Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the                            Mar 15 2013, 9:04 am
purpose of establishing the defense of
res judicata, collateral estoppel, or the
law of the case.

ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

MARK A. BATES                                    GREGORY F. ZOELLER
Appellate Public Defender                        Attorney General of Indiana
Crown Point, Indiana
                                                 GARY R. ROM
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

MAHOGANEE K. EDMOND,                             )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )      No. 45A03-1206-CR-281
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                      APPEAL FROM THE LAKE SUPERIOR COURT
                          The Honorable Salvador Vasquez, Judge
                              Cause No. 45G01-1107-FB-65




                                       March 15, 2013



               MEMORANDUM DECISION - NOT FOR PUBLICATION



ROBB, Chief Judge
                                        Case Summary and Issues

        Mahoganee K. Edmond appeals her convictions of aggravated battery, a Class B

felony; battery with a deadly weapon, a Class C felony; and criminal recklessness, a

Class A misdemeanor. Edmond raises the following restated issues: 1) whether the trial

court abused its discretion in refusing to give Edmond’s proposed jury instruction

expounding on the definition of negligence; 2) whether there was sufficient evidence to

sustain the aggravated battery conviction; and 3) whether the trial court abused its

discretion in denying Edmond’s motion to correct error. Concluding that the trial court

did not abuse its discretion and that there was sufficient evidence, we affirm.

                                      Facts and Procedural History

        On July 12, 2011, a splash party for young people between the ages of sixteen and

twenty-one was taking place inside an aquatorium at a park in Gary, Indiana, when a

fight broke out. Police arrived at the scene as security escorted the two groups of people

who had been involved in the fight outside. One group of people was ordered to stand

across the street to wait for their rides and the other group was held near the building by

security. Both groups were still riled up and were yelling at each other and exchanging

curse words. The main person involved in the fight was placed in a squad car. Officer

Montae Dixon escorted Edmond to her vehicle so that she could pick up her friends who

were standing near the building. As Officer Dixon followed Edmond in her vehicle, he

saw her make a “swift jerk” into a grassy area on the side of the road where three girls,

K.L., A.D., and K.F., were standing. Transcript at 202. Edmond’s vehicle hit the girls.1


        1
          Edmond and the girls did not know each other prior to the party. At trial, the State argued that she hit
them intentionally, having believed that they were involved in the fight. Edmond argued that they were not involved
                                                        2
K.L. did not see the car coming and was thrown in the air. As a result of the hit, she

suffered a moderate dislocation of her right knee. A.D did not suffer any serious injury.

K.F. suffered a contusion to the head and swelling on her tailbone.

         Edmond was charged with multiple counts.                         After a jury trial, Edmond was

convicted of aggravated battery, a Class B felony; battery with a deadly weapon, a Class

C felony; and criminal recklessness, a Class A misdemeanor. The trial court sentenced

Edmond to concurrent terms of eight years for the aggravated battery, two years for the

battery with a deadly weapon, and one year for the criminal recklessness with two years

suspended. Edmond filed a motion to correct error. After a hearing on the motion, the

trial court denied it.          Edmond now appeals.                Additional facts will be provided as

necessary.

                                           Discussion and Decision

                                              I. Jury Instructions


                                            A. Standard of Review


         The decision to give or deny a tendered jury instruction is largely left to the sound

discretion of the trial court. St. Mary’s Med. Ctr. of Evansville, Inc. v. Loomis, 783

N.E.2d 274, 282 (Ind. Ct. App. 2002). We review the trial court’s decision only for an

abuse of that discretion, and, in so doing, consider whether the tendered instruction (1)

correctly states the law, (2) is supported by the evidence, and (3) is covered in substance

by other instructions. Stringer v. State, 853 N.E.2d 543, 548 (Ind. Ct. App. 2006). We

consider jury instructions as a whole and in reference to each other and do not reverse the

in the fight and that she did not hit them intentionally, but that her flip-flop was stuck in the brake and she swerved
to avoid hitting a parked vehicle.
                                                          3
trial court unless the instructions as a whole mislead the jury with regards to the law in

the case. Helsley v. State, 809 N.E.2d 292, 303 (Ind. 2004).

                                   B. Refused Instruction


       The trial court refused to give the following jury instruction tendered by Edmond:

       Proof that the accident which resulted in the injury complained of arose out
       of inadvertence, lack of attention, forgetfulness or thoughtlessness of the
       Defendant, as the driver of the automobile involved in the accident, or from
       an error of judgment on the part of the said Defendant, will not support a
       charge of criminal recklessness, and in that event you must find the
       defendant not guilty of the charges of criminal recklessness.
       I instruct you that if the Defendant due to error in judgment caused the
       collision, then she cannot be guilty of criminal recklessness, and your
       verdict must be not guilty.

Appellant’s Appendix at 50.        Edmond argues that the refusal of this instruction is

reversible error. We disagree.

       Even if an instruction is a correct statement of the law and finds support in the

evidence, a trial court may in its discretion refuse to give it if it is covered in substance by

other instructions. O’Connell v. State, 970 N.E.2d 168, 173-74 (Ind. Ct. App. 2012).

Here, the trial court found that the refused instruction was covered in substance by the

following instruction, also tendered by Edmond:

       A person engages in conduct “recklessly” if she engages in the conduct in
       plain, conscious and unjustified disregard of the harm that might result
       therefrom, and the disregard involves a substantial deviation from
       acceptable standards of conduct. This requires the State to prove more than
       mere negligence on behalf of the Accused.
       Negligence is the failure to do what a reasonably careful and prudent person
       would have done under the same or like circumstances, or the doing of some
       thing which [sic] reasonably careful and prudent person would not have
       done under the same or like circumstances; in other words, negligence is the
       failure to exercise reasonable or ordinary care.



                                               4
Appellant’s App. at 49. Because the jury was properly instructed as to the definitions of

recklessness and negligence and informed that the State was required to prove more than

mere negligence, the trial court’s refusal to give an instruction merely expounding on the

definition of negligence was not an abuse of discretion.2

        In support of her argument, Edmond relies on Sipp v. State, 514 N.E.2d 330 (Ind.

Ct. App. 1987), and Cichos v. State, 243 Ind. 187, 184 N.E.2d 1 (1962). However, in

Sipp, the jury was not instructed that the State had to prove more than negligence nor was

it given a definition of negligence despite the defense having presented evidence that the

defendant suffered epileptic seizures.               514 N.E.2d at 330-32.             Because the refused

instructions were not covered in substance by other instructions, the court reversed the

defendant’s conviction for reckless homicide. Id. at 332. Similarly, in Cichos, the

refused instructions explaining that mere negligence in the operation of a motor vehicle

did not create criminal liability were not covered in substance by any instructions given

by the trial court and thus our supreme court reversed the defendant’s reckless homicide

conviction. 184 N.E.2d at 1-3. Here, unlike both cases, the jury was properly instructed

that the State was required to prove more than mere negligence and given the definition

of negligence. The trial court did not abuse its discretion when it refused to give the

proposed instruction.




        2
           Edmond notes that the trial court stated that she was entitled to make an argument for accident, and yet
refused the proposed instruction. However, while the instruction mentions the word “accident,” it merely develops
the distinction between recklessness and negligence by listing “inadvertence, lack of attention, forgetfulness or
thoughtlessness . . . [or] an error of judgment” as things that do not rise to the level of criminal recklessness.
Appellant’s App. at 50. In fact, Edmond offered to remove the word accident from the instruction and replace it
with the word “incident or occurrence” if doing so would convince the court to give it to the jury. Tr. at 359.
                                                        5
                                II. Sufficiency of Evidence


                                  A. Standard of Review


       Our standard of review for sufficiency claims is well-settled. We do not reweigh

the evidence or assess witness credibility for ourselves. Boggs v. State, 928 N.E.2d 855,

864 (Ind. Ct. App. 2010), trans. denied. We consider only the probative evidence and

reasonable inferences supporting the verdict. Id. It is not necessary that the evidence

overcome every reasonable hypothesis of innocence; the evidence is sufficient if an

inference may reasonably be drawn from it to support the verdict. Id. We will affirm the

conviction unless no reasonable finder of fact could find the elements of a crime proven

beyond a reasonable doubt. Id.

                                 B. Protracted Impairment


       Edmond was convicted of aggravated battery in violation of Indiana Code section

35-42-2-1.5. The State was required to prove beyond a reasonable doubt that Edmond

knowingly or intentionally inflicted injury on K.L., causing protracted loss or impairment

of the function of a bodily member or organ. Edmond concedes that there was sufficient

evidence K.L. was injured as a result of being struck by the car but argues that the

evidence was insufficient to prove that K.L. suffered protracted loss or impairment of the

function of her right leg as a result of that injury. We disagree.

       This court has defined protracted as “to draw out or lengthen in time” and

impairment as “the fact or state of being damaged, weakened, or diminished.” Mann v.

State, 895 N.E.2d 119, 122 (Ind. Ct. App. 2008) (internal quotations and citations

omitted). Edmond relies on the case of Neville v. State, 802 N.E.2d 516 (Ind. Ct. App.
                                              6
2004), trans. denied, for her argument. In Neville, the evidence established that the

victim was hospitalized for three days, experienced pain, and was discharged on crutches

with his leg in a brace, but the victim did not testify at trial and medical records did not

note the severity of the injury or whether he would experience protracted impairment. Id.

at 519. As a result, a panel of this court found that the State did not meet its burden of

proving protracted loss or impairment sufficient to sustain an aggravated battery

conviction and reversed with instructions to the trial court to enter judgment for the

lesser-included offense of battery. Id. at 520.

       While K.L. was only hospitalized for three days for the dislocation of her right

knee and tears in the ligaments, her medical records indicate that her leg was placed in a

cast with the understanding that she may require reconstructive ligamentous surgery to

the knee in the future. State Exhibit’s 15 at 15. Also, unlike the victim in Neville, K.L.

testified at trial. She stated that she did not remember exactly how long her leg had

stayed in a cast immediately after the injury, but testified that one week prior to the trial,

about seven months after the injury, she had surgery on her knee and was placed on

crutches once again. Her testimony established that her leg was impaired approximately

seven months after the injury and thus there was sufficient evidence K.L. suffered

protracted loss or impairment of the function of her right leg. See Mann, 895 N.E.2d at

122 (holding that the victim’s testimony that he had muffled hearing for approximately

two months after the attack was sufficient evidence of protracted impairment to his ear);

Salone v. State, 652 N.E.2d 552, 559 (Ind. Ct. App. 1995) (holding that the victim’s

testimony that she was unable to use her hand for fourteen to sixteen weeks was


                                              7
substantial evidence that the injury caused protracted loss or impairment of the function

of her hand), trans. denied.

                                III. Motion to Correct Error


                                  A. Standard of Review


       When a trial court rules on a motion to correct error, it has the duty to examine the

evidence to determine whether there is evidence beyond a reasonable doubt that supports

the verdict of the jury. Tancil v. State, 956 N.E.2d 1204, 1206 (Ind. Ct. App. 2011)

(quoting Moore v. State, 273 Ind. 268, 403 N.E.2d 335, 336 (1980)), trans. denied. When

the request is for a new trial, the trial court acts as a thirteenth juror and may weigh the

evidence and judge the credibility of the witnesses. Id. at 1206 (quoting Jones v. State,

697 N.E.2d 57, 59 (Ind. 1998)). The trial court has discretion to grant or deny a motion

to correct error, and we reverse the trial court’s decision only for an abuse of that

discretion. Roberts v. State, 854 N.E.2d 1177, 1178 (Ind. Ct. App. 2006), trans. denied.

An abuse of discretion occurs when the trial court’s decision is against the logic and

effect of the facts and circumstances before the court or if the court has misinterpreted the

law. Id.

                                    B. Thirteenth Juror


       The trial court denied Edmond’s motion to correct error in which she challenged

the sufficiency of the evidence of the protracted impairment element of the aggravated

battery conviction, which we discuss in part II above, and the sufficiency of the evidence

of the mens rea element for all three of her convictions. Edmond contends that the trial

court used the wrong standard in ruling on her motion to correct error. She claims that
                                             8
the court should have weighed the evidence and credibility of the witnesses as the

thirteenth juror and if the court had done so, it would have set aside her convictions. We

disagree.

       While it is true that as the thirteenth juror the trial court may weigh the evidence

and credibility of the witnesses, this principle “is not intended to invite the trial judge to

cavalierly substitute his or her evaluation of the evidence in place of a contrary evaluation

made by the jury, and relief is appropriate only if the jury’s determination is unreasonable

or improper.” State v. Hollars, 887 N.E.2d 197, 204 (Ind. Ct. App. 2008), trans. denied.

After hearing the case along with the jury and assessing the credibility of the witnesses,

the trial court as the thirteenth juror determines whether the verdict is against the great

weight of the evidence. Id. The trial court did that here.

       In denying Edmond’s motion to correct error, the trial court stated, in relevant

part, the following:

       What I remember of this case, and the state really points out the essential
       fact I think that in my opinion led the jury to find the defendant guilty of all
       charges is information from witnesses that defendant swerved and went off
       the road. This is – this was clear and really without contradiction as I
       remember the evidence. I do recall pointing out in my summation at
       sentencing that there was a conflict in terms of whether the lights were on or
       off, but I think that that has less weight in light of the more compelling
       evidence produced at trial that the victims, all three, were not on the road.
       All three were off the road in a grassy area or some area if not grass, sand, in
       this area and not on the road. The information before the jury is that
       defendant went off the road and the victims were not on the road. This in
       my opinion would lead the jury to find either the act was knowing or
       intentional, either finding could have been supported by the evidence. In
       light of the injury, I think there’s no question at all . . . that the main victim .
       . . did suffer from protracted loss or impairment of the function of a bodily
       member in light of the injury produced and presented to the jury . . . .
       Because you have raised the reckless conviction . . . the jury was given [an
       instruction] with regard to how they are to view negligence versus
       recklessness . . . . I think that the jury had the opportunity to review and
                                               9
         certainly find criminal recklessness . . . . I do believe that there is substantial
         evidence or [sic] probative value to support each essential element of the
         claim . . . . I specifically do not believe that the verdicts on any of these
         counts are against the weight of the evidence, because the weight of the
         evidence in my opinion is clear and for the reasons previously stated this
         morning.

Tr. at 472-74.3          Thus, the trial court employed the correct standard and properly

considered the evidence, finding that the jury’s verdict was not against the weight of the

evidence. See Tancil, 956 N.E.2d at 1210 (holding that the trial court did not abuse its

discretion in denying defendant’s motion for a new trial because there was sufficient

evidence to support the jury’s verdict); see also Hollars, 887 N.E.2d at 205 (holding that

“while the jury in this case certainly could have concluded that [the defendant] did not

have time to form the requisite intent to kill, the evidence is not so lopsided that the jury

should have done so,” and thus the trial court abused its discretion in reversing the jury’s

verdict) (emphasis in original). The trial court did not abuse its discretion in denying

Edmond’s motion to correct error.

                                                     Conclusion

         The trial court did not abuse its discretion in refusing to give Edmond’s proposed

jury instruction or in denying her motion to correct error. Further, there was sufficient

evidence to sustain the conviction of aggravated battery.                             We therefore affirm her

convictions.

         Affirmed.

MAY, J., and PYLE, J., concur.



         3
           The trial court also issued a written order in which it stated that “there is substantial evidence of probative
value to support each element of all charges for which the defendant was found guilty” and “the jury verdict is not
against the weight of the evidence.” Appellant’s App. at 107.
                                                           10
