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                                      FILED
establishing the defense of res judicata,                         Aug 07 2012, 9:12 am
collateral estoppel, or the law of the case.
                                                                          CLERK
                                                                        of the supreme court,
                                                                        court of appeals and
                                                                               tax court




ATTORNEY FOR APPELLANT:                              ATTORNEYS FOR APPELLEE:
ERNEST P. GALOS                                      GREGORY F. ZOELLER
South Bend, Indiana                                  Attorney General of Indiana

                                                     AARON J. SPOLARICH
                                                     Deputy Attorney General
                                                     Indianapolis, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

RAYMON JOHNSON,                                      )
                                                     )
        Appellant-Defendant,                         )
                                                     )
            vs.                                      )      No. 71A04-1111-CR-636
                                                     )
STATE OF INDIANA,                                    )
                                                     )
        Appellee-Plaintiff.                          )


                    APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
                         The Honorable Jane Woodward Miller, Judge
                    Cause Nos. 71D03-1105-FD-408 & 71D01-1006-FD-528


                                           August 7, 2012

                  MEMORANDUM DECISION – NOT FOR PUBLICATION

MATHIAS, Judge
      Raymon Johnson (“Johnson”) was convicted in St. Joseph Superior Court of Class

D felony battery on a law enforcement officer resulting in bodily injury in one case and

his probation in another case was revoked because of his commission of this crime.

Johnson appeals and presents four issues, which we reorder and restate as:

      I.     Whether the trial court erred in overruling Johnson’s Batson challenge to
             the State’s exercise of a peremptory strike;

      II.    Whether the State presented evidence sufficient to support Johnson’s
             conviction;

      III.   Whether the State presented evidence sufficient to support the trial court’s
             determination that Johnson violated the terms of his probation; and

      IV.    Whether the trial court abused its discretion by refusing Johnson’s tendered
             instruction on the lesser-included offense of battery as a Class A
             misdemeanor.

      We affirm.

                             Facts and Procedural History

      On the night of May 23, 2011, Officer Theodore Robert (“Officer Robert”) of the

South Bend Police Department was working for the South Bend Housing Authority when

he was dispatched to the South Bend Apartments, a small public housing complex, to

investigate a complaint of loud noise. When he drove down the cul-de-sac he saw a

small crowd of people on the porch area in front of the apartment building. Several of

these people retreated into the apartments when they saw Officer Robert arrive. The ones

that remained on the porch area were defendant Johnson, his mother Juanita Johnson




                                            2
(“Juanita”) and his cousin Adam Kuspa (“Kuspa”). As Officer Robert approached the

porch area, he saw empty beer bottles lying on the ground.1

        Officer Robert attempted to identify the three individuals remaining in the porch

area. Kuspa provided the officer with his name and an identification card. Johnson

verbally identified himself, but did not provide Officer Robert with his identification card

because he knew there was an active warrant for his arrest for failure to pay child support.

Juanita did not have an identification card, and told Officer Robert only that her name

was “Miss Johnson.” At this point, Johnson’s brother, Raheem Johnson (“Raheem”),

came outside from one of the apartments. He refused Officer Robert’s request to identify

himself and attempted to return to the apartment whence he came. Officer Robert told

Raheem to remain outside, and shut the door to the apartment to ensure that Raheem did

not go back inside.

        Officer Robert then attempted to further identify Juanita. While he questioned her

concerning her identity, Juanita grabbed Officer Robert’s wrist. Officer Robert removed

her hand and told her not to touch him. Juanita then immediately grabbed Officer

Robert’s wrist a second time. Officer Robert again removed her hand and warned her a

second time not to touch him. This caused Raheem to step within a foot of Officer

Robert and tell him, “this is my mother, she’s 50 years old, you don’t have to talk to her

that way.” Tr. p. 99. Officer Robert told Raheem to step away, and Raheem complied.

Officer Robert asked if any of the four individuals lived at the apartment complex or


1
  According to Officer Robert, it was against the Housing Authority’s rules to drink alcohol outside the
apartment building.

                                                   3
knew any of the tenants. All four stated that they did not live at the apartment complex

and could not identify any tenants.

       Even though he had told Officer Robert that he did not live in the apartment

complex and did not know any tenants, Raheem again attempted to go back inside the

building. Officer Robert stepped in between Raheem and the door to prevent him from

going inside. Juanita then grabbed Officer Robert’s wrist for a third time. Officer Robert

removed her hand and told her yet again not to touch him. This prompted Raheem to

again confront Officer Robert in close proximity, face-to-face. Officer Robert pushed

Raheem away with one hand. Raheem reacted by swinging his fists at Officer Robert.

Before Raheem could strike him, Officer Robert knocked Raheem to the ground and

attempted to handcuff him.      As he attempted to handcuff Raheem, and as Raheem

continued to resist and strike Officer Robert, Johnson jumped on the officer’s back.

Officer Robert then removed Johnson from his back and stood face-to-face with Johnson.

Raheem and Johnson continued to strike Officer Robert, so Officer Robert radioed for

backup.

       Johnson and his brother continued to fight Officer Robert as they moved from the

porch area to the cul-de-sac. At this point, Juanita joined in the attack against Officer

Robert. When the combatants reached the middle of the cul-de-sac, Kuspa had joined in

the attack. In an attempt to regain control of the situation, Officer Robert reached for his

taser or his service pistol, but his belt had been turned around during the fight, so Officer

Robert could not immediately access his weapons. As the officer attempted to straighten

his belt, Johnson, Raheem, Juanita, and Kuspa continued to strike Officer Robert. When

                                             4
Officer Robert was finally able to retrieve his pistol, he retreated several feet, pointed the

gun, and warned his attackers to stay back. As his attackers continued their advance,

Officer Robert determined that he had not been subject to deadly force, so he re-holstered

his weapon. Instead, Officer Robert decided to attempt to handcuff Raheem again, as

Raheem was the individual who had initiated the fight.

       When Officer Robert attempted to handcuff Raheem, Raheem fled from Officer

Robert on foot. Officer Robert gave chase and quickly caught up with him and began to

handcuff him. As he did so, the other three combatants resumed their attack upon him.

As backup officers arrived, Officer Robert was able to handcuff Raheem, but Johnson

had fled. After searching one other apartment unit, the police found Johnson hiding in a

closet in another unit and arrested him. As a result of the fight, Officer Robert suffered a

wound on the palm of his hand in addition to scratches and a painful bruise on his right

arm. Officer Robert’s eyeglasses were destroyed during the fight, and his vest was ripped

and torn to such an extent that it had to be discarded.

       On May 25, 2011, the State charged Johnson with Class D felony battery on a law

enforcement officer and Class A misdemeanor resisting law enforcement in Cause No.

71D03-1105-FD-408 (“Cause FD-408”). Johnson had earlier pleaded guilty to Class D

felony possession of marijuana in Cause No. 71D01-1006-FD-528 (“Cause FD-528”) and

was on probation for this offense at the time of the attack on Officer Robert. On June 24,

2011, the State filed a petition to revoke Johnson’s probation in Cause FD-528 as a result

of the new pending charges in Cause FD-408.



                                              5
      A joint jury trial and probation revocation hearing was held on September 28 and

29, 2011. At the conclusion of the trial, the jury found Johnson guilty of Class D felony

battery on a law enforcement officer, but acquitted him of resisting law enforcement.

The trial court then found that Johnson had violated the terms of his probation by

committing a new criminal offense. On October 26, 2011, the trial court sentenced

Johnson to two years of incarceration as a result of his conviction in Cause FD-408. The

trial court also revoked Johnson’s probation in Cause FD-528 and ordered execution of

Johnson’s previously-suspended sentence of two and one-half years.          Johnson now

appeals.

                                  I. Batson Challenge

      Johnson claims that the trial court erred in overruling his Batson challenge to the

State’s use of a peremptory strike to remove an African-American juror from the venire.

Our supreme court recently explained that “[p]urposeful racial discrimination in selection

of the venire violates a defendant’s right to equal protection because it denies him the

protection that a trial by jury is intended to secure.” Addison v. State, 962 N.E.2d 1202,

1208 (Ind. 2012) (citing Batson v. Kentucky, 476 U.S. 79, 86 (1986)). The exclusion of

even a single prospective juror based on race, ethnicity, or gender violates the Fourteenth

Amendment’s Equal Protection Clause. Id. (citing Snyder v. Louisiana, 552 U.S. 472,

478 (2008)). “[P]ursuant to Batson and its progeny, a trial court must engage in a three-

step process in evaluating a claim that a peremptory strike was based on race. Cartwright

v. State, 962 N.E.2d 1217, 1220 (Ind. 2012).



                                            6
      First, “‘a defendant must make a prima facie showing that a peremptory challenge

has been exercised on the basis of race[.]’” Id. (quoting Snyder, 552 U.S. at 476-77).

Using a peremptory strike to remove some African-American jurors does not, by itself,

raise an inference of racial discrimination. Addison, 962 N.E.2d at 1209 (citing Kent v.

State, 675 N.E.2d 332, 340 (Ind. 1996)). But the removal of the only African-American

juror on the venire panel does raise an inference that the juror was excluded on the basis

of race. Id. (citing McCormick v. State, 803 N.E.2d 1108, 1111 (Ind. 2004); McCants v.

State, 686 N.E.2d 1281, 1284 (Ind. 1997)).

      Here, Johnson objected when the State used a peremptory strike to remove Juror

No. 13, an African-American male. As noted by the State, another African-American

remained on the panel of potential jurors. In fact, the other African-American was

eventually selected as the alternate juror. Under these facts and circumstances, we cannot

say that Johnson met his burden of making a prima facie showing that the peremptory

challenge was based on the race of Juror No. 13. See Addison, 962 N.E.2d at 1209.

      It has been held, however, that “once the [State] ‘has offered a race-neutral

explanation for the peremptory challenges and the trial court has ruled on the ultimate

question of intentional discrimination, the preliminary issue of whether the [defendant]

had made a prima facie showing becomes moot.” Jeter v. State, 888 N.E.2d 1257, 1264

(Ind. 2008) (quoting Hernandez v. New York, 500 U.S. 352, 359 (1991)). We therefore

proceed to the second step of the Batson analysis. See Jeter, 888 N.E.2d at 1264.

      In the second step of the Batson analysis, once the defendant has made a prima

facie showing, the prosecution must offer a “race-neutral basis for striking the juror in

                                             7
question[.]” Addison, 962 N.E.2d at 1209 (citing Snyder, 552 U.S. at 476-77). An

explanation is considered race-neutral if, on its face, it is based on something other than

race. Id. (citing Forrest v. State, 757 N.E.2d 1003, 1004 (Ind. 2001)). “‘Unless a

discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will

be deemed race neutral.’” Id. (quoting Purkett v. Elem, 514 U.S. 765, 768 (1995) (per

curiam)). And although the race-neutral reason must be more than a mere denial of

improper motive, the reason need not be particularly persuasive, or even plausible. Id.

        Here, the State offered the race-neutral reason that Juror No. 13 had indicated that

he had been awake for a long period of time due to his third-shift job and would therefore

find it hard to focus on the trial.2 This is well supported by the record. Juror No. 13

indicated that he had awakened on the evening before trial, went to work at 10:00 p.m.

and remained there until 6:00 a.m. He then reported for jury duty at 10:00 a.m. that same

day. Juror No. 13 explained that he usually sleeps after he returns home from work in the

morning until 2:00 p.m. or 3:00 p.m. When the trial court asked Juror No. 13 if he would

be too tired to be able to serve on the jury, the juror responded that he would be too tired.

He also indicated that he had to work at 10:00 p.m. that night as well. Thus, serving on

the jury had the potential to make him stay awake for almost two days straight. When

questioned by Johnson’s counsel, Juror No. 13 stated that he would be tired but believed
2
   The prosecuting attorney also proffered the race-neutral reason that Juror No. 13 had stated during voir
dire that none of his family members had been charged with a crime, whereas the prosecuting attorney
had “information that both his mother and father had been charged with crimes[.]” Tr. p. 62. When
pressed by the trial court as to how the prosecuting attorney knew that the individuals charged with the
crimes were in fact Juror No. 13’s parents, the prosecuting attorney admitted that he was “not a hundred
percent sure, but that’s the information that I received.” Id. at 62-63. The trial court then expressly based
its ruling on the Batson challenge on Juror No. 13’s work schedule. Id. at 64. We therefore consider only
this proffered race-neutral reason in our analysis.

                                                     8
that he could be attentive. But he also admitted that he had never stayed awake for a full

day after working third shift. It is therefore clear that the State proffered a race-neutral

reason for using its peremptory strike to remove Juror No. 13.

       The last part of the Batson analysis is for the trial court to determine, in light of the

parties’ submissions, whether the defendant has shown purposeful discrimination.

Addison, 962 N.E.2d at 1209. “Although the burden of persuasion on a Batson challenge

rests with the party opposing the strike, the third step—determination of discrimination—

is the ‘duty’ of the trial judge.” Id. (citing Miller–El, 545 U.S. at 239; Jeter, 888 N.E.2d

at 1264-65). It is for the trial court to evaluate the persuasiveness of the proffered race-

neutral justification at the third step of the analysis. Id. “It is then that ‘implausible or

fantastic justifications may (and probably will) be found to be pretexts for purposeful

discrimination.’” Cartwright, 962 N.E.2d at 1221 (quoting Purkett, 514 U.S. at 768). At

this final step, the defendant may offer additional evidence to demonstrate that the

proffered justification was pretextual. Id. Upon appellate review of the trial court’s

decision, we give great deference to the trial court’s decision concerning whether a

peremptory challenge is discriminatory, and the trial court’s decision will be set aside

only if it is clearly erroneous. Id. (citing Forrest, 757 N.E.2d at 1004; Miller–El v.

Cockrell, 537 U.S. 322, 340 (2003)).

       Here, the trial court’s finding of no purposeful racial discrimination was not

clearly erroneous. As explained above, Juror No. 13 admitted that he had been awake for

a long period of time and therefore would find it hard to concentrate on the trial. He also



                                               9
admitted that he had never been awake for such a long period of time after having worked

the night before.

       In this sense, the present case is similar to that before our supreme court in Forrest,

where the State used a peremptory strike to remove the only African-American on the

jury panel. When the defendant made a Batson objection, the State noted that the juror in

question had laughed at jokes made by defense counsel and also indicated that she had

gotten only forty-five minutes’ sleep the night before. Even though the juror indicated

that she should be able to serve as juror despite her lack of sleep, the trial court overruled

the defendant’s Batson challenge. Forrest, 757 N.E.2d at 1005. On appeal, our supreme

court affirmed the trial court’s ruling, concluding that, based on the juror’s lack of sleep,

the trial court did not clearly err in determining that the State’s use of the peremptory

challenge was not discriminatory. Id.

       Moreover, there is no indication in the case before us that the State’s race-neutral

explanation was merely a pretext. The State made a successful for-cause challenge to

Juror No. 7, a non-African-American, who also indicated that he had little sleep the night

before. See Tr. p. 57-59. In fact, the State first made a challenge for cause to remove

Juror No. 13 for the same reason, which the trial court denied. See Cartwright, 962

N.E.2d at 1223 (affirming trial court’s determination that defendant failed to prove

purposeful racial discrimination in use of peremptory strike to remove African-American

from jury panel where non-African-Americans with issues similar to that of stricken

African-American were dismissed from the jury for cause and by use of peremptory

strikes). Cf. Addison, 962 N.E.2d at 1215 (reversing trial court’s ruling that State’s use

                                             10
of peremptory strike to remove African-American from jury panel where non-African

American jurors gave “strikingly similar” answers to the answers given by the stricken

juror that formed the State’s proffered “race-neutral” reason for striking the juror).

        Nor does it appear here that the State used its peremptory challenges in a pattern to

remove other African-Americans from the jury panel. See Boney v. State, 880 N.E.2d

279, 288 (Ind. Ct. App. 2008) (citing Batson, 476 U.S. at 96-97) (noting that a pattern of

strikes against minority jurors in a venire can give rise to an inference of discrimination).

Although there were apparently only two African-Americans on the venire, the State did

not use a peremptory strike to remove the other African-American from the panel, and

this juror was ultimately chosen to serve as the alternate juror.3 Tr. p. 71.

        Under these facts and circumstances, the trial court did not clearly err in

determining that Johnson failed to meet his burden of proving purposeful racial

discrimination in the State’s use of a peremptory strike to remove one of two African-

American jurors from the jury panel.

                                 II. Sufficiency of the Evidence

        Johnson next claims that the State failed to present evidence sufficient to support

his conviction for Class D felony battery on a law enforcement officer resulting in bodily

injury. In reviewing Johnson’s claim, we respect the exclusive province of the trier of

fact to weigh any conflicting evidence. McHenry v. State, 820 N.E.2d 124, 126 (Ind.

2005). Thus, we will neither reweigh the evidence nor judge the credibility of witnesses.


3
  We reject Johnson’s contention that the trial court believed that the Batson analysis was inapplicable
simply because there was another African-American on the jury panel.

                                                  11
Id. We consider only the probative evidence and reasonable inferences supporting the

verdict, and we will affirm if the probative evidence and reasonable inferences drawn

from the evidence could have allowed a reasonable trier of fact to find the defendant

guilty beyond a reasonable doubt. Id.

       To convict Johnson of Class D felony battery, the State was required to prove that

he knowingly or intentionally touched Officer Robert in a rude, insolent, or angry manner

and that this resulted in bodily injury to Officer Robert, a law enforcement officer. See

Ind. Code § 35-42-2-1(a)(2)(A); see also Appellant’s App. p. 86. On appeal, Johnson

does not deny that Officer Robert was a law enforcement officer. See Appellant’s Br. at

11 (“Officer Theodore Robert was a South Bend police officer on May 24, 2011 [and]

was working for the South Bend Housing Authority at the time he heard a dispatch

request to the South Bend Apartments.”).         Instead, he claims that Officer Robert’s

account of what happened was inconsistent with the testimony of other witnesses and was

“incredibly dubious.”

       Application of the “incredible dubiosity” rule is limited to those situations where a

sole witness presents inherently contradictory testimony, which is equivocal or the result

of coercion, and there is a complete lack of circumstantial evidence of the defendant’s

guilt. Baumgartner v. State, 891 N.E.2d 1131, 1138 (Ind. Ct. App. 2008) (citing Majors v.

State, 748 N.E.2d 365, 367 (Ind. 2001)). We will overturn a conviction based upon the

incredible dubiosity rule only when the testimony is so incredibly dubious or inherently

improbable that it runs counter to human experience, and no reasonable person could

believe it.   Id. (citing Kien v. State, 782 N.E.2d 398, 407 (Ind. Ct. App. 2003)).

                                            12
Inconsistencies in the testimony of witnesses go to the weight of the evidence and

credibility of each individual witnesses’ testimony, and such inconsistencies do not make

the evidence “incredible” as a matter of law. Stephenson v. State, 742 N.E.2d 463, 497

(Ind. 2001).

       Simply put, there is nothing about Officer Robert’s testimony which is so

incredibly dubious or inherently improbable that it runs counter to human experience

with the result that no reasonable person could believe it. Officer Robert testified that

Johnson jumped on his back when the officer attempted to place Johnson’s brother in

handcuffs. Officer Robert also testified that Johnson was one of four individuals who

attacked Officer Robert and struck him with their fists. As a result of the fight, Officer

Robert sustained injuries to his palm and right arm. From this testimony, the jury could

reasonably conclude that Johnson touched Officer Robert, a law enforcement officer, in a

rude insolent, or angry manner, and that this touching resulted in bodily injury to Officer

Robert. See Ind. Code § 35-41-1-4 (2004) (defining “bodily injury” as “any impairment

of physical condition, including physical pain.”).4 Johnson’s argument to the contrary is

simply a request that we believe his testimony instead of Officer Robert’s testimony,

which is precluded by our standard of review.

                                   III. Probation Violation

       Johnson next claims that the evidence was insufficient to support the trial court’s

conclusion that Johnson violated the terms of his probation in Cause FD-528 by


4
  Effective July 1, 2012, this definition is now located at Indiana Code section 35-31.5-2-29. See
P.L.114-2012 § 67.

                                               13
committing another criminal offense. A probation revocation hearing is in the nature of a

civil proceeding, and the alleged violation therefore need be proven only by a

preponderance of the evidence. Mateyko v. State, 901 N.E.2d 554, 558 (Ind. Ct. App.

2009), trans. denied. On appeal, we consider only the evidence most favorable to the

judgment, and we will neither reweigh the evidence nor judge the credibility of the

witnesses. Id. We will affirm the trial court’s judgment so long as substantial evidence

of probative value exists to support the trial court’s finding that a violation occurred, and

the violation of a single condition of probation is sufficient to revoke probation.

Wilkerson v. State, 918 N.E.2d 458, 461 (Ind. Ct. App. 2009).

       As previously discussed, the State presented evidence sufficient to prove beyond a

reasonable doubt that Johnson committed Class D felony battery on Officer Robert. It

therefore follows that the State also presented evidence sufficient to establish by a

preponderance of the evidence that Johnson violated the terms of his probation by

committing this additional crime. See Braxton v. State, 651 N.E.2d 268, 270 (Ind. 1995)

(“it is always a condition of probation that a probationer not commit an additional

crime.”) (citing Ind. Code § 35-38-2-1(a)).

                        IV. Lesser-Included Offense Instruction

       Johnson lastly claims that the trial court erred in refusing to give the jury his

proffered instruction on the lesser-included offense of Class A misdemeanor battery. The

manner of instructing the jury lies within the discretion of the trial court, and we will

reverse the trial court only upon an abuse of that discretion. Smith v. State, 777 N.E.2d



                                              14
32, 34 (Ind. Ct. App. 2002). An abuse of discretion occurs if the instructions, considered

as a whole and in reference to each other, mislead the jury as to the applicable law.

       In Webb v. State, our supreme court explained the three-part test that trial courts

should perform when called upon by a party to instruct the jury on a lesser-included

offense of the charged crime:

       First, the trial court must compare the statute defining the crime charged
       with the statute defining the alleged lesser included offense to determine if
       the alleged lesser included offense is inherently included in the crime
       charged. Second, if a trial court determines that an alleged lesser included
       offense is not inherently included in the crime charged under step one, then
       it must determine if the alleged lesser included offense is factually included
       in the crime charged. If the alleged lesser included offense is neither
       inherently nor factually included in the crime charged, the trial court should
       not give an instruction on the alleged lesser included offense. Third, if a
       trial court has determined that an alleged lesser included offense is either
       inherently or factually included in the crime charged, it must look at the
       evidence presented in the case by both parties to determine if there is a
       serious evidentiary dispute about the element or elements distinguishing the
       greater from the lesser offense and if, in view of this dispute, a jury could
       conclude that the lesser offense was committed but not the greater. It is
       reversible error for a trial court not to give an instruction, when requested,
       on the inherently or factually included lesser offense if there is such an
       evidentiary dispute.

963 N.E.2d 1103, 1106 (Ind. 2012) (citing Wright v. State 658 N.E.2d 563 (Ind. 1995))

(citations and internal quotations omitted).

       Johnson’s proffered instruction read in pertinent part:

       The crime of battery is defined by statute as follows:
       A person who knowingly or intentionally touches another person in a rude,
       insolent or angry manner which:
       Results in bodily injury to any other person
       Or



                                               15
        Is committed against a law enforcement officer or against a person
        summoned and directed by the officer while the officer is engaged in the
        execution of his official duty
        Commits battery, a Class A misdemeanor.
        Before you may convict the Defendant, the State must prove each of the
        following beyond a reasonable doubt:
            1. The Defendant
            2. Knowingly or intentionally
            3. Touched Theodore Robert
            4. In a rude, insolent or angry manner
            5. Which resulted in bodily injury to Theodore Robert
            6. Or was committed against Theodore Robert a law enforcement
               officer.
        If the State failed to prove each of these elements beyond a reasonable
        doubt, you must find the Defendant not guilty of battery, a Class A
        misdemeanor. If the State did prove each and every element beyond a
        reasonable doubt, you may find the Defendant guilty of the lesser included
        offense of battery, a Class A misdemeanor.

Appellant’s App. p. 61.

        On appeal, the State admits that Class A misdemeanor battery is an inherently and

factually included offense of the charged crime of Class D felony battery. The State also

admits that Johnson’s proffered instruction was a correct statement of the law.5 The State

focuses its argument on the third prong of the analysis, i.e. whether there was a serious

evidentiary dispute about the element or elements distinguishing the greater from the

lesser offense. On appeal, Johnson claims that “the only difference between the crime

5
  We note, however, that although this instruction generally tracks the statutory language of Indiana Code
section 35-42-2-1(a)(1)(A) and (B), it is not entirely clear as to what is required to find the defendant
guilty of Class A misdemeanor battery. The instruction states that the State must prove each of the
elements, but it uses the disjunctive “or” at the beginning of element 6. The instruction further states that
the jury must find Johnson not guilty if the State failed to prove each of these elements. It then repeats
the requirement that the State prove “each and every element” in order to find Johnson guilty of the lesser
included offense of Class A misdemeanor battery. The use of the disjunctive “or” at the beginning of the
listed sixth element, along with instructing the jury that it must find “each and every” element listed in
order to find Johnson guilty, had the potential to confuse the jury and make it think that it had to prove all
six elements listed, which is incorrect.

                                                     16
charged and the lesser included offense is that the bodily injury is to a law enforcement

officer.” Appellant’s Br. at 18.

       As noted above, to convict Johnson of Class D felony battery, the State was

required to prove that he knowingly or intentionally touched Officer Robert in a rude,

insolent, or angry manner and that this resulted in bodily injury to Officer Robert, a law

enforcement officer. See Ind. Code § 35-42-2-1(a)(2)(A); see also Appellant’s App. p.

86. To convict Johnson of Class A misdemeanor battery, the State would have had to

prove that he knowingly or intentionally touched Officer Robert in a rude insolent or

angry manner and that this touching either “result[ed] in bodily injury to any other person”

or was “committed against a law enforcement officer or against a person summoned and

directed by the officer while the officer [wa]s engaged in the execution of the officer’s

official duty.” In other words, to convict Johnson of Class A misdemeanor battery, the

State had to prove that Johnson’s battery resulted in bodily injury to any other person or

that the battery was committed against a law enforcement officer, whereas to convict him

of Class D felony battery, the State had to prove that Johnson’s battery resulted in bodily

injury to a law enforcement officer.

       It is not entirely clear from Johnson’s argument as to which element he claims

there was a serious evidentiary dispute.       But, as noted above, Johnson makes no

cognizable claim that Officer Robert was not a law enforcement officer. We therefore

understand Johnson’s claim to be that there was a serious evidentiary dispute with regard

to whether his battery resulted in serious bodily injury to Officer Robert.



                                             17
      The evidence at trial clearly demonstrated that Officer Robert suffered from

injuries as a result of the fight with Johnson and his companions. Johnson elicited

testimony from Officer Robert that he was unsure of which assailant caused which

particular injury, but the jury was instructed on accomplice liability.     Thus, which

assailant caused which particular injury was not an issue at trial. See Wieland v. State,

736 N.E.2d 1198, 1202 (Ind. 2000) (“accomplice liability applies to the contemplated

offense and all acts that are a probable and natural consequence of the concerted

action.”); Kendall v. State, 790 N.E.2d 122, 132 (Ind. Ct. App. 2003) (noting that an

accomplice is liable for everything which follows incidentally in the execution of the

common design, as one of its natural and probable consequences, even though it was not

intended as a part of the original design or common plan), trans. denied. There was no

serious evidentiary dispute that Officer Robert suffered bodily injury as a result of the

fight with Johnson and his accomplices.

      Moreover, Johnson’s own testimony was that he was not involved in the fight at

all and was instead inside one of the apartment units. If the jury believed Johnson’s

testimony, then it would have to have found him not guilty of any battery. Johnson never

claimed that he did not cause bodily injury to Officer Robert. Because there was no

serious evidentiary dispute about the elements distinguishing the greater from the lesser

offense, we cannot say that the trial court abused its discretion in refusing to give

Johnson’s tendered instruction on Class A misdemeanor battery.




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                                      Conclusion

      The State presented evidence sufficient to support Johnson’s conviction for Class

D felony battery on a law enforcement officer resulting in bodily injury in Cause FD-408.

This same evidence was also sufficient to support the trial court’s conclusion that

Johnson violated the terms of his probation in Cause FD-528 by committing this

additional criminal offense. The trial court did not clearly err in overruling Johnson’s

Batson challenge to the State’s use of a peremptory strike to remove an African-

American member of the jury panel, and the trial court did not abuse its discretion in

refusing Johnson’s proffered instruction on the lesser-included offense of Class A

misdemeanor battery.

      Affirmed.

VAIDIK, J., and BARNES, J., concur.




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