Gabrielle R. Adams v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jun 23 2017, 9:16 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case. ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Philip R. Skodinski Curtis T. Hill, Jr. South Bend, Indiana Attorney General of Indiana Denise A. Robinson Senior Deputy Attorney General Indianapolis, Indiana IN THE COURT OF APPEALS OF INDIANA Gabrielle R. Adams, June 23, 2017 Appellant-Defendant, Court of Appeals Case No. 71A05-1611-CR-2659 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable John M. Appellee-Plaintiff. Marnocha, Judge Trial Court Cause No. 71D02-1605-F5-85 Najam, Judge. Court of Appeals of Indiana | Memorandum Decision 71A05-1611-CR-2659| June 23, 2017 Page 1 of 5 Statement of the Case [1] Gabrielle R. Adams appeals her conviction for battery, as a Level 5 felony, following a jury trial.1 Adams raises a single issue for our review, namely, whether the State presented sufficient evidence to show that the battery was “committed with a deadly weapon.” See Ind. Code § 35-42-2-1(g)(2) (2016). As explained in our opinion in Troy Burgh v. State, ___ N.E.3d ___, No. 71A03- 1611-CR-2669 (Ind. Ct. App. June 23, 2017), also handed down today, we hold that a reasonable trier of fact may conclude that battery was “committed with a deadly weapon” when the paved surface of a parking lot is used in a manner that makes that surface readily capable of causing serious bodily injury. Thus, we affirm Adams’ conviction. Facts and Procedural History [2] On May 12, 2016, Adams and her boyfriend, Troy Burgh, got into a fight with Ashley Banghart in a CVS Pharmacy parking lot in Walkerton. During the fight, Burgh pulled Banghart to the ground, which was a paved asphalt surface. While Banghart was on the ground, Adams slammed Banghart’s head onto the paved surface six times, which caused Banghart to suffer a concussion. [3] Thereafter, the State charged Adams with, in relevant part, battery enhanced to a Level 5 felony for having been committed with a deadly weapon, namely, the 1 Adams does not appeal her convictions for battery, as a Class A misdemeanor, or possession of marijuana, as a Class B misdemeanor. Court of Appeals of Indiana | Memorandum Decision 71A05-1611-CR-2659| June 23, 2017 Page 2 of 5 parking lot pavement. After a trial, the jury found Adams guilty. The court entered its judgment of conviction and sentence accordingly, and this appeal ensued. Discussion and Decision [4] On appeal, Adams contends that the evidence against her was insufficient to demonstrate that she battered Banghart with a deadly weapon. In particular, Adams asserts that the paved surface of a parking lot cannot satisfy the deadly weapon enhancement that elevates battery from a Class B misdemeanor to a Level 5 felony. In reviewing the sufficiency of the evidence, we consider only the evidence and reasonable inferences most favorable to the conviction, neither reweighing the evidence nor reassessing witness credibility. Griffith v. State, 59 N.E.3d 947, 958 (Ind. 2016). We will affirm the judgment unless no reasonable fact-finder could find the defendant guilty. Id. [5] As relevant here, the Indiana Code provides that battery is a Level 5 felony when it is committed with “a deadly weapon.” I.C. § 35-42-2-1(g)(2). The Indiana Code further defines “deadly weapon” to mean, among other things, any “material that in the manner it: (A) is used; (B) could ordinarily be used; or (C) is intended to be used; is readily capable of causing serious bodily injury.” Court of Appeals of Indiana | Memorandum Decision 71A05-1611-CR-2659| June 23, 2017 Page 3 of 5 I.C. § 35-31.5-2-86(a)(2). And “serious bodily injury” is defined in relevant part as bodily injury that causes “extreme pain.” I.C. § 35-31.5-2-292(3).2 [6] Thus, the Indiana Code has a broad and fact-sensitive definition of “deadly weapon.” I.C. § 35-42-2-1(g)(2). In light of that statutory definition, we have repeatedly stated that whether an object is a “deadly weapon” on a given set of facts is determined from the nature of the object, the manner of its use, and the circumstances of the case. E.g., Gleason v. State, 965 N.E.2d 702, 708 (Ind. Ct. App. 2012). We have further instructed that “[w]hether an object is a deadly weapon based on these factors is a question of fact. The original purpose of the object is not considered. Rather, the manner in which the defendant actually used the object is examined.” Id. [7] As also explained in Burgh, in light of those broad and fact-sensitive standards we conclude that a reasonable trier of fact may find that a paved surface constitutes a deadly weapon if the manner in which the defendant uses that surface is “readily capable of causing serious bodily injury.” I.C. § 35-31.5-2- 86(a)(2). And, on these facts, a reasonable fact-finder could easily reach that conclusion: Adams used the paved surface as a blunt object against which to smash Banghart’s skull six times. In that sense, the paved surface is comparable 2 We have held that loss of consciousness after being struck by a defendant is, by itself, sufficient to establish serious bodily injury, Davis v. State, 819 N.E.2d 91, 100-01 (Ind. Ct. App. 2004), trans. denied, and Adams does not challenge the conclusion implicit in her conviction that Banghart suffered serious bodily injury. We also note that the State did not charge Adams under Indiana Code § 35-42-2-1(g)(1), which enhances battery to a Level 5 felony if the battery resulted in serious bodily injury. Court of Appeals of Indiana | Memorandum Decision 71A05-1611-CR-2659| June 23, 2017 Page 4 of 5 to the use of a rock or similar object with which to hit a victim, which the Indiana Supreme Court has held to be within the definition of a deadly weapon. Majors v. State, 274 Ind. 261, 263, 410 N.E.2d 1196, 1197 (1980). We conclude likewise here. [8] In sum, we reject Adams’ argument, in effect, that whether a defendant strikes a victim’s head with an object or whether the defendant strikes a stationary object with the victim’s head is relevant to the determination of whether that object was a “deadly weapon.” Either way, the touching and the impact are the same. While we commonly think of a weapon as a moveable object, as this case illustrates a stationary object can also be used as a weapon. A paved surface is “other material” that is “readily capable of causing serious bodily injury” depending on the manner in which the surface is actually used. I.C. § 35-31.5- 2-86(a)(2). We also reject Adams’ argument that a paved surface was not within our General Assembly’s contemplation when it defined “deadly weapon”; on this point, the broad and fact-sensitive language of Indiana Code Section 35-31.5-2-86(a)(2) speaks for itself. Accordingly, we affirm Adams’ conviction for battery, as a Level 5 felony. [9] Affirmed. Riley, J., and Bradford, J., concur. Court of Appeals of Indiana | Memorandum Decision 71A05-1611-CR-2659| June 23, 2017 Page 5 of 5