MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be                                  Nov 06 2019, 9:19 am
regarded as precedent or cited before any
                                                                            CLERK
court except for the purpose of establishing                            Indiana Supreme Court
                                                                           Court of Appeals
the defense of res judicata, collateral                                      and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Matthew J. McGovern                                     Curtis T. Hill, Jr.
Anderson, Indiana                                       Attorney General of Indiana
                                                        Caryn N. Szyper
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Goldie Crews,                                           November 6, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-273
        v.                                              Interlocutory Appeal from the
                                                        Crawford Circuit Court
State of Indiana,                                       The Hon. Sabrina R. Bell, Judge
Appellee-Plaintiff.                                     Trial Court Cause No.
                                                        13C01-1804-F6-23




Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-273 | November 6, 2019                 Page 1 of 4
                                          Case Summary
[1]   Goldie Crews appeals from the trial court’s denial of her motion to dismiss the

      charge of Level 6 felony battery against a public-safety official filed against her.

      Crews contends that dismissal is warranted because the State failed to rebut the

      evidence supporting her affirmative defense. Because a pre-trial motion to

      dismiss is not the proper vehicle for her claim, we affirm.


                            Facts and Procedural History
[2]   On March 13, 2018, police officers were attempting to arrest Crews’s son Nick

      at her Crawford County residence when some sort of physical altercation

      occurred between Crews and one of the officers. On April 2, 2018, the State

      charged Crews with Level 6 felony battery against a public-safety official. On

      July 9, 2018, Crews moved to suppress evidence. On November 29, 2018, the

      trial court conducted a hearing on Crews’s motion to suppress, at which Crews

      indicated that the trial court could treat her motion as either a motion to

      suppress or a motion to dismiss. On January 2, 2019, the trial court denied

      Crews’s motion to suppress and/or dismiss. The trial court certified, and we

      accepted jurisdiction of, Crews’s interlocutory appeal.


                                Discussion and Decision
[3]   Crews contends that the trial court abused its discretion in refusing to dismiss

      the charge of Level 6 felony battery against a public-safety official. Crews

      claims only that the charge should have been dismissed because the record


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-273 | November 6, 2019   Page 2 of 4
      contains no evidence to rebut her affirmative defense that she was resisting an

      illegal entry into her home by law enforcement.

[4]   We review a trial court’s ruling on a motion to dismiss a charging information

      for an abuse of discretion, which only occurs if a trial court’s decision is clearly

      against the logic and effect of the facts and circumstances. An-Hung Yao v. State,

      975 N.E.2d 1273, 1276 (Ind. 2012). Pursuant to Indiana Code Section 35-34-1-

      4(a), a trial court may dismiss a charging information upon any of the following

      grounds:

              (1) The indictment or information, or any count thereof, is
              defective under section 6 of this chapter.
              (2) Misjoinder of offenses or parties defendant, or duplicity of
              allegation in counts.
              (3) The grand jury proceeding was defective.
              (4) The indictment or information does not state the offense with
              sufficient certainty.
              (5) The facts stated do not constitute an offense.
              (6) The defendant has immunity with respect to the offense
              charged.
              (7) The prosecution is barred by reason of a previous prosecution.
              (8) The prosecution is untimely brought.
              (9) The defendant has been denied the right to a speedy trial.
              (10) There exists some jurisdictional impediment to conviction of
              the defendant for the offense charged.
              (11) Any other ground that is a basis for dismissal as a matter of
              law.
[5]   We have little trouble concluding that the trial court correctly denied Crews’s

      motion to dismiss. First, Crews did not file the mandatory written motion to

      dismiss citing the particular grounds, requesting orally that her motion to

      suppress also be treated as a motion to dismiss. See Ind. Code § 35-34-1-8 (“A

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-273 | November 6, 2019   Page 3 of 4
      motion to dismiss an indictment or information under section 4 of this chapter

      shall be in writing.”). At the very least, Crews’s oral motion to dismiss the

      charging information was procedurally improper.

[6]   More fundamentally, even if Crews had filed a proper motion to dismiss, it

      would have been based on improper grounds. Crews’s argument that the State

      failed to rebut her affirmative defense is an argument directed at the sufficiency

      of the evidence admitted at a trial, and we have made it clear that “[a] hearing

      on a motion to dismiss is not a trial of the defendant on the offense charged.”

      State v. Y.M., 60 N.E.3d 1121, 1126 (Ind. Ct. App. 2016), trans. denied.

      “Whether an individual has a statutory defense to the charges in an information

      goes beyond the issues that may be decided by a motion to dismiss and instead

      is a matter to be decided at trial.” Ceaser v. State, 964 N.E.2d 911, 918–19 (Ind.

      Ct. App. 2012), trans. denied. Because the question of whether the State has

      sufficiently rebutted Crews’s affirmative defense is for trial, any claim of that

      type is premature at this pre-trial stage of Crews’s case. Crews has failed to

      establish that the trial court abused its discretion in denying her motion to

      dismiss.

[7]   We affirm the judgment of the trial court.


      Vaidik, C.J., and Riley, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-273 | November 6, 2019   Page 4 of 4
