Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of                                  Mar 04 2014, 9:49 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT:                           ATTORNEYS FOR APPELLEE:

ELIZABETH A. HOUDEK                               GREGORY F. ZOELLER
Indianapolis, Indiana                             Attorney General of Indiana

                                                  MICHAEL GENE WORDEN
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

MARCUS PERNELL,                                   )
                                                  )
       Appellant-Defendant,                       )
                                                  )
              vs.                                 )      No. 49A04-1307-CR-345
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee-Plaintiff.                        )


                     APPEAL FROM THE MARION SUPERIOR COURT
                    The Honorable Christina R. Klineman, Judge Pro Tempore
                              Cause No. 49G05-1202-FB-10894



                                        March 4, 2014


                MEMORANDUM DECISION - NOT FOR PUBLICATION


NAJAM, Judge
                             STATEMENT OF THE CASE

       Marcus Pernell appeals his conviction for battery, as a Class C felony, following a

bench trial. Pernell presents two issues for review:

       1.      Whether the evidence is sufficient to prove the serious bodily injury
               element of his battery conviction.

       2.      Whether the abstract of judgment is erroneous.

       We affirm and remand with instructions.

                       FACTS AND PROCEDURAL HISTORY

       Early in the evening of February 16, 2012, Sally Appleget and her husband

Matthew drove through a Marsh parking lot in Indianapolis on their way to a nearby

cigarette store. As Sally was driving through the lot, she passed Pernell, his girlfriend,

and her son, who were walking toward the store. Pernell and his girlfriend thought Sally

had driven too fast and too close to them, so Pernell hit the back right rear of the

Applegets’ truck as it passed.

       Sally heard the noise and stopped the truck. Matthew exited the truck and walked

to the back where Pernell was standing while Sally watched in the rearview mirror.

Matthew asked him what his problem was, and the two men began to argue. They were

standing a little farther than an arms’ length apart, and Pernell was holding his cell phone

in one hand.

       Pernell was obviously younger than Matthew and a head taller.               Although

Matthew made no comments, gestures, or movements that indicated a desire to engage in

a physical confrontation, Pernell put his cell phone down, raised his fists as if to fight,

and hit Matthew in the side of the face or head with his right fist. As a result of the blow,
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Matthew fell down to the pavement unconscious. Matthew never regained consciousness

and died one week later from a traumatic brain injury that he suffered either from the

blow to the head or from the fall to the pavement.

       Immediately after the blow, Pernell, his girlfriend, and her son returned to

Pernell’s truck and drove to a nearby gas station. Police arrested him a short time later at

the station.   The State charged him with aggravated battery, as a Class B felony.

Following a bench trial, the court found him guilty of the lesser included offense of

battery resulting in serious bodily injury, as a Class C felony. The trial court sentenced

Pernell to six years with two years suspended to probation. Pernell now appeals.

                              DISCUSSION AND DECISION

                             Issue One: Sufficiency of Evidence

       When reviewing a claim of sufficiency of the evidence, we do not reweigh the

evidence or judge the credibility of the witnesses. Jones v. State, 783 N.E.2d 1132, 1139

(Ind. 2003). We look only to the probative evidence supporting the verdict and the

reasonable inferences that may be drawn from that evidence to determine whether a

reasonable trier of fact could conclude the defendant was guilty beyond a reasonable

doubt. Id. If there is substantial evidence of probative value to support the conviction, it

will not be set aside. Id.

       Pernell appeals his conviction for battery resulting in serious bodily injury, as a

Class C felony. To prove that offense, the State was required to show that Pernell

knowingly or intentionally touched Matthew in a rude, insolent, or angry manner,

resulting in serious bodily injury to Matthew.        See Ind. Code § 35-42-2-1(a)(3).


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“‘Serious bodily injury’ means bodily injury that creates a substantial risk of death or that

causes . . . unconsciousness . . . .” Ind. Code § 35-31.5-2-292(2).

       Pernell argues that there is a “gap in the evidence” between his punch to

Matthew’s face or head and the traumatic brain injury that resulted in Matthew’s death.

Appellant’s Brief at 6. In other words, Pernell contends that the blow he struck to

Matthew could not have caused all of the injuries Matthew suffered and, therefore, the

State did not prove that that battery resulted in serious bodily injury. But Pernell limits

his argument to the type of injuries Matthew sustained. He does not deny that Matthew

was rendered unconscious following the blow. Again, a rude or insolent touching that

renders the victim unconscious, without more, is sufficient to show serious bodily injury

as a Class C felony under Section 35-31.5-2-292(2). It is undisputed that Matthew was

unconscious following the blow by Pernell and never regained consciousness. Pernell’s

argument on this point must fail.

       Pernell also contends that Matthew’s medical history made him more susceptible

to strokes and that that fact “introduces reasonable doubt into the matter of whether the

blow to the facial area from [Pernell’s] fist actually caused the serious bodily injury in

this case.” Appellant’s Brief at 7. We cannot agree. There is a “long-standing rule of

both criminal and tort law that a defendant takes his victim as he finds him.” Bailey v.

State, 979 N.E.2d 133, 142 (Ind. 2012). Thus, the fact that Matthews had a medical

history that may have predisposed him to strokes does not make Pernell any less culpable

for causing serious bodily injury, such as unconsciousness, when he hit Matthew in the

face or head. Pernell’s argument to the contrary is incorrect under the law and must fail.


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       Pernell appealed only the sufficiency of evidence supporting the serious bodily

injury element of Class C felony battery. The evidence clearly shows that Pernell hit

Matthew in the head and that, as a result of the blow, Matthew fell, was rendered

unconscious, and sustained serious head trauma from which he died. The evidence is

sufficient to support Pernell’s conviction for Class C felony battery resulting in serious

bodily injury.

                     Issue Two: Erroneous Abstract of Judgment

       Pernell next contends and the State concedes that the abstract of judgment

erroneously reflects that he was convicted of battery, as a Class B felony. At the close of

evidence, the trial court stated: “Given that the State has rested and defense has rested,

court finds Marcus Pernell guilty of the lesser included offense of battery as a class C

felony and will enter judgment of conviction to the same.” Transcript at 282. And at the

beginning of the sentencing hearing, the court reiterated that it “had found Pernell guilty

of battery as a class C felony, the lesser included of Count One [aggravated battery, as a

Class B felony].” Id. at 284. Yet the abstract of judgment provides that Pernell was

convicted of aggravated battery, as a Class B felony, under Indiana Code Section 35-42-

2-1.5. Thus, we remand with instructions for the trial court to enter a corrected abstract

of judgment accurately reflecting that Pernell was convicted of battery, as a Class C

felony.

       Affirmed and remanded with instructions.

BAKER, J., and CRONE, J., concur.




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