Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                      Jul 02 2014, 5:55 am
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:

TIMOTHY J. BURNS                                    GREGORY F. ZOELLER
Indianapolis, Indiana                               Attorney General of Indiana

                                                    CHANDRA K. HEIN
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

DAVID WICKIZER,                                     )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )      No. 49A05-1310-CR-518
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                APPEAL FROM THE MARION COUNTY SUPERIOR COURT
                           The Honorable Amy Jones, Judge
                          Cause No. 49F08-1208-CM-56240



                                           July 2, 2014


                 MEMORANDUM DECISION - NOT FOR PUBLICATION

BROWN, Judge
       David Wickizer appeals his conviction for the offense of battery as a class A

misdemeanor. Wickizer raises one issue which we revise and restate as whether the State

presented sufficient evidence to sustain Wickizer’s conviction for battery on a law

enforcement officer as a class A misdemeanor. We affirm.

                        FACTS AND PROCEDURAL HISTORY

       The facts most favorable to the conviction follow. Marsha Konrad volunteered for a

homeless organization called Meet Me Under the Bridge. Through her volunteering, she met

Wickizer, and helped him lease an apartment. On August 14, 2012, Wickizer called Konrad

and asked for help. Konrad and her brother, Chris Albrecht, went to Wickizer’s apartment

and found him lying face down on the floor. Konrad and Albrecht noticed an empty pill

bottle and an empty whiskey bottle near Wickizer. Konrad called 911. While waiting for the

ambulance to arrive, Konrad and Albrecht carried Wickizer outside and set him down in a

downward sloped grassy area in front of the apartment building. Officer Adam Chappell of

the Indianapolis Metro Police Department (“IMPD”), Wayne Township EMTs, and

paramedics were dispatched “to a suicidal person” who “swallowed two bottles of

Oxycodone.” Transcript at 6, 15.

       When Officer Chappell arrived on the scene, he observed Wickizer lying in the grass

in front of his apartment, appearing to be extremely intoxicated, with slurred speech and a

strong odor of alcohol on his person. Wickizer was “rolling around” and was “extremely

agitated.” Id. at 8. Officer Chappell attempted multiple times to turn Wickizer towards him

so that he could speak with him, but Wickizer would continually become angry and roll back

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over to avoid Officer Chappell and the other personnel. Wickizer “just kept yelling and

continued to roll away from [Officer Chappell, the paramedics and the EMTs] and after

about the third time [Officer Chappell] rolled [Wickizer] back over to try to talk to him,

[Wickizer] kicked at the EMT’s [sic].” Id. at 9. Wickizer’s eyes were open the majority of

the time Officer Chappell dealt with him. The fourth time Officer Chappell turned Wickizer,

he rolled up against Officer Chappell’s legs and wrapped both of his arms around his left leg,

just above Officer Chappell’s back-up weapon, which was in a holster on his left ankle.

Officer Chappell tried to pull his leg away because he feared what might happen if Wickizer

was able to pull his ankle holster loose. As Officer Chappell felt the ankle holster slip from

his ankle, he struck Wickizer “to get him to disengage from [his] weapon.” Id. at 10.

Wickizer had a small laceration above his right eyebrow that began to bleed. Wickizer

released Officer Chappell’s leg, but continued to yell and scream as he was loaded into the

ambulance. After a few minutes, Wickizer apologized to Officer Chappell and began yelling

at a paramedic.

       On August 16, 2012, the State charged Wickizer with battery on a law enforcement

officer as a class A misdemeanor. On October 2, 2013, the case proceeded to a bench trial.

Officer Chappell testified to the foregoing facts. After the State rested, Wickizer moved for

an involuntary dismissal. After some discussion, the court stated:

       I think that the testimony that’s been presented here today, not so much with
       regard to just rolling into the officer but in regards to [Wickizer] latching onto
       his leg and refusing to let go to the point where the officer did deliver one
       strike to Mr. Wickizer’s face to get him to disengage from his leg that that was
       a rude, insolent or angry touching. With regard to the totality of the

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       circumstances that have also been presented so the Motion for 41B will be
       denied.

Id. at 23. Konrad testified that she told the officers at the scene that Wickizer took pills and

tried to kill himself. Konrad also testified that she never saw Wickizer grab Officer

Chappell’s leg. She stated that after Wickizer was struck, he said: “What the F’s going on

here?” Id. at 32. She also testified that Wickizer did not know where he was or what was

going on but that he knew who she was. On cross-examination, she testified that there was

an officer between her and Wickizer. The court found Wickizer guilty as charged and on the

same day sentenced him to 365 days incarceration with 357 days suspended to probation.

                                        DISCUSSION

       The sole issue is whether the State presented sufficient evidence to sustain Wickizer’s

conviction for battery on a law enforcement officer as a class A misdemeanor. When

reviewing the sufficiency of the evidence to support a conviction, we must consider only the

probative evidence and reasonable inferences supporting the verdict. Drane v. State, 867

N.E.2d 144, 146 (Ind. 2007). We do not assess witness credibility or reweigh the evidence.

Id. We consider conflicting evidence most favorably to the trial court’s ruling. Id. We

affirm the conviction unless “no reasonable fact-finder could find the elements of the crime

proven beyond a reasonable doubt.” Id. (quoting Jenkins v. State, 726 N.E.2d 268, 270 (Ind.

2000)). It is not necessary that the evidence overcome every reasonable hypothesis of

innocence. Id. at 147. The evidence is sufficient if an inference may reasonably be drawn

from it to support the verdict. Id.


                                               4
       The offense of battery on a law enforcement officer is governed by Ind. Code § 35-42-

2-1(a)(1)(B), which provides in relevant part that “[a] person who knowingly or intentionally

touches another person in a rude, insolent, or angry manner commits battery, . . . a Class A

misdemeanor if . . . it is committed against a law enforcement officer . . . .” “A person

engages in conduct ‘knowingly’ if, when he engages in the conduct, he is aware of a high

probability that he is doing so.” Ind. Code § 35-41-2-2(b) (2004). The charging information

filed by the State alleged in part that Wickizer “did knowingly touch [Officer Chappell] . . . .”

Appellant’s Appendix at 16. Thus, to convict Wickizer of battery on a law enforcement

officer as a class A misdemeanor, the State needed to prove that Wickizer knowingly touched

Officer Chappell in a rude, insolent, or angry manner.

       Voluntary intoxication may not be used as a defense to dispute the existence of a

mental state that is also an element of a crime. See Ind. Code § 35-41-2-5 (“Intoxication is

not a defense in a prosecution for an offense and may not be taken into consideration in

determining the existence of a mental state that is an element of the offense unless the

defendant meets the requirements of IC § 35-41-3-5.”). Ind. Code § 35-41-2-5 “redefines the

requirement of mens rea to include voluntary intoxication, in addition to the traditional

mental states, i.e., intentionally, knowingly, and recklessly.” Sanchez v. State, 749 N.E.2d

509, 520 (Ind. 2001). “[E]vidence of voluntary intoxication does not negate the mens rea

requirement . . . .” Id. “Rather, it satisfies this element of the crime.” Id.

       Involuntary intoxication is a defense to the crime charged if, as a result of the

intoxication, the defendant was unable to appreciate the wrongfulness of the conduct at the

                                               5
time of the offense. Ellis v. State, 736 N.E.2d 731, 734 (Ind. 2000). An involuntary

intoxication defense disputes the existence of intent. Id. Ind. Code § 35-41-3-5 provides that

“[i]t is a defense that the person who engaged in the prohibited conduct did so while he was

intoxicated, only if the intoxication resulted from the introduction of a substance into his

body: (1) without his consent; or (2) when he did not know that the substance might cause

intoxication.” The defendant has the burden of proving the defense. Melendez v. State, 511

N.E.2d 454, 457-458 (Ind. 1987).

       Wickizer argues that he was suffering from a possible overdose and did not knowingly

touch Officer Chappell in a rude, insolent or angry manner. He contends that he was

“incoherent [and] flailing about in order to gain some balance on a sloped yard.” Appellant’s

Amended Brief at 6. He argues that the touching of Officer Chappell’s leg could be

interpreted as an attempt at stabilization or a way of indicating “Help me!” Id.

       The State maintains that Wickizer acted knowingly when he grabbed Officer

Chappell’s leg and that he did so in a rude, insolent, or angry manner. It notes that Wickizer

was rolling around in the grass and appeared agitated when Officer Chappell arrived and that

despite Officer Chappell’s attempts to turn Wickizer in Officer Chappell’s direction, he

continually resisted and turned uphill to avoid speaking with Officer Chappell and also

attempted to kick the EMTs. The State further argues that Wickizer grabbed Officer

Chappell’s left leg and refused to release it and that, after he was handcuffed and placed in

the back of an ambulance, he apologized to Officer Chappell and then began yelling at the

paramedics that were treating him.

                                              6
       The facts most favorable to the conviction reveal that Wickizer was intoxicated and

had taken pills. This voluntary intoxication satisfies the mens rea requirement. Further,

Wickizer called Konrad before the police arrived, he became angry when the police arrived,

continued to roll away from Officer Chappell, had his eyes open the majority of the time

Officer Chappell dealt with him, and would not release Officer Chappell’s leg. Based upon

the record, we conclude that Wickizer’s actions were performed knowingly. To the extent

that Wickizer argues that the touching was not in a rude, insolent, or angry manner, we

observe that Wickizer was extremely agitated, became angry, was yelling, and wrapped both

his arms around Officer Chappell’s leg and did not let go until struck by Officer Chappell.

Based upon the record, we conclude that the State presented evidence of a probative nature

from which a reasonable trier of fact could have found that Wickizer was guilty of battery on

a law enforcement officer as a class A misdemeanor.

                                      CONCLUSION

       For the foregoing reasons, we affirm Wickizer’s conviction for battery on a law

enforcement officer as a class A misdemeanor.

       Affirmed.

VAIDIK, C.J., and NAJAM, J., concur.




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