Smith v. State
| Decision Date | 07 March 2008 |
| Docket Number | No. 45A03-0708-CR-357.,45A03-0708-CR-357. |
| Citation | 881 N.E.2d 1040 |
| Parties | Derrick C. SMITH, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Jeffrey Schlesinger, Indianapolis, IN, Attorney for Appellant.
Steve Carter, Attorney General of Indiana, Arthur Thaddeus Perry, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
A person commits aggravated battery by knowingly or intentionally inflicting injury on a person that causes protracted loss or impairment of the function of a bodily member or organ1 The case before us requires us to address as an issue of first impression whether a tooth is a "bodily member or organ" within the definition of this statute. Relying on caselaw from other jurisdictions interpreting similar aggravated battery statutes, we conclude that a tooth is a "bodily member or organ" within the definition of Indiana's aggravated battery statute.
Appellant-defendant Derrick Smith appeals his convictions and sentence for Robbery,2 a class B felony, Aggravated Battery,3 a class B felony, Criminal Confinement,4 a class D felony, and Attempted Escape,5 a class B felony. Specifically, Smith argues that (1) the evidence was insufficient to support his conviction for robbery because his victim did not have possession of or authority over the keys he took; (2) the evidence was insufficient to support his conviction for aggravated battery because a victim's tooth is not a member or organ of the body for purposes of the aggravated battery statute; (3) the convictions for robbery and criminal confinement violate Indiana Code section 35-38-1-6 because, in this case, criminal confinement is a lesser-included offense of robbery; and (4) the trial court improperly ordered the sentence for criminal confinement to run consecutively to the other sentences imposed in the case. While Smith's arguments do not amount to reversible error, we find, sua sponte, that his convictions for class B felony robbery and class B felony aggravated battery violate the double jeopardy clause of the Indiana Constitution. Thus, the judgment of the trial court is affirmed in part, reversed in part, and remanded to the trial court with instructions contained herein.
On August 11; 2006, Smith was" an in mate at the Lake County Jail. Officer Doris Wheeler was a correctional officer working in the jail's control booth that night. At approximately 1:25 a.m., Smith and another inmate, William Whiters, entered the jail control booth. Smith hit Officer Wheeler twice in the mouth, and both inmates pushed her to the ground and sat on her. Smith and Whiters unsuccessfully searched Officer Wheeler for her clocking card, which is "what [is] use[d] to get from one pod to another or [to another] section in the jail." Tr. p. 176.
After failing to find Officer Wheeler's clocking card, Smith attempted to unlock the nearby door with the computer in the control booth. Whiters demanded that Officer Wheeler get up and, when she did not comply, Whiters dragged her to a bathroom. While Whiters was dragging Officer Wheeler to the bathroom, Smith grabbed some keys from a box inside the control booth and unsuccessfully tried to open a nearby door with the keys. Whiters left Officer Wheeler in the bathroom and began to help Smith. Left unattended, Officer Wheeler got up, went to the computer, locked all security doors, and called for assistance. Officers heard the call and responded at approximately 1:30 a.m. Smith and Whiters fled to another area of the jail where they were later apprehended.
Officer Wheeler was bleeding heavily from the mouth when she was found and one of her teeth was severely damaged. Ultimately, the tooth had to be surgically removed and an artificial tooth was cemented in its place.
On August 17, 2006, Smith was charged with multiple counts of robbery, criminal confinement, aggravated battery, attempted escape, battery, and theft. A jury trial began on May 14, 2007, and a jury found Smith guilty of class B felony robbery, class B felony aggravated battery, class D felony criminal confinement, and class B felony attempted escape.6 A sentencing hearing was held on June 28, 2007, and Smith was sentenced to twenty years for each of the class B felony convictions and three years for the class D felony criminal confinement conviction. The three-year criminal confinement sentence was ordered to run consecutively to the concurrent class B felony sentences, resulting in an aggregate term of twenty-three years imprisonment. Smith now appeals.
I. Sufficiency
Smith argues that the State presented insufficient evidence to support his robbery and aggravated battery convictions. When reviewing challenges to the sufficiency of the evidence, we neither reweigh the evidence nor judge the credibility of witnesses. Vasquez v. State, 741 N.E.2d. 1214, 1216 (Ind.2001). Rather, we will examine the evidence and the reasonable inferences that may be drawn therefrom that support the verdict and will affirm a conviction if there is probative evidence based on which a jury could find the defendant guilty beyond a reasonable doubt. Id. Put another way, we will affirm unless "no rational fact-finder" could have found the defendant guilty beyond a reasonable doubt. Clark v. State, 728 N.E.2d 880, 887 (Ind.Ct.App.2000).
A. Robbery
Smith argues that the Slate did not present sufficient evidence to support his robbery conviction. Specifically, Smith argues that he did not commit robbery because "[Officer] Wheeler neither had possession of the keys nor were they under her personal protection." Appellant's Br. P. 7.
A person who knowingly or intentionally takes property from another person or from the presence of another person by using or threatening the use of force on any person or by putting any person in fear commits class C felony robbery.7 I.C. § 35-42-5-1. Smith does not dispute that he took the keys by using force. Instead, he argues that he did not commit robbery because the keys he took belonged to the Lake County Jail, not Officer Wheeler. A perpetrator commits robbery even if the property seized is not owned by the victim so long as it is merely under the personal protection of the victim. Highbaugh v. State, 773 N.E.2d 247, 251 (Ind.2002).
Smith directs us to Officer Wheeler's testimony that she was not in charge of the keys he took from the control room:
Q. Being that you're assigned to [the control booth], are you responsible for the equipment, as well as the keys in that control booth?
A. No sir, that's [the] H pod person.
Q. Okay. So if those keys were missing from that box, would you: get in trouble?
Tr. p. 245. However, Officer Jeffery Stilwell testified that "every officer that is down there [in the control booth] is responsible for the keys that are in that box ... [and t]he officers that are assigned to booking and H pod are responsible for the keys that are in the lock box inside the control booth." Id. at 126. When specifically asked if Officer Wheeler was authorized to use the keys that Smith stole, Officer Stilwell responded, "Yes." Id. at 127.
Because the State presented evidence that Officer Wheeler had authority over the keys, we conclude that it presented sufficient evidence to prove that the property Smith stole was "under the professional protection of the victim." Highbaugh, 773 N.E.2d at 251. While we acknowledge Officer Wheeler's conflicting testimony, it is well established that inconsistencies in the evidence are for the factfinder to evaluate and "it is the role of the factfinder, not the reviewing court, to determine what evidence to believe." Mendoza v. State, 869 N.E.2d 546, 554 (Ind.Ct. App.2007), trans. denied. Thus, we decline Smith's invitation for us to reweigh the evidence presented at trial and, instead, conclude that the State presented sufficient evidence to sustain the robbery conviction.
Smith also argues that the State did not present sufficient evidence to support his aggravated battery conviction. Specifically, Smith argues that Officer Wheeler's broken tooth is not a severe enough injury to sustain his conviction because, as a matter of law, a tooth is not a bodily member or organ within the definition of the aggravated battery statute.
A person who knowingly or intentionally inflicts injury on a person that creates a substantial risk of death or causes (1) serious permanent disfigurement or (2) protracted loss or impairment of the function of a bodily member or organ commits class B felony aggravated battery. I.C. § 35-42-2-1.5. In Neville v. State, we recognized that "there is no statutory definition for the word `protracted.'" 802 N.E.2d 516, 518 (Ind.Ct.App.2004). Consequently, we turned to the rules of statutory inter pretation to determine and give effect to the intent of the legislature, and we ultimately held that the plain meaning of "protracted" is "to draw out or lengthen in time; prolong." Id. Following the same logic, we held in Fleming v. State that the word "impairment" means "[t]he fact or state of being damaged, weakened, or diminished" for purposes of the aggravated battery statute. 833 N.E.2d 84, 89 (Ind. Ct.App.2005).
Smith argues that Officer Wheeler's injury cannot fall under the second prong of the aggravated battery statute because "the tooth was neither a bodily Wmember or organ." Appellant's Br. p. 8. hile there is no Indiana, precedent for the notion that a tooth is a bodily member or organ for purposes of our aggravated battery statute, several other jurisdictions have analyzed similar statutes and arrived at that conclusion. See, e.g., Rivers v. State, 255 Ga.App. 422, 565 S.E.2d 596, 597 (2002) (); McBeath v. State, 739 So.2d 451, 455 (Miss.Ct.App.1999) (...
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