MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any                            Jun 23 2017, 9:16 am
court except for the purpose of establishing                              CLERK
the defense of res judicata, collateral                               Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Philip R. Skodinski                                      Curtis T. Hill, Jr.
South Bend, Indiana                                      Attorney General of Indiana

                                                         Denise A. Robinson
                                                         Senior Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Gabrielle R. Adams,                                      June 23, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         71A05-1611-CR-2659
        v.                                               Appeal from the St. Joseph
                                                         Superior Court
State of Indiana,                                        The Honorable John M.
Appellee-Plaintiff.                                      Marnocha, Judge
                                                         Trial Court Cause No.
                                                         71D02-1605-F5-85



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A05-1611-CR-2659| June 23, 2017           Page 1 of 5
                                        Statement of the Case
[1]   Gabrielle R. Adams appeals her conviction for battery, as a Level 5 felony,

      following a jury trial.1 Adams raises a single issue for our review, namely,

      whether the State presented sufficient evidence to show that the battery was

      “committed with a deadly weapon.” See Ind. Code § 35-42-2-1(g)(2) (2016). As

      explained in our opinion in Troy Burgh v. State, ___ N.E.3d ___, No. 71A03-

      1611-CR-2669 (Ind. Ct. App. June 23, 2017), also handed down today, we hold

      that a reasonable trier of fact may conclude that battery was “committed with a

      deadly weapon” when the paved surface of a parking lot is used in a manner

      that makes that surface readily capable of causing serious bodily injury. Thus,

      we affirm Adams’ conviction.


                                  Facts and Procedural History
[2]   On May 12, 2016, Adams and her boyfriend, Troy Burgh, got into a fight with

      Ashley Banghart in a CVS Pharmacy parking lot in Walkerton. During the

      fight, Burgh pulled Banghart to the ground, which was a paved asphalt surface.

      While Banghart was on the ground, Adams slammed Banghart’s head onto the

      paved surface six times, which caused Banghart to suffer a concussion.


[3]   Thereafter, the State charged Adams with, in relevant part, battery enhanced to

      a Level 5 felony for having been committed with a deadly weapon, namely, the




      1
        Adams does not appeal her convictions for battery, as a Class A misdemeanor, or possession of marijuana,
      as a Class B misdemeanor.

      Court of Appeals of Indiana | Memorandum Decision 71A05-1611-CR-2659| June 23, 2017            Page 2 of 5
      parking lot pavement. After a trial, the jury found Adams guilty. The court

      entered its judgment of conviction and sentence accordingly, and this appeal

      ensued.


                                     Discussion and Decision
[4]   On appeal, Adams contends that the evidence against her was insufficient to

      demonstrate that she battered Banghart with a deadly weapon. In particular,

      Adams asserts that the paved surface of a parking lot cannot satisfy the deadly

      weapon enhancement that elevates battery from a Class B misdemeanor to a

      Level 5 felony. In reviewing the sufficiency of the evidence, we consider only

      the evidence and reasonable inferences most favorable to the conviction, neither

      reweighing the evidence nor reassessing witness credibility. Griffith v. State, 59

      N.E.3d 947, 958 (Ind. 2016). We will affirm the judgment unless no reasonable

      fact-finder could find the defendant guilty. Id.


[5]   As relevant here, the Indiana Code provides that battery is a Level 5 felony

      when it is committed with “a deadly weapon.” I.C. § 35-42-2-1(g)(2). The

      Indiana Code further defines “deadly weapon” to mean, among other things,

      any “material that in the 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.”




      Court of Appeals of Indiana | Memorandum Decision 71A05-1611-CR-2659| June 23, 2017   Page 3 of 5
      I.C. § 35-31.5-2-86(a)(2). And “serious bodily injury” is defined in relevant part

      as bodily injury that causes “extreme pain.” I.C. § 35-31.5-2-292(3).2


[6]   Thus, the Indiana Code has a broad and fact-sensitive definition of “deadly

      weapon.” I.C. § 35-42-2-1(g)(2). In light of that statutory definition, we have

      repeatedly stated that whether an object is a “deadly weapon” on a given set of

      facts is determined from the nature of the object, the manner of its use, and the

      circumstances of the case. E.g., Gleason v. State, 965 N.E.2d 702, 708 (Ind. Ct.

      App. 2012). We have further instructed that “[w]hether an object is a deadly

      weapon based on these factors is a question of fact. The original purpose of the

      object is not considered. Rather, the manner in which the defendant actually

      used the object is examined.” Id.


[7]   As also explained in Burgh, in light of those broad and fact-sensitive standards

      we conclude that a reasonable trier of fact may find that a paved surface

      constitutes a deadly weapon if the manner in which the defendant uses that

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

      86(a)(2). And, on these facts, a reasonable fact-finder could easily reach that

      conclusion: Adams used the paved surface as a blunt object against which to

      smash Banghart’s skull six times. In that sense, the paved surface is comparable




      2
        We have held that loss of consciousness after being struck by a defendant is, by itself, sufficient to establish
      serious bodily injury, Davis v. State, 819 N.E.2d 91, 100-01 (Ind. Ct. App. 2004), trans. denied, and Adams
      does not challenge the conclusion implicit in her conviction that Banghart suffered serious bodily injury. We
      also note that the State did not charge Adams under Indiana Code § 35-42-2-1(g)(1), which enhances battery
      to a Level 5 felony if the battery resulted in serious bodily injury.

      Court of Appeals of Indiana | Memorandum Decision 71A05-1611-CR-2659| June 23, 2017                    Page 4 of 5
      to the use of a rock or similar object with which to hit a victim, which the

      Indiana Supreme Court has held to be within the definition of a deadly weapon.

      Majors v. State, 274 Ind. 261, 263, 410 N.E.2d 1196, 1197 (1980). We conclude

      likewise here.


[8]   In sum, we reject Adams’ argument, in effect, that whether a defendant strikes a

      victim’s head with an object or whether the defendant strikes a stationary object

      with the victim’s head is relevant to the determination of whether that object

      was a “deadly weapon.” Either way, the touching and the impact are the same.

      While we commonly think of a weapon as a moveable object, as this case

      illustrates a stationary object can also be used as a weapon. A paved surface is

      “other material” that is “readily capable of causing serious bodily injury”

      depending on the manner in which the surface is actually used. I.C. § 35-31.5-

      2-86(a)(2). We also reject Adams’ argument that a paved surface was not

      within our General Assembly’s contemplation when it defined “deadly

      weapon”; on this point, the broad and fact-sensitive language of Indiana Code

      Section 35-31.5-2-86(a)(2) speaks for itself. Accordingly, we affirm Adams’

      conviction for battery, as a Level 5 felony.


[9]   Affirmed.


      Riley, J., and Bradford, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 71A05-1611-CR-2659| June 23, 2017   Page 5 of 5
