MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                                   FILED
regarded as precedent or cited before any                                         Nov 09 2020, 10:08 am
court except for the purpose of establishing                                            CLERK
the defense of res judicata, collateral                                             Indiana Supreme Court
                                                                                       Court of Appeals
estoppel, or the law of the case.                                                        and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Michael G. Moore                                        Curtis T. Hill, Jr.
Indianapolis, Indiana                                   Attorney General of Indiana

                                                        Justin F. Roebel
                                                        Supervising Deputy Attorney
                                                        General
                                                        Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Craig Borodach,                                         November 9, 2020
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        20A-CR-956
        v.                                              Appeal from the Vermillion Circuit
                                                        Court
State of Indiana,                                       The Honorable Jill D. Wesch,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        83C01-1903-F5-8



Friedlander, Senior Judge.




Court of Appeals of Indiana | Memorandum Decision 20A-CR-956 | November 9, 2020       Page 1 of 15
[1]   Craig Borodach appeals his conviction and sentence for battery resulting in
                                                                             1
      bodily injury to a public safety official, a Level 5 felony. He contends that the

      evidence is insufficient to support his conviction and that his sentence is

      inappropriate in light of the nature of the offense and his character. We affirm.


[2]   On March 16, 2019, James Kelly was driving to dinner in Terre Haute when he

      saw a red pick-up truck pull onto the highway. The pick-up was driving twenty

      to twenty-five miles per hour under the speed limit, and when Kelly attempted

      to pass the truck in the left lane, the truck suddenly swerved into the left lane.

      The truck then swerved back into the right lane, went onto the shoulder of the

      highway, and then went back into the right lane. Kelly slowed his vehicle and

      got into the right lane behind the truck. He followed the truck and called 911.

      As Kelly watched, the truck continued weaving and almost hit the guardrail.

      After speaking to the 911 operator, Kelly eventually turned off the highway and

      headed back to Terre Haute.


[3]   Thomas Klotz was also driving in Terre Haute on that night, and, when he

      entered the highway, he saw a van driving with its hazard lights on following a

      red pick-up truck that was driving recklessly. Klotz watched as the truck

      swerved across the highway and came very close to striking the guardrail

      several times. Like Kelly, Klotz called 911. Klotz stayed behind the van that

      was following the truck, and eventually the truck turned off the highway onto a




      1
          Ind. Code § 35-42-2-1(g)(5)(A) (2018).


      Court of Appeals of Indiana | Memorandum Decision 20A-CR-956 | November 9, 2020   Page 2 of 15
      smaller road. When it did so, it swerved into the left lane, and then swerved

      back into the right lane narrowly avoiding a head-on collision. As Klotz

      continued following the van and the truck, he saw red and blue emergency

      police lights ahead of them and, when they reached the police vehicles, he

      heard the officer yell for the truck to stop.


[4]   Meanwhile, Deputy Chad Hennis with the Vermillion County Sheriff’s

      Department received a radio dispatch of a possible impaired driver. On the

      way to the location, Deputy Hennis radioed Clinton County for assistance.


[5]   Officer John Alkire of the Clinton City Police Department was at the police

      department when he heard the dispatch over the radio that a truck was “all over

      the roadway.” Tr. Vol. 4, p. 23. Although the truck was not in the response

      area for the Clinton City Police Department, Officer Alkire continued to listen

      to the dispatch. Hearing that the truck almost hit another vehicle and that it

      was now approaching the area, Officer Alkire went to assist. When he heard

      that the truck was headed toward a very dangerous intersection, he turned on

      his emergency lights and proceeded to the intersection. When he arrived at the

      intersection, he saw Deputy Hennis there in his vehicle with the emergency

      lights activated. Officer Alkire pulled into the pick-up truck’s lane and stopped

      his vehicle.


[6]   The officers could see the red pick-up truck slowly approaching as well as the

      other drivers following the truck with their hazard lights on. The pick-up was

      driving in the ditch, and it slowed down even more as it neared the intersection.


      Court of Appeals of Indiana | Memorandum Decision 20A-CR-956 | November 9, 2020   Page 3 of 15
      When it came to the intersection, the pick-up truck stopped, and Officer Alkire

      exited his vehicle. The officer had almost cleared the door in exiting his car

      when he heard the truck accelerate and saw the truck coming toward him. The

      truck made contact with Officer Alkire’s vehicle, slamming the door against the

      officer’s chest and pinning him between the door and the frame of his car.

      Officer Alkire fired two shots at the truck in an effort to stop it, but it continued

      pushing into his car door. The pressure on the officer’s chest was mounting,

      causing him to have difficulty breathing, so he fired three more shots at the

      truck. At that point, the truck stopped moving. Officer Alkire was extricated

      from the car and taken to the hospital where he was treated and released. For

      several weeks, the officer endured pain and difficulty breathing caused by the

      injuries to his lungs and chest cavity.


[7]   Borodach was identified as the driver of the red pick-up truck. He was taken

      from the scene to the hospital where his blood was drawn. Toxicology testing

      on Borodach’s blood revealed that the ethyl alcohol concentration in his blood

      was 0.337%, over four times the legal limit.


[8]   Based upon this incident, the State charged Borodach with Count 1 battery
                                                                                        2
      resulting in bodily injury to a public safety official, a Level 5 felony; Count 2

      operating a vehicle with a blood alcohol content of at least .08 resulting in




      2
          Ind. Code § 35-42-2-1(g)(5)(A).


      Court of Appeals of Indiana | Memorandum Decision 20A-CR-956 | November 9, 2020       Page 4 of 15
                                                         3
      serious bodily injury, a Level 6 felony; Count 3 operating a vehicle while
                                                     4
      intoxicated, a Class A misdemeanor; and Count 4 operating a vehicle with a
                                                                                        5
      blood alcohol content of .15 or more, a Class A misdemeanor. A jury found

      Borodach guilty of Counts 1, 3, and 4. The court entered judgment of

      conviction on Counts 1 and 3 and sentenced Borodach to an aggregate six-year

      sentence, comprised of six years on Count 1 and one year on Count 3, to be

      served concurrently. The court ordered four of the six years executed at the

      Department of Correction, with the remaining two years served on formal

      probation. Borodach now appeals his conviction and sentence for Count 1.


                                     1. Sufficiency of the Evidence
[9]   Borodach first asserts the evidence is insufficient to sustain his conviction of

      battery resulting in bodily injury to a public safety official. When we review a

      challenge to the sufficiency of the evidence, we neither reweigh the evidence

      nor judge the credibility of the witnesses. Sandleben v. State, 

29 N.E.3d 126

(Ind.

      Ct. App. 2015), trans. denied. Instead, we consider only the evidence most

      favorable to the verdict and any reasonable inferences drawn therefrom.

Id. If there is

substantial evidence of probative value from which a reasonable fact-

      finder could have found the defendant guilty beyond a reasonable doubt, the




      3
          Ind. Code § 9-30-5-4 (2018).
      4
          Ind. Code § 9-30-5-2 (2001).
      5
          Ind. Code § 9-30-5-1 (2018).


      Court of Appeals of Indiana | Memorandum Decision 20A-CR-956 | November 9, 2020       Page 5 of 15
       verdict will not be disturbed. Labarr v. State, 

36 N.E.3d 501

(Ind. Ct. App.

       2015).


[10]   In order to obtain a conviction for battery resulting in bodily injury to a public

       safety official in this case, the State must have proved beyond a reasonable

       doubt that (1) Borodach (2) knowingly (3) touched (4) Officer Alkire (5) in a

       rude, insolent, or angry manner (6) resulting in bodily injury (7) to Officer

       Alkire, a public safety official (8) while he was engaged in his official duties.

       See Appellant’s App. Vol. II, p. 21; see also Ind. Code § 35-42-2-1(g)(5)(A).

       Borodach challenges the State’s evidence that his actions giving rise to the

       battery conviction were done knowingly or in a rude, insolent, or angry

       manner.


                                                 a. Knowingly

[11]   “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)

       (1977). Because knowledge is the mental state of the actor, it may be proved by

       circumstantial evidence and inferred from the circumstances and facts of the

       case. Wilson v. State, 

835 N.E.2d 1044

(Ind. Ct. App. 2005), trans. denied. Thus,

       the trier of fact must resort to reasonable inferences based upon an examination

       of the surrounding circumstances to determine whether, from the defendant’s

       conduct and the natural consequences of what might be expected from that

       conduct, a showing or inference of the intent to commit that conduct exists.

       Lush v. State, 

783 N.E.2d 1191

(Ind. Ct. App. 2003).


       Court of Appeals of Indiana | Memorandum Decision 20A-CR-956 | November 9, 2020   Page 6 of 15
[12]   Here, there was ample evidence that Borodach acted knowingly. The record

       demonstrates that Borodach had slowed and then stopped his truck at the

       intersection where Officer Alkire’s vehicle blocked his lane. Officer Alkire

       testified:


               [Officer Alkire]:   I stopped my vehicle and then when the
               vehicle stopped I exited my vehicle.


               [Prosecutor Aukerman]: All right. Now it’s your testimony that
               this vehicle, this red 2008 GMC truck, stopped?


               [Officer Alkire]:        Correct.


               [Prosecutor Aukerman]: Is there any doubt in your mind based
               on all the stops that you’ve been involved in and made in the
               military and as a police officer that this truck stopped?


               [Officer Alkire]:        No doubt . . .


               [Prosecutor Aukerman]: What did you do next?


               [Officer Alkire]:     I put the vehicle in park, exited the vehicle.
               As soon as I exited the vehicle at that time we’re initiating into a
               high risk traffic stop because we don’t know the situation. We
               don’t know all the factors of what’s going on. And it was at that
               time that I had just cleared my door just about.


               [Prosecutor Aukerman]: Are your feet on the pavement?


               [Officer Alkire]:   Both of my feet are on the pavement. I’m
               facing the vehicle.


       Court of Appeals of Indiana | Memorandum Decision 20A-CR-956 | November 9, 2020   Page 7 of 15
        [Prosecutor Aukerman]: Where’s your door?


        [Officer Alkire]:   My door is right here open in front of me.
        And then I hear the engine rev up and then the vehicle come
        right at my vehicle and me.


        ***************


        [Prosecutor Aukerman]: Now you’ve watched this video. The
        jury has watched this video. We see this red truck coming and
        making contact with your car. You say at some point it stopped.
        I think it’s a fair assessment from that video to say it’s hard to tell
        if it stopped or not by that video. Wouldn’t you agree?


        [Officer Alkire]:        Correct.


        [Prosecutor Aukerman]: So tell the jury how you know that
        vehicle stopped.


        [Officer Alkire]:     Because I exited my vehicle and because of
        my training and experience I wouldn’t have gotten out of the
        vehicle if I didn’t feel it was safe to do so.


        ***************


        [Prosecutor Aukerman]: So is it your testimony that this truck
        stops somewhere out in front of your vehicle?


        [Officer Alkire]:        Yes.


        [Prosecutor Aukerman]: And you then start to exit your car?



Court of Appeals of Indiana | Memorandum Decision 20A-CR-956 | November 9, 2020   Page 8 of 15
               [Officer Alkire]:        Correct.


               [Prosecutor Aukerman]: Then what do you hear?


               [Officer Alkire]:   I hear the engine accelerate and that’s when
               the next noise I heard was the crunching of the vehicles.


       Tr. Vol. 4, pp. 31-32, 54-55.


[13]   Borodach alleges the video demonstrates he was attempting to avoid contact

       with Officer Alkire’s vehicle by going around the side of the vehicle. In support

       of his claim, he cites to Deputy Hennis’ testimony on cross-examination:


               [Defense Counsel]: You were aware [Borodach] was going to hit
               [Officer Alkire] head on though. Right?


               [Deputy Hennis]: Yes.


               [Defense Counsel]: But he took the maneuver to evade hitting
               him? Would that be fair to say?


               [Deputy Hennis]: He took a maneuver, yes.


       Tr. Vol. 3, p. 188. This testimony, however, does not address the evidence that

       Borodach brought his truck to a complete stop before revving the engine and

       accelerating into Officer Alkire and his vehicle.


[14]   The jury heard all the testimony, including that of Officer Alkire that, after

       hitting the officer’s vehicle and pinning him, Borodach stopped accelerating

       only after he was shot. In addition, the jury viewed the video footage from

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-956 | November 9, 2020   Page 9 of 15
       Officer Alkire’s in-car camera and heard the Prosecutor acknowledge that it was

       difficult to discern from the video whether the truck completely stopped. When

       reviewing a claim that the evidence is insufficient to support a conviction, a

       reviewing court respects the exclusive province of the jury to weigh any

       conflicting evidence. Mickens v. State, 

115 N.E.3d 520

(Ind. Ct. App. 2018),

       trans. denied (2019). Further, it is not necessary that the evidence overcome

       every reasonable hypothesis of innocence. Tongate v. State, 

954 N.E.2d 494

       (Ind. Ct. App. 2011), trans. denied (2012).


[15]   Borodach is merely asking us to reweigh the evidence, which we cannot do.

       Given the evidence, a reasonable jury could have found that Borodach was

       aware of a high probability that his conduct would inflict injury upon Officer

       Alkire.


                                  b. Rude, Insolent, or Angry Manner

[16]   Borodach also claims that he was “severely intoxicated and was hardly in

       control of his vehicle” such that running into Officer Alkire’s vehicle was not

       done in a rude, insolent, or angry manner. Appellant’s Br. p. 11. Yet, no

       evidence was presented to show his intoxication was involuntary, and

       voluntary intoxication is not a defense in a criminal prosecution. Villaruel v.

       State, 

52 N.E.3d 834

(Ind. Ct. App. 2016); see also Ind. Code § 35-41-2-5 (1997).


[17]   Moreover, our review of the record reveals that the evidence was sufficient for

       the jury to reasonably conclude that Borodach touched Officer Alkire in an

       insolent manner. This Court has previously observed that the term “insolent” is

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-956 | November 9, 2020   Page 10 of 15
       defined as “boldly disrespectful in speech or behavior; impertinent; impudent”

       and “lacking usual or proper respect for rank or position.” K.D. v. State, 

754 N.E.2d 36

, 41 (Ind. Ct. App. 2001). Here, the evidence showed that Borodach

       was driving on public roadways while heavily intoxicated. When the police

       attempted to stop him, he ignored Officer Alkire’s commands to stop, revved

       his truck’s engine, and accelerated into Officer Alkire, injuring him. A

       reasonable jury could conclude from this evidence that Borodach acted in an

       insolent manner by boldly disregarding the authority of Officer Alkire and the

       other officers.


[18]   There was sufficient evidence to establish that Borodach knowingly inflicted

       injury upon Officer Alkire in a rude, insolent, or angry manner.


                                     2. Inappropriate Sentence
[19]   Borodach’s second and final contention is that his sentence is inappropriate in

       light of the nature of his offense and his character.


[20]   Although a trial court may have acted within its lawful discretion in imposing a

       sentence, article 7, sections 4 and 6 of the Indiana Constitution authorize

       independent appellate review and revision of sentences through Indiana

       Appellate Rule 7(B), which provides that we may revise a sentence authorized

       by statute if, after due consideration of the trial court’s decision, we determine

       that the sentence is inappropriate in light of the nature of the offense and the

       character of the offender. Thompson v. State, 

5 N.E.3d 383

(Ind. Ct. App. 2014).

       However, “we must and should exercise deference to a trial court’s sentencing

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-956 | November 9, 2020   Page 11 of 15
       decision, both because Rule 7(B) requires us to give ‘due consideration’ to that

       decision and because we understand and recognize the unique perspective a

       trial court brings to its sentencing decisions.” Stewart v. State, 

866 N.E.2d 858

,

       866 (Ind. Ct. App. 2007). Such deference to the trial court’s judgment should

       prevail unless overcome by compelling evidence portraying in a positive light

       the nature of the offense (such as accompanied by restraint, regard, and lack of

       brutality) and the defendant’s character (such as substantial virtuous traits or

       persistent examples of good character). Stephenson v. State, 

29 N.E.3d 111

(Ind.

       2015). Thus, the question under Appellate Rule 7(B) is not whether another

       sentence is more appropriate; rather, the question is whether the sentence

       imposed is inappropriate. King v. State, 

894 N.E.2d 265

(Ind. Ct. App. 2008).

       The defendant bears the burden of persuading the appellate court that his or her

       sentence is inappropriate. Childress v. State, 

848 N.E.2d 1073

(Ind. 2006).


[21]   To assess whether a sentence is inappropriate, we look first to the statutory

       range established for the class of the offense. Here, Borodach was convicted of

       a Level 5 felony, for which the advisory sentence is three years, with a

       minimum sentence of one year and a maximum sentence of six years. Ind.

       Code § 35-50-2-6 (2014). The court sentenced Borodach to the maximum

       sentence of six years but ordered that only four years be executed.


[22]   Next, we look to the nature of the offense. “The nature of the offense is found

       in the details and circumstances surrounding the offense and the defendant’s

       participation therein.” Morris v. State, 

114 N.E.3d 531

, 539 (Ind. Ct. App.

       2018), trans. denied (2019). The alcohol concentration in Borodach’s blood was

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-956 | November 9, 2020   Page 12 of 15
       more than four times the legal limit. In this extreme state of intoxication,

       Borodach got into his truck and created a deadly situation by driving on public

       roadways. He swerved all over the road, ran off the road numerous times

       almost hitting guardrails, and narrowly avoided a head-on collision. When

       police attempted to end the dangerous situation Borodach was creating, he

       ignored the roadblock of sorts and Officer Alkire’s commands to stop, revved

       his truck’s engine, and accelerated into Officer Alkire, injuring him.


[23]   Finally, we turn to the character of the offender. The character of the offender

       is found in what we learn of the defendant’s life and conduct.

Id. The significance of

a criminal history in assessing a defendant’s character and an

       appropriate sentence varies based on the gravity, nature, and proximity of prior

       offenses in relation to the current offense, as well as the number of prior

       offenses. Sandleben, 

29 N.E.3d 126

. Yet, even a minor criminal history is a

       poor reflection of a defendant’s character. Moss v. State, 

13 N.E.3d 440

(Ind. Ct.

       App. 2014), trans. denied.


[24]   Borodach’s criminal history is comprised of five misdemeanors: battery causing

       bodily harm, two counts of driving under the influence, and two counts of

       driving on a suspended license. Despite receiving counseling following his

       convictions of driving under the influence, Borodach continued to drink in the

       intervening years between his two 1997 offenses of driving under the influence

       and the current offense. During his chemical dependency consultation at the

       hospital, Borodach described himself as “functional” and stated he had been

       “fighting this for over 30 years.” Ex. Vol. 6, p. 13 (Exhibit 13). He also

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-956 | November 9, 2020   Page 13 of 15
       acknowledged there was “no excuse to not take advantage of help.”

Id. Thus, although Borodach

touts the passage of twenty-two years since his last

       conviction, by his own admission he has a substance abuse problem and has

       failed to be honest with himself about it or done anything to treat it. At the

       sentencing hearing, the court took into consideration additional criminal

       conduct of Borodach, stating: “By your own admission as well there have been

       other occasions where you weren’t caught but have driven under the influence

       of alcohol.” Tr. Vol. 4, p. 208.


[25]   In an attempt to portray his character in a positive light, Borodach points to his

       employment history, his progress in substance abuse treatment between the

       time of the offense and sentencing, his payment of restitution to the City of

       Clinton, the care he provides for his dependents, the punitive impact of his

       gunshot wounds, and his low score in the risk-to-reoffend category of the risk

       assessment. Yet, other than listing these factors that he had already presented

       at sentencing, Borodach offers no argument as to their compelling nature that
                                                                                                                  6
       would overcome the deference we show to the trial court’s sentencing decision.




       6
         Although Borodach frames his sentencing argument purely as an argument that his sentence is
       inappropriate, he alleges that the trial court “placed too much weight on one poorly written line in
       Borodach’s statement to the court.” Appellant’s Br. p. 15. We remind counsel that whether a trial court has
       abused its discretion by improperly recognizing aggravators and mitigators when sentencing a defendant and
       whether a defendant’s sentence is inappropriate under Indiana Appellate Rule 7(B) are two distinct analyses.
       King, 

894 N.E.2d 265

.

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-956 | November 9, 2020                Page 14 of 15
                                                Conclusion
[26]   Based on the foregoing, we conclude the State presented sufficient evidence to

       support Borodach’s conviction of battery resulting in bodily injury to a public

       safety official. Additionally, we conclude that Borodach has not met his burden

       of presenting compelling evidence portraying in a positive light the nature of his

       offense or his character in order to overcome the trial court’s sentencing

       decision.


[27]   Judgment affirmed.


       Najam, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A-CR-956 | November 9, 2020   Page 15 of 15