MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                 FILED
this Memorandum Decision shall not be
                                                                  Dec 29 2016, 8:08 am
regarded as precedent or cited before any
court except for the purpose of establishing                           CLERK
                                                                   Indiana Supreme Court
the defense of res judicata, collateral                               Court of Appeals
                                                                        and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Kurt A. Young                                           Gregory F. Zoeller
Nashville, Indiana                                      Attorney General of Indiana

                                                        Chandra K. Hein
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Michael Glenn,                                          December 29, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        49A04-1511-CR-2015
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Lisa Borges, Judge
Appellee-Plaintiff.                                     Trial Court Cause No.
                                                        49G04-1311-FA-73295



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1511-CR-2015 | December 29, 2016   Page 1 of 7
[1]   Michael Glenn appeals his conviction of Class B felony aggravated battery. 1

      Glenn argues there was a material variance between the charge and the

      evidence at trial. He also alleges there was insufficient evidence to prove his

      intent beyond a reasonable doubt. We affirm.



                                Facts and Procedural History
[2]   Glenn is an experienced mixed martial arts (“MMA”) 2 fighter who has fought

      professionally several times. On the night of July 21, 2013 and into the

      morning of July 22, 2013, Glenn worked security at the door of a nightclub in

      Indianapolis. As part of his job, he collected the club’s cover charge.


[3]   Felix Achoch arrived at the nightclub at around 1:00 a.m. but refused to pay the

      cover charge. The promoter of the night’s event told Glenn to let Achoch in

      without paying because he was a regular customer. Achoch decided not to stay

      at the nightclub. As Achoch left, Glenn grabbed Achoch and threw him out the

      door. Achoch landed on his feet and continued walking away from the club.

      Glenn followed Achoch and talked about how Achoch did not want to pay the

      cover charge. Glenn “pick[ed] [Achoch] up off the ground by his waist and

      slam[med] him over [Glenn’s] back,” (Tr. at 134), a maneuver the MMA

      community refers to as a “suplex.” (Id. at 127-28.) Achoch landed on his head



      1
          Ind. Code § 35-42-2-1.5 (1997).
      2
        MMA “involves different martial arts. Primarily, it is striking, which could be boxing or kickboxing. Then
      there is the take-down aspect which can involve wrestling, judo, anything involving throws, take-downs.
      Then there is grappling, again, with wrestling or Russian Sambo or Brazilian jujitsu.” (Tr. at 159.)

      Court of Appeals of Indiana | Memorandum Decision 49A04-1511-CR-2015 | December 29, 2016         Page 2 of 7
      and started twitching. Glenn then repeatedly punched Achoch in the face and

      kicked him. By the time Glenn stopped, Achoch was bleeding from the ears.

      Glenn then said, “I told you I was going to have to flex somebody.” (Id. at

      121.) An on-looker equated the word “flex” with “flatten.” (Id.) Glenn also

      yelled “[r]oll the dice, you lose your life.” (Id. at 124.)


[4]   Someone flagged down Officer Scott Rodriguez. Officer Rodriguez found

      Achoch standing underneath an awning. Achoch was bleeding from his ears,

      appeared unsteady on his feet, and did not respond to questions. Police

      summoned an ambulance. Achoch spent eight days in the hospital and

      ultimately died from “complications of multiple blunt force traumatic injuries to

      the head.” (State’s Ex. 21, Dr. Randy Tashjian deposition at 24:14-25:21.) As

      a result of the multiple impacts to Achoch’s head, his brain swelled and his

      skull was fractured in three places.


[5]   On November 13, 2013, the State charged Glenn with Class A felony robbery 3

      and Class B felony aggravated battery. 4 The robbery charge was dismissed.

      The Information regarding the battery charge alleged “Michael Glenn . . . did

      knowingly inflict injury, that is: multiple blunt force injuries, on another person,

      namely: Felix Achoch, that created a substantial risk of death to Felix Achoch,

      by striking and/or kicking at and against the person of Felix Achoch.” (App.




      3
          Ind. Code § 35-42-5-1 (1984).
      4
          Ind. Code § 35-42-2-1.5 (1997).


      Court of Appeals of Indiana | Memorandum Decision 49A04-1511-CR-2015 | December 29, 2016   Page 3 of 7
      Vol. 1 at 31.) On August 24, 2015, the court conducted a bench trial. The trial

      court found Glenn guilty of aggravated battery and said: “Even if there weren’t

      testimony that supported the language ‘striking at,’ there is testimony that

      supports the suplex maneuver which would have, and could have, in that

      situation, caused an injury that could later turn to be fatal.” (Tr. at 222.)



                                Discussion and Decision
                                                  I. Variance

[6]   “A variance is an essential difference between proof and pleading.” Reinhardt v.

      State, 881 N.E.2d 15, 17 (Ind. Ct. App. 2008). To produce reversible error, a

      variance must mislead the defendant in formulating a defense, which causes

      prejudice or harm, or it must pose a double jeopardy risk. Winn v. State, 748

      N.E.2d 352, 356 (Ind. 2001). A double jeopardy risk may arise when the State

      charges a person several times with crimes based on the same set of operative

      facts, as the successive charging may violate the continuing crime doctrine.

      Walker v. State, 932 N.E.2d 733, 736-737 (Ind. Ct. App. 2010), reh’g denied.


[7]   Glenn notes the State charged him with “multiple blunt force injuries . . . that

      created a substantial risk of death . . . by striking and/or kicking at and against .

      . . Achoch,” (App. Vol. 1 at 31), and he argues the State proved only the suplex

      maneuver created a substantial risk of death. We disagree.


[8]   The evidence demonstrated that, after Glenn dropped Achoch onto his head,

      Glenn punched Achoch in the face multiple times. After the suplex, Achoch


      Court of Appeals of Indiana | Memorandum Decision 49A04-1511-CR-2015 | December 29, 2016   Page 4 of 7
       was twitching, but after the punches, Achoch was bleeding from his ears.

       Achoch suffered multiple brain hemorrhages, skull fractures, and contusions on

       the left and frontal lobes of his brain. The forensic pathologist testified Achoch

       died from “complications of multiple blunt force traumatic injuries to the

       head.” (State’s Ex. 21, Dr. Randy Tashjian deposition at 24:14-25:21). That

       testimony demonstrates Achoch died from multiple injuries to his brain, which

       would have included Glenn’s strikes to Achoch’s face while Achoch lay on the

       pavement after Glenn performed the suplex maneuver. Thus, there was no

       variance between the charging information and the evidence presented at trial.

       See, e.g., Matthews v. State, 978 N.E.2d 438, 446 (Ind. Ct. App. 2012)

       (misstatement of street on which defendant had been in public for purposes of

       public intoxication charge was not material variance where charged street was

       one of several involved in the series of events for which Matthews was

       charged), trans. denied.


                                      II. Sufficiency of the Evidence

[9]    We do not evaluate the credibility of witnesses or reweigh the evidence when

       reviewing a trial court’s decision. McHenry v. State, 820 N.E.2d 124, 126 (Ind.

       2005). We “must consider only the probative evidence and reasonable

       inferences supporting the verdict.” Id. We must affirm if a reasonable fact-

       finder could find guilt beyond a reasonable doubt. Id.


[10]   Class B felony aggravated battery occurs when “a person . . . knowingly or

       intentionally inflicts injury on a person that creates a substantial risk of death.”

       Ind. Code § 35-42-2-1.5 (1997). When the State charged Glenn, it alleged only
       Court of Appeals of Indiana | Memorandum Decision 49A04-1511-CR-2015 | December 29, 2016   Page 5 of 7
       that he acted “knowingly.” (App. Vol. 1 at 31.) “A person engages in conduct

       ‘knowingly’ if, when he engages in the conduct, he is aware of a high

       probability that he is doing so.” Ind. Code § 35-41-2-2(b).


[11]   Glenn contends the State did not prove he knowingly created a substantial risk

       of death because he fights all the time and has not killed anyone. However,

       Glenn is an experienced MMA fighter who has fought multiple times. Glenn

       dropped Achoch onto his head on pavement, which caused him to begin

       twitching, and then Glenn punched and kicked Achoch until he had blood

       coming out of his ears. If that weren’t enough to demonstrate Glenn knew he

       created a substantial risk of death, Glenn’s own words at the scene contradict

       his argument. Glenn bragged about knowing he would “flex somebody,” (Tr.

       at 121), and announced if you “roll the dice, you lose your life.” (Id. at 124.) A

       reasonable fact-finder could find beyond a reasonable doubt that Glenn

       knowingly created a substantial risk of death. See Owens v. State, 659 N.E.2d

       466, 473 (Ind. 1995) (explaining how a reasonable jury could have found

       beyond a reasonable doubt the defendant knowingly killed the victim because of

       the brutality of the beating combined with threats to witnesses), reh’g denied.



                                               Conclusion
[12]   There was no variance between the charge and proof at trial, and there was

       sufficient evidence Glenn knowingly created a substantial risk of death.

       Accordingly, we affirm.



       Court of Appeals of Indiana | Memorandum Decision 49A04-1511-CR-2015 | December 29, 2016   Page 6 of 7
[13]   Affirmed.


       Baker, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1511-CR-2015 | December 29, 2016   Page 7 of 7