MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                         FILED
this Memorandum Decision shall not be                                     Nov 29 2017, 10:43 am
regarded as precedent or cited before any
                                                                               CLERK
court except for the purpose of establishing                               Indiana Supreme Court
                                                                              Court of Appeals
the defense of res judicata, collateral                                         and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Timothy J. O’Connor                                     Curtis T. Hill, Jr.
O’Connor & Auersch                                      Attorney General of Indiana
Indianapolis, Indiana                                   Caroline G. Templeton
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Tait Banham,                                            November 29, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        49A04-1707-CR-1497
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Grant W.
Appellee-Plaintiff.                                     Hawkins, Judge
                                                        The Honorable Peggy Hart,
                                                        Magistrate
                                                        Trial Court Cause No.
                                                        49G05-1701-F5-1801



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1707-CR-1497 | November 29, 2017           Page 1 of 6
                               STATEMENT OF THE CASE
[1]   Appellant-Defendant, Tait Banham (Banham), appeals his conviction for Count

      I, battery resulting in bodily injury to a public safety officer, a Level 5 felony,

      Ind. Code § 35-42-2-1; and Count II, theft, a Class A misdemeanor, I.C. § 35-

      43-4-2(a).


[2]   We affirm.


                                                   ISSUE
[3]   Banham presents us with one issue on appeal, which we restate as: Whether

      the State presented sufficient evidence beyond a reasonable doubt that

      Banham’s actions caused bodily injury to the police officer to sustain his

      conviction for battery, as a Level 5 felony.


                      FACTS AND PROCEDURAL HISTORY
[4]   At approximately 2:00 p.m. on October 17, 2016, Cheree Campbell (Campbell),

      the store manager at the Dollar General on East Washington Street, in

      Indianapolis, Indiana, noticed Banham and his girlfriend enter the store. “They

      didn’t get a cart or a basket, they grabbed one of [the store’s] bags and they were

      throwing the clothes over them. They were paying more attention to

      [Campbell]” than to the clothes. (Transcript. p. 68). Suspicious that Banham

      and his girlfriend might be shoplifting, Campbell called 911 approximately forty

      minutes after Banham and his girlfriend first entered the store. Campbell

      waited outside the store and observed that Banham and his girlfriend exited the

      store without paying for the merchandise.
      Court of Appeals of Indiana | Memorandum Decision 49A04-1707-CR-1497 | November 29, 2017   Page 2 of 6
[5]   Patrol Officer Eric Baker with the Indianapolis Metropolitan Police

      Department (Officer Baker) was informed by dispatch of the possible theft in

      progress. When Officer Baker arrived at the Dollar General in full uniform,

      Campbell directed him to Banham and his girlfriend. As the two were getting

      into their car which was parked in front of the store’s entrance, Officer Baker

      started running towards them and shouted “police” several times until he

      reached the vehicle. (Tr. p. 30). Banham got into the driver’s side of the

      vehicle, while his girlfriend entered the front passenger’s side. Officer Baker

      approached the vehicle on the passenger’s side. At that point, the passenger’s

      side door was still open and Officer Baker positioned himself in the doorway,

      between the open passenger door and the vehicle. He ordered Banham not to

      start the car and told both of them to exit the vehicle. Banham and his

      girlfriend refused to follow Officer Baker’s directions.


[6]   Instead, Banham put the car in reverse and hit Officer Baker’s body armor.

      Initially, Officer Baker “just felt the pressure of something striking” him. (Tr. p.

      40). “[T]he vehicle was powerful so even though the vehicle’s not moving

      extremely fast, [], it was [] enough force on it to where [the officer] could feel it

      through [his] body armor.” (Tr. p. 40). Campbell heard the door “smack[]” the

      officer. (Tr. p. 80). Officer Baker did not feel the “stinging pain” in his back

      and right arm until the vehicle was gone. (Tr. p. 41). He just assumed the

      delayed pain experience was due to “the adrenaline” he experienced while

      trying to apprehend Banham. (Tr p. 41). After the car exited the parking lot,

      “narrowly missing running over [Officer Baker’s] foot,” the stolen items “just


      Court of Appeals of Indiana | Memorandum Decision 49A04-1707-CR-1497 | November 29, 2017   Page 3 of 6
       fell out [the vehicle] from the rate of speed the car was moving and the vehicle

       was turning at the same time[.]” (Tr. pp. 36, 39).


[7]    Officer Baker got the vehicle’s license plate number and determined that the car

       belonged to a Monique Annette Banham. Further investigation of the BMV

       records revealed driver’s records containing pictures of Banham, whom the

       officer recognized as the driver of the vehicle. Banham was subsequently

       arrested.


[8]    On January 13, 2017, the State filed an Information, charging Banham with

       Count I, battery causing bodily injury to a public safety officer, a Level 5 felony;

       and Count II, theft, a Class A misdemeanor. On May 11, 2017, Banham

       waived his right to a jury trial and the case was tried to the bench. At the close

       of the evidence, the trial court found Banham guilty as charged. On June 14,

       2017, Banham was sentenced to three years on the battery conviction and one

       year on the theft conviction, with sentences to run concurrently.


[9]    Banham now appeals. Additional facts will be provided as necessary.


                                  DISCUSSION AND DECISION
[10]   Banham contends that the State failed to present sufficient evidence beyond a

       reasonable doubt to sustain his conviction for battery causing bodily injury to a

       public safety officer, a Level 5 felony. 1 Our standard of review for a sufficiency




       1
           Banham does not challenge his conviction for theft, a Class A misdemeanor.


       Court of Appeals of Indiana | Memorandum Decision 49A04-1707-CR-1497 | November 29, 2017   Page 4 of 6
       of the evidence claim is well settled. In reviewing sufficiency of the evidence

       claims, we will not reweigh the evidence or assess the credibility of the

       witnesses. Moore v. State, 869 N.E.2d 489, 492 (Ind. Ct. App. 2007). We will

       consider only the evidence most favorable to the judgment, together with all

       reasonable and logical inferences to be drawn therefrom. Id. The conviction

       will be affirmed if there is substantial evidence of probative value to support the

       conviction of the trier of fact. Id.


[11]   To convict Banham of battery causing bodily injury to a public safety officer, as

       a Level 5 felony, the State was required to establish that Banham “knowingly or

       intentionally touch[ed] [Officer Baker] in a rude, insolent, or angry manner . . .

       [and] the offense result[ed] in bodily injury to [Officer Baker] while engaged in

       [his] official duties.” I.C. § 35-42-2-1(c)(1); -(g)(5)(A). For purposes of the

       offense, bodily injury is statutorily defined as “any impairment of physical

       condition, including physical pain.” I.C. § 35-31.5-2-29.


[12]   Focusing on the bodily injury requirement of the charge, Banham now

       contends that Officer Baker “suffered, at worst, only slight pain which was mild

       and transitory in nature” and which should not be a sufficient basis on which to

       elevate the charge to a Level 5 felony. (Appellant’s Br. p. 9). To establish

       battery on a law enforcement officer as a Level 6 felony, it is only necessary to

       prove a “touching” “in a rude, insolent, or angry manner.” Compare I.C. § 35-

       42-2-1(e)(2) with I.C. § 35-42-2-1(g)(5)(A). It is exactly this bodily injury

       requirement that differentiates the Level 5 felony from the Level 6 felony where

       a public safety official, including a law enforcement officer, is the victim.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1707-CR-1497 | November 29, 2017   Page 5 of 6
[13]   In the case at hand, Banham’s conduct went beyond the mere touching element

       of a Level 6 felony. Banham used his vehicle to strike Officer Baker as he was

       standing in the passenger’s side door while attempting to stop Banham and his

       girlfriend from leaving. Officer Baker testified that, as a result of Banham’s

       actions, he could feel the impact of the car through his body armor and he

       experienced a stinging pain in his right arm and back.


[14]   In reviewing ‘bodily injury,’ our supreme court focused in Bailey v. State, 979

       N.E.2d 133, 136 (Ind. 2012), on whether “pain alone—regardless of severity or

       duration—[is] sufficient to constitute an impairment of physical condition, or

       must the pain first rise to some unstated level?” The court answered its own

       question by concluding that “any physical pain is enough to constitute bodily

       injury.” Id. By eliciting testimony from Officer Baker that he experienced pain

       after feeling the pressure of the vehicle through his body armor, the State

       presented sufficient evidence beyond a reasonable doubt to sustain Banham’s

       conviction.


                                            CONCLUSION
[15]   Based on the foregoing, we hold that the State presented sufficient evidence

       beyond a reasonable doubt that Banham’s actions caused bodily injury to the

       police officer and we affirm his conviction for battery, as a Level 5 felony.


[16]   Affirmed.


[17]   Baker, J. and Brown, J. concur


       Court of Appeals of Indiana | Memorandum Decision 49A04-1707-CR-1497 | November 29, 2017   Page 6 of 6
