SCOTT v. STATE (2025)

MEMORANDUM DECISION

Case Summary

[1] Heather R. Scott was charged with Class B misdemeanor battery. At the bench trial, the court found that the State failed to prove that Scott committed battery but found her guilty of Class B misdemeanor attempted battery as an included offense. Scott now appeals, arguing the trial court erred in finding her guilty of attempted battery because the parties didn't ask the court to consider attempted battery and there was no evidence admitted at trial that she attempted to commit battery. Finding there was evidence of attempt, we affirm.

Facts and Procedural History

[2] In 2024, Scott leased an apartment at Crossroads Village Apartments in Seymour. Haley Keith was the property manager. Scott's lease allowed Crossroads to conduct periodic inspections of her apartment so long as 24-hour notice was given and to provide pest control.

[3] Keith placed a notice on Scott's apartment door on the afternoon of March 18 that an inspection would occur between March 18 and March 21. Tr. Vol. II pp. 16-17, 34; Ex. 2. The notice provided that, if a resident wanted to be present, the resident could call the leasing office to schedule the day and approximate time of the inspection. Ex. 2. Scott did not contact the leasing office. On the afternoon of March 19, Keith placed a second notice on Scott's apartment door that Black Diamond Pest Control would be spraying the apartment between 12:00 p.m. and 5:00 p.m. the next day. Tr. Vol. II pp. 18-19, 34; Ex. 3.

[4] The next day, March 20, Keith, Christopher Ault from maintenance, and Connor Crandle from Black Diamond went to Scott's apartment around 10:00 a.m. They knocked on Scott's door and rang the doorbell. After getting no response, they unlocked the door and yelled “maintenance” several times. Upon entering the apartment, they were confronted by Dennis Watson, Scott's friend who was not on the lease. Watson told them to leave and that Scott was in the shower. Ault left, but Keith and Crandle did not. Shortly thereafter, Scott emerged from the bathroom in a towel and was “screaming” at them to leave. Tr. Vol. II p. 22. According to Keith, Watson was between them when Scott “went to punch [her] but everything changed and she opened her palm and struck [her] in the face,” “brush[ing]” her left eye. Id. at 22, 23. When Keith exclaimed that Scott had just hit her, Scott responded, “if I hit you, you would have teeth missing.” Id. at 22. The police were called.

[5] The State charged Scott with Class B misdemeanor battery. See Ind. Code § 35-42-2-1(c)(1); Appellant's App. Vol. II p. 9. A bench trial was held in September 2024. Keith testified as detailed above. Crandle testified that Scott “kind of outstretched her arm ․ with an open palm and hit [Keith] right across the left side of her face.” Tr. Vol. II p. 38. On cross-exam, Crandle acknowledged that when he spoke to police after the incident, he told them that he “believe[d]” Keith got hit. Id. at 42. Watson, on the other hand, testified that Scott “didn't attack” Keith. Id. at 65. He explained that although Scott was “upset” and “wanted to hit” Keith, he stepped between them, and “no contact” was made. Id. In Watson's words, Scott “attempted to swing, and then she quit.” Id.; see also id. at 66 (Watson testifying that Scott “started swinging”), 67 (Watson testifying that Scott “attempted” to swing).

[6] During closing arguments, the State argued that Keith's and Crandle's testimony established that Scott battered Keith, while defense counsel argued that the evidence didn't establish beyond a reasonable doubt that Scott battered Keith. Neither party asked the trial court to consider attempted battery as an included offense. The trial court noted that neither Scott nor Keith acted “appropriately.” Id. at 72. It concluded that the State failed to prove beyond a reasonable doubt that Scott committed Class B misdemeanor battery. However, the court said, “I do believe that there was enough evidence, based upon both sides’ witnesses, to say that the lesser-included attempted battery was satisfied.” Id. Accordingly, the court entered judgment of conviction for Class B misdemeanor attempted battery.

[7] Scott moved to correct error, challenging the trial court's sua sponte entry of judgment of conviction for Class B misdemeanor attempted battery. See Appellant's App. Vol. II pp. 39-40. After hearing arguments from the parties, the court denied the motion and sentenced Defendant to 120 days suspended to probation.

[8] Scott now appeals.

Discussion and Decision

[9] Scott contends the trial court erred in sua sponte finding her guilty of Class B misdemeanor attempted battery. Her argument is narrow: she claims that the Court of Appeals of Indiana | Memorandum Decision 24A-CR-2776 | April 21, 2025 Page 4 of 7 test from Wright v. State, 658 N.E.2d 563 (Ind. 1995), applies and that under the last step of that test, reversal of her conviction is required.¹

[10] In Wright, our Supreme Court “set out the correct analysis that a trial court is to perform when it is called upon by a party to instruct a jury on a lesser included offense of the crime charged.” Id. at 566. “First, the court must determine whether the lesser offense is inherently or factually included in the charged offense.” Larkin v. State, 173 N.E.3d 662, 668 (Ind. 2021), reh'g denied. “If it is either, the court must then determine whether ‘a serious evidentiary dispute’ exists between the elements that distinguish the offenses.” Id. “If a dispute exists, the court must give the instruction.” Id.

[11] Scott acknowledges that this was a bench trial and thus there were no jury instructions. Nevertheless, she claims that Wright should apply when a trial court “sua sponte consider[s] ․ an included offense.” Appellant's Br. p. 10. Even assuming Wright applies, Scott has failed to establish error.

[12] We begin by noting Scott's concession that Class B misdemeanor attempted battery is an inherently included offense of Class B misdemeanor battery. See id.; see also I.C. § 35-31.5-2-168(2) (providing that “an attempt to commit the offense charged” is an “included offense”). Her only challenge is to the final step of Wright, arguing that “it was improper for the trial court to consider attempted battery as an included offense when there was no serious evidentiary dispute regarding the distinguishing element between attempted battery and battery,” that is, “whether the crime was completed.” Appellant's Br. pp. 10, 11. Instead, she claims that the dispute was whether “the crime occurred at all.” Id. at 11. Scott highlights that Keith and Crandle testified that Scott hit Keith but that her witness, Watson, “testified that there was no contact made between Scott and Keith.” Id. While Watson testified that Scott made “no contact” with Keith, he also testified that Scott was “upset” and “wanted to hit” Keith and that she “attempted to swing” but then “quit.” Because there was a serious evidentiary dispute about whether Scott attempted to batter Keith, Scott's argument fails. We therefore affirm Scott's conviction for Class B misdemeanor attempted battery.

[13] Affirmed.

FOOTNOTES

1.   As the State points out, Scott does not claim that she didn't receive fair notice that she could be convicted of attempted battery. See Appellee's Br. p. 9. Accordingly, we do not address fair notice. See Larkin v. State, 173 N.E.3d 662, 669 (Ind. 2021) (“Without fair notice, the trial court cannot instruct the jury on a lesser included offense, regardless of the Wright analysis.”), reh'g denied; Young v. State, 30 N.E.3d 719, 728 (Ind. 2015) (“Defendants must have ‘fair notice’ of the charges of which they may be convicted, including inherently or factually included lesser offenses.”).

Vaidik, Judge.

Bailey, J., and DeBoer, J., concur.