                                                                       FILED
                                                                   Aug 30 2017, 8:59 am

                                                                       CLERK
                                                                   Indiana Supreme Court
                                                                      Court of Appeals
                                                                        and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                      Curtis T. Hill, Jr.
Wieneke Law Office, LLC                                    Attorney General of Indiana
Brooklyn, Indiana                                          Katherine Cooper
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Vicki Jo Clemons,                                          August 30, 2017
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           73A01-1703-CR-405
        v.                                                 Appeal from the Shelby Superior
                                                           Court
State of Indiana,                                          The Honorable R. Kent Apsley,
Appellee-Plaintiff                                         Judge
                                                           Trial Court Cause No.
                                                           73D01-1507-F5-66



Altice, Judge.


                                           Case Summary




Court of Appeals of Indiana | Opinion 73A01-1703-CR-405 | August 30, 2017                  Page 1 of 14
[1]   Vicki Clemons appeals her conviction for Level 5 felony battery with a deadly

      weapon. On appeal, Clemons argues that the trial court committed

      fundamental error when it did not instruct the jury on the legal definition of

      “serious bodily injury” and that a probation condition prohibiting her from

      associating with anyone of bad character or reputation was impermissibly

      vague.


[2]   We affirm in part, reverse in part, and remand for further proceedings.


                                        Facts & Procedural History


[3]   Clemons and her neighbor, Margaret Willoughby, did not get along. On July

      12, 2015, Willoughby, her two young children, and fifteen-year-old Casee

      Johnston were taking a walk in the neighborhood. As they neared Clemons’s

      home, Willoughby observed Clemons standing on the porch. When Clemons

      spotted the group, she approached Willoughby and said that she was going to

      teach her a lesson. Clemons struck Willoughby in the head with a metal rod

      and said that she was “gonna end [Willougby’s] f**king life[.]” Transcript at 82.

      Willoughby put up her hand to block a second blow, and Clemons “hit [her]

      right across [her] wrist.” Id. When Willoughby turned around to walk away,

      Clemons hit her across her back.


[4]   Following this incident, Clemons returned home, and Willoughby called 911.

      One of the responding officers observed that Willoughby had a large bump on

      the outside of her left arm and that her injuries were the type that he would

      expect to see in “a car accident or something.” Id. at 117. Willoughby suffered

      Court of Appeals of Indiana | Opinion 73A01-1703-CR-405 | August 30, 2017   Page 2 of 14
      a fractured wrist. She testified that the injury “would shoot pain all the way up

      through [her] arm. It was painful. I only slept two or three hours that night

      cause it hurt that bad.” Id. at 90.


[5]   On July 28, 2015, the State charged Clemons with Level 5 felony battery with a

      deadly weapon and Level 6 felony battery resulting in moderate bodily injury.

      A jury trial took place on October 11, 2016. During trial, the trial court

      provided both parties with a copy of the proposed jury instructions to review;

      neither party objected to the proposed instructions. The trial court’s final jury

      instructions did not include an instruction defining the phrase “serious bodily

      injury.” During trial, Willoughby testified that the rod was “real heavy” and

      “long and gray, and it had two black things on, like each end of it. And I

      would say it was a really, really hard aluminum. Maybe a light metal.” Id. at

      87-88.


[6]   The jury found Clemons guilty as charged. The trial court merged the Level 6

      felony battery resulting in moderate bodily injury conviction into the Level 5

      felony battery with a deadly weapon due to double jeopardy concerns. The trial

      court then imposed a two-year sentence, fully suspended to probation, for the

      Level 5 felony conviction. One of the standard conditions of probation

      provided: “You shall not associate with any person of bad character or

      reputation or with any person who is likely to influence you to commit a crime

      or crimes.” Appellant’s Appendix Vol. II at 117. Clemons now appeals.


                                           Discussion & Decision


      Court of Appeals of Indiana | Opinion 73A01-1703-CR-405 | August 30, 2017   Page 3 of 14
                                              1. Jury Instruction


[7]   Clemons argues that the jury should have been instructed on the statutory

      definition of “serious bodily injury.” See Ind. Code § 35-31.5-2-292. Clemons

      acknowledges, however, that she did not object to the jury instructions at trial

      and that she must consequently establish fundamental error in order to prevail

      on her claim of instructional error. See Hall v. State, 937 N.E.2d 911, 913 (Ind.

      Ct. App. 2010) (noting that failure to object to jury instructions at trial results in

      waiver of the issue on appeal unless the instruction is so flawed that it

      constitutes fundamental error). Our Supreme Court has described the

      fundamental error standard as a “daunting” one, applicable only in egregious

      circumstances. Knapp v. State, 9 N.E.3d 1274, 1281 (Ind. 2014). “To qualify as

      fundamental error, ‘an error must be so prejudicial to the rights of the defendant

      as to make a fair trial impossible’ and must ‘constitute a blatant violation of

      basic principles, the harm or potential for harm must be substantial, and the

      resulting error must deny the defendant fundamental due process.’” Absher v.

      State, 866 N.E.2d 350, 355 (Ind. Ct. App. 2007) (quoting Benson v. State, 762

      N.E.2d 748, 755 (Ind. 2002)). The fundamental error exception is extremely

      narrow and “reaches only errors that are so blatant that the trial judge should

      have taken action sua sponte.” Id.


[8]   To prove that Clemons committed battery with a deadly weapon, the State had

      to prove that Clemons knowingly or intentionally touched another person in a

      rude, insolent, or angry manner with a deadly weapon. Ind. Code § 35-42-2-

      1(g)(2). A “deadly weapon” is, in relevant part, any “material that in the

      Court of Appeals of Indiana | Opinion 73A01-1703-CR-405 | August 30, 2017   Page 4 of 14
      manner it: (A) is used; (B) could ordinarily be used; or (C) is intended to be

      used; is readily capable of causing serious bodily injury.” I.C. § 35-31.5-2-

      86(a)(2). Thus, to decide whether the metal rod constituted a deadly weapon,

      the jury had to determine whether it was readily capable of causing serious

      bodily injury. See Whitfield v. State, 699 N.E.2d 666, 670 (Ind. Ct. App. 1998)

      (stating that whether sufficient evidence exists to establish that an object

      constitutes a deadly weapon “is determined by looking to whether the weapon

      had the actual ability to inflict serious injury”). “Serious bodily injury” is

      statutorily defined as follows:

              “Serious bodily injury” means 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.


[9]   The jury received an instruction on the definition of “deadly weapon” but not

      on the definition of “serious bodily injury.” Because a deadly weapon is


      Court of Appeals of Indiana | Opinion 73A01-1703-CR-405 | August 30, 2017   Page 5 of 14
       defined as one capable of inflicting serious bodily injury, an instruction on the

       definition of the latter phrase would certainly have been desirable. We note,

       however, that serious bodily injury is not an element of the challenged offense.

       Rather, the focus is on the instrumentality used and its potential for harm, not

       the harm actually inflicted.


[10]   When determining whether an element of an offense has been proven, the jury

       may rely on its collective common sense and knowledge acquired through

       everyday experiences—indeed, that is precisely what is expected of a jury.

       Halsema v. State, 823 N.E.2d 668, 673-74 (Ind. 2005). “The trial court has a

       duty to give further instructions defining words used in other instructions only if

       the words are of a technical or legal meaning normally not understood by jurors

       unversed in the law.” Martin v. State, 314 N.E.2d 60, 70 (Ind. 1974). We do

       not doubt that in some contexts, “serious bodily injury” may require further

       definition. But whatever its precise statutory definition, the phrase is quite

       readily understood by the average layman to mean some injury short of death.

       See Comer v. State, 428 N.E.2d 48, 55 (Ind. Ct. App. 1981) (noting the likelihood

       that “in common usage, ‘serious bodily injury’ refers to something short of a

       fatal injury or mortal wound”).1




       1
         In Comer, 428 N.E.2d at 55, this court found no error in the refusal of a tendered instruction on the lesser
       included offense of criminal recklessness because the defendant failed to tender an additional instruction
       defining the phrase “serious bodily injury,” which was used in the criminal recklessness statute and proposed
       instruction. At the time that case was decided, however, “serious bodily injury” was defined to include
       bodily injury causing death. The court reasoned that it would be “highly speculative to maintain that laymen
       would define serious bodily injury in the manner that our Legislature has seen fit to do” because “[i]t is


       Court of Appeals of Indiana | Opinion 73A01-1703-CR-405 | August 30, 2017                         Page 6 of 14
[11]   Furthermore, it is common sense that a metal rod used in this manner is

       capable of causing death, and as such, it is logically inescapable that such a

       weapon is also capable of causing serious bodily injury. Thus, even in the

       absence of an instruction on the statutory definition of that phrase, the jury was

       able to determine based on its collective common sense and everyday

       experiences that the metal rod Clemons used to batter Willoughby was readily

       capable of causing serious bodily injury. Had Clemons used some other, less

       obviously lethal weapon—for example, a book or a pencil—the failure to define

       serious bodily injury might have amounted to fundamental error. But under the

       circumstances of this case, we cannot conclude that allowing the jury to reason

       that a metal rod is a deadly weapon without such an instruction constituted

       fundamental error.


                                             2. Probation Condition


[12]   Clemons also argues that a probation condition prohibiting her from associating

       with people of bad character or reputation or with people likely to influence her




       doubtful that the common usage of the phrase ‘serious bodily injury’ includes the concept of death.” Id. The
       current definition of serious bodily injury has eliminated this potential source of confusion because it no
       longer includes injury causing death. Thus, we do not believe Comer supports Clemons’s argument on
       appeal.
       We also find Kimbrough v. State, 911 N.E.2d 621, 634 (Ind. Ct. App. 2009), to be legally and factually
       distinguishable. In that case, the defendant was convicted of battery with a deadly weapon and argued on
       appeal that it was fundamental error to instruct the jury on the definition of “serious bodily injury” because
       he was not charged with causing such injury. This court concluded that the instruction was proper because
       the jury had to determine whether the weapon (a wooden table leg) was readily capable of causing serious
       bodily injury, and “the jury could not make such a determination without knowing the definition of serious
       bodily injury.” Id. The court did not address whether the failure to give such an instruction would have
       amounted to fundamental error.

       Court of Appeals of Indiana | Opinion 73A01-1703-CR-405 | August 30, 2017                          Page 7 of 14
       to commit a crime was impermissibly vague. We agree. “Probation is a

       criminal sanction where a convicted defendant specifically agrees to accept

       conditions upon his behavior in lieu of imprisonment.” Bratcher v. State, 999

       N.E.2d 864, 873 (Ind. Ct. App. 2013). A trial court has broad discretion to

       impose conditions of probation. Hevner v. State, 919 N.E.2d 109, 113 (Ind.

       2010). The court’s discretion is limited by the principle that the conditions

       imposed on the defendant must be reasonably related to the treatment of the

       defendant and the protection of public safety. Bratcher, 999 N.E.2d at 873. “A

       probationer has a due process right to conditions of supervised release that are

       sufficiently clear to inform him [or her] of what conduct will result in his [or

       her] being returned to prison.” McVey v. State, 863 N.E.2d 434, 447 (Ind. Ct.

       App. 2007), trans. denied.


[13]   Although we acknowledge that this condition and others like it are commonly

       used throughout the state, we agree with Clemons that it is unreasonably vague.

       The condition does not define what “associate” or “bad character or

       reputation” mean in this context, nor is it clear how to identify a person who

       could “influence” Clemons to commit a crime. Because each of the terms in

       this condition is subjective, the condition fails to inform Clemons what conduct

       would subject her to revocation of her probation. Cf. Hunter v. State, 883 N.E.2d

       1161, 1163-64 (Ind. 2008) (finding a condition prohibiting the probationer from

       having “contact” with children and requiring the probationer to report any

       “incidental contact” with children to his probation officer to be impermissibly

       vague); Foster v. State, 813 N.E.2d 1236, 1237-39 (Ind. Ct. App. 2004) (finding a


       Court of Appeals of Indiana | Opinion 73A01-1703-CR-405 | August 30, 2017   Page 8 of 14
       condition prohibiting a probationer from possessing “pornographic or sexually

       explicit materials” to be impermissibly vague). We therefore instruct the trial

       court to clarify the condition prohibiting Clemons from associating with any

       person of bad character or reputation or likely to influence her to commit a

       crime. We also encourage the trial court to ensure its probation conditions are

       appropriately specific, in this and all cases in the future.


[14]   Judgment affirmed in part, reversed in part, and remanded with instructions.


       Bailey, J., concurs.


       Baker, J., dissents in part and concurs in part with opinion.




       Court of Appeals of Indiana | Opinion 73A01-1703-CR-405 | August 30, 2017   Page 9 of 14
                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Vicki Jo Clemons,                                          Court of Appeals Case No.
                                                                 73A01-1703-CR-405
      Appellant-Defendant,

              v.

      State of Indiana,
      Appellee-Plaintiff




      Baker, Judge, dissenting in part and concurring in part.


[1]   I fully concur with the majority with respect to Clemons’s probation condition.

      I respectfully part ways with my colleagues, however, with respect to the jury

      instruction.


[2]   The majority contends that, even without a jury instruction on the definition of

      serious bodily injury, the jury could use its common sense to determine whether

      the metal pole Clemons used was capable of causing death, and therefore also

      capable of causing serious bodily injury. But without a jury instruction defining

      the term, the jury had no way of knowing that creating a substantial risk of

      Court of Appeals of Indiana | Opinion 73A01-1703-CR-405 | August 30, 2017              Page 10 of 14
      death is included in the definition of serious bodily injury. Thus, the majority

      essentially relies on the statute that defines serious bodily injury in order to

      argue that the jury did not need a definition of serious bodily injury.


[3]   The jury received an instruction on “deadly weapon” but not on “serious bodily

      injury.” Because a factfinder cannot determine whether a deadly weapon was

      used without also knowing what constitutes a serious bodily injury, the lack of

      instruction on the definition of “serious bodily injury” means that the jury was

      not sufficiently informed about the charge of battery with a deadly weapon. In

      other words, because the jury did not receive an instruction on the definition of

      “serious bodily injury,” the jury was necessarily unable to determine whether

      the metal pole Clemons used against Willoughby was capable of causing a

      serious bodily injury.


[4]   The majority notes that the “‘trial court has a duty to give further instructions

      defining words used in other instructions only if the words are of a technical or

      legal meaning normally not understood by jurors unversed in the law.’” Slip

      op. para. 10 (quoting Martin, 314 N.E.2d at 70). Yet “serious bodily injury” is a

      legal term of art with a precise meaning defined by our General Assembly,

      unlike many other terms that do not have codified definitions. See Martin, 314

      N.E.2d at 70 (trial court did not err by refusing to give a jury instruction

      defining the term “purposely” because “the word ‘purposely’ is not used in a

      technical legal sense and is quite readily understood by the average layman”);

      Moreland v. State, 701 N.E.2d 288, 295 (Ind. Ct. App. 1998) (trial court did not

      err in failing to offer a jury instruction defining the phrase “with the intent to”

      Court of Appeals of Indiana | Opinion 73A01-1703-CR-405 | August 30, 2017   Page 11 of 14
      because “‘[w]ith the intent to’ is not the type of phrase that has a technical or

      legal meaning not understood by the average juror”).


[5]   The majority distinguishes this case from Kimbrough based on the fact that the

      Kimbrough Court did not address whether the failure to give an instruction on

      the definition of serious bodily injury would have constituted fundamental

      error. I, however, find Kimbrough instructive: the Kimbrough Court specifically

      found that the jury could not determine whether the defendant committed

      battery with a deadly weapon without knowing the definition of serious bodily

      injury. Kimbrough, 911 N.E.2d at 634. The inverse of the Kimbrough court’s

      reasoning is that the failure to provide an instruction on the definition would

      have amounted at least to error, if not fundamental error.


[6]   Similarly, the majority finds Comer unhelpful. As the majority acknowledges,

      the definition of serious bodily injury has changed since the Comer decision, but

      the majority neglects to also consider that since that decision, our General

      Assembly has enacted a new statute that also defines moderate bodily injury.

      I.C. § 35-31.5-2-204.5. This new statutory category of injury only reinforces the

      Comer Court’s concern that it “would be highly speculative to maintain that

      laymen would define serious bodily injury in the manner that our Legislature

      has seen fit to do.” Id. at 55. Without instructions on both serious bodily injury

      and moderate bodily injury, it is speculative that the jury would be able to

      differentiate between these terms as our General Assembly saw fit to do.




      Court of Appeals of Indiana | Opinion 73A01-1703-CR-405 | August 30, 2017   Page 12 of 14
[7]   Indeed, what muddies the waters here is the fact that the State also charged

      Clemons with battery resulting in moderate bodily injury. As a result, the jury

      was instructed on the definition of “moderate bodily injury” but not on “serious

      bodily injury.” It is possible that a weapon could be capable of causing serious

      bodily injury while actually causing only moderate bodily injury. In other

      words, these charges were not inherently contradictory because a weapon may

      be deadly but cause only moderate bodily injury. But because the State elected

      to charge Clemons in this fashion, the jury was only asked to find that

      Willoughby sustained moderate bodily injury.


[8]   Had Willoughby’s injuries clearly constituted serious bodily injury, I would

      affirm, because a weapon that actually causes serious bodily injury is

      necessarily capable of causing such injury. See, e.g., Gleason v. State, 965 N.E.2d

      702, 707-710 (Ind. Ct. App. 2012) (finding that brass knuckles constituted a

      deadly weapon after the defendant used them to hit the victim in the head,

      causing him to fall, start bleeding, and get four stitches); Timm v. State, 644

      N.E.2d 1235, 1238 (Ind. 1994) (finding that the jury could have reasonably

      concluded that the flashlight defendant used was a deadly weapon capable of

      causing serious bodily injury because when the defendant struck the victim in

      the face with it, the flashlight shattered upon impact, the victim’s glasses broke,

      and the victim received thirteen stitches to her eye and treatment for multiple

      lacerations to her face). But I cannot say that it is a given that a jury would

      have found swelling, pain, and a wrist fracture to constitute serious, as opposed

      to moderate, bodily injury. Compare I.C. § 35-31.5-2-204.5 (“‘Moderate bodily


      Court of Appeals of Indiana | Opinion 73A01-1703-CR-405 | August 30, 2017   Page 13 of 14
      injury’ means any impairment of physical condition that includes substantial

      pain”), with I.C. § 35-31.5-2-292 (“‘Serious bodily injury’ means bodily injury

      that creates a substantial risk of death or that causes (1) serious permanent

      disfigurement; . . . (3) extreme pain; [or] (4) permanent or protracted loss or

      impairment of the function of a bodily member or organ . . .”). And as stated

      above, in this case, the jury found only that Willoughby sustained moderate

      bodily injury. Without a separate instruction regarding the definition of

      “serious bodily injury,” the jury was insufficiently instructed on how to

      distinguish between these two categories of injury, and I cannot say with

      certainty that the same result would have occurred had the jury been properly

      instructed.


[9]   I would, therefore, find that the jury instructions were so flawed as a result of

      the omission of a definition of “serious bodily injury” that they constituted

      fundamental error. In all other respects, I fully concur with the majority

      opinion.




      Court of Appeals of Indiana | Opinion 73A01-1703-CR-405 | August 30, 2017   Page 14 of 14
