MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be                                 Dec 20 2017, 9:51 am
regarded as precedent or cited before any
                                                                           CLERK
court except for the purpose of establishing                           Indiana Supreme Court
                                                                          Court of Appeals
the defense of res judicata, collateral                                     and Tax Court

estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Ruth Johnson                                             Curtis T. Hill, Jr.
Deborah Markisohn                                        Attorney General of Indiana
Marion County Public Defender Agency
                                                         Christina D. Pace
Indianapolis, Indiana                                    Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

D.A.,                                                    December 20, 2017
Appellant-Respondent,                                    Court of Appeals Case No.
                                                         49A02-1707-JV-1495
        v.                                               Appeal from the
                                                         Marion Superior Court
State of Indiana,                                        The Honorable
Appellee-Petitioner.                                     Marilyn A. Moores, Judge
                                                         The Honorable
                                                         Geoffrey A. Gaither, Magistrate
                                                         Trial Court Cause No.
                                                         49D09-1612-JD-1915



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1707-JV-1495 | December 20, 2017       Page 1 of 9
[1]   D.A. was adjudicated a delinquent for committing an act which, if committed

      by an adult, would constitute Level 5 felony battery resulting in serious bodily

      injury.1 He appeals, contending that the evidence was insufficient to establish

      serious bodily injury.


[2]   We affirm.


                                       Facts and Procedural History
[3]   In 2016, D.A. and his younger brother, T.W., lived with their mother and other

      family members in an apartment in Marion County, Indiana. A.C., the victim

      in this case, lived in the same apartment complex. A.C. and T.W. went to

      Perry Meridian Middle School, and D.A. attended Perry Meridian High

      School. On November 16, 2016, the three boys were on the school bus coming

      home from school; T.W. was seated directly behind A.C. According to A.C.,

      T.W. pulled at A.C.’s backpack and kicked at A.C.’s shoes approximately

      twenty times, which A.C. found “annoying.” Tr. Vol. II at 10. A.C. told him

      repeatedly to stop it and, at one point, had the bus driver speak to T.W. about

      it.


[4]   A.C., D.A., T.W., along with some other kids, exited the bus together at their

      usual stop. T.W. tried to talk to A.C. and say that “he was just horse playing”

      on the bus, but A.C. told him that it “really wasn’t” horseplay, because T.W.




      1
          See Ind. Code § 35-42-2-1.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1707-JV-1495 | December 20, 2017   Page 2 of 9
      would not stop when A.C. asked him to do so. Id. at 12. Sometime after that,

      D.A., who was walking directly behind A.C., shoved A.C., and he stumbled

      and fell. D.A. picked up A.C., lifted him over his shoulder, and “slammed”

      A.C. to the ground. Id. at 14, 49-50, 62. Part of A.C.’s body hit the concrete.

      A.C. heard D.A. say, “[D]on’t f with my brother[,]” which A.C. considered “a

      subtle threat.” Id. at 15, 30. T.W. and another boy helped A.C. to his feet and

      walked him home, with each of them holding one of A.C.’s arms to support

      him. A.C. was in pain, was crying, and his jaw was moving uncontrollably.


[5]   When he got inside his apartment, A.C. sat on the couch, still crying. His

      mother (“Mother”) came home five or ten minutes later and found him holding

      his side and crying. She went to the area of the apartment complex where she

      believed D.A. lived, and she encountered him in an exterior area and told him

      that he had hurt her son. According to Mother, D.A. replied, that A.C.

      “shouldn’t have been talking the ‘S’ word.” Id. at 36. Believing his arm was

      broken, Mother took A.C. to the emergency room, and she called the police

      who responded and made a report.


[6]   Two days after the incident occurred, A.C. underwent surgery to repair his

      clavicle. The surgery required an implant with seven screws. For the pain,

      A.C. was prescribed, and took, an advanced Tylenol product for a few days.

      He missed two weeks of school as a result of the injury, and he wore a sling for

      approximately three months. The day after the incident, D.A., along with his

      mother and T.W., went to A.C.’s home and apologized.



      Court of Appeals of Indiana | Memorandum Decision 49A02-1707-JV-1495 | December 20, 2017   Page 3 of 9
[7]   On December 12, 2016, the State filed a delinquency petition alleging that D.A.

      committed battery resulting in serious bodily injury, a Level 5 felony if

      committed by an adult, and criminal mischief, a Class B misdemeanor if

      committed by an adult, but the State later dismissed the criminal mischief

      charge. Tr. Vol. II at 4; Appellant’s Appendix Vol. II at 21. In May 2017, the

      juvenile court conducted a fact-finding hearing.


[8]   At the hearing, A.C. testified and described that he landed “face first” and that

      his right arm and his nose were in pain. Tr. Vol. II at 15. He said that he was in

      so much pain that he could not walk on his own and needed the other boys’

      help “to stagger home[,]” and, due to the pain, he was barely able to talk to his

      mother when she arrived home. Id. at 17. A.C. stated that D.A. came over the

      following day and apologized, telling A.C., “I never would’ve done it . . . if I

      knew you were autistic.” Id. at 32. Mother also testified that D.A., T.W., and

      their mother came to A.C.’s home to apologize and that D.A. said that he was

      sorry and “would have never messed with him” if he had known that A.C.

      “had problems.” Id. at 41. Mother stated that A.C. “did recover after a few

      months pretty well” and was “pretty much back to normal” as of the fact-

      finding hearing. Id. at 40.


[9]   The defense called as witnesses T.W. and D.A. T.W. acknowledged that, while

      on the bus, he was tapping A.C. on his head and tugging at his backpack and

      described that, after they all got off the bus and were walking home, A.C. called

      him “[f]at ass.” Id. at 48. T.W. recalled that D.A. began “sticking up for”

      T.W. and that A.C. said to D.A. in reply, “[W]hat are you going to do about

      Court of Appeals of Indiana | Memorandum Decision 49A02-1707-JV-1495 | December 20, 2017   Page 4 of 9
       it[,]” and he balled up his fist and shoved D.A. Id. at 48-49. T.W. said that it

       was after this exchange of words that D.A. picked up A.C. and dropped him in

       the grass. T.W. and his friend ran over to check on A.C. “to make sure he was

       okay” and walked him home. Id. at 50. On cross-examination, T.W.

       acknowledged that, the day after the incident happened, he gave a statement to

       an administrator at school and did not mention anything about A.C. calling

       him names or shoving D.A., but explained that he did not believe at the time

       that he needed to provide a lot of detail.


[10]   D.A. testified that, after they got off the bus, he heard A.C. call T.W. “a fat

       ass[,]” which made D.A. mad. Id. at 58. According to D.A., he told A.C.,

       “[D]on’t call my brother that[,]” and A.C. replied, “[C]ome do something[,]”

       and then A.C. balled up his fist at his side and shoved D.A. Id. at 58-59. D.A.

       said that at that point he grabbed A.C.’s arm, picked him up, and dropped him.

       He said that when he later learned that he had hurt A.C., he felt “sad because I

       wasn’t intending to hurt him” and had only meant to scare him. Id. at 61.


[11]   During his testimony, A.C. denied that he balled his fist at D.A. or said

       anything to D.A., and he testified that he did not call T.W. a fat ass, stating that

       he did not cuss, does not cuss, and “will never cuss.” Id. at 27. Mother also

       testified that A.C. “does not curse[,]” even sometimes. Id. at 43.


[12]   Following the presentation of evidence, the juvenile court entered a true finding

       of battery resulting in serious bodily injury, and, in June 2017, the juvenile

       court held a dispositional hearing. Appellant’s App. Vol. II at 13, 112-13. At the


       Court of Appeals of Indiana | Memorandum Decision 49A02-1707-JV-1495 | December 20, 2017   Page 5 of 9
       hearing, D.A. asked the juvenile court to reconsider the true finding for battery

       as a Level 5 felony and instead enter a true finding as a misdemeanor. Id. at 12;

       Tr. Vol. II at 80-81. The State argued, among other things, “The child who was

       injured had to have surgery that required installation of hardware in his collar

       bone . . . . [T]his did a lot of damage.” Tr. Vol. II at 79. The court retained its

       earlier true finding of battery resulting in serious bodily injury, placed D.A. on

       probation, and discharged him to his grandfather’s care. 2 D.A. now appeals.


                                        Discussion and Decision
[13]   D.A. does not dispute that A.C. was injured as a result of his actions; at issue

       “is whether A.C.’s injuries rose to the level of serious bodily injury.” Reply Br.

       at 4. He maintains that the evidence was not sufficient to support a true finding

       of battery resulting in serious bodily injury. When the State seeks to have a

       juvenile adjudicated to be a delinquent for committing an act that would be a

       crime if committed by an adult, the State must prove every element of the crime

       beyond a reasonable doubt. M.T.V. v. State, 66 N.E.3d 960, 965 (Ind. Ct. App.

       2016), trans. denied. Upon review of a juvenile adjudication, this court will

       consider only the evidence and reasonable inferences supporting the judgment.

       Id. We will neither reweigh the evidence nor judge witness credibility. Id. If

       there is substantial evidence of probative value from which a reasonable trier of




       2
        The juvenile court ordered D.A. to complete an apology letter to the victim and continue attending grief
       counseling as arranged by his grandparents; as to the latter, the record reflects that D.A.’s mother passed
       away while the case was pending. Tr. Vol. II at 74-75.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1707-JV-1495 | December 20, 2017           Page 6 of 9
       fact could conclude that the defendant was guilty beyond a reasonable doubt,

       we will affirm the adjudication. Id.


[14]   The State’s petition alleged as follows:


               On or about the 16th day of November, 2016, said child did
               knowingly or intentionally touch [A.C.] in a rude, insolent or
               angry manner, which resulted in serious bodily injury, to Wit: a
               broken collar bone which required surgery & the placement of
               seven (7) screws to repair, plus ongoing physical therapy.


       Appellant’s App. Vol. II at 21. Indiana Code section 35-31.5-2-292 defines serious

       bodily injury to mean 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. “Protracted” means to “draw

       out or lengthen in time,” and “impairment” means “the fact or state of being

       damaged, weakened, or diminished.” Mann v. State, 895 N.E.2d 119, 122 (Ind.

       Ct. App. 2008).


[15]   Here, D.A. maintains that the State presented evidence sufficient to support

       only “either bodily injury or moderate bodily injury” and that the juvenile court

       should have entered a true finding for either battery as a Class A misdemeanor

       or battery as a Level 6 felony if committed by an adult. Appellant’s Br. at 9. He

       highlights that it was one act, namely picking up A.C. and throwing him to the

       ground, as opposed to multiple acts, and that A.C.’s mother testified at the May

       2017 fact-finding hearing that A.C. was for the most part back to normal. He


       Court of Appeals of Indiana | Memorandum Decision 49A02-1707-JV-1495 | December 20, 2017   Page 7 of 9
       urges that “A.C.’s injury did not rise to the level of a serious bodily injury.” Id.

       at 13. We disagree.


[16]   As D.A. acknowledges, “There is no bright line rule that differentiates bodily

       injury from serious bodily injury[,]” and “[w]hether the bodily injury is serious

       is a question of degree that is reserved for the fact-finder.” Appellant’s Br. at 11

       (citing Davis v. State, 813 N.E.2d 1176, 1178 (Ind. 2004) and Whitlow v. State,

       901 N.E.2d 659, 661 (Ind. Ct. App. 2009)). Here, the State presented evidence

       that D.A. picked up A.C. over his shoulder and “slammed” him to the ground,

       and that, in part, he landed on concrete, “face first.” Tr. Vol. II at 14-15. Due

       to the pain, A.C. was unable to walk on his own and was barely able to speak to

       his mother when she arrived home. Mother described that for a short time A.C.

       appeared to be in “excruciating” pain. Id. at 38. A.C. had surgery to repair his

       clavicle, which required an implant and seven screws and some pain

       medication for a few days. He missed two weeks of school and wore a sling for

       about three months. Our Supreme Court has stated that fact-finders are

       extended “considerable deference” as to whether a bodily injury is “serious.”

       Davis, 803 N.E.2d at 1178. D.A. is essentially asking us to reweigh the

       evidence, which we cannot do. M.T.V., 66 N.E.3d at 966. The evidence was

       sufficient to support the juvenile court’s true finding that D.A. committed an act

       that would constitute Level 5 felony battery resulting in serious bodily injury if

       committed by an adult.


[17]   Affirmed.



       Court of Appeals of Indiana | Memorandum Decision 49A02-1707-JV-1495 | December 20, 2017   Page 8 of 9
[18]   Bailey, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1707-JV-1495 | December 20, 2017   Page 9 of 9
