MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), Jan 29 2016, 7:36 am
this Memorandum Decision shall not be
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
Mark Olivero Gregory F. Zoeller
Fort Wayne, Indiana Attorney General of Indiana
Jodi Kathryn Stein
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Christopher R. Marks, January 29, 2016
Appellant-Defendant, Court of Appeals Case No.
02A05-1506-CR-669
v. Appeal from the Allen Superior
Court
State of Indiana, The Honorable Frances C. Gull,
Appellee-Plaintiff Judge
The Honorable Samuel R. Keirns,
Magistrate
Trial Court Cause No.
02D05-1411-F6-396
Baker, Judge.
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[1] Christopher Marks appeals his conviction of Class A Misdemeanor Domestic
Battery,1 arguing that the trial court’s jury instructions constitute reversible
error. Finding no error, we affirm.
Facts
[2] For three years prior to November 2014, Marks and Paige Richie had been in a
romantic relationship, and for one year prior they had lived together. On
November 3, 2014, Marks became suspicious that Richie was involved with
another man. He tried to contact her, and changed her social media passwords,
but could not reach her. Upset, Marks left work, went home, and began
drinking.
[3] Richie returned home around 5:30 p.m. to find Marks on the patio. The two
quickly began arguing. Marks grabbed Richie’s cell phone, looking for proof of
infidelity. She attempted to regain possession of her phone, but he pushed her
face. She then grabbed his cell phone and threatened to call the police.
[4] Marks grabbed Richie’s arm, pulled it around her back, and forced her to the
ground. Neither knew that Richie’s call had gone through to 911, and that the
911 dispatch was overhearing and recording the encounter. Two officers were
dispatched.
1
Ind. Code § 35-42-2-1.3.
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[5] Marks rubbed Richie’s face into the carpet. She screamed, “Stop, get off me,”
but to no avail. Tr. 46-47. He wrapped his arm around her throat and dragged
her through the apartment. Still looking for proof of infidelity, he forcibly
removed her jeans and underwear. Just then, there was the knock of the police
at the door.
[6] Marks went to answer the door, but only after dragging Richie by her hair into
the bedroom. As he exited the apartment, police officers noticed that he was
breathing heavily and that he smelled of alcohol. The officers placed Marks in
handcuffs and went to aid Richie. They found her naked from the waist down,
shaking, crying, hyperventilating, and with a laceration above her forehead.
[7] On November 7, 2014, the State charged Marks with Level 6 felony
strangulation and Class A misdemeanor domestic battery. The charging
information included an allegation that Marks’s actions “result[ed] in bodily
injury, to wit: physical pain or visible injury. . . .” Appellant’s App. 15.
[8] At the outset of the May 5, 2015, jury trial, the parties disagreed over the
wording of the jury instructions. The State was concerned that the proposed
jury instruction, which included the language, “physical pain and/or visible
injury,” would require the State to prove both physical pain and visible injury.
Tr. 3. The State wanted the jury instruction to reflect the language in the
charging information, which was clearly stated in the disjunctive. The trial
court noted that Indiana Code section 35-31.5-2-29 defines bodily injury as
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“any impairment of physical condition, including physical pain.” The trial
court sided with the State, and eventually instructed the jury as follows:
Before you may convict the Defendant, the State must have
proved each of the following beyond a reasonable doubt:
1. The Defendant, Christopher Marks,
2. knowingly or intentionally,
3. touched Paige Richie,
4. in a rude, insolent, or angry manner,
5. which resulted in bodily injury to Paige Richie, to wit:
physical pain or visible injury,
6. when Paige Richie was living as if defendant’s spouse.
Appellant’s App. 54. The jury instructions also said, “The term ‘bodily injury’
is defined by law as meaning any impairment of physical condition, including
physical pain.” Id. at 55.
[9] At trial, Marks argued that his actions were taken in self-defense. He never
argued that Richie was not injured. The jury found Marks not guilty of
strangulation but guilty of domestic battery. Following a sentencing hearing,
the trial court sentenced him to one year, suspended to probation. Marks now
appeals.
Discussion and Decision
[10] Marks has one argument on appeal: that the jury instructions were improper.
He contends, first, that the language regarding “visible injury” altered the
elements of domestic battery, and, second, that it improperly focused the jury
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on the visual evidence, namely, the photographs of Richie. He points to Ludy v.
State, in which our Supreme Court found error, albeit harmless error, in a jury
instruction that improperly focused the jury’s attention on and highlighted a
single witness’s testimony. 784 N.E.2d 459, 461 (Ind. 2003).
[11] We find both contentions to be unavailing. As for the first, we cannot agree
that a jury, using these instructions, could have convicted Marks without
finding that all of the elements of battery were met. Marks acknowledges that if
the jury found that Richie experienced physical pain, the requirement of bodily
injury would be satisfied. I.C. § 35-31.5-2-29. But he believes that if the jury
only found “visible injury,” the requirement of bodily injury would not have
been satisfied.
[12] We cannot see how a jury could find that a victim was visibly injured without
also finding that he or she was bodily injured. A visible injury is merely a
species of bodily injury. There can be no visible injury of a person that is not
also a bodily injury of that person. Therefore, even assuming that the jury did
not find that Richie had experienced physical pain—and this is a big
assumption, given Richie’s testimony that when Marks was attacking her, “It
hurt so bad,” “It was terrible,” “It was awful,” and “It felt like I had to say
goodbye to everybody,” tr. 34—the jury would necessarily have found that she
was bodily injured if it found that she was visibly injured.
[13] Turning to Marks’s second contention, we cannot agree that the instruction
improperly focused the jury’s attention on a single witness or a single piece of
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evidence. Marks believes that the word “visible” impermissibly narrowed the
jury’s attention to the photographs in the record. But this was not the only
evidence of bodily, or visible, injury. Richie testified that she suffered a scratch
on her face. Tr. 37. Such a scratch would be a visible injury. Further, the
responding police officer testified that he observed injuries on Richie’s face. Tr.
56. Such injuries would be visible injuries. The photographs corroborated both
of these observations. State’s Ex. 2-6.
[14] We do not believe that the word “visible” restricted the jury’s attention in any
meaningful way. All of the evidence of bodily injury consisted of either
Richie’s experience of pain or her visible injuries—if the instructions
“narrowed” the jury’s attention, its attention would have been “narrowed” to
the entirety of evidence presented to prove bodily injury. This is clearly not an
error.
[15] The judgment of the trial court is affirmed.
Bradford, J., and Pyle, J., concur.
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Christopher R. Marks v. State of Indiana (mem. dec.)
Combined Opinion