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: ATTORNEYS FOR APPELLEE:

ANA M. QUIRK GREGORY F. ZOELLER

Public Defender Attorney General of Indiana

Muncie, Indiana

GEORGE P. SHERMAN

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

BILLY BULU GERCILUS, )

)

Appellant-Defendant, )

)

vs. ) No. 18A02-1303-CR-246

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE DELAWARE CIRCUIT COURT

The Honorable Thomas A. Cannon, Jr., Judge

Cause No. 18C05-1208-FD-135

November 13, 2013

MEMORANDUM DECISION - NOT FOR PUBLICATION

NAJAM, Judge
2

STATEMENT OF THE CASE

Billy Bulu Gercilus appeals his convictions for two counts of battery resulting in 

bodily injury, as Class D felonies, and one count of interference with reporting a crime, a 

Class A misdemeanor, following a jury trial. Gercilus presents the following issues for 

review:

1. Whether the trial court erred when it overruled Gercilus’ objection to 

the jury panel.

2. Whether the trial court abused its discretion when it refused 

Gercilus’ request to instruct the jury on lesser included misdemeanor 

batteries.

3. Whether the evidence is sufficient to support Gercilus’ conviction 

for interference with the reporting of a crime.

We affirm.

FACTS AND PROCEDURAL HISTORY

On July 23, 2012, Gercilus was residing in Muncie with Claudette Lawson and her 

thirteen-year-old son, D.W., in a two-bedroom apartment. Lawson and Gercilus were 

dating and shared one bedroom, while D.W. used the other bedroom. Lawson and 

Gercilus argued that day because Lawson was financially supporting them while Gercilus 

“always wanted to go to the bar and get drunk[.]” Transcript at 74-75. Gercilus left for a 

bar anyway, and Lawson stayed home.

When Gercilus returned later that evening, Lawson and D.W. were in their 

respective bedrooms. Lawson was trying to sleep, but Gercilus was loud, turned on the 

light, and wanted to have sex with Lawson. Lawson refused, and Gercilus left for the bar 

again. A short time later, Lawson and D.W. went for a walk. When they returned to the 
3

apartment, they found Gercilus there with three other people. Gercilus attempted to 

prevent Lawson from entering their bedroom, but she pushed through. In the bedroom 

she saw “two guys and a female” sitting on the bed. Id. at 77. Lawson ordered the three 

strangers out of the apartment. Gercilus tried unsuccessfully to get them to return. 

When the strangers did not return, Gercilus and Lawson began to argue in the 

hallway. Gercilus started “cussing [Lawson] out because [she] had them to leave [sic].” 

Id. at 81. Gercilus followed Lawson into the bedroom, where the couple continued 

arguing. Gercilus grabbed Lawson and put his hands around her throat. D.W. then 

entered the room and said “get off my mom, you bitch,” id. at 85, and “jumped on 

[Gercilus’] back,” id. at 82. With D.W. on his back, Gercilus moved backward, slammed 

D.W. backward against a wall, and then started hitting D.W. Lawson then started hitting 

Gercilus “because he was hitting [her] son.” Id. at 87. Eventually Gercilus stopped 

hitting D.W., turned around, and started hitting Lawson. The fight then moved from the 

couple’s bedroom into the hallway.

Lawson’s cell phone, the only phone in the house, was on her dresser. She tried to 

“slide it” to D.W. and told him to get out of the house and to call the police. Id. at 88. 

Gercilus intercepted the phone and ran out of the house and down the street with it. 

Lawson and D.W. then went to a neighbor’s house and called the police. When police 

interviewed Lawson and D.W., Lawson was “visibly upset, a little distraught,” had 

scratches on both arms and complained of pain in her abdomen, id. at 135, and D.W. had 

scratches on his upper right arm, upper left chest, and all over his back. Lawson and 

D.W. were examined at a hospital and treated for their pain. 
4

The State charged Gercilus with two counts of battery resulting in bodily injury, as 

Class D felonies; strangulation, as a Class D felony; and interference with the reporting 

of a crime, a Class A misdemeanor. A jury trial was held January 10 and 11, 2013. 

During voir dire, Gercilus objected to the composition of the jury panel, specifically, that 

there were no African-Americans on the panel. After hearing testimony as well as

argument from both parties, the trial court overruled the objection and the trial proceeded. 

The jury found Gercilus guilty of two counts of battery resulting in bodily injury, as Class 

D felonies, and one count of interference with the reporting of a crime, as a Class A 

misdemeanor, and it acquitted him of strangulation. The trial court entered judgment of 

conviction and sentenced Gercilus accordingly. Gercilus now appeals.

DISCUSSION AND DECISION

Issue One: Jury Composition

“The United States Supreme Court has long held that ‘the selection of a petit jury

from a representative cross section of the community is an essential component of the 

Sixth Amendment right to a jury trial.’” Bradley v. State, 649 N.E.2d 100, 104 (Ind. 

1995) (quoting Taylor v. Louisiana, 419 U.S. 522, 528 (1975)). “While petit juries must 

be drawn from a source ‘fairly representative of the community,’ there is no requirement 

that they ‘actually . . . mirror the community and reflect the various distinctive groups in 

the population.’” Id. (quoting Taylor, 419 U.S. at 538). Defendants “are not entitled to a 

jury of any particular composition,” but venire selection systems “must not systematically 

exclude distinctive groups in the community and thereby fail to be reasonably 

representative thereof.” Id. To show a prima facie violation of the fair cross-section 
5

requirement, a defendant must show that: (1) the group being excluded is a distinctive 

group in the community; (2) the representation of this group in jury pools from which 

juries are being selected is not fair and reasonable in relation to the number of such 

persons in the community; and (3) this underrepresentation is caused by systematic 

exclusion. Davis v. State, 819 N.E.2d 91, 101 (Ind. Ct. App. 2004) (citing Duren v. 

Missouri, 439 U.S. 357, 364 (1979)), trans. denied. Once a defendant has shown a prima 

facie case of discrimination in the jury selection process, the burden shifts to the State to 

demonstrate that those aspects of the jury-selection process that result in the 

disproportionate exclusion of a distinctive group manifestly and primarily advance a 

significant state interest. Bradley, 649 N.E.2d at 104. 

Here, there were no African Americans included in the jury venire. Gercilus 

contends, and the State does not contest, that African Americans are a distinct group in 

the community. But Gercilus has not shown that the underrepresentation was caused by a 

systematic exclusion. The Delaware County Court Administrator testified on the jury list 

selection process approved by the Indiana Supreme court. And Gercilus acknowledges 

that the jury venire is randomly selected from voter registration lists obtained from the 

Bureau of Motor Vehicles as well as from lists of those who have filed an Indiana 

Department of Revenue tax return and from voter registration records. Gercilus 

contends, however, that “membership on these lists is restricted to persons who own 

property, file income tax returns and/or are registered to vote.” Appellant’s Brief at 21. 

But the venire is also pulled from lists of those who have obtained a driver’s license or 

identification card. Gercilus has not demonstrated or even argued that African 
6

Americans are not included in these lists or that the method of selecting venire members 

from these lists excludes African Americans. 

Gercilus was required to satisfy all three prongs of the test in Davis before the 

burden would shift to the State. Gercilus has not made a prima facie showing of a 

systematic exclusion of African Americans from the jury venire. As such, we need not 

consider whether he satisfied the other prongs of the test. Gercilus’ argument that he was 

denied a fair trial due to discrimination in the jury selection process must fail. 

Issue Two: Jury Instructions

Gercilus next contends that the trial court abused its discretion when it refused his 

proffered instructions on lesser-included offenses to battery. As we have discussed:

“The purpose of a jury instruction ‘is to inform the jury of the law 

applicable to the facts without misleading the jury and to enable it to

comprehend the case clearly and arrive at a just, fair, and correct verdict.’” 

Dill v. State, 741 N.E.2d 1230, 1232 (Ind. 2001) (quoting Chandler v. State, 

581 N.E.2d 1233, 1236 (Ind. 1991)). Instruction of the jury is left to the 

sound judgment of the trial court and will not be disturbed absent an abuse 

of discretion. Schmidt v. State, 816 N.E.2d 925, 930 (Ind. Ct. App. 2004), 

trans. denied. Jury instructions are not to be considered in isolation, but as 

a whole and in reference to each other. Id. The instructions must be a 

complete, accurate statement of the law which will not confuse or mislead 

the jury. Id. at 930-31. 

Williams v. State, 891 N.E.2d 621, 630 (Ind. Ct. App. 2008).

When a party requests an instruction on an alleged lesser-included offense, the 

trial court must use a three-step analysis to determine whether the instruction is 

appropriate.

In the first step, the court must compare the statute defining the crime 

charged and the statute defining the alleged lesser-included offense. If the 

alleged lesser-included offense may be established by proof of all of the 

same or proof of less than all of the same material elements to the crime, or 
7

if the only difference between the two statutes is that the alleged lesserincluded offense requires proof of a lesser culpability, then the alleged 

lesser-included offense is inherently included in the crime charged. 

In the second step, if the trial court determines that the alleged 

lesser-included offense is not inherently included in the charged crime, it 

must compare the statute defining the alleged lesser-included offense with 

the charging instrument in the case. If all of the elements of the alleged 

lesser-included offense are covered by the allegations in the charging 

instrument, then the alleged lesser-included offense is factually included in 

the charged crime. 

If the trial court has determined that the alleged lesser-included 

offense is either inherently or factually included in the charged crime, then 

it must proceed to the third step. In the third step, the trial court must 

examine the evidence presented by each party and determine whether there 

is a serious evidentiary dispute over the element or elements that 

distinguish the crime charged and the lesser-included offense. If it would 

be possible for a jury to find that the lesser, but not the greater, offense had 

been committed, then the trial court must instruct the jury on both offenses. 

Watts v. State, 885 N.E.2d 1228, 1231-32 (Ind. 2008) (citations omitted). The refusal to 

instruct a jury on a lesser-included offense in the presence of a serious evidentiary dispute 

is reversible error. See id. at 1232. 

Here, Gercilus contends that the trial court abused its discretion when it refused to 

instruct the jury on the lesser-included offense of battery, as a Class B misdemeanor, as 

to Counts 1 and 2 charged under Indiana Code Section 35-42-2-1(a)(2)(B) and 35-42-2-

1(a)(2)(M) respectively. The State counters that Gercilus has not shown that the jury 

should have been instructed on lesser included offenses because he has not demonstrated 

a serious evidentiary dispute over the element or elements that distinguish Class D felony 

battery resulting in bodily injury from Class B misdemeanor battery under Count 1 or 
8

Class A misdemeanor battery under Count 2 of the information.1 We must agree with the 

State.

In Count 1, the State charged Gercilus with Class D felony battery resulting in 

bodily injury under Indiana Code Section 35-42-3-1(a)(2)(B). To prove that offense the 

State was required to show that Gercilus knowingly or intentionally touched D.W. in a 

rude, insolent, or angry manner; that the touching resulted in bodily injury; and that D.W.

was less than fourteen years old and Gercilus was at least eighteen years old at the time 

of the offense. And in Count 2, the State charged Gercilus under Section 35-42-2-

1(a)(2)(M), which required the State to show that Gercilus knowingly or intentionally

touched Lawson in a rude, insolent, or angry manner; that the touching resulted in bodily 

injury; and that Lawson was a family or household member if (a) Gercilus was at least 

eighteen years old and (b) he committed the offense within the presence of a child less 

than sixteen years old, knowing that the child was present and might be able to see or 

hear the offense. 

Gercilus does not argue that the evidence on any of the elements of Counts 1 and 2

are in dispute. Rather, he argues the existence of a serious evidentiary dispute as follows: 

Further, Claudette Lawson and [D.W.] both had different stories as to what 

they did and where they went during the time Mr. Gercilus returned to the 

house the first time and when he returned the second time. Ms. Lawson 

testified that she and [D.W.] left the house and went for a walk with their 

dog around the neighborhood. [D.W.] testified that they left the house and 

went to the home of a friend of his mother’s. [D.W.] also admitted that he 

told an investigator that they had gone to a VP [Village Pantry] to get a 

fountain soda[.]

 

1

 A defendant must prove either the first or second prong under Watts and also the third prong. 

Watts, 885 N.E.2d at 1231-32. Because we resolve the issue under the third prong, we need not consider 

the first two prongs. See id. 
9

Thus, there were several discrepancies in the testimony of Ms. 

Lawson and [D.W.] that would lead a jury to not believe their account[s] as 

to the events of that evening. In addition, the jury found Mr. Gercilus not 

guilty of Strangulation. This would indicate that they had some problems 

believing the entire account presented through testimony of [D.W.] and Ms. 

Lawson. 

Appellant’s Brief at 25 (citations omitted). The points made by Gercilus do not pertain to 

the elements of the offenses charged. Rather, the arguments pertain merely to the 

credibility of Lawson and D.W. in general. Gercilus has not shown a serious evidentiary 

dispute regarding elements of the offenses charged, two counts of battery resulting in 

bodily injury, as Class D felonies. As such, he has not shown that the trial court abused 

its discretion when it refused to instruct the jury on lesser included offenses to those 

charges. 

Issue Three: Sufficiency of Evidence

Finally, Gercilus contends that the evidence is insufficient to support his 

conviction for interference with the reporting of a crime. When the sufficiency of the 

evidence to support a conviction is challenged, we neither reweigh the evidence nor judge 

the credibility of the witnesses, and we affirm if there is substantial evidence of probative 

value supporting each element of the crime from which a reasonable trier of fact could 

have found the defendant guilty beyond a reasonable doubt. Wright v. State, 828 N.E.2d 

904, 905-06 (Ind. 2005). It is the job of the fact-finder to determine whether the evidence 

in a particular case sufficiently proves each element of an offense, and we consider 

conflicting evidence most favorably to the trial court’s ruling. Id. at 906. 

To prove the offense of interference with the reporting of a crime, the State was 

required to show that Gercilus, “with the intent to commit, conceal, or aid in the 
10

commission of a crime, knowingly or intentionally interfere[d] with or prevent[ed] an 

individual from . . . using a 911 emergency telephone system.” Ind. Code § 35-45-2-5(1). 

Gercilus argues that the 

evidence was unclear as to what happened with the cell phone. Claudette 

Lawson testified that she tried to slide the phone to her son but Mr. 

Gercilus ended up with the phone and running [sic] out of the house. 

[D.W.] testified that he grabbed the phone on the dresser and tried to run 

into his bedroom. [D.W.] stated that he threw the phone to his mom but 

Mr. Gercilus got the phone. It is unclear from this testimony that Mr. 

Gercilus knowingly or intentionally interfered with [D.W.] or Ms. Lawson 

using a 911 telephone system.

Appellant’s Brief at 25-26. However, Lawson testified that she attempted to slide the 

phone to D.W. and told him to call the police, but Gercilus intercepted the phone and ran 

away with it. Gercilus’ arguments amount to a request that we reweigh the evidence, 

which we will not do. The evidence is sufficient to support his conviction for 

interference with the reporting of a crime.

Affirmed. 

MATHIAS, J., and BROWN, J., concur.