Pursuant to Ind.Appellate Rule 65(D),

                                                             FILED
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of                        Dec 10 2012, 8:39 am
establishing the defense of res judicata,
collateral estoppel, or the law of the
                                                                  CLERK
case.                                                           of the supreme court,
                                                                court of appeals and
                                                                       tax court




ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

JEFFREY L. SANFORD                              GREGORY F. ZOELLER
South Bend, Indiana                             Attorney General of Indiana

                                                ERIC P. BABBS
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

HENRY LEE SMITH, JR.,                           )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )        No. 71A03-1204-CR-148
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                    APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
                           The Honorable J. Jerome Frese, Judge
                             Cause No. 71D03-1108-FB-130



                                     December 10, 2012


                MEMORANDUM DECISION - NOT FOR PUBLICATION


BROWN, Judge
       Henry Lee Smith, Jr., appeals his conviction for battery as a class B felony. Smith

raises one issue which we revise and restate as whether the trial court abused its

discretion when it instructed the jury regarding serious bodily injury, the offense of

aggravated battery as a class B felony, and the included offense of battery as a class C

felony. We affirm.

       The relevant facts follow. On August 13, 2011, Gregory Fulce who worked as a

contractor and had known Smith for about three to five years and had been living with

him in South Bend, Indiana, for about two weeks, received five or six hundred dollars

from a customer for parts and materials and decided to celebrate. Fulce and Smith

purchased some beer and liquor, and Smith invited a couple of women over and they

started a party.

       Fulce decided that he wanted to purchase drugs and alcohol and talked with his

nephew, Vincent Jackson, who had shot Smith’s brother ten or twelve years earlier.

Jackson showed up at the party, and Fulce observed Smith’s demeanor change. Smith

stated that he thought that he should go with Fulce to purchase drugs and alcohol. The

situation was tense and hostile, and Fulce told Smith “let’s squash all this” and told him

to wait until he returned and they would continue with the party. Transcript at 44. Fulce

then left with Jackson, purchased drugs, and returned to the residence, but Jackson stayed

at the location where they purchased the drugs.

       When Fulce returned to the residence, no one was at the house. Fulce opened his

refrigerator and discovered that the beer and liquor that he had purchased earlier were



                                            2
gone. Smith then returned to the residence, and Fulce told Smith that they should pick up

some more beer and alcohol, and they left the residence.

       Fulce told Smith that he did not have to take the beer and alcohol and asked him

“what’s going on,” but Smith did not answer. Id. at 48. At some point, Fulce turned

around to show Smith a text message, and Smith stabbed him underneath his left arm in

the area between his armpit and nipple. Fulce pushed away and stepped back, and Smith

stabbed him again under his arm and slightly lower than the first stab. Fulce grabbed

Smith’s hand, and they started wrestling and tousling with the knife. Smith then gave

Fulce a “hard stab” in the soft part of Fulce’s stomach. Id. at 51. Fulce then asked Smith

“what are you doing, why are you doing this,” and Smith responded: “I’m going to kill

you, Greg, I’m going to kill you.” Id. While they were still wrestling for the knife, Fulce

asked Smith why he wanted to kill him, and Smith said: “[W]ell, Vincent shot my

brother, you know, now I’m going to kill you.” Id. at 52. Fulce’s hand slipped off of

Smith’s arm, and Smith stabbed Fulce on the left side of his gut. Fulce went down to his

knees and told Smith to stop. Smith grabbed Fulce behind his collar and went to cut

Fulce’s throat, but Fulce raised his arm, and Smith cut Fulce’s arm. Fulce then grabbed

Smith’s hand and tried to bite his hand.

       Fulce saw a light over a door, pushed away from Smith, ran towards the door, and

fell onto the porch of Erica Hoffman’s residence where he yelled “help me” while

covered in blood. Hoffman called 911. Id. at 111. When South Bend Police Officer

Tyler Jackey arrived, Fulce was “screaming in pain” and had “uncontrolled bleeding.”

Id. at 123. Fulce suffered six injuries including two injuries that penetrated the peritoneal

                                             3
cavity and an injury to the left side of his upper chest. Fulce underwent surgery to stop

the internal bleeding and spent four days in the hospital.

       On August 20, 2011, the State charged Smith with aggravated battery as a class B

felony. On November 15, 2011, the State filed an additional charge of attempted murder

as a class A felony.

       In February 2012, the court held a jury trial. Prior to closing argument, Smith’s

counsel proposed two instructions.       Specifically, Smith’s first proposed instruction

addressed the lesser included offense of battery and stated:

              The law permits the jury to determine whether the Accused is guilty
       of certain charges which are not explicitly included in the
       indictment/information. These additional charges which the jury may
       consider are called included offenses. They are called included offenses
       because they are offenses which are very similar to the charged offense.
       Usually the only difference between the charged offense and the included
       offense is that the charged offense contains an element that is not required
       to be proven in the included offense, or that the charged offense requires a
       higher level of culpability than the included offense.

              If the State proves each of the essential elements of the charged
       offense, then you need not consider the included offense(s), however, if you
       find the State failed to prove each of the essential elements of the charged
       offense, you must find the accused not guilty of the charged offense.

              If you do find the Accused not guilty of the charged offense then you
       may consider whether the Accused is guilty of the included offense(s).
       You must not find the accused guilty of more than one crime for each
       count.

              In this case, the accused is charged with Aggravated Battery. That
       is: the defendant, did knowingly, inflict injury to Gregory Fulce and the
       injury created a substantial risk of death, to wit, a stab wou[n]d or wounds
       to the torso of Gregory Fulce. If the State failed to prove each of these
       elements beyond a reasonable doubt, you must find the accused not guilty
       of Aggravated Battery, a Class B Felony, as charged in Count I.


                                             4
              You may then consider any included crime. The crime of Battery is
       included in the charged crime of Aggravated Battery. The defendant, did
       knowingly touch Gregory Fulce in a rude, insolent or angry manner causing
       serious bodily injury. If the State failed to prove each of these elements
       beyond a reasonable doubt you must find the accused not guilty of battery
       as included in Count I.

              If the State did not prove each of the elements of the crime of
       Battery beyond a reasonable doubt, you may find the accused guilty of
       Battery, a Class C Felony.

Appellant’s Appendix at 58. Smith’s second proposed instruction addressed serious

bodily injury and stated:

       Serious Bodily Injury is defined by statutes as follows:
       Seriously [sic] Bodily Injury means bodily injury that creates a substantial
       risk of death or that causes:

              1.     Serious permanent disfiguration;
              2.     Unconsciousness;
              3.     Extreme pain;
              4.     Permanent or protracted loss or impairment of the function of
                     a bodily member or organ.

Id. at 59. The two foregoing instructions were marked as modified by the court.

       The court’s written instruction stated:

             To convict [Smith] of Count I, Aggravated Battery, a Class B
       Felony, the State must have proved each of the following essential elements
       beyond a reasonable doubt:

              1.     [Smith]
              2.     did knowingly
              3.     inflict injury on Gregory Fulce
              4.     and the injury created a substantial risk of death, to-
                     wit: a stab wound or wounds to the torso of Gregory
                     Fulce.

              If the State proved each of these essential elements beyond a
       reasonable doubt, you may find the defendant guilty of Count I, Aggravated
       Battery, a Class B Felony.

                                             5
              However, included in this offense is a lesser included offense of
       Battery as a C Felony, which is knowingly touching another person in a
       rude, insolent, angry manner causing serious bodily injury. “Serious bodily
       injury” means bodily injury that causes serious permanent disfigurement,
       unconsciousness, extreme pain, or permanent or protracted loss of
       impairment of the function of a bodily member or organ. If you find that
       the evidence proved beyond a reasonable doubt that the defendant
       knowingly touched Gregory Fulce in a rude, insolent or angry manner
       causing injury, and you find that the injury was serious bodily injury but
       did not create a substantial risk of death to Gregory Fulce, you may find the
       defendant guilty of the lesser included offense in Count I of Battery, Class
       C felony.

              If you find that the State failed to prove one or more of these
       essentials elements in Count I, you must find the defendant not guilty of
       Count I.

Id. at 33-34.

       After the closing arguments, the court addressed the jury and stated:

       I am going to be reading to you the final instructions.

             If I read something that’s different from what you’re reading, if it’s a
       word or something, that can happen from a mind slip. It would probably
       mean essentially the same thing. A synonym sometimes I use.

              If I find a mistake in the instructions, which I sometimes do when
       I’m reading it, I’ll tell you this is a mistake here.

                                         *****

              The statutes defining the offenses charged herein provides [sic], in
       pertinent part, as follows:

              Count I: A person who knowingly inflicts injury on a person that
       creates a substantial risk of death commits Aggravated Battery, a Class B
       felony.

                                         *****

              The law permits the jury to determine whether the accused is guilty
       of certain charges which are not explicitly included in the indictment
       information. These additional charges which the jury may consider are
                                            6
      called included offenses. They are called included offenses because they
      are offenses which are very similar to the charged offense and the included
      offense requires that the charged offense contains an element that is not
      required to be proved in the included offense – I think I’m going to change
      that wording because I think it’s actually inaccurate to say – they’re called
      included offenses because they are offenses which are very similar to the
      charged offense and the difference – take out the included offense – the
      difference. I think it was a typo. The difference is that the charged offense
      contains an element that is not required to be proved in the included offense
      or that the charged offense requires a higher level of culpability than the
      included offense. I apologize for that error.

             To convict [Smith] of Count I, Aggravated Battery, a Class B felony,
      the State must have proved each of the following essential elements beyond
      a reasonable doubt: One, [Smith]; two, did knowingly; three, inflict injury
      on Gregory Fulce; four, and the injury created a substantial risk of death,
      to-wit: a stab wound or wounds to the torso of Gregory Fulce.

             If the State proved each of these essential elements beyond a
      reasonable doubt, you may find the defendant guilty of Count I, Aggravated
      Battery, a Class B felony.

             However, included in this offense is a lesser included offense of
      Battery as a C felony, which is knowingly touching another person in a
      rude, insolent, or angry manner causing serious bodily injury. Serious
      bodily injury means bodily injury that causes serious permanent
      disfigurement, unconsciousness, extreme pain, or permanent or protracted
      loss of impairment – and that should say or impairment of the function of a
      bodily member or organ. If you find that the evidence proved beyond a
      reasonable doubt that the defendant knowingly touched Gregory Fulce in a
      rude, insolent, or angry manner causing injury, and you find that the injury
      was serious bodily injury but did not create a substantial risk of death to
      Gregory Fulce, you may find the defendant guilty of the lesser included
      offense in Count I of Battery, Class C felony.

             If you find that the State failed to prove one or more of these
      essential elements in Count I, you must find the defendant not guilty of
      Count I.

Transcript at 280-292.




                                           7
       After the court gave the jury the final instructions and the jury began deliberations,

Smith’s counsel objected to the court’s instruction regarding the lesser included offense.

Specifically, Smith’s counsel stated:

              This is a misstatement of the law in defendant’s instruction number
       one because our argument is that the jury could find a substantial risk of
       death even though – even though if it would be a C felony, they could still
       find that. I think the Court’s instruction is misleading. I think the
       defendant’s instruction number one and defendant’s instruction number two
       is a correct statement of the law. I don’t think the Court’s instruction is a
       correct statement of the law because the difference between an A felony
       and the C felony is the culpability for committing the offense.

Id. at 297-298. The court responded:

       Liz, make a record that in reading the instruction on the lesser included
       offense I found an error which we had not discussed but I corrected it in the
       reading to the jury which was a phrase that said included offenses are very
       similar to the charged offense and the included offense is that the charged
       offense contains, dot, dot, dot – actually to say the included offense, strike
       included offense there, and I put in difference. Just the word difference.

Id. at 298.

       The jury found Smith guilty of aggravated battery as a class B felony and not

guilty of attempted murder. On March 22, 2012, the court sentenced Smith to fifteen

years in the Department of Correction.

       The issue is whether the trial court abused its discretion when it instructed the jury

regarding serious bodily injury, the offense of aggravated battery as a class B felony, and

the included offense of battery as a class C felony. Generally, “[t]he purpose of an

instruction is to inform the jury of the law applicable to the facts without misleading the

jury and to enable it to comprehend the case clearly and arrive at a just, fair, and correct

verdict.” Overstreet v. State, 783 N.E.2d 1140, 1163 (Ind. 2003), cert. denied, 540 U.S.

                                             8
1150, 124 S. Ct. 1145 (2004). Instruction of the jury is generally within the discretion of

the trial court and is reviewed only for an abuse of that discretion. Id. at 1163-1164. To

constitute an abuse of discretion, the instruction given must be erroneous, and the

instructions taken as a whole must misstate the law or otherwise mislead the jury.

Benefiel v. State, 716 N.E.2d 906, 914 (Ind. 1999), reh’g denied, cert. denied, 531 U.S.

830, 121 S. Ct. 83 (2000). To determine whether a trial court abused its discretion by

declining to give a tendered instruction, we consider: (1) whether the tendered instruction

correctly states the law; (2) whether there was evidence presented at trial to support

giving the instruction; and (3) whether the substance of the instruction was covered by

other instructions that were given. Henson v. State, 786 N.E.2d 274, 277 (Ind. 2003).

Before a defendant is entitled to a reversal, he or she must affirmatively show that the

erroneous instruction prejudiced his substantial rights. Gantt v. State, 825 N.E.2d 874,

877 (Ind. Ct. App. 2005). An error is to be disregarded as harmless unless it affects the

substantial rights of a party. Oatts v. State, 899 N.E.2d 714, 727 (Ind. Ct. App. 2009);

Ind. Trial Rule 61.

       Smith argues that the instruction given by the court “stated incorrectly that

substantial risk of death was not an element of Battery Resulting in Serious Bodily Injury

and was the only element distinguishing it from Aggravated Battery.” Appellant’s Brief

at 9. Smith contends that “the jury could have found that the injuries to Gregory Fulce

created a substantial risk of death and then decided if [Smith] knowingly or intentionally

created that risk or merely knowingly or intentionally touched Mr. Fulce in a rude,

insolent or angry manner and the resulting injuries created a substantial risk of death.”

                                            9
Id. at 10.       Smith argues that “[t]he trial court’s instruction misled the jury from

considering this possibility.” Id.

       The State argues that although the trial court may have erred by failing to provide

the complete definition of serious bodily injury, any error was harmless. The State

argues that substantial risk of death was an element of aggravated battery as a class B

felony and that “if the jury had not found that Fulce was subjected to a substantial risk of

death, it would have had to acquit Smith of aggravated battery, but could still find that

Fulce suffered serious bodily injury.” Appellee’s Brief at 9. The State points out that

Smith’s counsel argued that there had not been proof beyond a reasonable doubt that the

injuries created a substantial risk of death. The State argues that “[i]n light of the

evidence and the parties’ arguments at trial, the jury instruction given by the court

allowed Smith to fully argue that theory to the jury, and so any error in the wording of the

instruction was harmless.” Id. at 10. The State also argues that there was no serious

dispute that Smith injured Fulce knowingly. The State contends that “Smith’s claim of

reversible error rests upon the implausible hypothesis that the jury might have found the

injuries Smith inflicted upon Fulce created a substantial risk of death, but that Smith did

not knowingly create that risk.” Id. at 11.

       The offense of aggravated battery is governed by Ind. Code § 35-42-2-1.5 which

provides that “[a] person who knowingly or intentionally inflicts injury on a person that

creates a substantial risk of death . . . commits aggravated battery, a Class B felony.”1



       1
           Ind. Code § 35-42-2-1.5 provides in it its entirety:

                                                      10
Ind. Code § 35-42-2-1 governs the lesser included offense of battery and provides in part

that “[a] person who knowingly or intentionally touches another person in a rude,

insolent, or angry manner commits battery, a Class B misdemeanor. However, the

offense is . . . a Class C felony if it results in serious bodily injury to any other person or

if it is committed by means of a deadly weapon . . . .”

        At the time of the offense and trial, Ind. Code § 35-41-1-25 defined serious bodily

injury as follows:

        “Serious bodily injury” means 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.




        A person who knowingly or intentionally inflicts injury on a person that creates a
        substantial risk of death or causes:

                (1)     serious permanent disfigurement;

                (2)     protracted loss or impairment of the function of a bodily member
                        or organ; or

                (3)     the loss of a fetus;

                commits aggravated battery, a Class B felony.

The State charged Smith with inflicting injury on Fulce “that created a substantial risk of death, to-wit: a
stab wound or wou[n]ds to the torso of Gregory Fulce.” Appellant’s Appendix at 5.

                                                    11
(Emphasis added).2

       The trial court did not provide a complete definition of “serious bodily injury” as it

did not indicate that “serious bodily injury” is an injury that creates a substantial risk of

death. Based upon the definition of “serious bodily injury” and the statutory language

mentioned above, the court erred to the extent it suggested that the distinguishing element

is that of the creation of a substantial risk of death. Rather, the mental state required for

aggravated battery as a class B felony and battery as a class C felony resulting in serious

bodily injury is different. Matthews v. State, 944 N.E.2d 29, 33 (Ind. Ct. App. 2011),

reh’g denied. Specifically, “aggravated battery requires the defendant to knowingly or

intentionally inflict injury on another, see Ind. Code § 35-42-2-1.5, while battery merely

requires the defendant to knowingly or intentionally touch another in a rude, insolent, or

angry manner, see Ind. Code § 35-42-2-1.” Mann v. State, 895 N.E.2d 119, 124 (Ind. Ct.

App. 2008).

       While some of the court’s instructions were not complete, we cannot say that

reversal is required under these circumstances. “Errors in the giving or refusing of

instructions are harmless where a conviction is clearly sustained by the evidence and the

jury could not properly have found otherwise.” Dill v. State, 741 N.E.2d 1230, 1233

(Ind. 2001). See also Kane v. State, 976 N.E.2d 1228, 1232 (Ind. 2012) (holding that

when a challenged instruction is erroneous, “we presume the error affected the verdict,

and we will reverse the defendant’s conviction ‘unless the verdict would have been the

same under a proper instruction.’”) (quoting LaPorte Cmty. Sch. Corp. v. Rosales, 963

       2
           Subsequently repealed by Pub. L. No. 114-2012, §§ 103-132 (eff. July 1, 2012).

                                                    12
N.E.2d 520, 525 (Ind. 2012)) (emphasis added). Smith argues that the instruction given

by the court indicated that substantial risk of death was the “only element” distinguishing

aggravated battery as a class B felony from battery as a class C felony. Appellant’s Brief

at 9. However, the court instructed the jury with respect to the mental state required for

aggravated battery as a class B felony and battery as a class C felony. Specifically, the

court stated that the statute governing aggravated battery as a class B felony provided that

“[a] person who knowingly inflicts injury on a person that creates a substantial risk of

death commits Aggravated Battery, a Class B felony.” Transcript at 290 (emphasis

added). The court also instructed the jury that “[i]f you find that the evidence proved

beyond a reasonable doubt that [Smith] knowingly touched Gregory Fulce in a rude,

insolent, or angry manner causing injury . . . you may find [Smith] guilty of the lesser

included offense in Count I of Battery, Class C felony.” Id. at 292 (emphasis added).

       The record also reveals that Smith stabbed Fulce multiple times with a knife at

various locations on his upper torso, struggled with Fulce, cut Fulce’s arm, and stated:

“I’m going to kill you, Greg, I’m going to kill you.” Id. at 51. Smith also stated his

reason as: “[W]ell, Vincent shot my brother, you know, now I’m going to kill you.” Id.

at 52. Fulce suffered six injuries including two injuries that penetrated the peritoneal

cavity and an injury to the left side of his upper chest. Based upon the record, we

conclude that a reasonable jury could not have properly found that Smith did not

knowingly or intentionally inflict injury on Fulce that created a substantial risk of death.

See McEwen v. State, 695 N.E.2d 79, 87 (Ind. 1998) (holding that an assault with a knife

or similar sharp object – particularly to the chest or head region – rarely occurs without

                                            13
awareness of a high probability that death will result); Wilcher v. State, 771 N.E.2d 113,

117 (Ind. Ct. App. 2002) (“Common knowledge bears out the conclusion that an

individual is confronted with a substantial risk of death following a stab wound to the

chest in circumstances such as these presented here.”), trans. denied. We cannot say that

Smith’s substantial rights were prejudiced based upon all the information provided to the

jury. Accordingly, we conclude that any error was harmless. See Dill, 741 N.E.2d at

1234 (concluding that a reasonable jury could not properly have acquitted the defendant

and would have rendered a guilty verdict even if the erroneous flight instruction had not

been given and holding that the instruction error did not require reversal).

       For the foregoing reasons, we affirm Smith’s conviction for aggravated battery as

a class B felony.

       Affirmed.

BAILEY, J., and VAIDIK, J., concur.




                                             14
