MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                              FILED
regarded as precedent or cited before any                                    Nov 06 2019, 10:49 am
court except for the purpose of establishing
                                                                                   CLERK
the defense of res judicata, collateral                                       Indiana Supreme Court
                                                                                 Court of Appeals
estoppel, or the law of the case.                                                  and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Michael C. Borschel                                     Curtis T. Hill, Jr.
Indianapolis, Indiana                                   Attorney General of Indiana

                                                        Megan M. Smith
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Christopher L. Norfolk,                                 November 6, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-1387
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Helen W. Marchal,
Appellee-Plaintiff                                      Judge
                                                        Trial Court Cause No.
                                                        49G15-1804-F6-13997



Altice, Judge.


                                         Case Summary



Court of Appeals of Indiana | Memorandum Decision 19A-CR-1387 | November 6, 2019                 Page 1 of 7
[1]   Christopher Norfolk appeals his conviction for Level 6 felony battery against a

      public safety official. His sole challenge is to the sufficiency of the evidence.


[2]   We affirm.


                                       Facts & Procedural History


[3]   In the early morning hours of April 12, 2018, IMPD Detective Michael Rogers

      was working outside security at the Lava Lounge located in the Broad Ripple

      area of Indianapolis. Although he was working as an off-duty officer at the

      time, Detective Rogers retained the same police powers as on-duty officers, and

      he was dressed in his full IMPD bike uniform.


[4]   Around 2:30 a.m., Detective Rogers became aware of an incident inside the

      Lava Lounge, so he stepped in to monitor the situation. Two bouncers were

      trying to get Norfolk to leave and were standing on either side of Norfolk as he

      leaned forward against the bar. Ronald Bell, the bouncer on his right, placed

      his hand on Norfolk’s shoulder and explained to him that he needed to leave.

      Norfolk refused, and Detective Rogers observed “some back and forth banter

      that was being said as far as why he would not leave[.]” Transcript at 69.


[5]   After a short time, Detective Rogers approached from behind Norfolk’s left

      shoulder, placed his right hand on Norfolk’s lower back to indicate his

      presence, and loudly told him, “hey it’s time to go.” Id. at 55. Norfolk

      responded, “get Ramon[,]” who was the manager of the Lava Lounge. Id. at

      102. Norfolk then turned and “look[ed] directly at” Detective Rogers, who still


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1387 | November 6, 2019   Page 2 of 7
      had his hand on Norfolk’s back trying to escort him out. Id. at 69. Norfolk

      then shoved Detective Rogers in the chest with an open hand. This caused

      Detective Rogers to stumble back a few feet into a grouping of chairs, which

      kept him from falling to the ground. The bouncers grabbed Norfolk and forced

      him out of the Lava Lounge.


[6]   Once outside, Bell held Norfolk to the ground as he struggled, and Detective

      Rogers attempted to handcuff Norfolk. Detective Rogers was only able to get

      one handcuff on Norfolk before he fought and got loose. A struggle ensued in

      the street between the two, and Detective Rogers was able to radio for backup

      before his radio came off and the men fell into the side of Detective Rogers’s

      police car, causing a large dent. The second officer arrived and helped control

      and handcuff Norfolk.


[7]   On April 30, 2018, the State charged Norfolk with Level 6 felony battery

      against a public safety official (Count I), Class A misdemeanor resisting law

      enforcement (Count II), Class B misdemeanor criminal mischief (Count III),

      and Class B misdemeanor disorderly conduct (Count IV). On motion by the

      State, Counts III and IV were dismissed before trial. A jury trial was held on

      March 27, 2019, and Norfolk was found guilty of the remaining charges. The

      trial court, however, entered judgment of conviction only on Count I, citing

      double jeopardy concerns. On May 16, 2019, the trial court sentenced Norfolk

      to 365 days with 363 days (all but time already served) suspended to probation.

      Norfolk now appeals, challenging the sufficiency of the evidence.



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1387 | November 6, 2019   Page 3 of 7
                                           Discussion & Decision


[8]    “Convictions should be affirmed unless no reasonable fact-finder could find the

       elements of the crime proven beyond a reasonable doubt.” T.H. v. State, 92

       N.E.3d 624, 626 (Ind. 2018). Thus, when reviewing the sufficiency of the

       evidence on appeal, we must consider only the probative evidence and

       reasonable inferences supporting the conviction, and we should not assess

       witness credibility or weigh the evidence. See Moore v. State, 27 N.E.3d 749, 754

       (Ind. 2015). The trier of fact is entitled to determine which version of the

       incident to credit by resolving conflicts in the evidence and deciding which

       witnesses to believe or disbelieve. See Murray v. State, 761 N.E.2d 406, 409 (Ind.

       2002); Scott v. State, 867 N.E.2d 690, 695 (Ind. Ct. App. 2007), trans. denied.


[9]    On appeal, Norfolk directs us to his own testimony that contradicted Detective

       Rogers’s testimony in certain respects. Norfolk testified that when he was

       touched from behind by Detective Rogers, Norfolk reacted by “nudging his arm

       back[,]” which he alleges was a “natural reaction” under the circumstances.

       Appellant’s Brief at 11. Norfolk also claims that he was unaware that Detective

       Rogers was a police officer “since he could not see him over his shoulder and

       because Det. Rogers – by his own admission – failed to identify himself to Mr.

       Norfolk.” Id. at 12.


[10]   We reject Norfolk’s invitation to reweigh the evidence. The evidence favorable

       to the conviction reveals that Detective Rogers approached Norfolk in full

       police uniform and asked him to leave the establishment, which a bouncer had


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1387 | November 6, 2019   Page 4 of 7
       already requested of Norfolk to no avail. According to Detective Rogers,

       Norfolk demanded to speak with the manager and then turned toward

       Detective Rogers, looking directly at him, and shoved Detective Rogers in the

       chest, pushing him back several feet. This evidence amply establishes that

       Norfolk committed the offense of battery against a public safety official. That

       is, Norfolk knowingly or intentionally touched Detective Rogers in a rude,

       insolent, or angry manner while Detective Rogers, a public safety official, was

       engaged in his official duty. See Ind. Code § 35-42-2-1(c), (e)(2). 1


[11]   Moreover, while the jury could reasonably infer that Norfolk knew that

       Detective Rogers was a police officer when he looked at him in full uniform

       before shoving him, this was not a required finding. In Owens v. State, 742

       N.E.2d 538 (Ind. Ct. App. 2001), trans. denied, the defendant had been

       convicted of battering an undercover police officer and, on appeal, challenged

       the sufficiency of the evidence on the basis that the State failed to prove beyond

       a reasonable doubt that he knew his victim was a law enforcement officer.

       Looking to Ind. Code § 35-41-2-2(d) 2 in conjunction with the battery statute, we

       concluded: “The conduct prohibited in a battery is the rude, insolent, or angry

       touching, and this is the conduct that must be done knowingly or intentionally




       1
         Pursuant to subsection (e)(2) of the battery statute, a battery offense is elevated from a Class B misdemeanor
       to a Level 6 felony if it is “committed against a public safety official while the official is engaged in the
       official’s official duty.”
       2
         “Unless the statue defining the offense provides otherwise, if a kind of culpability is required for
       commission of an offense, it is required with respect to every material element of the prohibited conduct.” Id.
       (emphasis added).

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1387 | November 6, 2019                      Page 5 of 7
       by the actor.” Owens, 742 N.E.2d at 543; see also Markley v. State, 421 N.E.2d

       20, 21 (Ind. Ct. App. 1981) (“‘[P]rohibited conduct’ and ‘element’ within IC 35-

       41-2-2(d) are not synonymous. If the legislature had intended culpability to

       apply to every material element, the phrase ‘of the prohibited conduct’ would

       be superfluous.”); cf. Leonard v. State, 73 N.E.3d 155, 162 (Ind. 2017) (“Though

       the victims’ identities were material elements of the offense, the identities are

       not part of the prohibited conduct.”). Thus, we concluded that although

       “bodily injury to a law enforcement officer” was a material element of the

       charged offense, serving as an aggravating circumstance increasing the penalty

       for the battery, the element could be proven “without proof of any culpability

       separate from the culpability required for the conduct elements of the offense.”

       Owens, 742 N.E.2d at 543.


[12]   We reach the same conclusion in this case. That is, the State was not required

       to prove Norfolk knew that Detective Rogers was a public safety official when

       Norfolk pushed him. To establish this aggravating circumstance, it was enough

       for the State to prove beyond a reasonable doubt that Detective Rogers was a

       public safety official engaged in his official duty when Norfolk committed the

       battery, facts which Norfolk does not dispute. 3




       3
        The vast majority of the aggravating circumstances listed in the battery statute do not include a mens rea,
       but there are exceptions. For example, a battery offense may be elevated to a Level 6 felony if it “results in
       bodily injury to a pregnant woman if the [defendant] knew of the pregnancy. I.C. § 35-42-2-1(g)(3) (emphasis
       added); see also I.C. § 35-42-1(f) (offense elevated if the defendant “knew or recklessly failed to know that the
       bodily fluid or waste placed on another person was infected with hepatitis, tuberculosis, or human

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1387 | November 6, 2019                      Page 6 of 7
[13]   Judgment affirmed.


       Brown, J. and Tavitas, J, concur.




       immunodeficiency virus”). Thus, the Legislature can and does include a mens rea within an element
       establishing an aggravating circumstance where one is intended.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1387 | November 6, 2019              Page 7 of 7
