Attorneys for Appellant Attorneys for Appellee
Kimberly A. Jackson Steve Carter
Indianapolis, Indiana Attorney General
George P. Sherman
Deputy Attorney General
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
August 26, 2004
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
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
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
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) (victims 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, victims 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.