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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: PHILLIP SKODINSKI South Bend, Indiana

FILED
May 21 2009, 9:07 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana HENRY A. FLORES, JR. Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
JEROME A. OSBORN, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 71A05-0812-CR-721

APPEAL FROM THE ST. JOSEPH SUPERIOR COURT The Honorable Roland W. Chamblee, Jr., Judge Cause No. 71D08-0703-FC-84

May 21, 2009 MEMORANDUM DECISION - NOT FOR PUBLICATION DARDEN, Judge

STATEMENT OF THE CASE Jerome A. Osborn appeals his conviction, after a jury trial, of one count of attempted battery, as a class C felony. We affirm. ISSUE Whether sufficient evidence supports his conviction. FACTS At approximately 8:00 p.m. on March 25, 2007, Officers Kelly Waite and Charles Rothy were investigating vacant properties for possible squatters in an area of South Bend. After the officers had checked the vacant house at 4319 South Main, they walked in an eastward direction toward the driveway that paralleled a five-foot retaining wall topped by a wire fence. The ground was elevated higher on the other side of the wall, where they observed Osborn walking in their direction. Waite pointed his flashlight at Osborn, and Rothy said "hello." Osborn responded, "get that f***ing light out of my eyes." (Tr. 88-89). Waite responded, "dont tell me to take the light out of your eyes." (Tr. 56). Osborn then said, "here is why," and "pulled out a handgun and pointed it at [Waite]." (Tr. 201, 56). When Rothy saw Osborn point the handgun "at [Waite]," he "yelled gun and . . . started to draw [his] weapon." (Tr. 91, 92). As he was "drawing [his] weapon, Rothy "s[aw] a flash * * *, from Mr. Osborns gun." (Tr. 92). Both Waite and Rothy fired their weapons in the direction of Osborn

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