FILED
OPINION Sep 09 2016, 8:39 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
John S. Terry Gregory F. Zoeller
Cate, Terry & Gookins, LLC Attorney General of Indiana
Carmel, Indiana
Jesse R. Drum
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Dustin Todd Garner, September 9, 2016
Appellant-Defendant, Court of Appeals Case No.
29A04-1602-CR-361
v. Appeal from the Hamilton
Superior Court
State of Indiana, The Honorable William J. Hughes,
Appellee-Plaintiff. Judge
Trial Court Cause No.
29D03-1510-F6-9119
May, Judge.
Court of Appeals of Indiana | Opinion 29A04-1602-CR-361 | September 9, 2016 Page 1 of 7
[1] Dustin Todd Garner appeals his conviction of Level 6 felony battery with
moderate bodily injury. 1 The sole issue he raises is whether the trial court
abused its discretion when it declined to instruct the jury on the lesser included
offense of battery with bodily injury as a Class A misdemeanor. We affirm.
Facts and Procedural History
[2] On the morning of October 19, 2015, Patrick Knowles was walking to work
when Garner, Mitch Randall, Taylor Meredith, and Matt Fisher approached
him. Garner punched Knowles and broke his nose. Knowles twisted his ankle
as he fell to the ground. Garner continued to hit Knowles for what seemed to
Knowles “like forever.” (Tr. at 143.) Garner “picked [Knowles’] head up and
hit it against the concrete [and Knowles] could see the blood pooling from his
nose.” (Id.) Then, Garner and the others “walk[ed] back, it looked like to the
apartments.” (Id. at 144.)
[3] After his assailants left, Knowles “worked [himself] up to actually stand” and
went to work. (Id. at 145.) However, once there, he started worrying the same
men might attack his girlfriend. He called her but she did not answer. He did
not call the police. He left work and started walking back towards his
apartment, albeit by a slightly different route, “just in case.” (Id. at 147.)
1
Ind. Code § 35-42-2-1(b)(1) and Ind. Code § 35-42-2-1(d)(1) (2014). Ind. Code § 35-42-2-1(d)(1) is now Ind.
Code 35-42-2-1(e)(1) (2016).
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[4] Garner, Randall, and Fisher reappeared. This time, Garner “just walked up,
didn’t say nothing [sic] . . . he hit [Knowles] way harder than the first [time
and] knocked [him] down.” (Id. at 150.) Garner hit Knowles in the back of the
head, kicked him, and stomped on him. Garner finally “walk[ed] off fast.” (Id.
at 153.) Randall and Fisher remained momentarily. Fisher kicked Knowles in
the back of the head, and then they left.
[5] Knowles was dizzy and “lucky that [he] was conscious but everything [was]
blurry.” (Id.) He continued to his apartment but could “barely stand” when he
got there. (Id.) His girlfriend called the police. The police called an
ambulance. The ambulance transported Knowles to the hospital. Knowles’ lip
required stitches, and he had a “small fracture to [his] nose.” (Id. at 155.) He
was released later that same day, without pain medication. He testified the pain
“was ten,” (id. at 156), on a scale of one to ten, “with ten being the most
excruciating pain you can imagine, 1 being mild annoyance.” (Id.) He was
having difficulty moving his mouth and was advised to eat only soft foods.
[6] Based on Knowles’ description and a police dog’s tracking, the police located
Garner and the other men involved in the altercation. When they located
Garner, his mouth was bleeding and “there were abrasions to his hands.” (Id.
at 209.) Police arrested Garner and the State charged him with Level 6 felony
battery resulting in moderate bodily injury. During a jail call, Garner was
recorded saying “I broke both my hands on his face, fucking broke his face, split
his lip wide the fuck open.” (Id. at 332.)
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[7] At trial Garner’s attorney tendered a jury instruction for Class A misdemeanor
battery resulting in bodily injury, as a lesser included offense of battery resulting
in moderate injury. The State objected and the trial court sustained the
objection, stating, “There is no basis in the world that a reasonable jury could
find that there is not moderate bodily injury in this case as that is defined by
law. Substantial pain. [sic]” (Id. at 359.) The jury found Garner guilty.
Discussion and Decision
[8] The trial court did not abuse its discretion in declining to instruct the jury on
battery resulting in bodily injury. A trial court should include an instruction
regarding a lesser included offense if the lesser offense “may be established ‘by
proof of the same material elements or less than all the material elements’
defining the crime charged,” Wright v. State, 658 N.E.2d 563, 566 (Ind. 1995)
(quoting Ind. Code § 35-41-1-16(1)), or “the charging instrument alleges that the
means used to commit the crime charged include all of the elements of the
alleged lesser included offense,” id. at 567, and the trial court finds a serious
evidentiary dispute regarding an element that distinguishes the lesser offense
from the greater offense. Id.
[9] The trial court determined there was no serious evidentiary dispute about the
element that distinguishes the misdemeanor from the felony, the degree of
injury Garner caused Knowles. Where the trial court has determined there is
no serious evidentiary dispute, we treat that finding with deference and review
it for an abuse of discretion. McEwen v. State, 695 N.E.2d 79, 84 (Ind. 1998). A
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decision is an abuse of discretion when it “is clearly against the logic and effect
of the facts and circumstances.” Prewitt v. State, 878 N.E.2d 184, 188 (Ind.
2007).
[10] A “serious evidentiary dispute” exists if, based on “the evidence presented in
the case by both parties,” a “jury could conclude that the lesser offense was
committed but not the greater.” Wright, 658 N.E.2d at 567. Garner was
charged with having inflicted “moderate bodily injury,” which is “any
impairment of physical condition that includes substantial pain.” Ind. Code §
35-31.5-2-204.5 (2014). Garner’s requested instruction was for battery resulting
in “bodily injury,” which is defined as “any impairment of physical condition,
including physical pain.” Ind. Code § 35-31.5-2-29.
[11] No Indiana appellate court has heretofore considered when there is a serious
evidentiary dispute about whether a victim experienced “pain” or “substantial
pain.” 2 There are presumably fact patterns under which a trial court might
abuse its discretion by declining to instruct a jury about battery resulting in
bodily injury as a lesser included offense, but we must affirm the trial court’s
decision in this case because the injuries Knowles received could have justified
a charge of Level 5 felony battery resulting in serious bodily injury. See Ind.
Code § 35-31.5-2-292 (“Serious bodily injury” defined); see also, e.g., Dausch v.
State, 616 N.E.2d 13, 16 (Ind. 1993) (broken nose, stitches, and bruising satisfy
2
The statutes criminalizing battery with moderate bodily injury and defining moderate bodily injury became
effective in 2014.
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criteria for “serious bodily injury”); Phares v. State, 506 N.E.2d 65, 69 (Ind. Ct.
App. 1987) (“eight stitches . . . required to close the head wound . . . was
sufficient to establish serious bodily injury”).
[12] When he reached his apartment, Knowles could “barely stand,” (Tr. at 153), his
lip required stitches, and he had a “small fracture to [his] nose.” (Id. at 155.)
On seeing him, the police immediately called for an ambulance. It took “a
good week” for the pain to subside. (Id. at 160.) Knowles testified the pain
“was ten,” (id. at 156), on a scale of one to ten, “with ten being the most
excruciating pain you can imagine, 1 being mild annoyance.” (Id. at 155.) In
addition to Knowles’ testimony about his injuries, several police officers
testified as to the extent of Knowles’ injuries and the State introduced
photographs of Knowles’ injuries that corroborated the testimony.
[13] The State entered evidence that Garner, on a call recorded from the jail, stated
he had “broken both [his] hands on [Knowles’] face, fucking broke [Knowles’]
face, split [Knowles’] lip wide the fuck open.” (Id. at 332.) Garner did not
present evidence that the injuries he inflicted on Knowles would have caused
only “physical pain” rather than “substantial pain.” Compare Ind. Code § 35-
31.5-2-204.5 (defining “moderate bodily injury”) with Ind. Code § 35-31.5-2-29
(defining “bodily injury”).
[14] In light of these facts, there was no serious evidentiary dispute about whether
Knowles experienced substantial pain following the battery. Therefore, the trial
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court did not abuse its discretion when it declined to give the proposed jury
instruction.
Conclusion
[15] As the trial court did not abuse its discretion by declining Garner’s tendered
instruction on a lesser included offense, we affirm.
[16] Affirmed.
Kirsch, J., and Crone, J., concur.
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