MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      Oct 15 2015, 8:57 am
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
Bruce W. Graham                                          Gregory F. Zoeller
Lafayette, Indiana                                       Indianapolis, Indiana
                                                         Tyler G. Banks
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Shawn Thayer,                                            October 15, 2015
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         79A04-1503-CR-110
        v.                                               Appeal from the Tippecanoe
                                                         Superior Court 1
State of Indiana,                                        The Honorable Randy J. Williams,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         79D01-1403-FC-15



Altice, Judge.


                                         Case Summary




Court of Appeals of Indiana | Memorandum Decision 79A04-1503-CR-110 | October 15, 2015        Page 1 of 9
[1]   Following a jury trial, Shawn Thayer was convicted of class C felony Battery

      Resulting in Serious Bodily Injury,1 class D felony Theft,2 class D felony

      Strangulation,3 and class B misdemeanor Criminal Mischief.4 On appeal,

      Thayer presents the following issues: (1) Whether the State presented sufficient

      evidence to support his class C felony battery conviction; and (2) Whether the

      State impermissibly presented evidence that Thayer exercised his Fifth

      Amendment right to remain silent.


[2]   We affirm.


                                           Facts & Procedural History


[3]   On November 3, 2013, Thayer and his on-again, off-again girlfriend, Shannon

      Scheumann, made plans to watch a movie together at Thayer’s home in

      Lafayette. At Thayer’s request, Scheumann arrived at Thayer’s home at

      around 8 p.m. and brought a bottle of vodka with her. When Scheumann

      arrived, Thayer took the bottle to make cocktails for both of them. The two

      began watching the movie, and Thayer finished his drink a short time later. He

      got up to make himself another and grabbed Sheumann’s unfinished drink to




      1
       Ind. Code § 35-42-2-1. Effective July 1, 2014, this offense was reclassified as a Level 5 felony. Because
      Thayer committed this offense prior to that date, it retains its prior classification as a class C felony.
      2
       Ind. Code § 35-43-4-2. Effective July 1, 2014, this offense was reclassified as a class A misdemeanor.
      Because Thayer committed this offense prior to that date, it retains its prior classification as a class D felony.
      3
       I.C. § 35-42-2-9. Effective July 1, 2014, this offense was reclassified as a Level 6 felony. Because Thayer
      committed this offense prior to that date, it retains its prior classification as a class D felony.
      4
          I.C. § 35-43-1-2.


      Court of Appeals of Indiana | Memorandum Decision 79A04-1503-CR-110 | October 15, 2015                 Page 2 of 9
      top it off. When Thayer brought Scheumann her refilled drink, he told her he

      had made it much stronger than the first. Scheumann thought the drink had a

      strange, bitter taste, and she did not finish it.


[4]   The next thing Scheumann recalled was being on the floor, with Thayer

      choking her from behind and swearing at her. Scheumann’s vision then began

      to fade, as if someone had “turned the lights out on [her].” Transcript at 129.

      Scheumann’s next memory was lying on the floor in the same spot, with

      Thayer out of her view. Scheumann got up, exited the house, and walked a

      couple of steps before feeling “tremendous pain” in the back of her head and

      falling to the ground. Id. at 132. Thayer then began screaming at Scheumann

      and kicking her as she lay on the ground. Thayer also kicked Scheumann’s car.


[5]   Thayer’s neighbors, Travis and T.J. Wycoff, heard the commotion and went

      outside to see what was going on. As he approached Thayer’s home, Travis

      saw Scheumann on the ground and Thayer on top of her. Scheumann was

      screaming for Thayer to get away from her. Travis told T.J. to call 911 before

      going to Scheumann’s aid. When Travis knelt down to prop up Scheumann’s

      head, he felt a large knot on the back of her head. Thayer demanded that

      Travis leave his property, at one point taking off his shirt and “puff[ing] his

      chest up” aggressively. Id. at 56. Travis refused to leave the property without

      Scheumann, and police arrived a short time later.


[6]   After Scheumann was transported to the hospital by ambulance, Officer Ryan

      French attempted to locate her car keys and cell phone. During a consensual


      Court of Appeals of Indiana | Memorandum Decision 79A04-1503-CR-110 | October 15, 2015   Page 3 of 9
      search of Thayer’s home, Officer French located a cell phone in Thayer’s

      couch. Thayer claimed the phone belonged to him, but it was in fact

      Scheumann’s.


[7]   At the hospital, Scheumann was treated for numerous injuries, including a scalp

      hematoma, throat and facial swelling, and a fractured rib. It was later

      determined that Scheumann also had a sprained ankle and injuries to her jaw,

      which made it difficult for her to open her mouth. These injuries caused

      Scheumann severe pain.


[8]   Thereafter, Thayer was charged with battery causing serious bodily injury,

      strangulation, theft, and criminal mischief. A two-day jury trial commenced on

      February 3, 2015, at the conclusion of which Thayer was found guilty as

      charged. Thayer now appeals. Additional facts will be provided as necessary.


                                       Sufficiency of the Evidence


[9]   Thayer first challenges the sufficiency of the evidence to support his conviction

      for battery causing serious bodily injury.             In reviewing a challenge to the

      sufficiency of the evidence, we neither reweigh the evidence nor judge the

      credibility of witnesses. Atteberry v. State, 911 N.E.2d 601, 609 (Ind. Ct. App.

      2009). Instead, we consider only the evidence supporting the conviction and

      the reasonable inferences flowing therefrom. Id. If there is substantial evidence

      of probative value from which a reasonable trier of fact could have drawn the

      conclusion that the defendant was guilty of the crime charged beyond a



      Court of Appeals of Indiana | Memorandum Decision 79A04-1503-CR-110 | October 15, 2015   Page 4 of 9
       reasonable doubt, the judgment will not be disturbed. Baumgartner v. State, 891

       N.E.2d 1131, 1137 (Ind. Ct. App. 2008).


[10]   In order to convict Thayer of class C felony battery as charged, the State was

       required to prove that Thayer knowingly or intentionally touched Scheumann

       in a rude, insolent, or angry manner, and that such touching resulted in serious

       bodily injury to Scheumann. See I.C. § 35-42-2-1. On appeal, Thayer does not

       dispute that he knowingly or intentionally touched Scheumann in a rude,

       insolent, or angry manner. Instead, he argues that the State presented

       insufficient evidence to prove that the touching resulted in serious bodily injury

       to Scheumann. “Serious bodily injury” is defined by statute as follows: “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.” Ind. Code § 35-31.5-2-292.


[11]   The evidence presented in this case was sufficient to establish serious bodily

       injury in the form of extreme pain. Scheumann suffered a scalp hematoma,

       facial swelling, swelling in the back of her throat, a fractured rib, a sprained

       ankle, and injuries to her jaw. At the hospital, she was treated with both

       prescription painkillers and intravenous morphine. Scheumann testified that as

       a result of her injuries, she experienced pain like she had never felt before, so

       severe that she “couldn’t think straight.” Transcript at 181. Scheumann’s

       dentist testified that Scheumann reported suffering “debilitating pain and

       headaches” as a result of the injuries to her jaw. Id. at 260. We are therefore

       Court of Appeals of Indiana | Memorandum Decision 79A04-1503-CR-110 | October 15, 2015   Page 5 of 9
       unpersuaded by Thayer’s reliance on Davis v. State, 813 N.E.2d 1176, 1178 (Ind.

       2004) (finding insufficient evidence to support an inference of extreme pain

       where the victim suffered only an abrasion to her knee, a superficially lacerated

       lip, and broken pinky finger, did not receive a prescription for pain medication,

       and did not testify concerning her level of pain). Based on the evidence

       presented here, the jury could reasonably infer that Scheumann suffered

       extreme pain as a result of Thayer’s attack, which is sufficient standing alone to

       support a finding of serious bodily injury.


[12]   We note further that the evidence was also sufficient to support a finding that

       Scheumann suffered “permanent or protracted loss or impairment of the

       function of a bodily member or organ[.]” I.C. § 35-31.5-2-292. Scheumann’s

       dentist, who treated her jaw injuries, testified that he had diagnosed her with

       acute temporomandibular joint dysfunction. Over two months after the attack,

       Scheumann still had problems opening her mouth and suffered debilitating pain

       and headaches as a result of the injuries to her jaw. These injuries caused

       Scheumann to have such difficulty eating that she lost twenty-five pounds.

       Further, a radiologist testified that Scheumann’s rib fracture would make it

       difficult to move and breathe freely without pain, and would typically take four

       to six months to heal. We conclude that the State presented sufficient evidence

       to support a finding of serious bodily injury.


                                              Fifth Amendment




       Court of Appeals of Indiana | Memorandum Decision 79A04-1503-CR-110 | October 15, 2015   Page 6 of 9
[13]   Thayer also argues that the trial court abused its discretion when it allowed the

       State to elicit testimony concerning Thayer’s exercise of his Fifth Amendment

       right to remain silent. “Rulings on the admission of evidence are subject to

       appellate review for abuse of discretion.” McHenry v. State, 820 N.E.2d 124, 128

       (Ind. 2005) (footnote omitted). A trial court abuses its discretion when its

       ruling is clearly against the logic, facts, and circumstances presented. Gray v.

       State, 982 N.E.2d 434, 437 (Ind. Ct. App. 2013).


[14]   On direct examination, Thayer testified that he cooperated with the police

       “absolutely[,] every time.” Transcript at 286. Then, during the State’s cross-

       examination of Thayer, the following exchange took place:

               Q: If I understand your testimony earlier your statement to your
               attorney was that you cooperated with the police fully. Is that
               accurate?


               A: Yes.


               Q: What about Sergeant [Jay] Rosen? Did you cooperate with
               Sergeant Rosen?


               A: Yes, I did. Yes, I offered Officer Rosen to come to my home
               and have a sit down conversation with me.


       Transcript at 294. At that point, Thayer’s counsel objected on the basis that the

       State’s question constituted an improper reference to Thayer’s invocation of his

       right to remain silent. The State responded that the question was not improper

       because Thayer had testified that he cooperated with police. Although the trial

       Court of Appeals of Indiana | Memorandum Decision 79A04-1503-CR-110 | October 15, 2015   Page 7 of 9
       court did not expressly rule on Thayer’s objection, neither the question nor his

       response was stricken from the record. The State went on to assert that

       Thayer’s claim that he had offered to provide a statement to Sergeant Rosen

       was inaccurate and that Sergeant Rosen would testify to that effect. Thayer did

       not object, and the trial court ruled that the State would be limited to asking

       Sergeant Rosen whether Thayer had offered to give a statement. The State

       subsequently called Sergeant Rosen as a rebuttal witness and, again without

       objection from Thayer, elicited testimony that Thayer had not offered to give

       him a statement.


[15]   On appeal, Thayer challenges on Fifth Amendment grounds both the State’s

       question regarding whether Thayer had cooperated with Sergeant Rosen and

       the admission of Sergeant Rosen’s testimony. Thayer’s argument fails on

       multiple bases. First, at least with respect to Sergeant Rosen’s testimony,

       Thayer has waived the argument by failing to object at trial. See Konopasek v.

       State, 946 N.E.2d 23, 27 (Ind. 2011) (explaining that failure to object to the

       admission of evidence normally results in waiver precluding appellate review,

       and that “an objection to one question does not serve as an objection to another

       distinct question”). Second, because there is no indication on the record before

       us that Thayer invoked his Fifth Amendment right to remain silent, he cannot

       claim the Amendment’s protections. See Salinas v. Texas, 133 S.Ct. 2174, 2179-

       81 (2013) (explaining that a witness who desires the protection of the privilege

       against self-incrimination must claim it, and one generally does not do so by

       simply standing mute); Mira v. State, 3 N.E.3d 985, 989 (Ind. Ct. App. 2013)


       Court of Appeals of Indiana | Memorandum Decision 79A04-1503-CR-110 | October 15, 2015   Page 8 of 9
       (finding no Fifth Amendment violation where evidence was presented that the

       defendant did not call a detective back to schedule a meeting to discuss a theft

       investigation because his failure to do so did not support a finding that he

       invoked his right to remain silent). Third, even assuming arguendo that the

       State’s question and Sergeant Rosen’s testimony could otherwise be considered

       a violation of Thayer’s privilege against self-incrimination, Thayer opened the

       door to this testimony by testifying that he had cooperated with the police

       “absolutely[,] every time.” See Pennycuff v. State, 745 N.E.2d 804, 813 (Ind.

       2001) (concluding that evidence of defendant’s silence was admissible to rebut

       the defendant’s claims that he had cooperated with police). For all of these

       reasons, Thayer has not established a Fifth Amendment violation.


[16]   Judgment affirmed.


[17]   Riley, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 79A04-1503-CR-110 | October 15, 2015   Page 9 of 9
