Pursuant to Ind.Appellate Rule 65(D), this                                Oct 10 2013, 5:32 am
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.


ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

NICOLE A. ZELIN                                 GREGORY F. ZOELLER
Greenfield, Indiana                             Attorney General of Indiana

                                                KARL M. SCHARNBERG
                                                Deputy Attorney General
                                                Indianapolis, Indiana




                               IN THE
                    COURT OF APPEALS OF INDIANA

TABATHA MURPHY,                                 )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )       No. 30A04-1302-CR-82
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                    APPEAL FROM THE HANCOCK SUPERIOR COURT
                           The Honorable Terry K. Snow, Judge
                            Cause No. 30D01-1112-FB-2257


                                     October 10, 2013

               MEMORANDUM DECISION – NOT FOR PUBLICATION

RILEY, Judge
                             STATEMENT OF THE CASE

      Appellant-Defendant, Tabatha Murphy (Murphy), appeals her convictions for

battery with a deadly weapon, a Class C felony, Ind. Code § 35-42-2-1; battery resulting

in serious bodily injury, a Class C felony, I.C. § 35-42-2-1; and battery, a Class A

misdemeanor, I.C. § 35-42-2-1.

      We affirm.

                                         ISSUES

      Murphy raises three issues which we consolidate and restate as follows:

      (1) Whether the State presented sufficient evidence beyond a reasonable doubt to

          sustain her convictions for battery armed with a deadly weapon and battery

          resulting in serious bodily injury; and

      (2) Whether her convictions for battery with a deadly weapon and battery resulting

          in serious bodily injury violates Indiana’s Double Jeopardy clause.

                       FACTS AND PROCEDURAL HISTORY

      On the evening of July 6, 2010, Murphy arrived at her ex-husband’s house,

intending to take her son, Martin Murphy IV (M.M.), who was staying with his father,

Martin Murphy III (Martin), with her. Martin’s fiancée, Stacy Zentz (Zentz), and their

son also lived at the residence, located in Fortville, Indiana. Murphy’s friend, Mark

Laffin (Laffin), drove Murphy and Murphy’s daughter in his vehicle to Martin’s house.

Martin was not home at the time and Murphy told Zentz she came to pick up her food

stamp card. Zentz returned Murphy’s card. However, Murphy informed Zentz that she



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wanted to wait for Martin to return home. After about twenty-five minutes Murphy

began to grow impatient and irritable.

      When Zentz went inside the house with M.M. to get a drink, Murphy followed her

and told M.M. to get his “f---ing shoes on.” (Transcript p. 39). Murphy picked up

M.M.’s shoes, grabbed him by the arm, and led him out of the house and into the yard.

As Zentz followed them out, she inquired what was happening because it was her

understanding that M.M. would be spending the summer with her and Martin. Murphy

informed Zentz that she and Martin would never see M.M. again. Challenging Zentz,

Murphy asked her, “Do you want to fight me, bitch?” and shoved Zentz. (Tr. p. 40).

Zentz shoved her back.

      Murphy placed Zentz in a headlock, pulling both her arms behind her back, and

biting her right hand. Murphy attempted to gouge Zentz’ eyes, digging her fingernails

into her eyes, and scratching her badly enough to draw blood. At some point, Zentz fell

to the ground. Murphy reached for a hammer lying nearby and struck Zentz’ head,

inflicting a three-inch cut that later required eleven staples to close. Before Zentz could

get up, Murphy began to hit her with a skateboard. In an effort to defend herself, Zentz

picked up a plastic flowerpot and threw it at Murphy, hoping that the dirt would obscure

her vision and allow Zentz to escape.

      At some point, Murphy yelled at Laffin to put M.M. in the car. While continuing

to swing the skateboard, Murphy also got into the car. Zentz reached through the

window in an attempt to get her son’s skateboard back. However, Murphy grabbed

Zentz’ right arm, and turned to Laffin, telling him “We’re gonna drive this bitch into the


                                            3
ground.” (Tr. p. 48). Laffin sped out of the residence’s driveway, into the street,

dragging Zentz’ alongside the car.

       A neighbor, Mark Alte (Alte), had observed the altercation between the two

women. When he noticed Zentz holding on to a moving car, he stepped into the road and

yelled for the car to stop. Murphy released Zentz’ arm, causing her to fall onto the

pavement. When Alte reached Zentz, she was unconscious. After shaking her, she

regained consciousness and Alte helped Zentz back to her house, where he dialed 911.

Zentz was taken to the hospital where she was diagnosed with “road rash” on both of her

feet and legs. (Tr. p. 50). She had sustained nerve damage to the finger Murphy had

bitten as well as head injuries.

       On December 30, 2011, the State filed an Information charging Murphy with

Count I, criminal confinement, a Class B felony, I.C. § 35-42-3-3; Count II, battery with

a deadly weapon, a Class C felony, I.C. § 35-42-2-1; Count III, battery resulting in

serious bodily injury, a Class C felony. I.C. § 35-42-2-1; and Count IV, battery, a Class A

misdemeanor, I.C. § 35-42-2-1. On April 16 and 18, 2012, the trial court conducted a

bench trial. At the conclusion of the evidence, the trial court found Murphy not guilty of

criminal confinement, but guilty of all three battery Counts. On May 23, 2012, during

the sentencing hearing, the trial court sentenced Murphy to four years with two years

suspended and two years on probation for each felony battery Count and one year for the

misdemeanor battery, with all sentences to run concurrently.

       Murphy now appeals. Additional facts will be provided as necessary.

                              DISCUSSION AND DECISION


                                            4
                                      I. Sufficiency of the Evidence

          Murphy argues that the State failed to present sufficient evidence beyond a

reasonable doubt to sustain her conviction for battery armed with a deadly weapon and

battery resulting in serious bodily injury. When reviewing a sufficiency of the evidence

claim, we neither reweigh the evidence nor assess the credibility of the witnesses.

Walker v. State, 984 N.E.2d 642, 644 (Ind. Ct. App. 2013). We may look only to the

evidence most favorable to the judgment and reasonable inferences therefrom and will

affirm if we conclude that evidence of probative value exists such that a reasonable fact

finder could find the elements of the underlying crime proven beyond a reasonable doubt.

Id.

                               A. Battery Armed with a Deadly Weapon

          To convict Murphy of battery with a deadly weapon, a Class C felony, the State

was required to establish that Murphy knowingly or intentionally touched Zentz in a rude,

insolent, or angry manner while armed with a deadly weapon. See I.C. § 35-42-2-1.

Murphy’s sole contention revolves around the element of a deadly weapon. Focusing on

her admission at trial that she threw a barbecue tool at Zentz, Murphy maintains that “a

grilling or barbecue tool as utilized” cannot statutorily be categorized as a deadly

weapon. (Appellant’s Br. p. 7).

          Indiana Code section 35-41-1-8 (2010)1 defined a deadly weapon as

          (a) Except as provided in subsection (b), deadly weapon means the
          following:
                 (1) A loaded or unloaded firearm.

1
    The current codification of the statute can be found at I.C. § 35-31.5-2-86 (2013).


                                                       5
              (2) A destructive device, weapon, device, taser [] or electronic stun
              weapon [], equipment, chemical substance, or other 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.

Whether a weapon is a deadly weapon is determined from a description of the weapon,

the manner of its use, and the circumstances of the case. Merriweather v. State, 778

N.E.2d 449, 457 (Ind. Ct. App. 2002).

      In describing her ordeal at trial, Zentz testified that Murphy struck her in the head

with a hammer, inflicting a three-inch cut that required eleven staples to close. Used as

such, the hammer falls within the purview of the statute’s deadly weapon definition. See

also Morris v. State, 364 N.E.2d 132, 138 (Ind. 1977) (a hammer is a deadly weapon

when used in a harmful manner). However, by now arguing that she used a grilling tool

instead, Murphy invites us to reweigh the evidence and the credibility of the witnesses.

We decline her invitation. See Walker, 984 N.E.2d at 644.

      Moreover, even assuming arguendo that a grilling tool was used, Murphy’s claim

is without merit. It is clear that whatever implement Murphy used inflicted a serious

injury which required eleven staples to close. Therefore, the tool was “readily capable of

causing serious bodily injury.” See I.C. § 35-41-1-8 (2010). Consequently, based on the

evidence before us, we conclude that the State presented sufficient evidence beyond a

reasonable doubt to sustain Murphy’s conviction of battery with a deadly weapon.

                      2. Battery resulting in Serious Bodily Injury.




                                            6
          To convict Murphy of battery resulting in serious bodily injury, a Class C felony,

the State was required to establish that Murphy knowingly or intentionally touched Zentz

in a rude, insolent, or angry manner which resulted in serious bodily injury. See I.C. §

35-42-2-1. The charging information clarifies that the “serious bodily injury” is factually

defined as “unconsciousness.” (Appellant’s App. p. 6).

          To support this conviction, the State presented evidence that Zentz was dragged

down the street by a moving vehicle as Murphy was holding on to her arm through the

open window. When Murphy finally released Zentz’ arm, Zentz fell to the pavement.

Alte rushed to Zentz’ assistance and found her unconscious. After shaking her, Zentz

regained consciousness and Alte helped her back to the house. Murphy now contends

that this momentary unconsciousness did not amount to serious bodily harm.

          Serious bodily injury is defined by statute as “bodily injury that creates a

substantial risk of death or that causes (1) serious permanent disfigurement; (2)

unconsciousness; (3) extreme pain; (4) permanent or protracted loss or impairment of the

function of a bodily member or organ; or (5) loss of a fetus. I.C. § 35-41-1-25 (2010).2

          In support of her argument, Murphy relies on Ricks v. State, 446 N.E.2d 648, 650

(Ind. Ct. App. 1983), in which this court affirmed Ricks’ conviction for battery causing

serious bodily injury where the victim lay motionless for a few minutes and appeared to

be unconscious after Ricks had struck him. The victim also suffered a laceration to his

forehead and a black eye, and he complained of neck, shoulder, and back pain that



2
    Currently codified at I.C. § 35-31.5-2-.292 (2013).


                                                          7
continued until the time of trial. Id. In considering the statutory definition of serious

bodily injury, we stated:

       Whether pain is “extreme” or impairment is “protracted” is, of course, a
       matter of degree. We think the same is to be said of “unconsciousness” in
       the context of the statute. Momentary unconsciousness without more does
       not necessitate a finding of serious bodily injury. The purpose of the
       definitional statute is to provide meaning to the requirement that the injury
       be “serious.” It is not its purpose to distort the meaning.

Id. The court then acknowledged that, “within the framework provided by the definition,

it remains for the factfinder to determine the question of degree: that the bodily injury is

serious.” Id. at 650-51.

       Although the Ricks court noted that “serious” permanent disfigurement, “extreme”

pain, and “protracted” impairment are imprecise terms, “unconsciousness” is not

qualified by any such vague term in the statute.         See id. at 650.    Thus, whether

disfigurement, pain, or impairment constitute serious bodily injury may be subject to a

degree of discretion, unconsciousness—without any further qualification—is a verifiable

standard and the statute, as written, does not support a discretionary decision based on the

length or the severity of the unconsciousness.

       Here, Alte testified that when he reached Zentz, after being dragged by Laffin’s

vehicle, Zentz “appeared to be unconscious.” (Tr. p. 17). He added that Zentz was

“laying there and there was blood coming from her head and her knees and her face.”

(Tr. p. 17). She regained consciousness when Alte shook her. Later, in the hospital,

Zentz was also diagnosed with road rash on both of her feet and legs. Considering the




                                             8
uncontradicted testimony that Zentz was unconscious, we hold that this is sufficient to

sustain a finding of battery resulting in serious bodily injury. 3

                                      II. Double Jeopardy

       Lastly, Murphy contends that her conviction for battery with a deadly weapon and

battery resulting in serious bodily injury violates Indiana’s Double Jeopardy clause. The

Indiana Double Jeopardy clause provides, “No person shall be put in jeopardy twice of

the same offense.” Ind. Const. art. I, § 14. We analyze alleged violations of this clause

pursuant to our supreme court’s opinion in Richardson v. State, 717 N.E.2d 32, 49 (Ind.

1999), where our supreme court held that “two or more offenses are the same offense in

violation of Article I, Section 14 of the Indiana Constitution, if with respect to either the

statutory elements of the challenged crimes or the actual evidence used to convict, the

essential elements of one challenged offense also establish the essential elements of

another challenged offense.” Here, Murphy claims that her convictions constitute double

jeopardy under the actual evidence test.

       Under the actual evidence test, a defendant must demonsterate a reasonable

possibility that the evidentiary facts used by the fact-finder to establish the essential

elements of one offense may also have been used to establish all of the essential elements

3
 In our unpublished memorandum opinion, D.T. v. State, 904 N.E.2d 728, at 4 n.2 (Ind. Ct. App. 2009),
we noted,
        In construing a statute, our primary goal is to determine and give effect to the intent of
        the legislature, but we presume the legislature intended the language used in the statute
        “to be applied logically and not to bring about an unjust or absurd result.”
        Unconsciousness for less than five minutes [as in D.T.] hardly seems an injury on par
        with loss of a limb or a fetus, or with being permanently disfigured. We leave it to the
        Indiana Supreme Court or the Indiana Legislature, however, to clarify if necessary
        whether a case like this one that seems to stretch the outer boundaries of the statutory
        definition of serious bodily injury was intended to be covered by the statute.


                                                 9
of a second challenged offense. Id. at 53. “Application of this test requires the court to

‘identify the essential elements of each of the challenged crimes and to evaluate the

evidence from the jury’s perspective[.]’” Lee v. State, 892 N.E.2d 1231, 1234 (Ind.

2008) (quoting Spivey v. State, 761 N.E.2d 831, 832 (Ind. 2002)). Therefore, we consider

the essential elements of the offenses, the charging information, the jury instructions, the

evidence, and the arguments of counsel. Id. The term “reasonable probability” turns on a

practical assessment of whether the jury may have latched on to exactly the same facts

for both convictions. Id. at 1236. However, as long as “each conviction require[s] proof

of at least one unique evidentiary fact” no violation of the actual evidence principle

occurred. Bald v. State, 766 N.E.2d 1170, 1172 (Ind. 2002).

       In a novel twist on the evidence presented at trial, Murphy now contends that “the

State alleges and the court found Murphy guilty of battery resulting in serious bodily

injury due to Zentz’ unconsciousness which most likely would have occurred due to

being struck in the head.” (Appellant’s Br. p. 11). Thus, focusing on the specific injury,

Murphy now asserts that unconsciousness presents the “bodily injury” element to sustain

both her convictions. We disagree.

       The evidence reflects that after Murphy struck Zentz in the head with the hammer,

the fighting continued without interruption. In fact, after Murphy used a hammer on

Zentz, she continued to batter Zentz with a skateboard. It was not until after Zentz was

dragged onto the street by a moving vehicle and fell to the pavement, that she was

rendered unconscious.     Based on the evidence before us, Zentz’ head injury and

unconsciousness occurred at different times and were inflicted by different means. Thus,


                                            10
we conclude that Murphy’s convictions do not violate Indiana’s prohibition against

Double Jeopardy.

                                    CONCLUSION

      Based on the foregoing, we conclude that (1) the State presented sufficient

evidence beyond a reasonable doubt to sustain Murphy’s convictions for battery with a

deadly weapon and battery resulting in serious bodily injury; and (2) Murphy’s

convictions do not violate Indiana’s Double Jeopardy clause.

      Affirmed.

ROBB, C. J. and KIRSCH, J. concur




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