Fox v. State, 2-1176A433

• Docket Nº: No. 2-1176A433
• Citation: 399 N.E.2d 827
• Case Date: January 31, 1980
• Court: Court of Appeals of Indiana

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399 N.E.2d 827 Tom FOX, Defendant-Appellant,
v.
STATE of Indiana, Plaintiff-Appellee. No. 2-1176A433. Court of Appeals of Indiana, Fourth District. Jan. 31, 1980.

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Harriette Bailey Conn, Public Defender, Susan K. Carpenter, Deputy Public Defender, Indianapolis, for defendant-appellant.

Theo. L. Sendak, Atty. Gen., Wesley T. Wilson, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

CHIPMAN, Judge.

Defendant Thomas Fox was convicted by a jury of two counts of Aggravated Assault and Battery. ¹ On appeal, Fox raises the following issues for our review:

1. whether there was sufficient evidence to support the convictions, and

2. whether the trial court erred in denying defendant's motion for a mistrial and motion to strike certain evidence pertaining to police "mug files."

Reversed.

The facts most favorable to the State show Fox created a bar-room disturbance shortly after midnight on September 7, 1973. The bar was crowded when Fox began to harass a patron. Lois Sullivan, a waitress, ordered Fox to "sit down and shut up." When Fox began to yell and scream, the bartender on duty approached him in an effort to quiet things down. Fox then began throwing bottles, glasses and ashtrays. Ms. Sullivan was standing next to Fox, facing in the opposite direction, when she was hit in the back of the head. The injury apparently occurred as Fox drew back his arm in an effort to throw one of the objects he had picked up. Another patron, Raymond Garven, was struck in the face by flying glass, and required some thirty-five stitches to close his wounds.

I. SUFFICIENCY OF THE EVIDENCE

Fox argues the convictions are not supported by sufficient evidence in that neither victim identified him as the perpetrator of the injurious acts. It is true that neither Ms. Sullivan nor Mr. Garven could identify Fox as the individual who threw the objects which struck them. However, several other eyewitnesses testified defendant was the only person throwing objects in the bar at the time the victims suffered their injuries. Though no testimony links Fox to the infliction of injury by means of a particular object, the inference that Fox threw the objects which struck Sullivan and Garven is inescapable. The issue of identity was a question of fact for the jury's resolution, Norris v. State, (1968) 251 Ind. 155, 240 N.E.2d 45, 242 N.E.2d 359, cert. den. 395 U.S. 905, 89 S.Ct. 1743, 23 L.Ed.2d 218 (1969), and the evidence supports the inference that Fox was the person who inflicted the injuries upon Sullivan and Garven.

Fox next argues the striking of Ms. Sullivan was "inadvertent" and therefore the requisite intent to sustain the conviction is lacking. Similarly, Fox contends the lack of any evidence connecting him to the particular object which injured Mr. Garven precludes the inference that he intended to inflict injury.

Ind.Code 35-13-3-1 provides:

Whoever intentionally or knowingly and unlawfully inflicts great bodily harm or disfigurement upon another person is guilty of aggravated assault and battery . . ..

Our Supreme Court has held the disjunctive language of the statute, i. e., "intentionally or knowingly and unlawfully," permits a conviction upon proof of a general mens rea. Defries v. State, (1976) 264 Ind. 233, 342 N.E.2d 622. The requisite mental state may be proven by evidence of willful, intentional conduct, whose tendency to injure is known, accompanied by such a wanton and reckless disregard of the probable harmful consequences to others as to imply the infliction of a willful, intentional injury. The bar was very crowded at the time Fox began hurling glass objects around the

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room. The defendant undoubtedly knew or should have known that his conduct had a tendency to injure those in close proximity. His conduct reflects a reckless disregard for the probable harmful consequences of his actions and permits the inference of a general mens rea sufficient to support his convictions.

Finally, Fox argues the injuries sustained by Ms. Sullivan are "minor or moderate" and therefore do not constitute "great bodily harm" within the meaning of IC 35-13-3-1. We disagree.

Ms. Sullivan testified that as a result of her injuries she was hospitalized six days and was off work five weeks, suffering blurred vision, vomiting, and severe headaches. Dr. Fred E. Dunbar testified Ms. Sullivan suffered from a concussion and cervical strain with muscle spasms. Ms. Sullivan stated her vision problems and headaches were still present at the time the case went to trial, some fifteen months after the bar-room incident. This evidence is sufficient to support a finding of great bodily harm. See generally Barbee v. State, (1977) Ind., 369 N.E.2d 1072.

II. MOTION FOR MISTRIAL

Following the State's unsuccessful attempt to have Mr. Garven identify Fox as his assailant, the prosecution called Officer Ron Mowery to the stand in an apparent attempt to show Garven had previously identified Fox from police photographs. During direct examination, Mowery was asked:

Q. And what did you do if anything while he (Garven) was at the police station? And I will ask you, of course, not to recite anything that was said, which would be hearsay. Just what in effect was done.

A. Uh, we asked him to look through our mug files.

Q. Okay. Did he in fact do that?

A. He did.

Q. Is that in fact the mug file that he looked through?

A. It is.

Q. All right. Do you know which photograph he identified?

A. I do.

The defense then objected to the entire line of questioning, arguing 1) the question called for hearsay, and 2) any reference to police "mug files" was an evidentiary harpoon which improperly brought the defendant's prior criminal record to the attention of the jury. Defendant requested the testimony of Mowery be stricken from the record and moved for a mistrial. The trial court denied the defendant's motion for a mistrial, but sustained the defendant's hearsay...