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FOR PUBLICATION
ATTORNEY FOR APPELLANT: BARBARA J. SIMMONS Oldenburg, Indiana ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General of Indiana JODI KATHRYN STEIN Deputy Attorney General Indianapolis, Indiana

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

No. 49A02-0605-CR-375

APPEAL FROM THE MARION SUPERIOR COURT CRIMINAL DIVISION, ROOM 19 The Honorable Richard Sallee, Senior Judge The Honorable Israel Cruz, Commissioner Cause No. 49F19-0602-CM-026841

July 6, 2007 OPINION - FOR PUBLICATION

MATHIAS, Judge

Tyhesha Lemon ("Lemon") was convicted in Marion Superior Court of Class A misdemeanor battery. She appeals and argues that the evidence presented is insufficient to support her battery conviction. Concluding that the evidence is insufficient to support Lemon's conviction, we reverse. Facts and Procedural History 1 On the afternoon of February 13, 2006, Lemon, accompanied by her son and a friend, went to the parking lot of Handleman Company in Marion County to place a valentine card on the windshield of a Handleman employee, Ronald Walls ("Walls"). At the time, Lemon was a former girlfriend of Walls. While returning from Lunch, Walls saw Lemon and her friend in the parking lot. Lemon threatened to vandalize Walls's vehicle. Walls proceeded to the Handleman building and spoke to Handleman's Chief Security Officer, Jeffrey Mishler ("Mishler") about the situation. Mishler is a private security guard and is not a law enforcement officer. Walls and Mishler proceeded to walk outside to the parking lot and found Lemon kneeling down near the rear tire on the driver's side of Walls's vehicle. After Mishler observed Lemon in the Handleman parking lot, he issued a verbal challenge to Lemon and tried to determine what she was doing. In response to Mishler's challenge, Lemon stood up and started to back away from the vehicle with her hands in her pockets. Lemon did not vandalize or otherwise damage the vehicle. Mishler told Lemon that she was trespassing. Thereupon, Lemon continued to back away, and

became argumentative, but did not verbally refuse to leave.
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We heard oral argument on May 3, 2007, at Fairfield High School in Goshen. We thank the faculty, staff, and students for their hospitality and counsel for their able presentations.

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When Lemon did not leave instantly, Mishler immediately approached Lemon and attempted to put her in a transport hold to gain control of her. He stated that she was being arrested for trespass. Mishler took hold of Lemon in order to handcuff her. Lemon struggled in an attempt to resist being handcuffed. Mishler attempted to place Lemon over the trunk of a car, but had to force her to the ground to gain physical control. During the struggle, a cut Mishler had received on his hand a few days earlier reopened and began to bleed. According to the testimony at trial, the cut on Mishler's hand may have been opened during the struggle by one of Lemon's fingernails or by the handcuffs scratching his hand. After Lemon was handcuffed, Mishler took Lemon inside the Handleman building to the security office. Lemon continued to struggle on the way to the office. Once inside the security office, Mishler tried to place Lemon over a desk in an attempt to control her, but Lemon continued to struggle and was forced to the floor. While being forced to the floor by Mishler, Lemon sustained a cut lip. Officers from the Marion County Sheriff's Department arrived at the scene and found Lemon lying on the floor inside the security booth with her hands handcuffed behind her back. According to these officers, Lemon cooperated with them as they arrested her for battery, disorderly conduct, and vandalism, but not for trespass. The State charged Lemon with Class A misdemeanor battery, Class A misdemeanor criminal mischief, and Class B misdemeanor disorderly conduct. The State dismissed the criminal mischief charge prior to trial. During a bench trial on March 9, 2006, and following the presentation of the State's evidence, the trial court found Lemon
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not guilty of disorderly conduct. Lemon also moved to dismiss the battery charge, arguing that Mishler did not have the authority to arrest Lemon as he was not a law enforcement officer and Lemon did not commit a felony in his presence. The trial court took the motion under advisement. On April 6, 2006, the trial court determined that Lemon committed a breach of the peace, thus providing Mishler with the right to hold Lemon until officers arrived. Upon that determination the trial court found Lemon guilty of Class A misdemeanor battery. Lemon was then sentenced to sixty days, with fifty-two days suspended. Additional facts will be provided as necessary. Standard of Review Our standard of review for sufficiency claims is well settled. We neither reweigh the evidence nor judge the credibility of the witnesses. Cox v. State, 774 N.E.2d 1025, 1028 (Ind. Ct. App. 2002). We only consider the evidence most favorable to the

judgment and the reasonable inferences that can be drawn therefrom. Id. "Where there is substantial evidence of probative value to support the judgment, it will not be disturbed." Armour v. State, 762 N.E.2d 208, 215 (Ind. Ct. App. 2002), trans. denied. "The

conviction will be affirmed unless we conclude that no reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." Norris v. State, 755 N.E.2d 190, 192 (Ind. Ct. App. 2001), trans. denied. Discussion and Decision Lemon argues that the evidence presented was insufficient to support her battery conviction. To convict Lemon of Class A misdemeanor battery, the State was required to
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prove that Lemon "knowingly or intentionally touch[ed] another person in a rude, insolent, or angry manner" and that the touching resulted "in bodily injury to any other person." Ind. Code

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