Barbee v. State, 677S392
| Decision Date | 06 December 1977 |
| Docket Number | No. 677S392,677S392 |
| Citation | 369 N.E.2d 1072,267 Ind. 299 |
| Parties | Levi BARBEE, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Richard E. Sallee, Indianapolis, for appellant.
Theo. L. Sendak, Atty. Gen., J. Roland Duvall, Deputy Atty. Gen., Indianapolis, for appellee.
Levi Barbee was convicted in the Marion County Criminal Court, Division III, of aggravated assault and battery, Ind.Code § 35-13-3-1 (Burns 1975) repealed October 1, 1977. His appeal was transferred from the Court of Appeals to this Court by order of this Court on June 2, 1977.
On November 20, 1975, appellant was employed as a recreation room supervisor on the Indiana University-Purdue University Indianapolis campus. While attending this recreation room he became involved in an altercation with two students over their use of a pool table. In the course of this altercation appellant struck one of the students with a pool cue. The evidence as to the circumstances of the altercation and the identity of the aggressor is conflicting; the evidence most favorable to the verdict is that appellant struck the student without provocation, while the student was unarmed and attempting to leave the room.
The issue presented on appeal is the sufficiency of the evidence of the element of great bodily harm. The statute in question reads in relevant part:
"Whoever intentionally or knowingly and unlawfully inflicts great bodily harm or disfigurement upon another person is guilty of aggravated assault and battery. . . ." Ind.Code § 35-13-3-1 (Burns 1975) (Repealed October 1, 1977).
The evidence most favorable to the verdict would indicate that the victim was struck in the side of the head with the large end of a pool cue swung by appellant. He fell against a pool table, then to the floor, and was unconscious for a few seconds. A witness described the sound of the blow as comparable to a watermelon being dropped on the floor.
The injured student testified that upon regaining consciousness he could not move his mouth. He was hospitalized for x-rays and released. A swelling appeared on the side of his head extending from temple to back and remained for two weeks. The site of the injury was painful for seven weeks and the victim suffered headaches for several months thereafter. Continued difficulty in moving his jaw led the victim to consult his dentist, who diagnosed injury to a muscle involved in moving the jaw. The skin was unbroken and no blood was drawn.
Appellant challenges the sufficiency of this evidence to prove "great bodily harm." There is no contention that appellant inflicted "disfigurement" on the student. He characterizes the injury received by the student as "bruises and a bump on the head," which he contrasts with numerous decisions of this Court and the Court of Appeals involving the sufficiency of more serious injuries to satisfy the great bodily harm element. The existence of many cases involving more serious...
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...trivial, minor or moderate harm." Froedge v. State, (1968) 249 Ind. 438, at 445, 233 N.E.2d 631, at 636; Accord, e. g., Barbee v. State, (1977) Ind., 369 N.E.2d 1072; Valentine v. State, supra; Allison v. State, (1973) 157 Ind.App. 277, 299 N.E.2d In the present case, Mr. Peterson testified......
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