                                                                           Mar 10 2016, 9:34 am




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Cynthia M. Carter                                         Gregory F. Zoeller
Indianapolis, Indiana                                     Attorney General


                                                          Jodi Kathryn Stein
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

Cory Lowden,                                              March 10, 2016
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          49A02-1503-CR-170
        v.                                                Appeal from the Marion Superior
                                                          Court
State of Indiana,                                         The Honorable Mark Stoner
Appellee-Plaintiff.                                       Trial Court Cause No.
                                                          49G06-1311-FB-75141



Vaidik, Chief Judge.




Court of Appeals of Indiana | Opinion 49A02-1503-CR-170 | March 10, 2016                 Page 1 of 11
                                           Case Summary
[1]   The State charged Cory Lowden with aggravated battery after he punched

      another man, breaking the man’s jaw so severely that surgery was required to

      repair it. At trial, Lowden tendered a jury instruction that applied the mens rea

      to every element of aggravated battery, including the severity of the resulting

      injury. According to Lowden’s instruction, the State would have to prove that,

      when he punched his victim in the face, Lowden acted with knowledge that one

      punch would result in protracted loss or impairment of the function of a bodily

      member or organ. The trial court rejected Lowden’s instruction. According to

      Indiana Code section 35-41-2-2(d), the level of culpability required for the

      commission of an offense is required with respect to “every material element of

      the prohibited conduct.” The prohibited conduct in the aggravated battery

      statute is to inflict injury on another. The severity of the injury is not an

      element of the prohibited conduct, but a result of it. Accordingly, the trial court

      properly rejected Lowden’s tendered instruction as an incorrect statement of the

      law. We affirm.



                             Facts and Procedural History
[2]   Cory Lowden attended a Halloween party on October 26, 2013, at his friends’

      home. The garage of the home, which was being used as a smoking area, had a

      ping-pong table set up for playing beer pong. During the party, Lowden

      overheard portions of a conversation between Chad Sandefur and Katie Turner

      that took place in the garage. Sandefur and Turner were discussing Turner’s

      Court of Appeals of Indiana | Opinion 49A02-1503-CR-170 | March 10, 2016    Page 2 of 11
      recovery from a recent brain surgery and her difficulties with hospital bills and

      Medicaid. Lowden interrupted and asked Turner, “well, why the F [sic] do you

      think you deserve Medicaid[?]” Tr. p. 37. Lowden and Sandefur exchanged

      words from opposite sides of the ping-pong table before Sandefur began to leave

      the garage. Sandefur walked away from Lowden, toward the door to the

      house. Lowden followed Sandefur, catching up to him at the stairs leading

      from the garage to the house. Sandefur turned around to face Lowden. Some

      sort of exchange took place between the two men, which ended when Lowden

      punched Sandefur in the face.


[3]   Lowden’s single punch knocked Sandefur unconscious and broke his jaw in two

      places. Sandefur’s jaw was surgically repaired, he was placed on a restrictive

      diet to prevent him from chewing food, and his activities were restricted during

      his recovery. Sandefur developed an infection, and the bones did not properly

      heal together. A second, more extensive surgery was required, lengthening his

      recovery.


[4]   Lowden was charged with aggravated battery under Indiana Code section 35-

      42-2-1.5, which, at the time of the incident, provided in part: “A person who

      knowingly or intentionally inflicts injury on a person that creates a substantial

      risk of death or causes: . . . (2) protracted loss or impairment of the function of a




      Court of Appeals of Indiana | Opinion 49A02-1503-CR-170 | March 10, 2016   Page 3 of 11
      bodily member or organ; . . . commits aggravated battery, a Class B felony.”1 A

      jury trial was held in February 2015.

[5]   During trial, Turner described the argument between Sandefur and Lowden—

      beginning with the heated verbal exchange, followed by Sandefur attempting to

      leave the area and Lowden following him, and culminating in the punch. At

      the end of Turner’s testimony, the prosecutor led her through a recap of what

      happened when Sandefur tried to leave the garage.

[6]   Lowden tendered a final jury instruction that would have required the State to

      prove he was “aware of a high probability that his conduct would lead to a

      serious bodily injury, including the protracted loss or impairment of the

      function of a bodily member or organ.” Appellant’s App. p. 42. However, the

      trial court rejected this instruction and gave a general instruction on the

      definition of “knowingly” and an instruction on the elements of aggravated

      battery.

[7]   The jury found Lowden guilty. The trial court sentenced Lowden to eight

      years, with two years suspended, and one year of probation.



                                  Discussion and Decision




      1
       A new version of the statute went into effect on July 1, 2014, after Lowden’s offense. The State charged
      Lowden under the version of the aggravated-battery statute in effect from 1997 through June 30, 2014.

      Court of Appeals of Indiana | Opinion 49A02-1503-CR-170 | March 10, 2016                        Page 4 of 11
[8]    Lowden raises two issues on appeal: (1) whether the trial court erroneously

       rejected his proposed jury instruction that applied the mens rea for aggravated

       battery to the severity of the injury and (2) whether the prosecutor’s direct

       examination of Turner was misleading, constituting misconduct.


                                          I. Jury Instructions
[9]    Lowden argues that the trial court erred when it rejected a portion of his

       proposed jury instruction requiring the State to prove that Lowden knew his

       conduct would lead to serious bodily injury. Instruction of the jury is within

       the discretion of the trial court, and we review for abuse of that discretion.

       Johnson v. State, 959 N.E.2d 334, 338 (Ind. Ct. App. 2011), trans. denied. Jury

       instructions are considered as a whole and in reference to each other. Id. The

       instructions must be a complete, accurate statement of the law that will not

       confuse or mislead the jury. Id. To determine whether the refusal of a tendered

       instruction constitutes error, we consider: (1) whether the tendered instruction

       is a correct statement of the law; (2) whether there was evidence in the record to

       support giving the instruction; and (3) whether the substance of the instruction

       is covered by other instructions given by the court. Washington v. State, 997

       N.E.2d 342, 345-46 (Ind. 2013).

[10]   Lowden’s tendered instruction provided:

               PROPOSED FINAL INSTRUCTION NO. 3

               A person engages in conduct “knowingly” if, when he engages in
               the conduct, he is aware of a high probability that he doing so.


       Court of Appeals of Indiana | Opinion 49A02-1503-CR-170 | March 10, 2016   Page 5 of 11
                With regard to the offense charged in the information, Aggravated
                Battery, a Class B felony, a person engages in conduct
                “knowingly” if, when he engages in the conduct, he is aware of a
                high probability that his conduct would lead to a serious bodily
                injury, including the protracted loss or impairment of the function
                of a bodily member or organ.

       Appellant’s App. p. 42. The trial court gave only the first paragraph of

       Lowden’s instruction. Lowden contends that the trial court also should have

       given the second paragraph, which applies the mens rea to the severity of the

       injury.



[11]   To determine the elements of aggravated battery to which the “knowingly or

       intentionally” requirement applies, we refer to Indiana Code section 35-41-2-

       2(d), which provides that the level of culpability required for the commission of

       an offense is required with respect to “every material element of the prohibited

       conduct.” “Prohibited conduct” and “element” are not synonymous. D.H. v.

       State, 932 N.E.2d 236, 238 (Ind. Ct. App. 2010). The culpability requirement

       applies to the conduct prohibited by the statute, not to the result of that

       conduct. See id. The prohibited conduct in the aggravated-battery statute is to

       “inflict injury on another[.]” Mann v. State, 895 N.E.2d 119, 124 (Ind. Ct. App.

       2008).

[12]   Additionally, this Court has held that the severity of the injury and the identity

       of the victim are aggravating factors—not elements of conduct—under other

       battery statutes. See Maldonado-Morales v. State, 985 N.E.2d 25, 28 (Ind. Ct.

       App. 2013) (deciding that the mens rea applied only to “touched a person in a
       Court of Appeals of Indiana | Opinion 49A02-1503-CR-170 | March 10, 2016      Page 6 of 11
       rude, insolent, or angry manner” and not to the identity of the person struck

       under the domestic-battery statute); D.H., 932 N.E.2d at 239 (finding under the

       battery statute “that the fact that the victim of a battery is a school employee in

       the course of her duties is akin to a battery causing a serious bodily injury—it is

       an aggravating circumstance that increases the penalty for the crime”); Markley

       v. State, 421 N.E.2d 20, 21-22 (Ind. Ct. App. 1981) (concluding that proof of the

       “intentionally or knowingly” element does not apply to the “serious bodily

       injury” element of Class C battery). Applying the reasoning from our prior

       decisions to the aggravated-battery statute, we conclude that the severity of the

       injury is not an element of the prohibited conduct, but a result of it.

       Accordingly, the State was required to prove only that Lowden knowingly or

       intentionally inflicted injury upon Sandefur and not that Lowden knew he

       would cause serious bodily injury.


[13]   Lowden argues that Wilson v. State, 835 N.E.2d 1044 (Ind. Ct. App. 2005), trans.

       denied, and Thomas v. State, 656 N.E.2d 819 (Ind. Ct. App. 1995), support the

       proposition that the mens rea applies to the severity of the injury under the

       aggravated-battery statute. In both Wilson and Thomas, the defendants argued

       that there was insufficient evidence of the mens rea to support aggravated-

       battery convictions. In Wilson, after reviewing the record, this Court concluded:


               Given this evidence, a reasonable jury could have found, beyond
               a reasonable doubt, that Wilson was aware of a high probability
               that her conduct would lead to a serious bodily injury, including
               the protracted loss or impairment of Lieutenant Bonham’s arm or
               shoulder. Thus, the evidence is sufficient to sustain Wilson’s
               conviction for aggravated battery.
       Court of Appeals of Indiana | Opinion 49A02-1503-CR-170 | March 10, 2016   Page 7 of 11
       835 N.E.2d at 1050. And in Thomas we concluded:


               The fact that Thomas bit Cleora multiple times, coupled with the
               obvious severity of the injuries to Cleora’s left eye, as reflected in
               photographs taken shortly after the incident, belie Thomas’s
               claim that he did not intend to inflict serious injury during the
               attack. The evidence was sufficient to permit a reasonable
               inference that Thomas possessed the requisite mens rea for the
               offense of aggravated battery at the time of the occurrence.


       Thomas, 656 N.E.2d at 824.


[14]   Lowden notes that the Court included the severity of the injury as part of its

       conclusion that the requisite mens rea was proven. Therefore, he concludes,

       the mens rea must apply to the severity of the injury. We disagree. The

       passages Lowden cites are not intended to be a statement of the State’s burden

       of proof. Rather, they are statements of the sufficiency of the evidence actually

       adduced during those particular trials—which exceeded the statutory

       requirements. The “‘mere fact that certain language or expression[s] [are] used

       in the opinions of this Court to reach its final conclusion does not make it

       proper language for instructions to a jury.’” Gravens v. State, 836 N.E.2d 490,

       495 (Ind. Ct. App. 2005) (quoting Ludy v. State, 784 N.E.2d 459 (Ind. 2003)).


[15]   Therefore, to convict Lowden of aggravated battery, the State had to prove

       beyond a reasonable doubt: (1) “that [Lowden] knowingly . . . inflicted injury

       on [Sandefur]” and (2) “that the injury caused a protracted loss or impairment

       of the function of a bodily member or organ.” Mann, 895 N.E.2d at 121. The

       State was not required to prove that Lowden was “aware of a high probability

       Court of Appeals of Indiana | Opinion 49A02-1503-CR-170 | March 10, 2016     Page 8 of 11
       that his conduct would lead to a serious bodily injury,” as suggested by

       Lowden’s tendered instruction. Because it was not a correct statement of the

       law, the trial court properly refused to submit Lowden’s instruction to the jury.2


                                   II. Prosecutorial Misconduct
[16]   Lowden next argues that the prosecutor misled its witness, Turner, during its

       examination of her and that this constitutes prosecutorial misconduct. When a

       party believes there is misconduct, the correct procedure is to object and request

       the trial court to admonish the jury. Cooper v. State, 854 N.E.2d 831, 835 (Ind.

       2006). If the party is not satisfied with the admonishment, then he or she

       should move for mistrial. Id. Failure to request an admonishment or to move

       for mistrial results in waiver. Id.


[17]   Lowden acknowledges that he waived his claim of prosecutorial misconduct by

       failing to object at trial. Appellant’s Reply Br. p. 10. Our review is different

       where a claim of prosecutorial misconduct has been waived. Ryan v. State, 9

       N.E.3d 663, 667 (Ind. 2014). The defendant must (1) establish the grounds for

       prosecutorial misconduct and (2) establish that the prosecutorial misconduct

       constituted fundamental error. Id. at 667-68.




       2
         Lowden also argues that the trial court should have given his instruction because the prosecutor referred to
       a civil liability standard during voir dire, and the jury later indicated that the mens rea was confusing by
       asking questions during deliberations. Even if it is true that the jury might have benefitted from additional,
       clarifying instructions, it would never be appropriate to give an instruction that states the law inaccurately.

       Court of Appeals of Indiana | Opinion 49A02-1503-CR-170 | March 10, 2016                           Page 9 of 11
[18]   In this case, we need only examine the first prong, prosecutorial misconduct.

       Lowden must prove (1) that misconduct occurred, and if it did, (2) that the

       misconduct, considering all of the circumstances, placed him in a position of

       grave peril to which he would not have been subjected otherwise. See id. at 667.

       Whether a prosecutor’s conduct constitutes misconduct is measured by

       reference to case law and the Rules of Professional Conduct. Id. “The gravity

       of peril is measured by the probable persuasive effect of the misconduct on the

       jury’s decision rather than the degree of impropriety of the conduct.” Cooper,

       854 N.E.2d at 835.

[19]   Lowden contends that the prosecutor committed misconduct by misleading

       Katie Turner during the following exchange:

                  Q. Did you ever hear [Lowden] say anything, get away from me,
                     leave me alone, back off?

                  A. No.

                  Q. And was [Sandefur] walking away from [Lowden] when
                     [Lowden] approached him?[3]

                  A. Yes.

                  Q. And I believe you said he wasn’t even looking at him; is that
                     correct?

                  A. Correct.




       3
           Lowden omitted this question and answer from his reply brief.


       Court of Appeals of Indiana | Opinion 49A02-1503-CR-170 | March 10, 2016   Page 10 of 11
       Tr. p. 55.


[20]   Lowden argues that this exchange creates the impression that Lowden punched

       Sandefur from behind, which would be inconsistent with the earlier portion of

       Turner’s testimony. However, after reviewing all of Turner’s testimony, it is

       clear that this exchange is not in reference to the actual punch. Rather, it

       addresses how Lowden and Sandefur arrived at the location of the punch.

       Earlier in Turner’s testimony she explained that the conflict began as a shouting

       match, with the two men on opposite sides of a beer pong table. She described

       Sandefur walking to the house and Lowden following him. Both questions

       asked by the prosecutor at the end of Turner’s direct examination refer to who,

       Lowden or Sandefur, closed the original physical distance between them. The

       questions did not refer to the position of Lowden and Sandefur at the time of

       the punch. In light of the surrounding context, the two questions do not relate

       to the actual punch, as Lowden now suggests.

[21]   Therefore, Lowden’s contention that the prosecutor misled Turner into giving

       conflicting testimony is without merit. Seeing no prosecutorial misconduct, we

       need not proceed to the question of fundamental error.

[22]   Affirmed.

       Bailey, J., and Crone, J., concur.




       Court of Appeals of Indiana | Opinion 49A02-1503-CR-170 | March 10, 2016   Page 11 of 11
