Anderson v. State, 1--972A67

• Decision Date: 24 January 1973
• Docket Number: No. 1--972A67,1--972A67
• Citation: 291 N.E.2d 579,155 Ind.App. 121
• Parties: Leo ANDERSON, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 579

291 N.E.2d 579

155 Ind.App. 121

Leo ANDERSON, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 1--972A67.

Court of Appeals of Indiana, First District.

Jan. 24, 1973.

James W. Pendland, Mitchell, for defendant-appellant.

Theodore L. Sendak, Atty. Gen., Robert F. Colker, Deputy Atty. Gen., for plaintiff-appellee.

ROBERTSON, Presiding Judge.

The defendant-appellant (Anderson) is appealing his conviction, after a bench trial, of Aggravated Assault and Battery. The two issues raised by Anderson in his motion to correct errors are that there was not sufficient evidence to prove an essential element of the offense, and that he was denied counsel at critical stages of the proceedings.

A conviction must be affirmed if there is evidence of probative value from which the trier of fact could reasonably infer that the appellant was guilty beyond a reasonable doubt. Gann v. State (1971), Ind., 269 N.E.2d 381; Asher v. State (1969), 253 Ind. 25, 244 N.E.2d 89.

The court will not weigh the evidence nor resolve the questions of credibility, but will look to the evidence most favorable to the State and the reasonable inferences therefrom which support the verdict of the jury. Washington v. State (1971), Ind., 271 N.E.2d 888; Davis v. State (1971), Ind., 271 N.E.2d 893.

Anderson contends there was not sufficient evidence to show that he 'intentionally or knowingly and unlawfully inflict(ed) great bodily harm or disfigurement upon another', is required by IC 35--13--3--1, Ind.Ann.Stat. § 10--410 (Burns 1972).

The facts show that Cundiff, his wife, his aunt, and two other women were sitting at one end of three square tables pushed together at Cheebie's Tavern in Mitchell, Indiana. Anderson and a lady were sitting at the other end of the table. Cundiff and his friends were laughing and generally having a good time. Anderson twice inquired of Cundiff if they were laughing at him. Cundiff responded in the negative both times. When Cundiff stood up to depart Anderson struck Cundiff with his fist. There was evidence to show that Anderson struck Cundiff as many as five times, several of the blows being struck while Cundiff was lying on the floor. There was no evidence to show that Cundiff initiated the encounter, struck Anderson, or was able to resist the assault.

One of Cundiff's physicians answered the Prosecutor's questions thusly:

'Q. Would you describe what you had to do to repair this injury to Mr. Cundiff?

A. Well, this injury was extensive and Mr. Cunidff has to be put to sleep, to repair this injury. I opened him up on the cheek bone, right below the eye, and on the side of the head, in order to insert an instrument to pry the bone upward so that to be in alignment with the other broken fragment and to stabilize this I had to take hold of both bones and wire it together.

Q. You did cut into him and then you had to stitch that up too, is that correct?

A. Yes. He has to be stitched in the area where I went through on the cheek and on the side of the head.

Q. Was that the extent of your treatment to Mr. Cundiff?

A. Yes sir.'

Cundiff was hospitalized four days.

We are of the opinion there was sufficient evidence to show great bodily harm.

'Great bodily harm defines itself and means great as distinguished from slight, trivial, minor or moderate harm, and as such does not include mere bruises as are likely to be inflicted in a simple assault and battery under Ind.Ann.Stat. § 10--403 (Supp.1967). Whether the evidence describing such harm or injury is within the meaning of the statute, Ind.Ann.Stat. § 10--410 (Supp.1967), is generally a question of fact for the jury. See e.g. Hallett v. State (1922), 109 Neb. 311, 190 N.E. 862.' Froedge v. State (1968), 249 Ind. 438, 233 N.E.2d 631, at 636.

We are of the further opinion that the evidence reflected the necessary intent. The trier of fact could infer from the evidence that Anderson initiated the affray and that he continued hitting Cundiff in the absence...