Hand v. State

• Decision Date: 28 March 2007
• Docket Number: No. 14A05-0605-CR-241.,14A05-0605-CR-241.
• Citation: 863 N.E.2d 386
• Parties: Mark J. HAND, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

863 N.E.2d 386

Mark J. HAND, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 14A05-0605-CR-241.

Court of Appeals of Indiana.

March 28, 2007.

Darren Bedwell, Indianapolis, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Jodi Kathryn Stein, Deputy Attorney General Indianapolis, IN, Attorneys for Appellee.

OPINION

BAKER, Chief Judge.

Appellant-defendant Mark J. Hand appeals his convictions for Battery Resulting in Serious Bodily Injury,¹ a class C felony, and Domestic Battery,² a class A misdemeanor. Specifically, Hand argues that (1) the State presented insufficient evidence to support the class C felony battery conviction, (2) evidence of his prior bad acts was erroneously admitted at trial, and (3) the prosecutor committed misconduct that constituted fundamental error. Concluding that there was no prosecutorial misconduct but that there was insufficient evidence of the victim's serious bodily injury to convict Hand of class C felony battery, we remand this case to the trial court with instructions to vacate the class C felony battery conviction.³

FACTS

On September 3, 2005, Hand and his wife Diona began to argue after accusing each other of engaging in extramarital affairs. The argument soon became physical and, as a result of Hand's actions, Diona suffered two black eyes and bruising to her mouth, shoulders, and hands. For "four or five days" after the argument, Diona placed hamburger meat, ice, and hot packs on her injuries to "take [the] swelling down" and lessen the bruises. Tr. p. 328.

Debra Fields-Diona's mother-heard about her daughter's injuries on September 5, 2005. Fields contacted the Daviess County Sheriff's Department and Deputy Michael Brinson was dispatched to the Hand residence. Deputy Brinson spoke with Diona at the front door of the residence and observed that she had "injuries to her face. . . ." Id. at 110. Diona refused Deputy Brinson's offer of medical help and declined to press charges against Hand.

Upon leaving, Deputy Brinson was dispatched to a local gas station where Fields was waiting for him. After receiving more information from Fields, Deputy Brinson immediately returned to the Hand residence with Fields and Lieutenant Chuck Milton. Hand appeared at the door after Deputy Brinson had knocked for approximately five minutes. The two briefly spoke and Hand informed the officer that Diona had "had an accident . . ." that caused her injuries. Id. at 121. Diona eventually appeared at the door and exited the residence to talk to her mother, aunt, and sister, who were standing outside. Diona eventually gave Lieutenant Milton a written statement and the officers photographed her injuries. Hand was subsequently arrested.

On September 7, 2005, the State charged Hand with class C felony battery and class A misdemeanor domestic battery. Hand remained incarcerated pending a trial. Between his arrest and January 22, 2006, Hand placed approximately one hundred telephone calls to his best friend, Brad Krodel, and Diona often went to Krodel's residence to speak to Hand when he would call. All telephone calls made by Daviess County Security Center inmates are recorded, and in some of the calls, Hand discussed his pending case with Krodel or Diona. Specifically, Hand stated that during the attack he had "slapped [Diona] in the fing mouth," "f'ing hit her in the face," and that she had a "f'ing black eye." Id. at 193, 203; State's Ex. 21. Hand also informed Diona, "they can't make you testify against me anyway." Tr. p. 192.

A three-day jury trial began on January 25, 2005, and the jury found Hand guilty as charged. The trial court held a sentencing hearing on February 23, 2006, and sentenced Hand to six years for the class C felony battery conviction, with two years suspended, and to one year for the class A misdemeanor domestic battery conviction. The trial court ordered that the sentences run concurrently, for an aggregate term of four years of imprisonment. Hand now appeals.

DISCUSSION AND DECISION

I. Sufficiency of Evidence

Hand argues that the State presented insufficient evidence to sustain his conviction for class C felony battery. Specifically, Hand argues that no evidence was presented that Diona was in extreme pain and, therefore, her injuries did not constitute "serious bodily injury" pursuant to the battery statute. I.C. 35-42-2-1(a)(3).⁴

We initially note that the standard of review for sufficiency claims is well settled. In addressing Hand's challenge, we neither reweigh the evidence nor reassess the credibility of witnesses. Sanders v. State, 704 N.E.2d 119, 123 (Ind.1999). Instead, we consider the evidence most favorable to the verdict and draw all reasonable inferences that support the ruling below. Id. We affirm the conviction if there is probative evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. O'Connell v. State, 742 N.E.2d 943, 949 (Ind.2001). While the State may prove its case by circumstantial evidence alone, Gambill v. State, 675 N.E.2d 668, 674 (Ind. 1996), a judgment will be sustained based on circumstantial evidence only if that evidence supports a reasonable inference of guilt, Tate v. State, 835 N.E.2d 499, 510 (Ind.Ct.App.2005), trans. denied.

For purposes of a class C felony battery conviction, "serious bodily injury" is "bodily injury that creates a substantial risk of death or that causes: (1) serious permanent disfigurement; (2) unconsciousness; (3) extreme pain; (4) permanent or protracted loss or impairment of the function of a bodily member or organ; or (5) loss of a fetus." Ind.Code § 35-41-1-25. Whether bodily injury is "serious" is a question of degree and, therefore, appropriately reserved for the finder of fact. Sutton v. State, 714 N.E.2d 694, 697 (Ind. Ct.App.1999). As our Supreme Court held in Davis v. State, "[a]s with all matters of degree, it is difficult to describe in words a bright line between what is `bodily injury' and what is `serious bodily injury.'" 813 N.E.2d 1176, 1178 (Ind.2004). The State argues that it presented sufficient evidence that Diona was in extreme pain; therefore, her injuries constituted "serious bodily injury" under Indiana Code section 35-41-1-25 and Hand's class C felony battery conviction was proper.

Regrettably, we are presented with an all-too-common situation. While Hand admittedly⁵ injured Diona and Diona initially gave a written statement to police after the incident, upon taking the stand at Hand's trial, Diona denied that Hand had seriously injured her. The State entered into evidence the photographs of Diona's injuries that the police took on September 5, 2005. The photographs show that Diona had two black eyes and bruising on her face, shoulders, and hands. State's Ex. 1-9. Nonetheless, when Diona took the stand she immediately testified that she was "happily married" and "wasn't a victim of nothing . . . ." Tr. p. 273.

While Diona did admit that Hand "touched" her during the altercation, she stated that he was merely trying to defend himself after she "started throwing anything and everything [she] could get [her] hands on at him" and "beating the sh*t out of him." Id. at 309, 311, 315. Diona testified that she never thought that she needed to seek medical attention for her bruises and that she didn't have any broken bones. Id. at 321. When it was suggested that Diona "wrenched away in pain" from her mother when her mother tried to hug her the day the police came, Diona responded, "No. I wrenched away because I told them all to get the hell out of my yard ...." Id. at 322. Diona testified that for "four or five days" after the argument she placed hamburger meat, ice, and hot packs on her injuries to "take [the] swelling down" and lessen the bruises. Id. at 328. Aside from these home remedies, Diona stated that she had "not sought medical treatment and [had] not taken any kind of medication, prescribed or otherwise, for pain." Id. at 323, 326.

The State argues that it presented adequate circumstantial evidence of Diona's extreme pain to sustain Hand's class C felony battery conviction. To support its argument, the State directs us to the testimony of the Hands' neighbor, Ruth Ann Lawyer. Lawyer testified that she went to the Hands' residence the day after Diona sustained her injuries and that Diona answered the door and "was beat up." Id. at 128. Lawyer testified that Diona "was a mess[,]" that one of her eyes was "closed and big[,]" and that she looked worse that day than when the police photographed her the next day. Id. at 130-32. The State contends that Diona clearly downplayed her injuries at trial to protect her husband and that Lawyer's testimony, the police photographs, and Diona's admission that she used home remedies for "four or five days" was sufficient evidence of Diona's extreme pain. Id. at 328. The State argues that "it was the jury's prerogative to weigh the credibility of witnesses and ... the jury was free to disregard [Diona's] testimony." Appellee's Br. p. 9 (citing Stephenson v. State, 742 N.E.2d 463, 499 (Ind.2001)).

We have no doubt that the injuries Hand inflicted on Diona caused her some pain and discomfort. However, it was the State's burden to produce evidence of Diona's serious bodily injury-here, that the injuries caused Diona extreme pain—to obtain a class C felony battery conviction. In Davis, our Supreme Court elaborated on the definition of "serious bodily injury" for purposes of a defendant's class D felony criminal recklessness conviction:

The appellate courts have sometimes been willing to sanction convictions resting on rather slim levels of injury. See, e.g., Williams v. State, 520 N.E.2d 1261 (Ind.1988) (injury held "serious" when victim was struck in face and back of head, causing lacerations requiring several sutures to close); Sutton v. State, 714 N.E.2d 694 (Ind.Ct.App.1999) (evidence of black eye, soft tissue swelling, and migraine-like headaches...