MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Oct 15 2015, 8:57 am
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Bruce W. Graham Gregory F. Zoeller
Lafayette, Indiana Indianapolis, Indiana
Tyler G. Banks
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Shawn Thayer, October 15, 2015
Appellant-Defendant, Court of Appeals Case No.
79A04-1503-CR-110
v. Appeal from the Tippecanoe
Superior Court 1
State of Indiana, The Honorable Randy J. Williams,
Appellee-Plaintiff Judge
Trial Court Cause No.
79D01-1403-FC-15
Altice, Judge.
Case Summary
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[1] Following a jury trial, Shawn Thayer was convicted of class C felony Battery
Resulting in Serious Bodily Injury,1 class D felony Theft,2 class D felony
Strangulation,3 and class B misdemeanor Criminal Mischief.4 On appeal,
Thayer presents the following issues: (1) Whether the State presented sufficient
evidence to support his class C felony battery conviction; and (2) Whether the
State impermissibly presented evidence that Thayer exercised his Fifth
Amendment right to remain silent.
[2] We affirm.
Facts & Procedural History
[3] On November 3, 2013, Thayer and his on-again, off-again girlfriend, Shannon
Scheumann, made plans to watch a movie together at Thayer’s home in
Lafayette. At Thayer’s request, Scheumann arrived at Thayer’s home at
around 8 p.m. and brought a bottle of vodka with her. When Scheumann
arrived, Thayer took the bottle to make cocktails for both of them. The two
began watching the movie, and Thayer finished his drink a short time later. He
got up to make himself another and grabbed Sheumann’s unfinished drink to
1
Ind. Code § 35-42-2-1. Effective July 1, 2014, this offense was reclassified as a Level 5 felony. Because
Thayer committed this offense prior to that date, it retains its prior classification as a class C felony.
2
Ind. Code § 35-43-4-2. Effective July 1, 2014, this offense was reclassified as a class A misdemeanor.
Because Thayer committed this offense prior to that date, it retains its prior classification as a class D felony.
3
I.C. § 35-42-2-9. Effective July 1, 2014, this offense was reclassified as a Level 6 felony. Because Thayer
committed this offense prior to that date, it retains its prior classification as a class D felony.
4
I.C. § 35-43-1-2.
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top it off. When Thayer brought Scheumann her refilled drink, he told her he
had made it much stronger than the first. Scheumann thought the drink had a
strange, bitter taste, and she did not finish it.
[4] The next thing Scheumann recalled was being on the floor, with Thayer
choking her from behind and swearing at her. Scheumann’s vision then began
to fade, as if someone had “turned the lights out on [her].” Transcript at 129.
Scheumann’s next memory was lying on the floor in the same spot, with
Thayer out of her view. Scheumann got up, exited the house, and walked a
couple of steps before feeling “tremendous pain” in the back of her head and
falling to the ground. Id. at 132. Thayer then began screaming at Scheumann
and kicking her as she lay on the ground. Thayer also kicked Scheumann’s car.
[5] Thayer’s neighbors, Travis and T.J. Wycoff, heard the commotion and went
outside to see what was going on. As he approached Thayer’s home, Travis
saw Scheumann on the ground and Thayer on top of her. Scheumann was
screaming for Thayer to get away from her. Travis told T.J. to call 911 before
going to Scheumann’s aid. When Travis knelt down to prop up Scheumann’s
head, he felt a large knot on the back of her head. Thayer demanded that
Travis leave his property, at one point taking off his shirt and “puff[ing] his
chest up” aggressively. Id. at 56. Travis refused to leave the property without
Scheumann, and police arrived a short time later.
[6] After Scheumann was transported to the hospital by ambulance, Officer Ryan
French attempted to locate her car keys and cell phone. During a consensual
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search of Thayer’s home, Officer French located a cell phone in Thayer’s
couch. Thayer claimed the phone belonged to him, but it was in fact
Scheumann’s.
[7] At the hospital, Scheumann was treated for numerous injuries, including a scalp
hematoma, throat and facial swelling, and a fractured rib. It was later
determined that Scheumann also had a sprained ankle and injuries to her jaw,
which made it difficult for her to open her mouth. These injuries caused
Scheumann severe pain.
[8] Thereafter, Thayer was charged with battery causing serious bodily injury,
strangulation, theft, and criminal mischief. A two-day jury trial commenced on
February 3, 2015, at the conclusion of which Thayer was found guilty as
charged. Thayer now appeals. Additional facts will be provided as necessary.
Sufficiency of the Evidence
[9] Thayer first challenges the sufficiency of the evidence to support his conviction
for battery causing serious bodily injury. In reviewing a challenge to the
sufficiency of the evidence, we neither reweigh the evidence nor judge the
credibility of witnesses. Atteberry v. State, 911 N.E.2d 601, 609 (Ind. Ct. App.
2009). Instead, we consider only the evidence supporting the conviction and
the reasonable inferences flowing therefrom. Id. If there is substantial evidence
of probative value from which a reasonable trier of fact could have drawn the
conclusion that the defendant was guilty of the crime charged beyond a
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reasonable doubt, the judgment will not be disturbed. Baumgartner v. State, 891
N.E.2d 1131, 1137 (Ind. Ct. App. 2008).
[10] In order to convict Thayer of class C felony battery as charged, the State was
required to prove that Thayer knowingly or intentionally touched Scheumann
in a rude, insolent, or angry manner, and that such touching resulted in serious
bodily injury to Scheumann. See I.C. § 35-42-2-1. On appeal, Thayer does not
dispute that he knowingly or intentionally touched Scheumann in a rude,
insolent, or angry manner. Instead, he argues that the State presented
insufficient evidence to prove that the touching resulted in serious bodily injury
to Scheumann. “Serious bodily injury” is defined by statute as follows: “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 § 35-31.5-2-292.
[11] The evidence presented in this case was sufficient to establish serious bodily
injury in the form of extreme pain. Scheumann suffered a scalp hematoma,
facial swelling, swelling in the back of her throat, a fractured rib, a sprained
ankle, and injuries to her jaw. At the hospital, she was treated with both
prescription painkillers and intravenous morphine. Scheumann testified that as
a result of her injuries, she experienced pain like she had never felt before, so
severe that she “couldn’t think straight.” Transcript at 181. Scheumann’s
dentist testified that Scheumann reported suffering “debilitating pain and
headaches” as a result of the injuries to her jaw. Id. at 260. We are therefore
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unpersuaded by Thayer’s reliance on Davis v. State, 813 N.E.2d 1176, 1178 (Ind.
2004) (finding insufficient evidence to support an inference of extreme pain
where the victim suffered only an abrasion to her knee, a superficially lacerated
lip, and broken pinky finger, did not receive a prescription for pain medication,
and did not testify concerning her level of pain). Based on the evidence
presented here, the jury could reasonably infer that Scheumann suffered
extreme pain as a result of Thayer’s attack, which is sufficient standing alone to
support a finding of serious bodily injury.
[12] We note further that the evidence was also sufficient to support a finding that
Scheumann suffered “permanent or protracted loss or impairment of the
function of a bodily member or organ[.]” I.C. § 35-31.5-2-292. Scheumann’s
dentist, who treated her jaw injuries, testified that he had diagnosed her with
acute temporomandibular joint dysfunction. Over two months after the attack,
Scheumann still had problems opening her mouth and suffered debilitating pain
and headaches as a result of the injuries to her jaw. These injuries caused
Scheumann to have such difficulty eating that she lost twenty-five pounds.
Further, a radiologist testified that Scheumann’s rib fracture would make it
difficult to move and breathe freely without pain, and would typically take four
to six months to heal. We conclude that the State presented sufficient evidence
to support a finding of serious bodily injury.
Fifth Amendment
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[13] Thayer also argues that the trial court abused its discretion when it allowed the
State to elicit testimony concerning Thayer’s exercise of his Fifth Amendment
right to remain silent. “Rulings on the admission of evidence are subject to
appellate review for abuse of discretion.” McHenry v. State, 820 N.E.2d 124, 128
(Ind. 2005) (footnote omitted). A trial court abuses its discretion when its
ruling is clearly against the logic, facts, and circumstances presented. Gray v.
State, 982 N.E.2d 434, 437 (Ind. Ct. App. 2013).
[14] On direct examination, Thayer testified that he cooperated with the police
“absolutely[,] every time.” Transcript at 286. Then, during the State’s cross-
examination of Thayer, the following exchange took place:
Q: If I understand your testimony earlier your statement to your
attorney was that you cooperated with the police fully. Is that
accurate?
A: Yes.
Q: What about Sergeant [Jay] Rosen? Did you cooperate with
Sergeant Rosen?
A: Yes, I did. Yes, I offered Officer Rosen to come to my home
and have a sit down conversation with me.
Transcript at 294. At that point, Thayer’s counsel objected on the basis that the
State’s question constituted an improper reference to Thayer’s invocation of his
right to remain silent. The State responded that the question was not improper
because Thayer had testified that he cooperated with police. Although the trial
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court did not expressly rule on Thayer’s objection, neither the question nor his
response was stricken from the record. The State went on to assert that
Thayer’s claim that he had offered to provide a statement to Sergeant Rosen
was inaccurate and that Sergeant Rosen would testify to that effect. Thayer did
not object, and the trial court ruled that the State would be limited to asking
Sergeant Rosen whether Thayer had offered to give a statement. The State
subsequently called Sergeant Rosen as a rebuttal witness and, again without
objection from Thayer, elicited testimony that Thayer had not offered to give
him a statement.
[15] On appeal, Thayer challenges on Fifth Amendment grounds both the State’s
question regarding whether Thayer had cooperated with Sergeant Rosen and
the admission of Sergeant Rosen’s testimony. Thayer’s argument fails on
multiple bases. First, at least with respect to Sergeant Rosen’s testimony,
Thayer has waived the argument by failing to object at trial. See Konopasek v.
State, 946 N.E.2d 23, 27 (Ind. 2011) (explaining that failure to object to the
admission of evidence normally results in waiver precluding appellate review,
and that “an objection to one question does not serve as an objection to another
distinct question”). Second, because there is no indication on the record before
us that Thayer invoked his Fifth Amendment right to remain silent, he cannot
claim the Amendment’s protections. See Salinas v. Texas, 133 S.Ct. 2174, 2179-
81 (2013) (explaining that a witness who desires the protection of the privilege
against self-incrimination must claim it, and one generally does not do so by
simply standing mute); Mira v. State, 3 N.E.3d 985, 989 (Ind. Ct. App. 2013)
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(finding no Fifth Amendment violation where evidence was presented that the
defendant did not call a detective back to schedule a meeting to discuss a theft
investigation because his failure to do so did not support a finding that he
invoked his right to remain silent). Third, even assuming arguendo that the
State’s question and Sergeant Rosen’s testimony could otherwise be considered
a violation of Thayer’s privilege against self-incrimination, Thayer opened the
door to this testimony by testifying that he had cooperated with the police
“absolutely[,] every time.” See Pennycuff v. State, 745 N.E.2d 804, 813 (Ind.
2001) (concluding that evidence of defendant’s silence was admissible to rebut
the defendant’s claims that he had cooperated with police). For all of these
reasons, Thayer has not established a Fifth Amendment violation.
[16] Judgment affirmed.
[17] Riley, J., and Brown, J., concur.
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