                                                                          FILED
OPINION                                                              Sep 09 2016, 8:39 am

                                                                          CLERK
                                                                      Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
John S. Terry                                              Gregory F. Zoeller
Cate, Terry & Gookins, LLC                                 Attorney General of Indiana
Carmel, Indiana
                                                           Jesse R. Drum
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Dustin Todd Garner,                                        September 9, 2016
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           29A04-1602-CR-361
        v.                                                 Appeal from the Hamilton
                                                           Superior Court
State of Indiana,                                          The Honorable William J. Hughes,
Appellee-Plaintiff.                                        Judge
                                                           Trial Court Cause No.
                                                           29D03-1510-F6-9119



May, Judge.




Court of Appeals of Indiana | Opinion 29A04-1602-CR-361 | September 9, 2016                   Page 1 of 7
[1]   Dustin Todd Garner appeals his conviction of Level 6 felony battery with

      moderate bodily injury. 1 The sole issue he raises is whether the trial court

      abused its discretion when it declined to instruct the jury on the lesser included

      offense of battery with bodily injury as a Class A misdemeanor. We affirm.



                             Facts and Procedural History
[2]   On the morning of October 19, 2015, Patrick Knowles was walking to work

      when Garner, Mitch Randall, Taylor Meredith, and Matt Fisher approached

      him. Garner punched Knowles and broke his nose. Knowles twisted his ankle

      as he fell to the ground. Garner continued to hit Knowles for what seemed to

      Knowles “like forever.” (Tr. at 143.) Garner “picked [Knowles’] head up and

      hit it against the concrete [and Knowles] could see the blood pooling from his

      nose.” (Id.) Then, Garner and the others “walk[ed] back, it looked like to the

      apartments.” (Id. at 144.)


[3]   After his assailants left, Knowles “worked [himself] up to actually stand” and

      went to work. (Id. at 145.) However, once there, he started worrying the same

      men might attack his girlfriend. He called her but she did not answer. He did

      not call the police. He left work and started walking back towards his

      apartment, albeit by a slightly different route, “just in case.” (Id. at 147.)




      1
       Ind. Code § 35-42-2-1(b)(1) and Ind. Code § 35-42-2-1(d)(1) (2014). Ind. Code § 35-42-2-1(d)(1) is now Ind.
      Code 35-42-2-1(e)(1) (2016).

      Court of Appeals of Indiana | Opinion 29A04-1602-CR-361 | September 9, 2016                      Page 2 of 7
[4]   Garner, Randall, and Fisher reappeared. This time, Garner “just walked up,

      didn’t say nothing [sic] . . . he hit [Knowles] way harder than the first [time

      and] knocked [him] down.” (Id. at 150.) Garner hit Knowles in the back of the

      head, kicked him, and stomped on him. Garner finally “walk[ed] off fast.” (Id.

      at 153.) Randall and Fisher remained momentarily. Fisher kicked Knowles in

      the back of the head, and then they left.


[5]   Knowles was dizzy and “lucky that [he] was conscious but everything [was]

      blurry.” (Id.) He continued to his apartment but could “barely stand” when he

      got there. (Id.) His girlfriend called the police. The police called an

      ambulance. The ambulance transported Knowles to the hospital. Knowles’ lip

      required stitches, and he had a “small fracture to [his] nose.” (Id. at 155.) He

      was released later that same day, without pain medication. He testified the pain

      “was ten,” (id. at 156), on a scale of one to ten, “with ten being the most

      excruciating pain you can imagine, 1 being mild annoyance.” (Id.) He was

      having difficulty moving his mouth and was advised to eat only soft foods.


[6]   Based on Knowles’ description and a police dog’s tracking, the police located

      Garner and the other men involved in the altercation. When they located

      Garner, his mouth was bleeding and “there were abrasions to his hands.” (Id.

      at 209.) Police arrested Garner and the State charged him with Level 6 felony

      battery resulting in moderate bodily injury. During a jail call, Garner was

      recorded saying “I broke both my hands on his face, fucking broke his face, split

      his lip wide the fuck open.” (Id. at 332.)



      Court of Appeals of Indiana | Opinion 29A04-1602-CR-361 | September 9, 2016   Page 3 of 7
[7]   At trial Garner’s attorney tendered a jury instruction for Class A misdemeanor

      battery resulting in bodily injury, as a lesser included offense of battery resulting

      in moderate injury. The State objected and the trial court sustained the

      objection, stating, “There is no basis in the world that a reasonable jury could

      find that there is not moderate bodily injury in this case as that is defined by

      law. Substantial pain. [sic]” (Id. at 359.) The jury found Garner guilty.



                                 Discussion and Decision
[8]   The trial court did not abuse its discretion in declining to instruct the jury on

      battery resulting in bodily injury. A trial court should include an instruction

      regarding a lesser included offense if the lesser offense “may be established ‘by

      proof of the same material elements or less than all the material elements’

      defining the crime charged,” Wright v. State, 658 N.E.2d 563, 566 (Ind. 1995)

      (quoting Ind. Code § 35-41-1-16(1)), or “the charging instrument alleges that the

      means used to commit the crime charged include all of the elements of the

      alleged lesser included offense,” id. at 567, and the trial court finds a serious

      evidentiary dispute regarding an element that distinguishes the lesser offense

      from the greater offense. Id.


[9]   The trial court determined there was no serious evidentiary dispute about the

      element that distinguishes the misdemeanor from the felony, the degree of

      injury Garner caused Knowles. Where the trial court has determined there is

      no serious evidentiary dispute, we treat that finding with deference and review

      it for an abuse of discretion. McEwen v. State, 695 N.E.2d 79, 84 (Ind. 1998). A

      Court of Appeals of Indiana | Opinion 29A04-1602-CR-361 | September 9, 2016   Page 4 of 7
       decision is an abuse of discretion when it “is clearly against the logic and effect

       of the facts and circumstances.” Prewitt v. State, 878 N.E.2d 184, 188 (Ind.

       2007).


[10]   A “serious evidentiary dispute” exists if, based on “the evidence presented in

       the case by both parties,” a “jury could conclude that the lesser offense was

       committed but not the greater.” Wright, 658 N.E.2d at 567. Garner was

       charged with having inflicted “moderate bodily injury,” which is “any

       impairment of physical condition that includes substantial pain.” Ind. Code §

       35-31.5-2-204.5 (2014). Garner’s requested instruction was for battery resulting

       in “bodily injury,” which is defined as “any impairment of physical condition,

       including physical pain.” Ind. Code § 35-31.5-2-29.


[11]   No Indiana appellate court has heretofore considered when there is a serious

       evidentiary dispute about whether a victim experienced “pain” or “substantial

       pain.” 2 There are presumably fact patterns under which a trial court might

       abuse its discretion by declining to instruct a jury about battery resulting in

       bodily injury as a lesser included offense, but we must affirm the trial court’s

       decision in this case because the injuries Knowles received could have justified

       a charge of Level 5 felony battery resulting in serious bodily injury. See Ind.

       Code § 35-31.5-2-292 (“Serious bodily injury” defined); see also, e.g., Dausch v.

       State, 616 N.E.2d 13, 16 (Ind. 1993) (broken nose, stitches, and bruising satisfy



       2
         The statutes criminalizing battery with moderate bodily injury and defining moderate bodily injury became
       effective in 2014.

       Court of Appeals of Indiana | Opinion 29A04-1602-CR-361 | September 9, 2016                      Page 5 of 7
       criteria for “serious bodily injury”); Phares v. State, 506 N.E.2d 65, 69 (Ind. Ct.

       App. 1987) (“eight stitches . . . required to close the head wound . . . was

       sufficient to establish serious bodily injury”).


[12]   When he reached his apartment, Knowles could “barely stand,” (Tr. at 153), his

       lip required stitches, and he had a “small fracture to [his] nose.” (Id. at 155.)

       On seeing him, the police immediately called for an ambulance. It took “a

       good week” for the pain to subside. (Id. at 160.) Knowles testified the pain

       “was ten,” (id. at 156), on a scale of one to ten, “with ten being the most

       excruciating pain you can imagine, 1 being mild annoyance.” (Id. at 155.) In

       addition to Knowles’ testimony about his injuries, several police officers

       testified as to the extent of Knowles’ injuries and the State introduced

       photographs of Knowles’ injuries that corroborated the testimony.


[13]   The State entered evidence that Garner, on a call recorded from the jail, stated

       he had “broken both [his] hands on [Knowles’] face, fucking broke [Knowles’]

       face, split [Knowles’] lip wide the fuck open.” (Id. at 332.) Garner did not

       present evidence that the injuries he inflicted on Knowles would have caused

       only “physical pain” rather than “substantial pain.” Compare Ind. Code § 35-

       31.5-2-204.5 (defining “moderate bodily injury”) with Ind. Code § 35-31.5-2-29

       (defining “bodily injury”).


[14]   In light of these facts, there was no serious evidentiary dispute about whether

       Knowles experienced substantial pain following the battery. Therefore, the trial




       Court of Appeals of Indiana | Opinion 29A04-1602-CR-361 | September 9, 2016   Page 6 of 7
       court did not abuse its discretion when it declined to give the proposed jury

       instruction.



                                                Conclusion
[15]   As the trial court did not abuse its discretion by declining Garner’s tendered

       instruction on a lesser included offense, we affirm.


[16]   Affirmed.


       Kirsch, J., and Crone, J., concur.




       Court of Appeals of Indiana | Opinion 29A04-1602-CR-361 | September 9, 2016   Page 7 of 7
