Zoeller
Indianapolis, Indiana                                   Attorney General

                                                        Katherine Modesitt Cooper
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

David Rabinowitz,                                       December 31, 2015
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        49A04-1507-CR-788
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Jeffrey Mendes
Appellee-Plaintiff                                      Trial Court Cause No.
                                                        49G05-1410-F5-46086



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1507-CR-788 | December 31, 2015    Page 1 of 5
                                          Case Summary
[1]   Following an altercation with an elderly woman with whom he was living,

      David Rabinowitz was angry and swinging a baseball bat when the elderly

      woman’s grandson, Anthony Blunk, arrived on the scene and tried to confront

      Rabinowitz. Rabinowitz struck Blunk with the baseball bat, breaking his arm.

      On appeal, Rabinowitz challenges his convictions for Level 5 felony battery,

      arguing that the evidence is insufficient to prove that he had the requisite intent.

      Finding sufficient evidence to support that Rabinowitz knowingly or

      intentionally struck Blunk in an angry manner causing serious bodily injury, we

      affirm his convictions.



                            Facts and Procedural History
[2]   In July 2014, Harold Bullock, a neighbor of an elderly woman named Beulah

      Rogers, drove his car up to Rogers’ house in Indianapolis and found David

      Rabinowitz on Rogers’ front porch, swinging a baseball bat, mad, trying to get

      in Rogers’ front door. Once Bullock was on the porch, he learned that Rogers

      and Rabinowitz had been in an argument, and Rogers had made Rabinowitz

      leave after he “tried to swing a bat on her.” Tr. p. 11. Rabinowitz eventually

      left the porch and walked away in the direction of a nearby gas station, and

      then Rogers’ grandson, Anthony Blunk, arrived at Rogers’ house, where he was

      living and where Bullock told Blunk what had just happened.




      Court of Appeals of Indiana | Memorandum Decision 49A04-1507-CR-788 | December 31, 2015   Page 2 of 5
[3]   Thereafter, Blunk went to confront Rabinowitz about “what [Rabinowitz] was

      doing to [Blunk’s] grandma.” Id. at 17. Blunk and Rabinowitz began to argue,

      and “[t]hat’s when the bat started getting swung.” Id. at 18. Rabinowitz “went

      to hit [Blunk] in the head with the baseball bat and [Blunk] put [his] arm up and

      it broke [his] arm.” Id. at 32. Then Blunk, being chased by Rabinowitz, ran

      back to his and Rogers’ house to get a child-sized wooden bat, which he began

      “swinging wildly.” Id. at 33. Thereafter, Blunk went to the hospital to receive

      treatment for his broken arm and other injuries. Detective Russell O’Connor of

      the Indianapolis Metropolitan Police Department met with Blunk and Bullock,

      and both identified Rabinowitz in six-person photo arrays.


[4]   The State charged Rabinowitz with Count I, battery resulting in serious bodily

      injury as a Level 5 felony; and Count II, battery by means of a deadly weapon

      as a Level 5 felony.1 Following the bench trial, the trial court found Rabinowitz

      guilty of both counts and merged Count II into Count I. Thereafter, the trial

      court sentenced him to four years, with twenty-two days served and seven credit

      days earned, 1431 days suspended, and two years on probation. See Appellant’s

      App. p. 17. Rabinowitz now challenges his Level 5 felony battery convictions.




      1
        Rabinowitz was also charged with attempted battery by means of a deadly weapon as a Level 5 felony, but
      this count was ultimately dismissed and is not relevant to this appeal.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1507-CR-788 | December 31, 2015        Page 3 of 5
                                Discussion and Decision
[5]   On appeal, Rabinowitz contends that the evidence is insufficient to establish

      that he had the requisite intent to support the battery convictions. Specifically,

      he argues as follows: “The evidence does not establish beyond a reasonable

      doubt that Rabinowitz hit Blunk for any reason other than as a response to

      Blunk’s aggression.” Appellant’s Br. p. 7. When reviewing the sufficiency of

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

      and reasonable inferences supporting the verdict. Moore v. State, 27 N.E.3d 749,

      754 (Ind. 2015). Reviewing courts should not assess witness credibility and

      weigh the evidence to determine whether it is sufficient to support a conviction.

      Id. Convictions should be affirmed unless no reasonable fact-finder could find

      the elements of the crime proven beyond a reasonable doubt. Id.


[6]   In order to convict Rabinowitz of Level 5 felony battery, the State had to prove

      that he knowingly or intentionally touched another person in a rude, insolent,

      or angry manner that resulted in serious bodily injury or was committed with a

      deadly weapon. See Ind. Code § 35-42-2-1(b), (f). Here, eyewitness Bullock

      testified that Rabinowitz was the initial aggressor and that he observed

      Rabinowitz strike Blunk several times with a baseball bat. See Tr. p. 17, 24-25.

      Blunk, the victim, testified that he first tried to talk to Rabinowitz about what

      had happened with Rogers and that Rabinowitz swung the baseball bat at him,

      breaking his arm. Id. at 32.




      Court of Appeals of Indiana | Memorandum Decision 49A04-1507-CR-788 | December 31, 2015   Page 4 of 5
[7]   While we acknowledge that the evidence presented at trial was inconsistent and

      confusing, with multiple witnesses testifying as to their differing versions of the

      events in question, the trial court chose to credit the evidence that Rabinowitz

      was the aggressor and struck Blunk with a baseball bat, causing a broken arm.

      See Tr. p. 128. This Court will not assess witness credibility or reweigh the

      evidence. See Moore, 27 N.E.2d at 754. We find the evidence is sufficient to

      support Rabinowitz’s convictions.2

[8]   Affirmed.

      Bailey, J., and Crone, J., concur.




      2
        The Argument portion of Rabinowitz’s appellate brief includes a subsection titled “Case filed on false
      information,” in which he alleges that Blunk provided a different version of the events to Detective O’Connor
      than he testified to at trial. See Appellant’s Br. p. 9-10. But Rabinowitz does not develop this argument or
      support it with authority, and the brief subsection ultimately concludes with the assertion that choosing to
      believe testimony “as unreliable as Blunk’s” was an abuse of discretion. Id. at 10. Thus, we find that this is
      really just a continuation of his sufficiency-of-the-evidence argument.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1507-CR-788 | December 31, 2015           Page 5 of 5
