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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: BARBARA J. SIMMONS Oldenburg, Indiana

FILED
Aug 29 2008, 10:08 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General of Indiana GARY DAMON SECREST Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
CHARLES WAGNER, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 49A02-0801-CR-63

APPEAL FROM MARION SUPERIOR COURT The Honorable Rebekah F. Pierson-Treacy Cause No.49F19-0710-CM-223797

August 29, 2008

MEMORANDUM DECISION - NOT FOR PUBLICATION

ROBB, Judge

Case Summary and Issue Following a bench trial, Charles Wagner was convicted of battery, a Class A misdemeanor. Wagner appeals, contending there is insufficient evidence to support his conviction. Concluding that the evidence is sufficient to support his conviction, we affirm. Facts and Procedural History The evidence most favorable to the judgment establishes that on October 21, 2007, Jonathan Blythe, Tim Callihan, Jonathan Hickey, and Amanda Johnson were talking in the driveway of the home rented by Callihan and Johnson. Around 3:45 a.m., a group of six individuals made up of Wagner, Bryan Elliot, Jerry Wagner, Kevin Hegewald, Charles Hegewald and Darin Arterbery walked over to the driveway from the street. A confrontation had occurred earlier that night between Blythe and Elliot. Initially,

Arterbery asked Callihan about a boat that Callihan had for sale. At some point Blythe asked Elliot why he had brought the group of individuals over to Callihan's house. Next, Wagner, K. Hegewald and C. Hegewald tackled Blythe on the gravel driveway and began hitting him. Blythe experienced physical pain and sustained injuries to his wrist, knees, forehead, and face. Following the fight, Callihan called the police. An investigating officer arrived at the scene and later arrested Wagner. Wagner presented testimony from two witnesses that Blythe instigated the fight by pushing Elliot and/or hitting C. Hegewald and that Wagner intervened to defend Elliot and/or C. Hegewald. Wagner's evidence also indicated that Blythe tackled Wagner and

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began to choke him. In closing arguments, Wagner claimed that he acted in defense of a third person as an affirmative defense to the battery charge. Discussion and Decision Wagner argues in his appeal that the State presented insufficient evidence to establish the elements of battery or to rebut his affirmative defense of defense of a third person and thus his conviction should be overturned. We disagree. I. Standard of Review In reviewing sufficiency of the evidence claims: [we] must consider only the probative evidence and reasonable inferences supporting the verdict. It is the fact-finder's role, not that of appellate courts, to assess witness credibility and weigh the evidence to determine whether it is sufficient to support a conviction. To preserve this structure, when appellate courts are confronted with conflicting evidence, they must consider it most favorably to the trial court's ruling. Appellate courts affirm the conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt. It is therefore not necessary that the evidence overcome every reasonable hypothesis of innocence. [T]he evidence is sufficient if an inference may reasonably be drawn from it to support the verdict.

Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (citations and quotations omitted) (emphasis in original). Where contradictory or inconsistent testimony is presented at trial, it is up to the trier of fact to resolve such conflicting testimony. Brown v. State, 830 N.E.2d 956, 968 (Ind. Ct. App. 2005).

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II. Defense of a Third Person To sustain a conviction of Class A misdemeanor battery, the State must prove beyond a reasonable doubt that Wagner knowingly or intentionally touched another person in a rude, insolent or angry manner and that the touching resulted in bodily injury to any other person. Ind. Code

Download Charles Wagner v. State of Indiana.pdf

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