Attorneys for Appellant Attorneys for Appellee
Kimberly A. Jackson Steve Carter
Indianapolis, Indiana Attorney General
George P. Sherman
Deputy Attorney General
Indianapolis, Indiana
In the
Indiana Supreme Court
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No. 49S05-0408-CR-349
Donald Davis,
Appellant (Defendant below),
v.
State of Indiana,
Appellee (Plaintiff below).
_________________________________
Appeal from the Marion Superior Court, No. 49G16-0211-FD-291797
The Honorable Clark Rogers, Judge
_________________________________
On Petition To Transfer from the Indiana Court of Appeals, No. 49A05-0310-
CR-505
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August 26, 2004
Shepard, Chief Justice.
Appellant Donald Davis assaulted his former girlfriend, and the court
found him guilty of criminal recklessness involving serious bodily injury,
a class D felony. The question on appeal is whether a lacerated lip and a
broken pinky finger constitute serious bodily injury. We hold they do not.
After K.R. and Davis had broken up, he appeared at her home asking to
use the bathroom, and she agreed. While Davis was still in the house, one
Roy Bush telephoned to ask K.R. to return his jacket. This communication
angered Davis, who figured Bush to be the replacement boyfriend. K.R. left
the house with the jacket, and Davis returned to his car.
K.R. began walking down the sidewalk to return the jacket, and Davis
pulled up alongside her cussing her out. He then sped ahead and
unsuccessfully tried to run over Bush, who was up the street. Davis
stopped his car and exited, ran up to K.R., and pushed her down to the
street. As she attempted to stand, Davis punched her in the mouth. A
moment later as K.R. tried to flee, Davis attempted to run her over.
Fortunately, a police car appeared, and K.R. ran to it for protection as
Davis drove away. The officer noted that her lips were swollen and
bleeding and that she appeared to have an injured finger.
K.R.’s mother drove her to the hospital for treatment. The medical
records reflect that she had an “abrasion” and some “slight” swelling on
her knee (Exhibits at 5, 7), a “very superficial laceration to the middle
portion of the upper lip on the inside” (Id. at 5-6), and a fractured
little finger on her right hand. Medical personnel gave K.R. a splint for
her finger (Exhibits at 19, 21). They recommended Tylenol or Advil for any
pain. (Exhibits at 8.)
After a bench trial, the court found Davis guilty of criminal
recklessness. Ind. Code Ann. § 35-42-2-2 (West 1998 & Supp. 2004). It
found him not guilty on counts of domestic battery and criminal
recklessness with a motor vehicle. It concluded that conviction on the
recklessness count barred a conviction on yet a fourth charge, battery as a
class A misdemeanor. The court sentenced Davis to two years, as executed
time.
The legislature has defined the crime in question as follows: “A
person who recklessly, knowingly, or intentionally performs . . . an act
that creates a substantial risk of bodily injury to another person…commits
criminal recklessness[,] . . . a Class B misdemeanor.” Ind. Code Ann. § 35-
42-2-2(b). Subsection (d) says that a person “who recklessly, knowingly,
or intentionally . . . inflicts serious bodily injury on another person . .
. commits criminal recklessness, a Class D felony.” The Code defines
“serious bodily injury” as “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 Ann. § 35-41-1-25 (West 1998 & Supp. 2004).
It is the task of finders of fact, juries or judges, to determine in
the first instance whether the evidence in a particular case adequately
proves the elements of an offense. When a defendant contends on appeal
that the evidence was insufficient to sustain the conviction, we neither
reweigh the evidence nor judge the credibility of witnesses, and we affirm
if there is substantial evidence of probative value supporting each element
of the crime from which a reasonable trier of fact could have found the
defendant guilty beyond a reasonable doubt.
Our commitment to the role of fact-finders tends to produce
considerable deference on a matter as judgmental as whether a bodily injury
was “serious.” The appellate courts have sometimes been willing to
sanction convictions resting on rather slim levels of injury. See, e.g.,
Williams v. State, 520 N.E.2d 1261 (Ind. 1988) (injury held “serious” when
victim was struck in face and back of head, causing lacerations requiring
several sutures to close); Sutton v. State, 714 N.E.2d 694 (Ind. Ct. App.
1999) (evidence of black eye, soft tissue swelling, and migraine-like
headaches causing victim to use aspirin on several occasions over two weeks
held sufficient to establish “extreme pain”).
Still, most of the cases cited by the present parties rightly focus
on injuries that plainly reflect the sort of serious infliction of damage
suggested by the statutory definition of “serious bodily injury.” See,
e.g., Hollins v. State, 790 N.E.2d 100 (Ind. Ct. App. 2003) (victim’s arm,
injured by gunshot, was “useless” and likely to be amputated); Judy v.
State, 470 N.E.2d 380 (Ind. Ct. App. 1984) (beat with pool cue, victim’s
leg broken in four places, hospitalized for four days, in a cast for three
months, still limped at time of trial).
To be sure, injuries less substantial than those in cases like
Hollins and Judy can qualify as “serious bodily injury.” But measured
against that standard and against the statutory definition, a slightly
lacerated lip and a broken pinky do not make the grade.
The prosecutor contended in final argument at trial that the fractured
finger was itself enough. On appeal, the State has argued that the impact
on K.R.’s knee when she was pushed down and the blow that lacerated her lip
and broke her finger were events from which “extreme pain” can be inferred.
It appears that the victim said little at trial by way of describing her
level of pain. We do know that the hospital did not write her up for any
prescription pain medication, and we know that the officer on the scene
said she was walking normally when he first saw her. (Exhibits at 8; Tr.
at 37.)
As with all matters of degree, it is difficult to describe in words a
bright line between what is “bodily injury” and what is “serious bodily
injury.” We conclude that even taken altogether, a lacerated lip, abrasion
to the knee, and a broken pinky fall below the line.
Accordingly, the evidence was insufficient to sustain the finding of
criminal recklessness as a class D felony. We reverse and remand for entry
of judgment for the crime of recklessness as a class B misdemeanor.
Dickson, Sullivan, Boehm, and Rucker, JJ., concur.