         MEMORANDUM DECISION
                                                                              Feb 20 2015, 10:01 am
         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 the defense of res judicata,
         collateral estoppel, or the law of the case.



         ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
         Amanda O. Blackketter                                     Gregory F. Zoeller
         Blackketter Law Office                                    Attorney General of Indiana
         Shelbyville, Indiana
                                                                   Graham T. Youngs
                                                                   Deputy Attorney General
                                                                   Indianapolis, Indiana



                                                      IN THE
             COURT OF APPEALS OF INDIANA

         Jesse Edward Atwood,                                     February 20, 2015

         Appellant-Defendant,                                     Court of Appeals Case No.
                                                                  73A01-1407-CR-324
                 v.                                               Appeal from the Shelby Superior
                                                                  Court
                                                                  The Honorable David N. Riggins,
         State of Indiana,                                        Judge
         Appellee-Plaintiff                                       Case No. 73D02-1405-CM-358




         Crone, Judge.


                                                Case Summary
[1]   Jesse Edward Atwood appeals his conviction for class B misdemeanor disorderly

      conduct stemming from a physical altercation between him and another jail

      inmate. He claims that there was a material variance between the charging

         Court of Appeals of Indiana | Memorandum Decision 73A01-1407-CR-324 | February 20, 2015      Page 1 of 7
      information and the evidence adduced at trial. He also challenges the sufficiency

      of evidence to support his conviction. Finding no material variance and finding

      the evidence sufficient to support his conviction, we affirm.


                                 Facts and Procedural History
[2]   In May 2014, Atwood, Nicholas Rairdon, and Jose Alberto Ozuna-Barrios were

      inmates in the work-release section of the Shelby County jail. Although Ozuna-

      Barrios was the only one of the three actually on work release, the other two were

      being housed in that section due to space constraints. One morning, around 2:00

      a.m., while Ozuna-Barrios was sleeping in an upstairs bunk, Atwood and Rairdon

      were playing cards and began arguing over the volume of the music playing on the

      television. Atwood told Rairdon to turn down the volume, and Rairdon refused.

      Both men stood up, and Atwood approached Rairdon and yelled at him. The

      closed-circuit video recording shows the taller Atwood leaning over Rairdon

      within a couple inches of his face. About a minute later, Atwood placed Rairdon

      in a headlock from behind, and the two went to the ground, got back up, and then

      went back to the ground, rolling and continuing to strike each other. Awakened by

      the commotion, Ozuna-Barrios came downstairs and saw the two men wrestling

      on the ground. Moments later, Atwood was crouched over on the floor, and

      Rairdon struck him a couple more times. Rairdon then went to the door, pushed

      the call button, and notified jail personnel of the altercation. Shortly thereafter,

      Deputy Kenneth Carroll and another officer arrived. Atwood and Rairdon were

      both bleeding and had sustained injuries.



         Court of Appeals of Indiana | Memorandum Decision 73A01-1407-CR-324 | February 20, 2015   Page 2 of 7
[3]   The State charged Atwood with class B misdemeanor disorderly conduct and class

      A misdemeanor battery. The trial court found him guilty of disorderly conduct

      and not guilty of battery. Atwood now appeals. Additional facts will be provided

      as necessary.


                                      Discussion and Decision

             Section 1 – No material variance exists between the
              charging information and the evidence adduced at
                              Atwood’s trial.
[4]   Atwood maintains that there is a material variance between the conduct alleged in

      the charging information and the evidence forming the basis for his disorderly

      conduct conviction. At the outset, we note that Atwood did not raise an objection

      to any variance during his bench trial. As such, he has waived the issue for review.

      See Sisson v. State, 985 N.E.2d 1, 12 (Ind. Ct. App. 2012) (holding that issues not

      raised in the trial court are waived for purposes of appellate review), trans. denied

      (2013); see also Neff v. State, 915 N.E.2d 1026, 1031 (Ind. Ct App. 2009)

      (emphasizing that where defendant is confused by language of the charging

      information, he must bring any discrepancy to the trial court’s attention at the




         Court of Appeals of Indiana | Memorandum Decision 73A01-1407-CR-324 | February 20, 2015   Page 3 of 7
      earliest opportunity), trans. denied (2010).1


[5]   Waiver notwithstanding, a variance is fatal only if it “either misleads the defendant

      in the preparation of his defense resulting in prejudice or leaves the defendant

      vulnerable to double jeopardy in a future criminal proceeding covering the same

      event and evidence.” Broude v. State, 956 N.E.2d 130, 136 (Ind. Ct. App. 2011),

      trans. denied (2012).


[6]   With respect to disorderly conduct, the charging information reads in pertinent

      part, “Jesse E. Atwood did recklessly, knowingly, or intentionally engage in

      fighting or tumultuous conduct, to-wit: Placed in headlock and took to ground, the

      same being contrary to the form of the statute, to-wit: I.C. 35-45-1-3(1).”

      Appellant’s App. at 14. At trial, the State introduced a DVD showing video

      footage of the incident. The recording shows Atwood approaching Rairdon and

      leaning down within inches of Rairdon’s face for nearly a minute. The footage

      also depicts Atwood grabbing Rairdon from behind and wrapping his arm around

      Rairdon’s neck in a maneuver resembling a headlock. State’s Ex. 1. Although the

      bottom of the video screen is obstructed, it appears that the two men (still

      connected by the headlock) went down toward the floor, momentarily raised up,

      and then went all the way to the floor, where they rolled and wrestled for several



         1
           Having failed to raise the material variance issue at trial, Atwood would be limited to raising the issue as
         fundamental error. “[F]undamental error is extremely narrow and available only when the record reveals a
         clearly blatant violation of basic and elementary principles, where the harm or potential for harm cannot be
         denied, and which violation is so prejudicial to the rights of the defendant as to make a fair trial impossible.”
         Jewell v. State, 887 N.E.2d 939, 942 (Ind. 2008). As discussed below, we find no variance between the
         charging information and the evidence adduced at trial, and as such, we find no error at all, let alone
         fundamental error.

         Court of Appeals of Indiana | Memorandum Decision 73A01-1407-CR-324 | February 20, 2015               Page 4 of 7
      minutes. The footage lasts almost seven minutes and covers everything from

      Atwood’s initial approach to the end of the altercation and the arrival of jail

      personnel. Atwood did not object to the State’s introduction of the DVD and

      acknowledged having received it prior to trial. Tr. at 9. Having had pretrial access

      to the recording, he could view the incident from start to finish and prepare his

      defense accordingly.


[7]   Rather than focusing his material variance argument on the evidence adduced at

      trial, Atwood focuses on the trial court’s closing remarks emphasizing his conduct

      in getting in Rairdon’s face, “lording over him and telling him this is how it’s

      gonna be in the cell, in the jail block,” and characterizing it as tumultuous. Tr. at

      60. However, the test for a material variance measures the allegations contained in

      the charging information against the evidence adduced at trial, not against the

      contents of the trial court’s closing remarks. As stated, the video footage spanned

      the entire incident, from the approach to the headlock, to the wrestling, crouching,

      and separating. As discussed below, the evidence is sufficient to support Atwood’s

      conviction, whether based on fighting or tumultuous conduct. See Ind. Code § 35-

      45-1-3(1) (defining disorderly conduct as “recklessly, knowingly, or intentionally

      … engag[ing] in fighting or in tumultuous conduct”) (emphasis added). Thus, the

      trial court’s emphasis on one part of the video evidence over another to conclude

      that Atwood engaged in one of the two disjunctive acts comprising disorderly

      conduct did not result in Atwood being prejudicially misled in the preparation of

      his defense or vulnerable to double jeopardy in a future proceeding.




         Court of Appeals of Indiana | Memorandum Decision 73A01-1407-CR-324 | February 20, 2015   Page 5 of 7
                Section 2 – The evidence is sufficient to support
                 Atwood’s conviction for disorderly conduct.
[8]   Atwood challenges the sufficiency of the evidence to support his conviction. When

      reviewing a sufficiency of evidence claim, we consider only the probative evidence

      and reasonable inferences most favorable to the judgment. Drane v. State, 867

      N.E.2d 144, 146 (Ind. 2007). We neither reweigh evidence nor assess witness

      credibility. Id. The evidence need not overcome every reasonable hypothesis of

      innocence, and we will affirm unless no reasonable factfinder could find the

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


[9]   Atwood was convicted of disorderly conduct. “A person who recklessly,

      knowingly, or intentionally … engages in fighting or in tumultuous conduct …

      commits disorderly conduct, a class B misdemeanor.” Ind. Code § 35-45-1-3(a)(1).

      Tumultuous conduct is conduct that “results in, or is likely to result in, serious

      bodily injury to a person or substantial damage to property.” Ind. Code § 35-45-1-

      1. “Serious bodily injury” is bodily injury that creates a substantial risk of death or

      that causes: serious permanent disfigurement, unconsciousness, extreme pain,

      permanent or protracted loss or impairment of the function of a bodily member or

      organ, or loss of a fetus. Ind. Code § 35-31.5-2-292.


[10] Atwood     focuses his insufficiency argument on the extent of Rairdon’s actual

      injuries. In other words, he claims that the bite mark on Rairdon’s bicep, the

      bleeding sore inside Rairdon’s mouth, and the red burn marks on Rairdon’s neck

      do not amount to “serious bodily injury.” Atwood’s argument fails in two ways:


         Court of Appeals of Indiana | Memorandum Decision 73A01-1407-CR-324 | February 20, 2015   Page 6 of 7
   (1) it fails to acknowledge that a finding of tumultuous conduct can also be

   established by showing that the conduct is likely to result in serious bodily injury;

   and (2) it fails to acknowledge that disorderly conduct may be established by

   showing that he knowingly engaged in “fighting or … tumultuous conduct.” Ind.

   Code § 35-45-1-3(a)(1) (emphasis added).


[11] The   video evidence shows the incident from start to finish. The taller Atwood got

   within a couple inches of Rairdon’s face and continued to lean in toward him

   while Rairdon looked down and away. Atwood then grabbed Rairdon from

   behind with his arm locked around Rairdon’s neck. Somehow, the two ended up

   on the floor, then back up, and then back on the floor, where they rolled and

   wrestled for several minutes. Simply put, the video recording establishes that

   Atwood’s conduct was likely to result in serious bodily injury and that he

   knowingly or intentionally engaged in fighting. The evidence is sufficient to

   support his disorderly conduct conviction. Accordingly, we affirm.


[12] Affirmed.


   Friedlander, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 73A01-1407-CR-324 | February 20, 2015   Page 7 of 7
