MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any                             Jun 29 2018, 6:44 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Ronald K. Smith                                          Curtis T. Hill, Jr.
Public Defender                                          Attorney General of Indiana
Muncie, Indiana
                                                         J.T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Robert Williams Jr.,                                     June 29, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A02-1712-CR-2950
        v.                                               Appeal from the Delaware Circuit
                                                         Court
State of Indiana,                                        The Honorable Marianne L.
Appellee-Plaintiff                                       Vorhees, Judge
                                                         Trial Court Cause No.
                                                         18C01-1702-F3-5



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 18A02-1712-CR-2950 | June 29, 2018          Page 1 of 9
                                           Case Summary
[1]   Robert Williams Jr. appeals his conviction and sentence for aggravated battery.

      He argues that the trial court erred when it gave the jury an additional

      instruction after deliberations had started and that it relied on an improper

      aggravator in sentencing him. Finding no error, we affirm.



                            Facts and Procedural History                                 1




[2]   In February 2017, Karen Bryant went to visit her friend Delisa Fox at Fox’s

      house in Muncie. When Bryant arrived, she was met by Williams, her ex-

      boyfriend, who was also at the house. At some point during the evening Fox

      left, but Williams and Bryant remained at the house.


[3]   Soon thereafter, Bryant and Williams got into an argument. Williams grabbed

      Bryant, but Bryant was able to get free. She grabbed her phone to call for help.

      Before she could make a call, Williams knocked the phone out of her hand and

      punched her in the left eye. Bryant immediately began bleeding from her left

      eye and was unable to see anything out of it. She struggled to find her phone

      and glasses but eventually located them and fled the house.




      1
        There are several deficiencies with Williams’s appendix, most notably that he filed a third volume which
      included materials that we already had—the transcript and exhibits. See Ind. Appellate Rule 50(F) (“Because
      the Transcript is transmitted to the Court of Appeals pursuant to Rule 12(B), parties should not reproduce
      any portion of the Transcript in the Appendix.”). We recommend that Williams’s appellate attorney re-read
      Appellate Rules 49-51, which govern the filing, contents, and assembly of the appendix.

      Court of Appeals of Indiana | Memorandum Decision 18A02-1712-CR-2950 | June 29, 2018            Page 2 of 9
[4]   Bryant was able to get in touch with family members, who immediately took

      her to the hospital. Hospital staff, after learning how Bryant sustained her

      injury, called the Muncie Police Department. Officers came to the hospital,

      took Bryant’s statement, and photographed her injuries. See Exs. 1-5. Bryant’s

      doctor stated that her eye injury was “very severe” and classified it as a “blunt

      trauma to the left eye.” Tr. Vol. II pp. 83, 85. “[T]here was a full thickness

      laceration extending 18 millimeters superior and circumlinear [sic] to the

      limbus and continuing 8 millimeters posteriorly from the medial limbus[.]” Id.

      at 84. In other words, Bryant’s injury was a cut to her eye “just above the clear

      part of the eye that extended all the way around to the nasal portion and then

      all the way back to near the optic nerve.” Id. The doctor confirmed that the

      injury was consistent with being punched. Bryant received multiple stiches to

      treat the cut, but because it was so deep, the doctor was unable to close the

      wound completely. Bryant continued to have persistent pain in her left eye, lost

      vision in the eye, had to have the eye removed, and was given a prosthetic eye.


[5]   The day after Bryant was injured, Williams was arrested and charged with

      aggravated battery, a Level 3 felony.2 According to the charging information,

      the State alleged that Williams knowingly inflicted an injury on Bryant that




      2
        The State also charged Williams with domestic battery, a Class A misdemeanor; domestic battery resulting
      in serious bodily injury, a Level 5 felony; strangulation, a Level 6 felony; and interference with the reporting
      of a crime, a Class A misdemeanor. These counts, however, are not at issue in this appeal. The State
      dismissed the interference charge; the jury found Williams not guilty of the strangulation charge but guilty of
      the domestic-battery charges. At sentencing, the domestic-battery convictions were vacated because they
      were based on the same evidence as the aggravated-battery conviction.

      Court of Appeals of Indiana | Memorandum Decision 18A02-1712-CR-2950 | June 29, 2018                 Page 3 of 9
      “caused serious permanent disfigurement and/or protracted loss or impairment

      of the function of a bodily member or organ.” Appellant’s App. Vol. II p. 6;

      Ind. Code § 35-42-2-1.5(2). A jury trial was held in October 2017. At trial,

      Williams disputed Bryant’s claim that he caused her eye injury by punching

      her. Although Williams could not definitively state whether he punched

      Bryant, he testified that she injured her eye when she hit the corner of a table.


[6]   Before the case was submitted to the jury, the trial court read final instructions,

      including what constitutes aggravated battery. During deliberations, the jury

      submitted a question to the court: “Can we get a better definition of the term

      ‘inflicted injury?’” Tr. Vol. II p. 139. The court suggested the following

      response:


              In order to establish that Defendant committed the crime of
              aggravated battery, the State had to show the Defendant
              knowingly inflicted an injury creating a protracted loss or
              impairment of the a [sic] bodily member or organ. I have already
              given you an instruction on the definition of knowingly. A
              person engages in conduct knowingly if when he engages in the
              conduct he is aware of a high probability that he is doing so.
              Knowledge is a mental function. It must be determined from
              considering the Defendant’s conduct and the natural and usual
              consequences of the conduct. You may examine the surrounding
              circumstances, the Defendant’s conduct, and the natural
              consequences of what might be expected from that conduct and
              you may reasonable inferences based upon (sic) - and you may
              draw reasonable inferences from - oh, that’s bad grammar there.
              You may - the last paragraph is: The State must have proven
              beyond a reasonable doubt that the Defendant was aware of a
              high probability that his actions would inflict injury upon Karen
              Bryant.

      Court of Appeals of Indiana | Memorandum Decision 18A02-1712-CR-2950 | June 29, 2018   Page 4 of 9
       Id. at 136-37. Williams objected to answering the question at all and, in the

       alternative, the language of the court’s proposed answer. The court overruled

       his objections and gave its proposed response to the jury. The jury found

       Williams guilty, and the court entered judgment of conviction.


[7]    At the sentencing hearing, the trial court identified multiple aggravating and

       mitigating circumstances, concluded that the aggravators outweighed the

       mitigators, and sentenced Williams to an above-advisory term of twelve years,

       all executed at the Department of Correction (DOC).


[8]    Williams now appeals.



                                  Discussion and Decision
[9]    Williams contends that the trial court erred in responding to the jury’s question

       and that it relied on an improper aggravating circumstance when it sentenced

       him.



                                        I. Jury Instruction
[10]   Williams argues that the trial court erred when it issued an additional jury

       instruction after jury deliberations had begun. Williams contends that our

       Supreme Court’s decision in Crowdus v. State, 431 N.E.2d 796 (Ind. 1982),

       precludes a trial court from being able to issue additional jury instructions once

       deliberations have commenced. As Williams notes in his brief, the Court there

       explained:

       Court of Appeals of Indiana | Memorandum Decision 18A02-1712-CR-2950 | June 29, 2018   Page 5 of 9
               Once deliberations commence, the trial court should not give any
               additional instructions. This rule precludes the trial court from
               giving any special emphasis, inadvertent or otherwise, to a
               particular issue in the case, and thus avoids the possibility that
               the additional instruction(s) may tell the jury what it ought to do
               concerning that issue.


       Id. at 798. More recently, however, our Supreme Court has applied Indiana

       Code section 34-36-1-6 to criminal cases; the statute provides that after a jury

       retires for deliberation and “desires to be informed as to any point of law arising

       in the case . . . the information required shall be given[.]” (emphasis added); see

       Ronco v. State, 862 N.E.2d 257, 260 (Ind. 2007) (holding that the trial court

       “must respond to a jury question regarding a point of law involved in the case,

       whereas other questions should prompt caution lest the judge exercise undue

       influence.” (Emphasis added)). It is undisputed that the jury raised a question

       of law involved in the case—a definition of the term “inflicted injury.”

       Accordingly, the trial court was required to respond.


[11]   In the alternative, Williams makes a one-sentence argument, without citation to

       the record or any legal authority, that “the language of the instruction presumed

       that Williams inflicted the blow upon the complaining witness which had

       caused her injury and that the only issue was whether it was done knowingly.”

       Appellant’s Br. p. 9. We disagree. In its answer, the trial court reiterated,

       “[T]he State had to show the Defendant knowingly inflicted an injury creating a

       protracted loss or impairment of the a [sic] bodily member or organ.” Tr. Vol.

       II p. 136. In other words, the trial court explained that the State must prove


       Court of Appeals of Indiana | Memorandum Decision 18A02-1712-CR-2950 | June 29, 2018   Page 6 of 9
       each element of the crime. Its answer did not presume that any element of the

       crime had been definitively proven, including that Williams inflicted Bryant’s

       injury.3


                                                  II. Sentencing
[12]   Williams also argues that the trial court erroneously used an element of the

       crime—Bryant’s injury—as an aggravator when it sentenced him to an above-

       advisory term. A Level 3 felony, which Williams was convicted of, has a

       sentencing range of three to sixteen years, with an advisory sentence of nine

       years. Ind. Code § 35-50-2-5. Bryant was sentenced to twelve years, all

       executed at the DOC. “Where a trial court’s reason for imposing a sentence

       greater than the advisory sentence includes material elements of the offense,

       absent something unique about the circumstances that would justify deviating

       from the advisory sentence, that reason is ‘improper as a matter of law.’”

       Gomillia v. State, 13 N.E.3d 846, 852-53 (Ind. 2014). However, trial courts are

       permitted to use the nature and circumstances surrounding the crime as an




       3
         It is unclear from Williams’s brief if he argues that the trial court erred by not re-reading all of the original
       jury instructions when it gave its supplemental instruction. He cites to multiple cases that discuss re-reading
       of instructions, but he never uses the word “re-read” in his brief. To the extent that he meant to argue this
       issue, the Indiana Jury Rules went into effect in 2003 and gave trial courts “greater leeway to facilitate and
       assist jurors in the deliberative process, in order to avoid mistrials.” Ronco, 862 N.E.2d at 259. Jury Rule 28
       provides that if the jury has reached an impasse, the trial court, while in the presence of counsel, may inquire
       how the court and counsel can assist the jury in its deliberations. The court is then permitted to direct that
       further proceedings occur as appropriate. This rule is similar to jury rules in other states, which stand for the
       proposition that failure to re-read all of the jury instructions “does not unduly invade the sanctity of jury
       deliberations or transform the trial judge to the status of fact finder.” Id. (quoting Am. Bar Ass’n, Principles for
       Juries & Jury Trials 122 (2005)). Therefore, the trial court did not err when it did not simply re-read all of the
       original jury instructions in response to the jury’s question.

       Court of Appeals of Indiana | Memorandum Decision 18A02-1712-CR-2950 | June 29, 2018                    Page 7 of 9
       aggravating factor. Id. (“Generally, the nature and circumstances of a crime is

       a proper aggravating circumstance.”).


[13]   During Williams’s sentencing hearing, the trial court mentioned Bryant’s severe

       injury, but only in the context of discussing the nature and circumstances of the

       case:


               The nature of the offense calls for an enhanced sentence. A
               sentence below the advisory would depreciate the crime’s serious
               nature and it would depreciate the impact the crimes have had on
               the victim and her family.


               Defendant - so and I do find that the injury – you know, it’s an
               aggravated battery case, so I really can’t use that - you know, the
               fact - because that’s what aggravated battery is, is the loss of an
               organ. So I’m not enhancing the sentence because of that. But it
               was a serious injury.


               Defendant struck the victim and then left her behind and the
               victim had to find help on her own. And I found that part of the
               trial rather striking as well, that, you know, again if the
               Defendant had stayed and helped the victim, perhaps a lot of this
               would not have happened.


       Tr. Vol. II p. 167. The trial court’s statement was nothing more than a

       commentary on the nature and circumstances surrounding Bryant’s injury. The

       court took into consideration that Williams did not aid Bryant after he punched

       her and her eye began to bleed, causing a prolonged delay in her getting

       medical attention. The trial court did not rely on the fact that Williams injured




       Court of Appeals of Indiana | Memorandum Decision 18A02-1712-CR-2950 | June 29, 2018   Page 8 of 9
       Bryant when it ordered him to serve an above-advisory sentence. Accordingly,

       the trial court did not use an improper aggravator when it sentenced Williams.4


[14]   Affirmed.


       Pyle, J., and Barnes, Sr. J., concur.




       4
         To the extent that Williams believes his sentence is inappropriate and should be revised under Appellate
       Rule 7(B), he has waived this issue by failing to support it with cogent reasoning. Ind. Appellate Rule
       46(A)(8)(a) (“The argument must contain the contentions of the appellant on the issues presented, supported
       by cogent reasoning.”). Williams’s entire argument is one-sentence long: “Williams further submits that the
       trial court sentence was inappropriate in light of Cardw[e]ll v. State, 895 N.E.2d 1219 (Ind. 2008), and Reid v.
       State, 876 N.E.2d 1114 (Ind. 2007).” Appellant’s Br. pp. 10-11.

       Court of Appeals of Indiana | Memorandum Decision 18A02-1712-CR-2950 | June 29, 2018                 Page 9 of 9
