                                                                           FILED
                                                                    Jun 23 2017, 8:56 am

                                                                           CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Jeffrey E. Kimmell                                       Curtis T. Hill, Jr.
South Bend, Indiana                                      Attorney General of Indiana

                                                         Eric P. Babbs
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Troy Burgh,                                              June 23, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         71A03-1611-CR-2669
        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-F3-29



Najam, Judge.




Court of Appeals of Indiana | Opinion 71A03-1611-CR-2669 | June 23, 2017                     Page 1 of 5
                                          Statement of the Case
[1]   Troy Burgh appeals his conviction for battery, as a Level 5 felony, following a

      bench trial.1 Burgh 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 a matter of

      first impression, we hold that, when the paved surface of a parking lot is used in

      a manner that makes that surface readily capable of causing serious bodily

      injury, a reasonable trier of fact may conclude that the battery was “committed

      with a deadly weapon.” Thus, we affirm.2


                                   Facts and Procedural History
[2]   On May 12, 2016, Burgh and his girlfriend, Gabrielle Adams, 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 Burgh with, in relevant part, battery enhanced to a

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




      1
       Burgh does not appeal his convictions for strangulation, a Level 6 felony, or battery, as a Class A
      misdemeanor.
      2
         We decide Burgh’s appeal along with Gabrielle Adams’ appeal, as Adams raises the same issue on appeal
      that Burgh raises. See Adams v. State, No. 71A05-1611-CR-2659 (Ind. Ct. App. June 23, 2017). However, we
      have designated only Burgh’s appeal as a for-publication opinion as his briefing on appeal was completed
      first.

      Court of Appeals of Indiana | Opinion 71A03-1611-CR-2669 | June 23, 2017                           Page 2 of 5
      parking lot pavement.” Appellant’s App. Vol. 2 at 35. After a bench trial, the

      court found Burgh guilty, stating that “the asphalt was a deadly weapon in this

      case” and that Burgh aided, induced, or caused the battery. Tr. Vol. 2 at 140.

      The court entered its judgment of conviction and sentence accordingly, and this

      appeal ensued.


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

      demonstrate that Adams battered Banghart with a deadly weapon. In

      particular, Burgh 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 | Opinion 71A03-1611-CR-2669 | 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).3


[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]   In light of those 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 to the use of a rock or similar object with which to hit a




      3
        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 Burgh does
      not challenge the conclusion implicit in his conviction that Banghart suffered serious bodily injury. We also
      note that the State did not charge Burgh 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 | Opinion 71A03-1611-CR-2669 | June 23, 2017                               Page 4 of 5
      victim. The Indiana Supreme Court has held that the use of such an object in

      such a manner falls 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 Burgh’s 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 Burgh’s 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 Burgh’s

      conviction for battery, as a Level 5 felony.


[9]   Affirmed.


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




      Court of Appeals of Indiana | Opinion 71A03-1611-CR-2669 | June 23, 2017   Page 5 of 5
