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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: LAWRENCE M. HANSEN Hansen Law Firm, LLC Noblesville, Indiana

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana MICHAEL GENE WORDEN Deputy Attorney General Indianapolis, Indiana

FILED
of the supreme court, court of appeals and tax court

Jun 18 2012, 9:55 am

IN THE COURT OF APPEALS OF INDIANA
WILLIAM B. CAPPS, JR., Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

CLERK

No. 29A02-1108-CR-694

APPEAL FROM THE HAMILTON SUPERIOR COURT The Honorable Daniel J. Pfleging, Judge Cause No. 29D02-1010-FC-327

June 18, 2012 MEMORANDUM DECISION - NOT FOR PUBLICATION

KIRSCH, Judge

William B. Capps, Jr. ("Capps") appeals from his convictions for one count of battery by means of a deadly weapon1 as a Class C felony and one count of criminal confinement2 as a Class C felony. Capps presents the following restated issues for our review: I. Whether the trial court erred by denying Capps's motion for a directed verdict on the battery charge because the State failed to prove that he used a deadly weapon when committing the offense; and Whether the trial court committed fundamental error by improperly instructing the jury on the elements of the criminal confinement charge.

II.

We affirm in part, reverse in part, and remand with instructions. FACTS AND PROCEDURAL HISTORY Craig Ricketts ("Ricketts") worked for Capps installing carpet during the summer of 2010. Capps is Ricketts's cousin. On the evening of October 2, 2010, Capps stopped at Ricketts's house in Noblesville, and they eventually drove away in Capps's van. At some point, Ricketts looked at his cell phone to check the time. Capps grabbed the cell phone and struck Ricketts with his fist. Capps had accused Ricketts of stealing his marijuana plants. Capps believed that Jeff Hunter ("Hunter") was involved with Ricketts in stealing Capps's marijuana crop and instructed Ricketts to call Hunter to meet him at a nearby truck stop. There, Capps told Hunter to look at something in the van. As Hunter walked to the back of the van, Capps struck him hard in the temple and temporarily knocked him out. Capps continued hitting Hunter while asking him what he did with the marijuana.

1

See Ind. Code

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