MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                   FILED
regarded as precedent or cited before any                           Jul 30 2019, 6:54 am

court except for the purpose of establishing                            CLERK
the defense of res judicata, collateral                             Indiana Supreme Court
                                                                       Court of Appeals
                                                                         and Tax Court
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Bradley Keffer                                            Curtis T. Hill, Jr.
Brooke Smith                                              Attorney General of Indiana
Keffer Hirschauer LLP                                     Samuel J. Dayton
Indianapolis, Indiana                                     Matthew B. MacKenzie
                                                          Deputy Attorneys General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jesse Lee Risley,                                         July 30, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-CR-2707
        v.                                                Appeal from the
                                                          Vanderburgh Circuit Court
State of Indiana,                                         The Honorable
Appellee-Plaintiff.                                       Kelli E. Fink, Magistrate
                                                          Trial Court Cause No.
                                                          82C01-1711-F3-6964



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2707 | July 30, 2019               Page 1 of 15
[1]   Jesse Lee Risley (“Risley”) appeals his conviction for aggravated battery 1 as a

      Level 3 felony, raising the following restated issues:


                 I. Whether the trial court abused its discretion by giving a jury
                    instruction about accomplice liability; and


                 II. Whether the State presented sufficient evidence to sustain
                     Risley’s conviction for aggravated battery as a Level 3 felony.


[2]   We affirm.


                                         Facts and Procedural History
[3]   On the night of September 23 and into the morning of September 24, 2017,

      Cody Utley (“Utley”) and his girlfriend Kara Hale (“Hale”) were drinking at a

      Vanderburgh County bar (“the Bar”). Risley and his friend, Jacob Humphrey

      (“Humphrey”), were also at the Bar that night. After getting a drink, Utley and

      Hale went outside to sit on the patio. The couple found a free table but noticed

      it had only one chair. Seeing a nearby table with three patrons and more than

      four free chairs, Utley began moving one of the chairs toward his table but was

      stopped by a woman. The woman, later identified as Heather Warfield

      (“Warfield”), “grabbed” the chair out of Utley’s hand, “slammed it down,” and

      pushed Utley. Tr. Vol. II at 73; Tr. Vol. III at 88. Patrons at another table

      offered Utley a chair. Utley took the chair back to his table and commented to




      1
          See Ind. Code § 35-42-2-1.5.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2707 | July 30, 2019   Page 2 of 15
      Hale that Warfield’s behavior was “cuntie.” Tr. Vol. II at 73. Warfield, who

      worked as a server at the Bar, was socializing with friends after her shift and

      another server, Amanda Breeze (“Breeze”), was on duty. Having seen

      Warfield’s behavior, Breeze went up to Warfield and told her “it was not okay

      to shove a patron.” Tr. Vol. III at 87.


[4]   Later, Breeze approached Utley, apologized to him for Warfield’s behavior,

      and asked if there was anything she could do to help him. Utley responded by

      calling Breeze “a cunt.” Id. at 89. Risley, who had walked up behind Breeze,

      could hear the conversation when Utley insulted Breeze. Breeze, unsure of

      what she had heard, asked Utley to repeat what he said; Utley repeated the

      insult. Breeze clarified that she was not Warfield, and Utley responded by

      telling her, “I don’t care, you’re still a cunt[.]” Id. at 119. During that

      exchange, Risley told Utley that he was going to “kick [Utley’s] ass.” Tr. Vol. II

      at 108, 137.


[5]   Breeze ordered Utley to leave, and when Utley did not cooperate, Breeze asked

      the Bar’s bouncer to escort Utley and Hale out. As the two were being escorted

      out of the Bar, Risley offered to pay for their cab fare. Utley, seeing that

      Risley’s hair was in dreadlocks, made a comment about “[Risley’s] hair and

      how bad it looked.” Tr. Vol. III at 66. As Utley and Hale left through the patio

      gate, two men heckled them; Utley “heckled back.” Tr. Vol. II at 138, 139.


[6]   Once outside the patio gate, Utley called for a ride on his cell phone. Utley had

      taken only a few steps down the sidewalk when he heard a commotion behind

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2707 | July 30, 2019   Page 3 of 15
      him. Turning, Utley saw two men, later identified as Risley and Humphrey,

      coming toward him. Risley testified that he “noticed that [Utley] had a knife in

      his hand and . . . felt [his] life was in danger.” Tr. Vol. III at 210. Risley and

      Humphrey knocked Utley to the ground, got on top of him, and hit Utley on

      the head repeatedly, stopping only when bouncers pulled the two men off. The

      attack lasted about a minute. Utley testified that, during the assault, everything

      “went black.” Id. at 77-78. From a photo line-up, both Hale and Utley

      identified Risley as one of Utley’s attackers. Id. at 165-67. From a second

      photo line-up, Hale was also able to identify Humphrey as the other attacker.

      Id. at 167. A witness named Murray Wilson. Jr. (“Murray”) observed the

      attack and called 911. Wilson urged the 911 operator to send an ambulance

      because Utley was “bleeding pretty good.” Tr. Vol. II at 62.


[7]   After being pulled off of Utley, Risley went back inside the Bar. Risley told

      Breeze that he had “knocked [Utley] out” and needed to leave, saying, “nobody

      talks to a woman that way.” Tr. Vol. III at 93. Around that time, Utley opened

      his eyes and discovered that a bouncer had attempted to help him stand and

      was holding a rag to his bloody head. Utley stated, “[A]fter the hit, it took a

      little bit to see.” Tr. Vol. II at 78. As Utley was trying to get up, but before he

      could get to his feet, Breeze jumped on him and started hitting him. Breeze

      repeatedly hit Utley; witnesses testified that Breeze hit Utley with an open

      hand. Risley went inside the Bar and told another bouncer that Utley needed

      help. Risley then went to his car and drove home. Tr. Vol. III at 212. The next



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2707 | July 30, 2019   Page 4 of 15
       thing Utley remembered was speaking with a police officer and seeing an

       ambulance. Tr. Vol. II at 80.


[8]    By this time, Evansville Police Department Officer Michael Evans (“Officer

       Evans”) responded to a dispatch and arrived at the scene. Officer Evans saw

       Utley in a seated position, and a woman, later identified as Breeze, “standing

       over him.” Tr. Vol. III at 24. At trial, Officer Evans testified that he heard what

       he thought was a slap, and, when he looked up, he saw Breeze slapping Utley.

       Id. at 24-25. Breeze was not wearing any rings. Utley testified that he “felt like

       [he] wasn’t getting super hard hit” by Breeze. Tr. Vol. II at 88.


[9]    Meanwhile Officer Nicholas Cassin (“Officer Cassin”) also had arrived at the

       scene and observed “several dozen big blotches of blood.” Tr. Vol. III at 134-35.

       Officer Cassin followed the trail of blood until he found Utley. Id. at 135.

       Officer Cassin then asked the bouncer and Hale what happened. Hale said that

       Utley was the victim of battery. Id. at 136. Noting the amount of blood that

       Utley had lost, Hale insisted that an ambulance be called. Id. While awaiting

       the ambulance, the bouncer and Hale attended to Utley, and the police officers

       continued their investigation.


[10]   The police officers recognized that Utley was hurt; however, they misjudged the

       extent of his injuries and thus did not believe the injuries created a “health

       emergency.” Id. at 153. When the officers first encountered Utley, he

       mumbled and was incoherent, behavior the officers believed was the result of

       intoxication. When the ambulance arrived, Utley initially refused to go to the

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2707 | July 30, 2019   Page 5 of 15
       hospital and was reluctant to press charges. However, the emergency

       responders determined that Utley lacked balance and was unsure about

       “person, place, time, and situation” and required Utley to go to the hospital.

       Id. at 155. Utley was diagnosed as having a depressed skull fracture. Tr. Vol. II

       at 26-27.


[11]   Utley spent three or four days in the hospital’s intensive care unit and went to a

       rehabilitation center to recover. During his recovery, Utley missed nine weeks

       of work, and his medical issues resulted in Utley losing his driver’s license.

       Utley also had difficulty speaking; he could not say the days of the week or

       recite the alphabet and two-syllable words were challenging to say. On

       November 9, 2017, the State charged Risley with aggravated battery resulting in

       an injury causing “protracted loss or impairment of the function of a bodily

       member or organ,” a Level 3 felony. Ind. Code § 35-42-2-1.5. Upon learning

       there was a warrant for his arrest, Risley turned himself in.


[12]   On February 7, 2018, while Utley was at work at Toyota, he had a seizure.

       Utley was on his lunch break, and he was talking to Hale using Facetime.

       Without understanding how he got there, Utley found himself “walking into

       the offline where all the vehicles go to get repaired and then everybody was

       looking at [him].” Tr. Vol. II at 84. Utley asked his co-workers why they were

       looking at him. Utley’s fellow workers sat him down and called an ambulance.

       Utley had no memory of what happened in the intervening period. Id.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2707 | July 30, 2019   Page 6 of 15
[13]   A jury trial began on September 12, 2018.2 By the time of trial, Utley knew that

       he had suffered a depressed skull fracture at the Bar when he was attacked and

       hit in the head. Id. at 26-27, 93-94. Utley’s head injury damaged the brain

       tissue and caused many types of bleeding in and around the brain. Id. at 27.

       Specifically, there was “bleeding between the layers of skin that surround the

       brain, . . . called a subdural hematoma, and there was bleeding around the

       vessels inside the brain, . . . called subarachnoid hemorrhage, and then there

       was bleeding inside the brain tissue itself, . . . call[ed] an intracerebral

       hemorrhage.” Id. Utley’s injury had left him at “a significant risk for a

       recurrent seizure.” Id. at 26. As such, Utley understood that he would need to

       take anti-seizure medication for the rest of his life. Id. at 29, 84.


[14]   During the trial, the parties discussed the proposed final instructions in

       chambers. Risley’s counsel objected to the State’s proposed instruction on

       accomplice liability, specifically stating, “[T]here’s no evidence whatsoever that

       [Risley] aided or abetted anyone, if he committed a crime it was his own crime

       and he should stand to answer for that.” Tr. Vol. III at 238. The State

       responded, saying, by “the defendant’s own words, he was there with Jacob

       Humphrey and they were hitting the defendant together, so my reading under

       the law, it wouldn’t matter which one of them actually hit him causing his skull

       to fracture, the fact that they were pummeling him together, that’s enough for




       2
        Before trial, the State filed a motion to consolidate and join Risley’s case with Humphrey’s case; Risley filed
       an objection. In June 2018, the trial court denied the State’s motion. Appellant’s App. Vol. 2 at 8-9, 10.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2707 | July 30, 2019                      Page 7 of 15
       the aiding, inducing, or causing instruction.” Id. at 239. The trial court agreed

       with the State and instructed the jury on the theory of accomplice liability.


[15]   Following deliberation, the jury found Risley guilty as charged, and the trial

       court sentenced him to twelve years, ordering six years executed at the Indiana

       Department of Correction, three years executed at Therapeutic Work Release,

       and three years suspended to the Drug Abuse Probation Services Program. Tr.

       Vol. V at 76. Risley now appeals his conviction.


                                         Discussion and Decision

                                              I. Jury Instruction
[16]   Risley contends that the trial court abused its discretion when, over his

       objection, it gave a jury instruction on accomplice liability. Before closing

       statements, and outside the presence of the jury, the parties discussed the

       proposed final jury instructions. Tr. Vol. III at 238. The State submitted an

       accomplice liability instruction,3 and defense counsel objected, arguing,

       “[T]here’s no evidence whatsoever that [Risley] aided or abetted anyone, if he

       committed a crime it was his own crime, and he should stand to answer for

       that.” Id. at 238; Appellant’s App. Vol. 2 at 114-16. In support, defense counsel




       3
        The State proposed three instructions; however, only the aiding and abetting instruction is at issue in this
       appeal.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2707 | July 30, 2019                      Page 8 of 15
       cited to testimony of both Breeze and Humphrey, who claimed that they had

       acted independently from Risley. Tr. Vol. III at 238-39.


[17]   The State countered that Risley himself admitted “he was there with Jacob

       Humphrey and they were hitting the defendant together.” Id. at 210-11, 239.

       The State argued that “under the law, it wouldn’t matter which one of them

       actually hit [Utley] causing his skull to fracture, the fact that they were

       pummeling [Utley] together, that’s enough for the aiding, inducing, or causing

       instruction.” Id. at 239. After considering the parties’ arguments, the trial court

       found it appropriate to give the accomplice instruction and gave a modified

       version of the State’s tendered instruction as Final Instruction Number 8

       (“Instruction 8”). Instruction 8 provided:


               Aiding, inducing or causing an offense is defined by law as
               follows:


               A person who, knowingly or intentionally aids, induces, or
               causes another person to commit an offense commits that
               offense. A person may be convicted of aiding, inducing, or
               causing an offense even if the other person has not been
               prosecuted for the offense, has not been convicted of the offense,
               or has been acquitted of the offense.


       Appellant’s App. Vol. 2 at 133. Because part of defense counsel’s theory was that

       Risley was defending himself from Utley’s knife, the trial court also instructed

       the jury with the pattern jury instruction for self-defense. Tr. Vol. III at 14, 240.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2707 | July 30, 2019   Page 9 of 15
[18]   “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.’”

       Hahn v. State, 67 N.E.3d 1071, 1084 (Ind. Ct. App. 2016) (quoting Overstreet v.

       State, 783 N.E.2d 1140, 1163 (Ind. 2003), cert. denied, 540 U.S. 1150 (2004)),

       trans. denied. Instructing the jury is generally within the discretion of the trial

       court and is reviewed only for an abuse of that discretion. Id. “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.” Id. “Before a defendant is entitled to a reversal, he must affirmatively

       show that the erroneous instruction prejudiced his substantial rights.” Id. An

       error is deemed to be harmless unless it affects the substantial rights of a party.

       Id. at 1084-85.


[19]   Risley concedes that he joined with Humphrey in the attack, yet, contends that

       he was not an accomplice because there is no evidence that he caused the injury

       that supports the Level 3 felony conviction. Appellant’s Br. at 10-11; Tr. Vol. III

       at 210-11. Indiana’s accomplice-liability statute provides, in part, “A person

       who knowingly or intentionally aids, induces, or causes another person to

       commit an offense commits that offense[.]” Ind. Code § 35-41-2-4. “Under this

       statute, an individual who aids another person in committing a crime is as

       guilty as the actual perpetrator.” Schaaf v. State, 54 N.E.3d 1041, 1043 (Ind. Ct.

       App. 2016).



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2707 | July 30, 2019   Page 10 of 15
               Therefore[,] it is not necessary that the evidence show the
               accomplice personally participated in the commission of each
               element of the offense. [T]he acts of one accomplice are imputed
               to all. So long as the State shows that one participated in the
               commission of an offense as an accomplice, the accomplice “is
               criminally responsible for everything [that] follows incidentally in
               the execution of the common design, as one of its natural and
               probable consequences, even though it was not intended as part
               of the original design or common plan.


       Griffin v. State, 16 N.E.3d 997, 1003 (Ind. Ct. App. 2014) (citations and

       quotations omitted).


[20]   “Our Supreme Court has identified four factors that can be considered by the

       fact-finder in determining whether a defendant aided another in the commission

       of a crime: (1) presence at the scene of the crime; (2) companionship with

       another engaged in a crime; (3) failure to oppose the commission of the crime;

       and (4) the course of conduct before, during, and after the occurrence of the

       crime.” Id. (citing Wieland v. State, 736 N.E.2d 1198, 1202 (Ind. 2000)). The

       parties agree that on the night in question: (1) Utley, Hale, Humphrey, and

       Risley were at the Bar around the same time,; (2) Utley insulted Breeze,

       Warfield, and Risley; (3) at Breeze’s request, a bouncer ushered Utley and Hale

       out of the Bar; (4) while leaving the Bar, Utley heard a commotion behind him;

       (5) turning, Utley saw two men, later identified as Risley and Humphrey,

       running toward him; and (6) Risley and Humphrey knocked Utley to the

       ground, got on top of him, and hit him on the head repeatedly for about one




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2707 | July 30, 2019   Page 11 of 15
       minute. Appellant’s Br. at 7-8; Appellee’s Br. at 7-8. Utley testified that during

       Risley and Humphrey’s assault, everything “went black.” Tr. Vol. II at 77-78.


[21]   Risley and Humphrey both attacked Utley at the same time, and Risley told

       Breeze that he had “knocked [Utley] out.” Tr. Vol. II at 26-27, 77-78, 82, 85-86,

       93-94, 227; Tr. Vol. III at 93-94, 167. Risley and Humphrey had been friends

       since high school and continued to “hang out” together, and it was reasonable

       to infer that their joint attack on Utley reflected a common purpose. Tr. Vol. III

       at 205. There is no evidence that either Risley or Humphrey made any attempt

       to stop the other’s actions during the one-minute joint attack. Tr. Vol. II at 227.

       Finally, Risley and Humphrey repeatedly hit Utley in the head, suggesting that

       they both intended to hurt Utley. Id. Regardless of who delivered the hardest

       blow, both men were involved in the action of attacking Utley, and both were

       responsible for any consequence that followed. We find more than adequate

       evidence for the giving of an accomplice liability instruction; the trial court did

       not abuse its discretion.


                                 II. Sufficiency of the Evidence
[22]   Risley next contends that the evidence was insufficient to sustain his conviction

       for aggravated battery resulting in impairment of a bodily function, as a Level 3

       felony. When reviewing sufficiency of the evidence claims, we do not reweigh

       the evidence or judge the credibility of the witnesses. Ericksen v. State, 68

       N.E.3d 597, 600 (Ind. Ct. App. 2017), trans. denied. “We view all evidence and

       reasonable inferences drawn therefrom in a light most favorable to the


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2707 | July 30, 2019   Page 12 of 15
       conviction and will affirm ‘if there is substantial evidence of probative value

       supporting each element of the crime from which a reasonable trier of fact

       could have found the defendant guilty beyond a reasonable doubt.’” Walker v.

       State, 998 N.E.2d 724, 726 (Ind. 2013) (quoting Davis v. State, 813 N.E.2d 1176,

       1178 (Ind. 2004)).


[23]   To convict Risley of aggravated battery as a Level 3 felony, the State had to

       prove beyond a reasonable doubt that: (1) Risley knowingly or intentionally

       inflicted injury on Utley; and (2) the injury caused protracted loss or

       impairment of the function of a bodily member or organ. Ind. Code § 35-42-2-

       1.5. Risley admitted that he and Humphrey attacked Utley and hit him on the

       head. Tr. Vol. III at 210-11. After the attack, Utley “went black.” Tr. Vol. II at

       149. Thereafter, he mumbled and was incoherent. Tr. Vol. III at 154. The

       officers believed that Utley’s actions were the result of intoxication. However,

       the emergency responders determined that Utley lacked balance and was unsure

       about “person, place, time, and situation” and required Utley to go to the

       hospital. Id. at 155. Utley was diagnosed as having a depressed skull fracture.

       Tr. Vol. II at 26-27. Doctor Jason Meckler (“Dr. Meckler”), the neural

       hospitalist who treated Utley in February 2018 after Utley had his seizure at

       work, was familiar with the medical records from Utley’s treatment following

       his injury on the night of September 23, 2017. Id. at 22-23, 30. Dr. Meckler

       testified that Utley’s condition was a result of the injury he sustained on the




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2707 | July 30, 2019   Page 13 of 15
       night of the September 2017 attack. Id. at 26. This evidence satisfies the first

       element.4


[24]   Regarding the second element, it is clear that the attack by Risley and

       Humphrey caused Utley to suffer protracted loss or impairment of the function

       of a bodily member or organ. The attack damaged Utley’s brain tissue and

       caused many types of bleeding in and around the brain. Tr. Vol. II at 27.

       Specifically, there was “bleeding between the layers of skin that surround the

       brain, . . . called a subdural hematoma, and there was bleeding around the

       vessels inside the brain, . . . called subarachnoid hemorrhage, and then there

       was bleeding inside the brain tissue itself, . . . call[ed] an intracerebral

       hemorrhage.” Id. The treatment for the depressed skull fracture required Utley

       to spend three or four days in the intensive care unit; Utley also had to go to a

       rehabilitation center. Tr. Vol. II at 82-83. During his recovery, Utley missed

       nine weeks of work, and his medical issues resulted in Utley losing his driver’s

       license. Id. at 83. Utley also had difficulty speaking; he could not say the days

       of the week or recite the alphabet and two-syllable words were challenging to

       say. Id. Furthermore, Dr. Meckler testified that Utley will suffer from a

       lifelong risk of recurring seizures due to the damage to his brain. Id. at 26-27.




       4
        One of defense counsel’s theories at trial was that Risley was not culpable for Utley’s injury because Risley
       was reacting to Utley holding a knife, and, therefore, Risley acted in self-defense when he attacked Utley.
       The jury was given a self-defense instruction but, by finding Risley guilty, the jury clearly rejected that
       defense. On appeal, Risley does not contest the form or substance of the self-defense instruction.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2707 | July 30, 2019                    Page 14 of 15
       As such, Utley had to take anti-seizure medication for the rest of his life. Id. at

       29, 84.


[25]   While Risley argues that he did not intend to inflict injury that caused

       protracted loss or impairment of the function of a bodily member or organ, our

       court has held, “[T]he severity of the injury is not an element of the prohibited

       conduct, but a result of it.” Lowden v. State, 51 N.E.3d 1220, 1223 (Ind. Ct.

       App. 2016), trans. denied. Accordingly, the State was required to prove only that

       Risley “knowingly or intentionally inflicted injury” upon Utley and not that

       Risley knew he would cause impairment to a bodily function or organ. Id. A

       jury could reasonably conclude from these facts that Risley was guilty of Level

       3 felony aggravated battery.


[26]   Affirmed.


       Vaidik, C.J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2707 | July 30, 2019   Page 15 of 15
