Edward Loraine, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2024)

MEMORANDUM DECISION

Tavitas, Judge.

Case Summary

[1] Following a bench trial, Edward Loraine (“Edward”) was convicted of battery on a public safety official, a Level 6 felony, and intimidation, a Class A misdemeanor. On appeal, Edward claims that: (1) the State failed to present sufficient evidence to support his battery conviction; and (2) the prosecuting attorney committed misconduct. We disagree and, accordingly, affirm.

Issues

[2] Edward presents two issues for our review, which we restate as:

I. Whether the State presented sufficient evidence to support Edward's conviction for battery on a public safety official, a Level 6 felony.

II. Whether the prosecuting attorney committed misconduct by insinuating that Edward planned to file a civil action against Steuben County and by withholding evidence.

Facts

[3] On June 5, 2022, Edward was at the home of his father, Matthew, and mother, Billie, (collectively “the Loraines”) on Jimmerson Lake in Steuben County. Matthew drank “a few” beers. Tr. Vol. II p. 50. Edward also drank a large amount of tequila and was very intoxicated. Edward began to argue with his parents and was screaming at them. At the same time, the Loraines's seventy-five-year-old next-door neighbor, Richard Kroemer, went to his deck and could hear screaming coming from the Loraines's house. As the arguing continued unabated, Kroemer yelled at the Loraines and asked them to “take it in the house.” Id. at 73. This enraged Edward, who charged toward the elderly Kroemer and yelled, “I'm going to come over there and kick your f**king ass, I'm going to beat the f**k out of you.” Id. Kroemer called 911 and went inside his house.

[4] Steuben County Sheriff's Department (“SCSD”) Deputy Shane Machette was the first to respond to the 911 call. Deputy Machette spoke with Kroemer, who was visibly shaking due to Edward's threats. After speaking with Kroemer, Deputy Machette went to the Loraines's house, where he spoke with Edward and Matthew. Deputy Machette observed a small cut on Matthew's forehead, but Matthew claimed that the mark on his head was from a sunburn. Matthew told the Deputy that Edward had been drinking heavily. Edward told Deputy Machette, “take me to jail, f**k you, I want to go to jail.” Id. at 94. Edward also kept getting very close to Deputy Machette, prompting the deputy to push Edward away. Because of this behavior, Deputy Machette put Edward in handcuffs and sat him in the patrol car. SCSD Deputy Alex Harris arrived to assist and spoke with Matthew. Matthew told Deputy Harris that Edward tackled him, though at trial, Matthew denied saying this.

[5] The deputies determined that they had probable cause to arrest Edward for domestic battery. Before taking Edward to jail, however, the deputies first took Edward to the hospital to get medical clearance to jail Edward. At the hospital, Edward was belligerent and aggressive toward the medical personnel. Edward managed to move his cuffed hands from behind his back to his front. Edward then tried to leave the hospital, at which point the deputies handcuffed him to the bed. The hospital cleared Edward, and Deputy Machette transported Edward to the jail.

[6] Upon arriving at the jail, Deputy Machette got out of his patrol car to place his handgun in a safety locker. Deputy Harris opened the door of Deputy Machette's patrol car. Deputy Harris asked Edward to get out of the car, but Edward refused. Deputy Harris then pulled Edward from the car and placed him against the wall. Edward tensed up, and the deputies had to physically lift and carry Edward to another wall, placing their arms underneath Edward's armpits. At some point, Edward spit against the wall as the deputies patted him down for contraband. Because of Edward's obstinate behavior, jail commander Lieutenant Braxton Amos requested a restraint chair.

[7] The deputies and jail staff tried to sit Edward in the restraint chair. Edward, however, did not sit down and instead tensed up, placed his feet on the floor, and arched his back to avoid being strapped into the chair. After forcing Edward to sit, the deputies attempted to apply ankle restraints, but Edward extended his left leg to avoid the restraint. Lieutenant Amos used his hand to strike Edward on the left thigh, and Edward placed his foot on the ground. Lieutenant Amos then placed the tip of his shoe on Edward's left foot. Moments later, Edward, using his unsecured right leg, kicked Lieutenant Amos in the knee. Lieutenant Amos momentarily lost his balance but quickly recovered. Eventually, the deputies and jail staff were able to securely place Edward in the restraint chair.

[8] On June 6, 2022, the State charged Edward with two counts: (1) battery on a public safety official, a Level 6 felony; and (2) domestic battery, a Class A misdemeanor. The trial court entered a discovery order at the initial hearing. At that time, the prosecutor's office had not received the video from the jail that recorded Edward being brought into the jail. The State later claimed that the prosecutor does not automatically receive such videos in all cases. Edward's defense counsel asked the prosecutor to resolve the case by allowing Edward to participate in the Veteran's Court program, as Edward had served in the United States Navy. The prosecutor agreed, and, on July 18, 2022, Edward entered into a plea agreement with the State in which he would plead guilty to a lesser-included offense of battery against Lieutenant Amos, the domestic battery charge would be dismissed, and Edward would receive a suspended sentence along with his participation in the Veteran's Court program. The trial court took the plea under advisement, pending Edward's successful completion of the Veteran's Court program.

[9] At some point thereafter, Edward hired a new attorney. This attorney learned that Edward's mother, Billie, had obtained a copy of the jail video showing Edward's encounter with the deputies and jail staff.¹ Upon seeing this video, Edward's new attorney filed a motion to set aside the guilty plea. The trial court held a hearing on this motion on December 21, 2022. Edward's attorney stated that Edward's first counsel told Edward that obtaining the video was impossible and that pleading guilty was Edward's only option. The prosecutor stated that the quick resolution led to the case being resolved before the State ever received the video from the jail. The prosecutor argued:

[T]o me it seems at this point, [Edward has] bargained for [a] deal, he got the deal, and now later he's trying to manipulate the system and get out of it. One, is he trying to sue the jail and he wants to try to get out, because we're using excessive force talk a lot? Is it his intent to sue the jail and he[ ] thinks that trying to get out of this guilty plea is going to help him do that easier? Or, did he just decide later to get buyer[’]s remorse and he doesn't want to [sic] Veteran's Court because it's too big of pain in the butt despite the fact that it would help him. Neither of those reasons is a valid reason to get out of the contract that he freely entered in to.

Id. at 34-35 (emphasis added).

[10] The trial court granted Edward's motion and vacated the guilty plea. Edward then waived his right to a jury trial and requested a bench trial. The prosecutor indicated that the State would file an additional charge of intimidation based on the threats Edward made to Kroemer and stated that the only reason it had not filed the charges earlier was that the case was resolved so quickly by the guilty plea. The State then sought and received permission from the trial court to charge Edward with intimidation, a Class A misdemeanor. Edward did not move to dismiss the new charge.

[11] A bench trial was held on April 27, 2023. Edward testified on his own behalf. During cross-examination, the prosecutor asked Edward: “Are you planning on suing Steuben County over this case?” Id. at 191. Edward's counsel immediately objected on grounds of relevance, and the trial court sustained the objection. Id. at 191-92. The trial court found Edward guilty of battery on a public safety official and intimidation, but not guilty of domestic battery. On June 19, 2023, the trial court sentenced Edward on the battery conviction to 547 days, with ninety days executed and 457 days suspended; on the intimidation conviction, the trial court sentenced Edward to a concurrent term of sixty days executed. Edward now appeals.

Discussion and Decision

I. The State presented sufficient evidence to support Edward's conviction for battery on a public safety official.

[12] Edward first claims that the State failed to present sufficient evidence to support his conviction for battery on a public safety official. Claims of insufficient evidence “warrant a deferential standard, in which we neither reweigh the evidence nor judge witness credibility.” Powell v. State, 151 N.E.3d 256, 262 (Ind. 2020) (citing Perry v. State, 638 N.E.2d 1236, 1242 (Ind. 1994)). “When there are conflicts in the evidence, the jury must resolve them.” Young v. State, 198 N.E.3d 1172, 1176 (Ind. 2022). We consider only the evidence supporting the judgment and any reasonable inferences drawn from that evidence. Powell, 151 N.E.3d at 262 (citing Brantley v. State, 91 N.E.3d 566, 570 (Ind. 2018)). “We will affirm a conviction if there is substantial evidence of probative value that would lead a reasonable trier of fact to conclude that the defendant was guilty beyond a reasonable doubt.” Id. at 263. We 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. The evidence is sufficient if an inference may reasonably be drawn from it to support the verdict.” Sutton v. State, 167 N.E.3d 800, 801 (Ind. Ct. App. 2021) (quoting Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007)).

[13] The crime of battery on a public safety official is defined by statute as follows:

(c) Except as provided in subsections (d) through (k), a person who knowingly or intentionally:

(1) touches another person in a rude, insolent, or angry manner[.]

* * * * *

commits battery, a Class B misdemeanor.

* * * * *

(e) The offense described in subsection (c)(1) or (c)(2) is a Level 6 felony if one (1) or more of the following apply:

* * * * *

(2) The offense is committed against a public safety official[2] while the official is engaged in the official's official duty, unless the offense is committed by a person detained or committed under IC 12-26.[3]

Ind. Code § 35-42-2-1. Accordingly, to convict Edward as charged, the State was required to prove that he: (1) knowingly or intentionally; (2) touched Lieutenant Amos; (3) in a rude, insolent, or angry manner; (4) while Lieutenant Amos was engaged in his duties.

[14] The State presented testimonial and video evidence establishing that Edward kicked Lieutenant Amos while Lieutenant Amos was on duty assisting other officers trying to secure Edward in a restraint chair as Edward was being processed at the jail. This evidence is sufficient to show that Edward knowingly touched Lieutenant Amos, a public safety official, in a rude, insolent, or angry manner while Lieutenant Amos was engaged in his duties.

[15] Edward, however, claims that Lieutenant Amos was not acting in his official duties because the police were using excessive force. In Patterson v. State, we explained:

The general rule in Indiana is that a private citizen may not use force in resisting a peaceful arrest by an individual who he knows, or has reason to know, is a police officer performing his duties regardless of whether the arrest in question is lawful or unlawful. However, when an officer uses unconstitutionally excessive force in effecting an arrest, that officer is no longer lawfully engaged in the execution of his or her duty.

11 N.E.3d 1036, 1039 (Ind. Ct. App. 2014) (citations and internal quotations omitted).

[16] Claims that a law enforcement officer used excessive force during an arrest are analyzed under the Fourth Amendment to the United States Constitution and its “reasonableness” standard. Id. (citing Graham v. Connor, 490 U.S. 386, 395, 109 S. Ct. 1865, 1871 (1989)).

Because the Fourth Amendment test of reasonableness is not capable of precise definition or mechanical application, its proper application requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight. The “reasonableness” of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. However, the “reasonableness” inquiry in an excessive force case is an objective one; the question is whether the officers’ actions are “objectively reasonable” in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.

Id. at 1039-40 (citing Graham, 490 U.S. at 396-97, 109 S. Ct. at 1872).

[17] Edward claims that the evidence presented by the State shows that the police used excessive force when placing him in the restraint chair, thereby justifying his kicking Lieutenant Amos. Edward relies on evidence and inferences that do not support the trial court's decision. For example, Edward claims that his foot was injured and that, when Lieutenant Amos stepped on his foot, it caused Edward great pain. The trial court, however, was not required to believe Edward's testimony. Edward also claims that Lieutenant Amos “stomped” on his foot. Appellant's Br. p. 16; Tr. Vol. I. p. 212. Lieutenant Amos, however, testified that he did not stomp on Edward's foot and only placed the tip of his shoe on Edward's foot to keep Edward from raising his leg in an effort to avoid application of the ankle restraints.⁴

[18] Edward also claims that Lieutenant Amos “punched” him multiple times. Appellant's Br. p. 16. Again, however, this is a mischaracterization of Lieutenant Amos's actions. Lieutenant Amos testified that he delivered “strikes” to Edward's legs only after Edward refused to lower his leg so that the ankle restraints could be applied. Tr. Vol. I pp. 141-42. Lieutenant Amos also testified that he delivered the strikes in accordance with his training. Id. at 142.

[19] Edward also argues, “[w]hile this Court may be constrained from reweighing the credibility of witnesses ․ there is video footage in this case that clearly supports Edward's version of the events.” Appellant's Br. at 17. This misconstrues both our standard of review and the content of the video. As noted above, we generally “give[ ] ‘almost total deference’ to a trial court's factual determinations regarding credibility of witnesses and weight of evidence.” Quinn v. State, 126 N.E.3d 924, 927 (Ind. Ct. App. 2019) (quoting Love v. State, 73 N.E.3d 693, 699 (Ind. 2017)). In Love, our Supreme Court recognized a narrow exception to this general rule, and held:

[I]n those instances where video evidence indisputably contradicts the trial court's findings, relying on such evidence and reversing the trial court's findings do not constitute reweighing. The instances contemplated by this exception are rare and must be such that no reasonable person could view the video and conclude otherwise. When determining whether video evidence indisputably contradicts a trial court's determination, we consider the video quality, including the angle, lighting, graininess, and whether the video is a complete depiction of the events at issue[.] In cases where the video is somehow not clear or complete or is subject to different interpretations, we must defer to the trial court's interpretation.

Quinn, 126 N.E.3d at 928 (citing Love 73 N.E.3d at 699-700) (internal quotations omitted).

[20] Edward claims that the video in this case “clearly supports Edward's version of the events.” Appellant's Br. p. 17. Our review of the video leads us to a different conclusion. Clearly, the deputies and jail personnel did not treat Edward with kid gloves. But Edward was defiant from the time he refused to get out of the patrol car until he was eventually secured in the restraint chair. We agree with the State that the video depiction is consistent with the testimony of the deputies, including that of Lieutenant Amos.

[21] We, accordingly, reject Edward's reliance on Carmouche v. State, 188 N.E.3d 482 (Ind. Ct. App. 2022). In that case, the defendant was convicted of battery resulting in bodily injury after he slammed a door that allegedly hit the victim in the knee. The victim testified that the door hit her knee and resulted in pain and swelling the following day. Id. at 484. On appeal, a panel of this Court reversed the conviction after reviewing security video footage of the incident. This video showed that:

Though the door hits her foot, there is always daylight between the door and [the victim]’s knee. Other relevant factors support our conclusion that the video indisputably contradicts the trial court's findings: the video may be grainy, but it is well-lit, the angle affords a good view of the altercation, and the entire incident is recorded. The State did not offer evidence to explain how the contact with [the victim]’s left foot would cause her right knee to ache.

Id. at 486. The Carmouche Court, therefore, held that the evidence was insufficient to support the defendant's conviction for battery resulting in bodily injury. Id.

[22] In contrast, here, the video is consistent with the testimony of the deputies and does not show Lieutenant Amos stomping on Edward's foot as Edward claims. Instead, it shows law enforcement forcibly dealing with a combative, belligerent detainee. Moreover, the video is exceptionally clear, and the camera was positioned so that the entire incident is clearly depicted. In short, the video evidence does not indisputably show that the deputies and jail staff used excessive force against Edward. Because they did not use excessive force, Edward's claim that Lieutenant Amos was not acting in his official capacity at the time Edward kicked the Lieutenant in the knee is unavailing. The evidence is sufficient to sustain Edward's conviction.

II. The prosecutor did not engage in misconduct.

[23] Edward next claims that the prosecutor engaged in misconduct by suggesting that Edward was planning to sue the county for the deputies’ alleged use of excessive force and by withholding the jail video. Upon review of a claim of prosecutorial misconduct properly raised in the trial court, we determine: “(1) whether misconduct occurred, and if so, (2) whether the misconduct, under all of the circumstances, placed the defendant in a position of grave peril to which he or she would not have been subjected otherwise.” Ryan v. State, 9 N.E.3d 663, 667 (Ind. 2014). A prosecutor has the duty to present a persuasive final argument, and, accordingly, placing a defendant in grave peril is, by itself, not misconduct. Id. Whether a prosecutor's statements constitute misconduct is measured by reference to case law and the Rules of Professional Conduct. Id. The gravity of peril is measured by the probable persuasive effect of the misconduct on the factfinder's decision rather than the degree of impropriety of the conduct. Id. Importantly, to preserve a claim of prosecutorial misconduct, the defendant must—at the time the alleged misconduct occurs—request an admonishment, and if further relief is desired, move for a mistrial. Id.

[24] The first instance of alleged misconduct occurred during the hearing on Edward's motion to withdraw his earlier plea of guilty. In arguing against Edward's motion, the prosecutor rhetorically asked, “is [Edward] trying to sue the jail and he wants to try to get out [of his guilty plea] ․ ? Is it his intent to sue the jail and he[ ] thinks that trying to get out of this guilty plea is going to help him do that easier?” Tr. Vol. II pp. 34-35. This statement, however, did not occur during Edward's trial. It was also simply the argument of counsel, which is not evidence. See Fouts v. State, 207 N.E.3d 1257, 1267 (Ind. Ct. App. 2023) (statements by counsel are not evidence), modified on reh'g, 210 N.E.3d 902, trans. denied. Moreover, the prosecutor's argument was ultimately unsuccessful, as the trial court granted Edward's motion. We fail to see how this unsuccessful argument subjected Edward to grave peril.

[25] The other instance of alleged misconduct occurred during the bench trial, when the prosecutor asked Edward on cross-examination if he was planning to sue Steuben County. The trial court sustained Edward's objection to this question. The concern with prosecutorial misconduct in general is that a jury may be influenced in a manner inconsistent with the defendant's right to a fair trial. Here, no such concerns are present as this was a bench trial. In criminal bench trials, we presume that the court disregards inadmissible evidence and renders its decision solely on the basis of relevant and probative evidence. Tibbs v. State, 996 N.E.2d 1288, 1290 (Ind. Ct. App. 2013). Because the trial court sustained Edward's objection to the State's question, we fail to see how Edward was prejudiced.

[26] Edward also claims that the prosecutor committed misconduct by failing to produce the jail video, which he claims was a Brady violation.

Under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963), the State is required to disclose evidence that is favorable to the accused and material to the accused's guilt or punishment. Evidence is material under Brady only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. If the favorable evidence becomes known to the defendant before or during the course of a trial, Brady is not implicated.

Hickingbottom v. State, 121 N.E.3d 648, 656 (Ind. Ct. App. 2019) (citations and internal quotations omitted).

[27] Even if the jail video was material under Brady, it was obtained by Edward before trial. Brady is, therefore, not implicated. Hickingbottom, 121 N.E.3d at 656. The prosecutor also explained to the trial court that, at the time of Edward's guilty plea, the prosecutor's office was not yet in possession of the jail video. Under these facts and circumstances, we cannot say that the prosecutor committed misconduct.⁵

Conclusion

[28] The State presented sufficient evidence to support Edward's conviction for battery on a public safety official. And the evidence favorable to the trial court's judgment does not support Edward's claim that law enforcement used excessive force when placing him in the restraint chair at the jail. Edward was, therefore, not justified in using force to resist law enforcement. Nor did the prosecutor commit misconduct. Accordingly, we affirm the trial court's judgment.

[29] Affirmed.

FOOTNOTES

1.   Billie apparently obtained the video through a request under the Indiana Freedom of Information Act. See Tr. Vol. II pp. 25-26.

2.   A “public safety official” is defined by subsection (a) to include a “law enforcement officer.” Ind. Code § 35-42-2-1(a)(1). Edward makes no argument that Lieutenant Amos was not a law enforcement officer and, therefore, not a public safety official.

3.   Indiana Code Chapter 12-26 involves the treatment of the mentally ill and is not applicable here.

4.   As discussed below, Lieutenant Amos's testimony is corroborated by the video evidence, whereas Edward's testimony is not.

5.   For the first time in his reply brief, Edward claims that the prosecutor also committed misconduct by filing the additional charge of intimidation after the trial court granted Edward's motion to withdraw his guilty plea. This argument is waived for various reasons. First, it is axiomatic that new arguments cannot be presented for the first time in a reply brief. Dunn v. State, 202 N.E.3d 1158, 1165 (Ind. Ct. App. 2023), trans. denied. Further, Edward did not move to dismiss the charge. Failure to challenge an amendment to a charging information generally results in waiver of the issue on appeal. Grimes v. State, 84 N.E.3d 635, 640 (Ind. Ct. App. 2017), trans. denied. We also note that Edward's citation to our recent opinion in Hogg v. State, No. 23A-CR-525 (Ind. Ct. App. Mar. 27, 2023), is premature. At the time Edward filed his reply brief, and at the time of this decision, the Hogg opinion has not yet been certified. Indiana Appellate Rule 65(E) provides: “The trial court, Administrative Agency, and parties shall not take any action in reliance upon the opinion or memorandum decision until the opinion or memorandum decision is certified.”

Memorandum Decision by Judge Tavitas

Mathias, J., and Weissmann, J., concur.