Larry Shine v. State of Indiana (NFP)

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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 establishing the defense of res judicata, collateral estoppel, or the law of the case. ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE: BARBARA J. SIMMONS Batesville, Indiana STEVE CARTER Attorney General of Indiana GARY DAMON SECREST Deputy Attorney General Indianapolis, Indiana IN THE COURT OF APPEALS OF INDIANA LARRY SHINE, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) ) No. 49A02-0602-CR-149 APPEAL FROM THE MARION SUPERIOR COURT The Honorable Carol Orbison, Judge Cause No. 49G17-0510-CM-186210 November 1, 2006 MEMORANDUM DECISION - NOT FOR PUBLICATION BAKER, Judge Appellant-defendant Larry Shine appeals his convictions for Battery, 1 a class B misdemeanor, and Resisting Law Enforcement,2 a class A misdemeanor. Specifically, Shine argues that there is insufficient evidence supporting his convictions. Finding no error, we affirm the judgment of the trial court. FACTS On the morning of October 16, 2005, Shine and Josette Dodson, who were in a romantic relationship, drove together to a vacant lot in Marion County where they engaged in a discussion about their relationship. After talking for ten to fifteen minutes, their conversation escalated into an argument during which they tussled. Tr. p. 15, 24. Dodson saw a police car passing by, exited Shine s vehicle, and ran toward the police car, screaming. As she exited Shine s vehicle, Shine grabbed her, leaving scratches on her arm and on her right cheek. Indianapolis Police Officer Donald Randall heard Dodson s screams and stopped to investigate. She ran to his vehicle, continuing to scream. Officer Randall instructed Dodson to wait near his vehicle while he walked over to Shine s car to investigate. The officer made brief eye contact with Shine, who was standing at the rear of his vehicle. Officer Randall observed that Shine was wearing an orange shirt over a white tank top, and both Dodson and Shine later corroborated the accuracy of the officer s description of Shine s clothing. The officer was approximately fifteen feet away from Shine when Shine began to flee, which he continued to do even after Officer Randall identified himself as a police officer and yelled three times for Shine to stop. When the 1 Ind. Code § 35-42-2-1. 2 officer was approximately six feet away from Shine, Shine climbed over a fence and escaped. On November 8, 2005, the State charged Shine with class A misdemeanor domestic battery, class A misdemeanor battery, and class A misdemeanor resisting law enforcement. On January 19, 2005, the court granted the State s motion to dismiss the domestic battery count and to amend the battery count to a class B misdemeanor. Also on January 19, a bench trial was held and the trial court found Shine guilty of class B misdemeanor battery and class A misdemeanor resisting law enforcement. The trial court sentenced Shine to 180 days of incarceration with 175 days suspended for his battery conviction and to 365 days of incarceration with 355 days suspended for his resisting law enforcement conviction, with the sentences to run concurrently. The trial court also ordered Shine to complete twelve weeks of anger management counseling. Shine now appeals. FACTS Shine argues that the evidence is insufficient to support his convictions. As we consider this argument, we observe that the standard of review for claims of insufficient evidence is well established. We will neither reweigh the evidence nor assess the credibility of witnesses. Smith v. State, 725 N.E.2d 160, 161 (Ind. Ct. App. 2000). Instead, we will consider only the evidence most favorable to the judgment together with the reasonable inferences that may be drawn therefrom. Alspach v. State, 755 N.E.2d 209, 210 (Ind. Ct. App. 2001). If a reasonable trier of fact could have found the defendant guilty based on the probative evidence and reasonable inferences drawn therefrom, then we will affirm the 2 Ind. Code § 35-44-3-3. 3 conviction. Smith, 725 N.E.2d at 161. A reasonable inference drawn from the evidence, alone, may be enough evidence to support a conviction. Herron v. State, 808 N.E.2d 172, 176 (Ind. Ct. App. 2004), trans. denied. Turning first to Shine s battery conviction, we note that the State was required to prove that Shine knowingly or intentionally touched Dodson in a rude, insolent, or angry manner. I.C. § 35-42-2-1(a). Any touching, however slight, is battery. Impson v. State, 721 N.E.2d 1275, 1285 (Ind. Ct. App. 2000). Here, Shine admits that he and Dodson argued in his vehicle but claims that he made no physical contact with her person. Dodson, on the other hand, testified that Shine scratched her face. 3 It was for the trier of fact, not for this court, to determine whose version of the incident to credit. Williams v. State, 714 N.E.2d 671, 673 (Ind. Ct. App. 1999). Shine s emphasis on his testimony is a mere invitation to reweigh the evidence an invitation we decline. There is sufficient evidence, therefore, supporting a conclusion that Shine knowingly and/or intentionally touched Dodson. As to whether he touched her in a rude, insolent, or angry manner, we observe that Dodson testified that Shine grabbed and scratched her when she wanted to get out of the car and was trying to get away . . . . Tr. p. 16. Dodson s testimony is sufficient to sustain a conclusion that Shine touched her in a rude, insolent, or angry manner. Consequently, we conclude that there is sufficient evidence supporting Shine s conviction for class B misdemeanor battery. Turning next to Shine s conviction for resisting law enforcement, we note that the 4 State was required to prove that he knowingly and intentionally fled from Officer Randall after the officer had, by visible or audible means, identified himself and ordered Shine to stop. I.C. § 35-44-3-3(a)(3). The record reveals the following evidence supporting this conviction: (1) Officer Randall was in full uniform when he made eye contact with Shine, tr. p. 25, 29, 32; (2) Shine admitted that when he saw the officer s vehicle as Dodson ran toward it he assumed it was a police car, id. at 35; (3) Officer Randall was within fifteen feet of Shine when Shine fled, after which the officer identified himself as a police officer and yelled three times for Shine to stop, id. at 29, 31-32; (4) Officer Randall was within six feet of Shine when Shine escaped over a fence, id. at 31; and (5) Shine testified that, upon observing what he assumed to be a police car and watching Dodson run toward it, he ran from my passenger side, jumped the fence, and . . . just hid on the side of the building, id. at 35. This evidence is sufficient to support Shine s conviction for resisting law enforcement, and Shine s arguments to the contrary are mere requests for us to reweigh the evidence, which our standard of review does not permit. The judgment of the trial court is affirmed. VAIDIK, J., and CRONE, J., concur. 3 Although Shine argues that he did not hit Dodson and that she suffered no pain, we note that the State does not have to establish that Shine s actions resulted in bodily injury to Dodson to convict him of class B misdemeanor battery. I.C. § 35-42-2-1(a). Thus, this argument must fail. 5

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