McGaughey v. State

Decision Date15 April 1981
Docket NumberNo. 1-580A117,1-580A117
Citation419 N.E.2d 184
PartiesDeanna McGAUGHEY, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
CourtIndiana Appellate Court

James R. Earnshaw, Crawfordsville, for appellant.

Linley E. Pearson, Atty. Gen., Janis L. Summers, Deputy Atty. Gen., Indianapolis, for appellee.

ROBERTSON, Judge.

We find it necessary to reverse and remand this cause for a new trial. The two issues which require reversal concern double jeopardy and the separation of the jury.

McGaughey argues her Fifth Amendment protection against double jeopardy has been violated because she was found guilty of two offenses: battery with a deadly weapon and battery resulting in serious bodily injury. Ind.Code 35-42-2-1(3) was the basis for the two counts of battery. This section provides:

A person who knowingly or intentionally touches another person in a rude, insolent, or angry manner commits battery, a class B misdemeanor. However, the offense is:

(3) A class C felony if it results in serious bodily injury to any other person or if it is by means of a deadly weapon.

We are of the opinion that the statute defines but one offense, with subsection 3 stating two alternative factual situations which, if proven, raise the level of the offense from a class B misdemeanor to a class C felony.

The elements of the basic offense are: (1) knowingly or intentionally (2) touching another person (3) in a rude, insolent or angry manner.

More severe punishment is provided when there are additional elements present ....

The class C felony, has the three basic elements plus either 'serious bodily, injury' or commission by means of a 'deadly weapon'.

"Commentary," West's A.I.C. 35-42-2-1, at 300.

Here, there was one beating, at one place, at one time inflicted upon one victim, there, but one crime was committed.

McGaughey also contends that the trial court committed a fundamental error when it allowed the jury to separate after beginning deliberations. The jury began deliberating in the afternoon of November 15, 1979. At 2:45 A.M. on November 16, the jury informed the bailiff that they were not near a verdict. The trial court read them an instruction and then sent them home to get some sleep, telling them to return the next morning at 11:30 A.M. The jury began deliberating again at this time. The trial court reread its instructions to the jury at 12:45 P.M. The jury continued deliberating until the verdict was returned at 7:50 P.M. McGaughey is correct in arguing that IC 35-1-37-4 requires the jury to be kept together. McGaughey cites Walker v. State, (1980) Ind., 410 N.E.2d 1190, as authority requiring reversal of this action.

McGaughey did not object to the separation of the jury and raises this issue as a fundamental error. The recent opinions of Walker v. State, supra, and Bales v. State, (1981) Ind., 418 N.E.2d 215, persuade us that McGaughey is correct in her assertion. The supreme court stated in Walker v. State, supra :

Where, then, there has been misconduct of jurors, as in the present case, this court must hold that there was error in refusing a new...

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5 cases
  • Stewart v. State
    • United States
    • Indiana Supreme Court
    • December 16, 1988
    ...the jurors were allowed to separate for a great length of time, such as ten and one-half hours to four days. Id.; McGaughey v. State (1981), Ind.App., 419 N.E.2d 184; Walker v. State (1980), 274 Ind. 224, 410 N.E.2d In appellant's case, the record does not reveal why the juror left the deli......
  • Drake v. State
    • United States
    • Indiana Supreme Court
    • August 31, 1984
    ...sent to their private homes during the course of deliberations. See Follrad v. State, (1981) Ind., 428 N.E.2d 1201; McGaughey v. State, (1981) Ind.App., 419 N.E.2d 184. The affidavit does not point to any instance in which a juror was, in fact, exposed to a prejudicial influence, nor does i......
  • Follrad v. State
    • United States
    • Indiana Supreme Court
    • September 18, 1981
    ...in a criminal case until the time the verdict is returned. See also, Bales v. State, (1981) Ind., 418 N.E.2d 215; McGaughey v. State, (1981) Ind.App., 419 N.E.2d 184. The constraint serves the obvious and vital purpose of insuring that each juror's individual assessment and verdict are not ......
  • Sturgis v. State
    • United States
    • Indiana Appellate Court
    • June 27, 2013
    ...not violate double jeopardy protections because different weapons supported each charge), trans. denied. Sturgis cites McGaughey v. State, 419 N.E.2d 184 (Ind.Ct.App.1981), but that case is distinguishable. In that case, a panel of this Court determined that McGaughey's convictions for batt......
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