Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any                   FILED
court except for the purpose of                          Aug 23 2012, 9:26 am
establishing the defense of res judicata,
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:

LORINDA MEIER YOUNGCOURT                         GREGORY F. ZOELLER
Bedford, Indiana                                 Attorney General of Indiana

                                                 RICHARD C. WEBSTER
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

BRIAN C. HOSTETLER,                              )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )      No. 47A05-1112-CR-659
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                    APPEAL FROM THE LAWRENCE SUPERIOR COURT
                         The Honorable Michael A. Robbins, Judge
                             Cause No. 47D01-1103-FC-259


                                      August 23, 2012

               MEMORANDUM DECISION – NOT FOR PUBLICATION

RILEY, Judge
                             STATEMENT OF THE CASE

      Appellant-Defendant, Brian C. Hostetler (Hostetler), appeals his conviction for

battery by means of a deadly weapon, a Class C felony, Ind. Code § 35-42-2-1(a)(3).

      We affirm.

                                         ISSUE

      Hostetler raises one issue on appeal, which we restate as follows: Whether the

State produced sufficient evidence to prove beyond a reasonable doubt that he committed

battery by means of a deadly weapon.

                       FACTS AND PROCEDURAL HISTORY

      On February 7, 2011, Kyle Smith (Smith) of Smith Bonding Services in Hendricks

County, Indiana issued an appearance bond for fifteen hundred dollars to Hostetler in

order to insure Hostetler’s appearance in court concerning a charge of resisting law

enforcement. On March 2, 2011, the day of Hostetler’s scheduled court appearance,

Smith received a phone call from the Hendricks County Circuit Court informing him that

Hostetler had failed to appear as scheduled and that if he did not produce Hostetler, the

bond would be forfeited.      When Smith investigated Hostetler’s failure to appear,

Hostetler’s father told him that he had recently received a call from Hostetler in which

Hostetler had asked him if there were any bus companies in Bedford, Indiana. Based on

this information, Smith drove to Bedford to look for Hostetler.

      Once Smith reached Bedford, he discovered that there were no bus companies

operating there, so he decided to drive around the major roads to see if he could find
                                           2
Hostetler. After about an hour, Smith spotted Hostetler on the side of State Road 37

wearing coveralls and a beanie and holding a sign that said “Florida.” (Transcript p.

189). Smith pulled over and Hostetler asked who he was. Smith replied “I’m your

bondsman, [Smith].” (Tr. p. 189). In response, Hostetler “immediately jumped over a

rail on the side of the bridge down to a rocky culvert area.” (Tr. pp. 189-90). Smith

started to follow Hostetler, but noticed that Hostetler was pulling a hammer out of his

coveralls.   Smith asked Hostetler if he had a gun, and he replied that he did not.

Nevertheless, Smith returned to his car and called 911.

       Four or five minutes later, Bedford Police Officers David Booth (Officer Booth)

and Kye Louden (Officer Louden) arrived at the scene and talked to Smith. Officer

Booth jumped over the guardrail towards Hostetler and Officer Louden stayed with Smith

to verify that he had a warrant for Hostetler’s failure to appear. After verifying Smith’s

warrant, Officer Louden left to assist Officer Booth.

       As Officer Booth approached Hostetler, Hostetler started to walk away. Officer

Booth told Hostetler to stop and informed him that he was a police officer. Hostetler

pulled the hammer out of his overalls again and continued to walk away. Officer Booth

continued to verbally command Hostetler to stop, but Hostetler continued to walk away at

a “hurried pace” and “yelled a few times.” (Tr. p. 224). Officer Booth ran to catch up

with Hostetler, and Hostetler stopped and put the hammer above his head. Officer Booth

turned on his taser and informed Hostetler that he would tase him if he did not drop the

hammer. Hostetler responded “that doesn’t work on me[.] I’ve been tased ten times . . . .

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[Y]ou’re gonna have to shoot me.” (Tr. p. 225). Officer Booth fired his taser at

Hostetler, but the taser was not effective and Hostetler raised his hammer again. As a

result, Officer Booth holstered his taser and pulled out his gun, telling Hostetler that he

would shoot if he did not drop the hammer. Hostetler stood his ground and yelled

“you’re going to have to shoot me.” (Tr. p. 226). Officer Booth continued to tell

Hostetler to drop his hammer, but Hostetler turned around and started to walk away

without dropping his hammer.

       At that point, Officer Booth heard Officer Louden approaching, and signaled to

him to approach Hostetler from a different angle in order to cut him off. Both Officers

continued to follow Hostetler, and shortly thereafter another police officer, Officer John

Ritter (Officer Ritter), arrived and approached Hostetler from a third angle. As they

walked, every now and then Hostetler would raise his hammer above his head and tell the

Officers to get away from him.       The Officers also attempted to move in towards

Hostetler. Whenever they closed in on him, though, he would approach an Officer with

the hammer above his head, and that Officer would have to move back. The Officers

kept attempting to move in until an additional Officer arrived and there were four total

Officers surrounding Hostetler.

       The four Officers and Hostetler stopped and the Officers attempted to convince

Hostetler to drop his hammer. After a minute, Officer Ritter moved towards Hostetler

and deployed his taser.     The taser was effective for a moment and Hostetler fell

backwards. Once he hit the ground he “immediately . . . [came] back up swinging the

                                            4
hammer again.” (Tr. p. 233). Officer Louden knocked Hostetler backwards again and

tried to jump on top of him. While doing so, Hostetler struck Officer Louden in the side

with the hammer and the two began to roll down a hill. The other Officers rushed in and

tackled Hostetler. However, Hostetler would not give them his hands, so Officer Louden

kicked him in his outer thigh area, after which the Officers were able to handcuff

Hostetler.

       On March 4, 2011, the State filed an Information charging Hostetler with Count I,

battery by means of a deadly weapon, I.C. § 35-42-2-1(a)(3), a Class C felony; Count II,

resisting law enforcement, I.C. §§ 35-44-3-3(a)(1), -(b)(1)(B), a Class D felony; and

Count III, battery resulting in bodily injury, I.C. § 35-42-2-1(a)(2)(A), a Class D felony.

On September 26-27, 2011, a jury trial was held. The jury found Hostetler guilty of

Counts I and II, but not guilty on Count III. On November 28, 2011, the trial court

sentenced Hostetler to four years incarceration for Count I and one and one half years for

Count II, with sentences to be served concurrently.

       Hostetler now appeals. Additional facts will be provided as necessary.

                            DISCUSSION AND DECISION

       Hostetler argues that the State did not produce sufficient evidence to prove beyond

a reasonable doubt that he committed battery by means of a deadly weapon when he

struck Officer Louden with his hammer. The standard of review for a sufficiency of the

evidence claim is that this court will only reverse a conviction when reasonable persons

would not be able to form inferences as to each material element of the offense. Perez v.

                                            5
State, 872 N.E.2d 208, 212-13 (Ind. Ct. App. 2007), trans. denied. We do not reweigh

evidence or judge the credibility of witnesses. Id. at 213. In addition, we only consider

the evidence most favorable to the verdict and the reasonable inferences stemming from

that evidence. Id.

       In order to establish that Hostetler committed battery by means of a deadly

weapon as a Class C felony, the State was required to prove beyond a reasonable doubt

that he “knowingly or intentionally touch[ed] another person in a rude, insolent, or angry

manner . . . by means of a deadly weapon.” I.C. § 35-42-2-1. The Indiana Code defines

“deadly weapon” as “a weapon that in the manner it is used; or ordinarily could be used,

or is intended to be used, is readily capable of causing serious bodily injury.” I.C. § 35-

41-1-8(2).   The statute defines serious bodily injury as “an injury causing serious

permanent disfigurement, unconsciousness, or extreme pain.” I.C. § 35-41-1-25. While

a hammer is not normally considered a deadly weapon, we have previously held that

instrumentalities that are harmless in their general usage may nevertheless be regarded as

lethal when utilized in a harmful manner. Morris v. State, 266 Ind. 473, 482 (Ind. 1977),

cert. denied, 98 S.Ct. 526 (1977).

       Hostetler’s argument on appeal is that he did not have the requisite intent to

commit battery by means of a deadly weapon. According to Hostetler, he lost his balance

and fell straight back after being hit by the taser and was not capable of knowingly

swinging the hammer. He also argues that the hammer would never have come into

contact with Officer Louden if he had not tackled Hostetler.

                                            6
      I.C. § 35-41-2-2(b) provides that a person engages in conduct “knowingly” if,

when he or she engages in the conduct, the person is aware of a “high probability” that he

or she is doing so. Because knowledge is a mental state of the actor, it may be proven by

circumstantial evidence and inferred from the circumstances and facts of each case.

Smith v. State, 963 N.E.2d 1110, 1113 (Ind. 2012). We will presume that a defendant

intends the reasonable results of his own acts. Norris v. State, 943 N.E.2d 362, 370 (Ind.

Ct. App. 2011), trans. denied.

      Here, there is evidence that Hostetler repeatedly brandished his hammer above his

head and refused to comply with the Officers’ orders to put it down, from which we infer

that he was threatening to use the hammer as a weapon. Then, when Officer Ritter tased

Hostetler, he hit the ground but “immediately . . . [came] back up swinging the hammer

again.” (Tr. p. 233). When Officer Louden rushed him, he was still swinging the

hammer and he hit Officer Louden with it. From this evidence, it is clear that Hostetler

was not too stiff from the taser to swing the hammer. We also infer from this evidence

that Hostetler knowingly used the hammer as a deadly weapon. As Hostetler does not

otherwise contest his conviction, we accordingly conclude that the State produced

sufficient evidence to prove that he committed battery by means of a deadly weapon.

                                    CONCLUSION

      Based on the foregoing, we conclude that the State produced sufficient evidence to

prove beyond a reasonable doubt that Hostetler committed battery by means of a deadly

weapon.

                                            7
      Affirmed.

BAILEY, J. and CRONE, J. concur




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