MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Sep 15 2016, 8:17 am
this Memorandum Decision shall not be CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
and Tax Court
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
Donald J. Frew Gregory F. Zoeller
Fort Wayne, Indiana Attorney General of Indiana
Larry D. Allen
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Nathaniel W. Dickey, September 15, 2016
Appellant-Defendant, Court of Appeals Cause No.
02A04-1602-CR-274
v. Appeal from the Allen Superior
Court
State of Indiana, The Honorable Wendy W. Davis,
Appellee-Plaintiff. Judge
Trial Court Cause No.
02D05-1505-F6-440
Barnes, Judge.
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Case Summary
[1] Nathaniel Dickey appeals his convictions for Level 6 felony battery and Level 5
felony battery. We affirm in part, reverse in part, and remand.
Issues
[2] Dickey raises two issues, which we restate as:
I. whether the trial court properly excluded
evidence of the victim’s health conditions; and
II. whether the evidence is sufficient to sustain
Dickey’s convictions.
Facts
[3] Dickey was in a relationship with Robin Handley. On the evening of April 18,
2015, Dickey was at Handley’s house, and they were drinking, listening to
music, and visiting with Handley’s family. After Handley’s brother left,
Handley told Dickey that he needed to leave because she had to get up early for
an appointment. Dickey knocked Handley to the floor, and he repeatedly
punched her face and kicked her. Handley kicked Dickey in the groin to stop
him from hitting her. Handley’s daughter called 911, and Dickey was arrested.
Handley required stitches in her mouth. She also sustained severe injuries to
her eye, and as of the December 2015 trial, her vision was still affected.
[4] The State charged Dickey with Level 6 felony battery resulting in moderate
bodily injury, Level 6 felony strangulation, and later added a charge of Level 5
felony battery resulting in serious bodily injury. On cross-examination of
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Handley, Dickey’s counsel questioned her regarding her health history.
Handley testified that she did not have “any issues” with her liver, that she did
not have “HIV disease,” but that she had pancreatitis and elevated liver
enzymes. Tr. p. 176. She also admitted that her alcohol level was almost lethal
at the time of the battery. On re-cross-examination, Dickey’s counsel asked
Handley if she had hepatitis C. The State objected on relevancy grounds, and
Dickey argued that the evidence would show that Handley’s wounds were
aggravated by a pre-existing condition. The trial court sustained the State’s
objection.
[5] Handley’s ophthalmologist also testified at the trial. He testified that he
evaluated Handley at the hospital after the incident. Her cornea was inflamed,
her retina was swollen, there was a hemorrhage in the back part of her eye,
there were tears in her pupil, and her vision was significantly decreased. At the
time of trial, Handley still had some vision loss. On cross-examination, Dickey
asked the ophthalmologist if alcohol or liver disease could be a factor in
bleeding of the eye. The ophthalmologist testified that liver disease would not
cause spontaneous bleeding, but severe liver disease could cause “more
coagulation problems.” Tr. p. 202. The trial court would not allow Dickey to
question the ophthalmologist regarding whether Handley had a liver condition.
[6] The jury found Dickey guilty of Level 6 felony battery and Level 5 felony
battery but not guilty of strangulation. The trial court sentenced him to five
years in the Department of Correction for the Level 5 felony conviction and
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“merged” the Level 6 felony conviction. Sentencing Tr. p. 13. Dickey now
appeals.
Analysis
I. Exclusion of Evidence
[7] Dickey first argues that the trial court abused its discretion by excluding
evidence of Handley’s health conditions. We afford the trial court wide
discretion in ruling on the admissibility and relevancy of evidence. Nicholson v.
State, 963 N.E.2d 1096, 1099 (Ind. 2012). We review evidentiary decisions for
an abuse of discretion and reverse only when the decision is clearly against the
logic and effect of the facts and circumstances. Id. Indiana Evidence Rule 402
requires evidence to be relevant, and Indiana Evidence Rule 403 permits the
exclusion of relevant evidence if its probative value is substantially outweighed
by the danger of unfair prejudice or misleading the jury. Smoote v. State, 708
N.E.2d 1, 3 (Ind. 1999). “A claim of error in the exclusion or admission of
evidence will not prevail on appeal unless the error affects the substantial rights
of the moving party.” Nicholson, 963 N.E.2d at 1099.
[8] Dickey sought to admit evidence of Handley’s alleged pre-existing liver disease
and alleged hepatitis C infection. There is a “long-standing rule of both
criminal and tort law that a defendant takes his victim as he finds him.” Bailey
v. State, 979 N.E.2d 133, 142 (Ind. 2012). Dickey argued that the evidence was
relevant to show that the “conditions might have exacerbated the victim’s
physical appearance.” Appellant’s Br. p. 4. Dickey also argues that the
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evidence was relevant to his self-defense claims because “the reasonableness of
his self-defense argument would have been more apparent.” Id. at 5.
[9] Dickey admitted that “maybe [his] elbow or something had hit her in the face.”
Tr. p. 279. That Handley’s alleged medical history may have predisposed her
to bleed more does not make Dickey any less culpable for causing serious
bodily injury when he hit Handley in the face. It also does not make his self-
defense argument more credible. The evidence was not relevant, and Dickey’s
argument to the contrary fails.
[10] Even if it was relevant, Handley had already testified that she had pancreatitis,
elevated liver enzymes, and an almost lethal alcohol level at the time of the
incident. The ophthalmologist testified that liver disease would not cause
spontaneous bleeding, but severe liver disease could cause “more coagulation
problems.” Tr. p. 202. The jury was already aware that Handley had
significant health concerns, including elevated liver enzymes, and that severe
liver disease could cause coagulation issues. Any error in the exclusion of
Handley’s alleged hepatitis C status would not have affected Dickey’s
substantial rights.
II. Sufficiency of the Evidence
[11] Dickey also argues that the evidence is insufficient to sustain his conviction.
When reviewing the sufficiency of the evidence needed to support a criminal
conviction, we neither reweigh evidence nor judge witness credibility. Bailey v.
State, 907 N.E.2d 1003, 1005 (Ind. 2009). “We consider only the evidence
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supporting the judgment and any reasonable inferences that can be drawn from
such evidence.” Id. We will affirm if there is substantial evidence of probative
value such that a reasonable trier of fact could have concluded the defendant
was guilty beyond a reasonable doubt. Id.
[12] Pursuant to Indiana Code Section 35-42-2-1, a person who knowingly or
intentionally touches another person in a rude, insolent, or angry manner
commits battery. The offense is a Level 5 felony if it results in serious bodily
injury to another person. Ind. Code § 35-42-2-1. “Serious bodily injury” is a
“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.” I.C. § 35-31.5-2-292. Whether bodily injury is “serious”
is a question of degree and is reserved for the finder of fact. Sutton v. State, 714
N.E.2d 694, 697 (Ind. Ct. App. 1999), trans. denied.
[13] Dickey seems to argue that the jury would not have found a serious bodily
injury if it had been aware of Handley’s pre-existing medical conditions.
However, “a defendant takes his victim as he finds him [or her].” Bailey, 979
N.E.2d at 142. The issue is not whether Handley’s pre-existing conditions
made her injury more severe. Rather, the issue is whether Handley suffered a
serious bodily injury as a result of the battery, regardless of her pre-existing
conditions.
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[14] The State presented evidence that Dickey hit Handley on the face and that her
eye was swollen shut after the incident. Handley’s ophthalmologist testified
that Handley’s cornea was inflamed, her retina was swollen, there was a
hemorrhage in the back part of her eye, there were tears in her pupil, and her
vision was significantly decreased. At the time of trial, Handley still had some
vision loss. We conclude that the State presented sufficient evidence to show
that Dickey knowingly or intentionally touched Handley in a rude, insolent, or
angry manner, resulting in permanent or protracted loss or impairment of the
function of her eye. The evidence is sufficient to sustain his conviction for
Level 5 felony battery. See, e.g., Sutton, 714 N.E.2d at 696-97 (holding that the
evidence was sufficient to sustain the defendant’s conviction for battery with
serious bodily injury where the victim had a protruding knot on the side of her
head, a black eye, vision problems, and a constant, migraine-like headache for
one to two weeks after the incident).
[15] We note that the trial court “merged” the Level 6 felony battery conviction with
the Level 5 felony battery conviction. “[I]f the trial court does enter judgment
of conviction on a jury’s guilty verdict, then simply merging the offenses is
insufficient and vacation of the offense is required.” Kovats v. State, 982 N.E.2d
409, 414-15 (Ind. Ct. App. 2013). The State concedes that, if we uphold the
Level 5 felony conviction, we should remand with instructions to vacate the
Level 6 felony conviction. Accordingly, we reverse and remand with respect to
the Level 6 felony battery conviction.
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Conclusion
[16] The trial court did not abuse its discretion by excluding evidence regarding
Handley’s alleged health conditions. The evidence is sufficient to sustain
Dickey’s Level 5 felony battery conviction, but we reverse and remand with
instructions to vacate the Level 6 felony battery conviction. We affirm in part,
reverse in part, and remand with instructions.
[17] Affirmed in part, reversed in part, and remanded.
Riley, J., and Bailey, J., concur.
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