MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any                              May 06 2019, 10:56 am
court except for the purpose of establishing                                  CLERK
the defense of res judicata, collateral                                 Indiana Supreme Court
                                                                           Court of Appeals
estoppel, or the law of the case.                                            and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Jennifer L. Koethe                                       Curtis T. Hill, Jr.
Navarre, Florida                                         Attorney General of Indiana

                                                         Evan Matthew Comer
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Eugene L. Cardwell,                                      May 6, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-2605
        v.                                               Appeal from the LaPorte Superior
                                                         Court
State of Indiana,                                        The Honorable Richard R.
Appellee-Plaintiff.                                      Stalbrink, Jr., Judge
                                                         Trial Court Cause No.
                                                         46D02-1606-F3-535



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2605 | May 6, 2019                     Page 1 of 5
                                       Statement of the Case
[1]   Eugene L. Cardwell appeals his convictions for aggravated battery, as a Level 3

      felony, and battery, as a Level 5 felony, following a jury trial. Cardwell raises a

      single issue for our review, namely, whether the State presented sufficient

      evidence to support his convictions. We affirm.


                                 Facts and Procedural History
[2]   In November of 2015, Cardwell was an inmate at the Indiana State Prison in

      Michigan City along with Richard Anderson. On November 8, Correctional

      Officer Hanna Zaknoun was escorting Anderson to Anderson’s prison cell. En

      route, Cardwell attacked Anderson with a shank. Cardwell’s attack knocked

      Anderson down, and Cardwell then started stabbing Anderson while he was on

      the floor.


[3]   Before Officer Zaknoun could react to the attack, and while Cardwell was

      attacking Anderson on the floor, Cardwell told Officer Zaknoun, “if you Mace

      me, I’ll stab you too.” Tr. Vol. II at 39. Cardwell “slashed at [Officer

      Zaknoun]” and cut him on his left hand. Id. at 60. Officer Zaknoun then

      sprayed Cardwell with a pepper-spray-like substance, and Cardwell began to

      walk back toward his cell. On the way, he grabbed a broomstick that was on

      the floor and “threw it” at Officer Zaknoun. Id. at 62.


[4]   Cardwell had cut Anderson across Anderson’s face and right shoulder with the

      shank. Anderson lost “a lot” of blood during the attack, and he later needed

      multiple stiches to repair the puncture-wound injuries. Id. at 41-42. The attack

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2605 | May 6, 2019   Page 2 of 5
      left Anderson with visible scars under his lip and on his right shoulder, and his

      right shoulder is now “noticeabl[y]” “smaller” than his left shoulder. Id. at 47.

      Anderson also lost range of motion in his right shoulder for “at least a month”

      following the attack. Id. at 55.


[5]   The State charged Cardwell with, among other offenses, aggravated battery, as

      a Level 3 felony, for Cardwell’s attack on Anderson and battery, as a Level 5

      felony, for Cardwell’s attack on Officer Zaknoun. Following a jury trial at

      which Anderson and Officer Zaknoun testified and the State presented a

      surveillance video of the attacks, the jury found Cardwell guilty of those two

      offenses, and Cardwell admitted to an habitual offender enhancement. The

      trial court then entered its judgment of conviction and sentenced Cardwell, and

      this appeal ensued.


                                     Discussion and Decision
[6]   Cardwell asserts on appeal that the State failed to present sufficient evidence to

      support his convictions for aggravated battery against Anderson and battery

      against Officer Zaknoun. When reviewing the sufficiency of the evidence to

      support a conviction, we do not reweigh the evidence or judge witness

      credibility. E.g., B.T.E. v. State, 108 N.E.3d 322, 326 (Ind. 2018). We consider

      only the evidence favorable to the judgment and the reasonable inferences

      supporting it. Id. We will affirm if a reasonable trier of fact could have

      concluded that the defendant was guilty beyond a reasonable doubt. Id.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2605 | May 6, 2019   Page 3 of 5
[7]   Cardwell does not contend that he did not commit a battery on Anderson, only

      that his battery was not an aggravated battery. To show that Cardwell

      committed the offense of aggravated battery, as a Level 3 felony, the State was

      required to show beyond a reasonable doubt that Cardwell knowingly or

      intentionally inflicted injury on Anderson that caused serious permanent

      disfigurement or protracted loss or impairment of the function of a bodily

      member. Ind. Code § 35-42-2-1.5 (2018). And to show that Cardwell

      committed the offense of battery, as a Level 5 felony, the State was required to

      show beyond a reasonable doubt that Cardwell knowingly or intentionally

      touched Officer Zaknoun in a rude, insolent, or angry manner, which resulted

      in bodily injury to a public safety official while the official was engaged in his

      official duties. I.C. § 35-42-2-1(g)(5)(A).


[8]   On appeal, Cardwell first asserts that the State failed to prove that he

      committed aggravated battery against Anderson because Anderson’s injuries

      were insufficient to show “serious permanent disfigurement or protracted loss

      or impairment of a bodily member.” See I.C. § 35-42-2-1.5. We cannot agree.

      Anderson testified that his right shoulder is now noticeably smaller than his left

      shoulder. Anderson also testified that Cardwell’s attack left him without the

      full range of motion in his right shoulder for “at least a month.” Tr. Vol. II at

      55. We hold that a reasonable fact finder could have concluded from that

      evidence that Cardwell’s attack resulted in serious permanent disfigurement or

      protracted loss or impairment of a bodily member to Anderson. Thus, we




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2605 | May 6, 2019   Page 4 of 5
       decline Cardwell’s invitation to reduce his battery conviction to a Level 5 felony

       and affirm his conviction for aggravated battery, as a Level 3 felony.


[9]    Cardwell also asserts that the State failed to show that Cardwell knowingly or

       intentionally attacked Officer Zaknoun. We again cannot agree. Anderson

       testified, without objection, that he had heard Cardwell tell Officer Zaknoun,

       “if you Mace me, I’ll stab you too.” Id. at 39. And Officer Zaknoun testified

       that, while Cardwell was attacking Anderson on the floor, Cardwell “slashed at

       [Officer Zaknoun]” and cut him on his left hand. Id. at 60. A reasonable fact

       finder could have concluded from that evidence that Cardwell knowingly or

       intentionally attacked Officer Zaknoun. Accordingly, we affirm Cardwell’s

       conviction for battery, as a Level 5 felony.


[10]   In sum, we affirm Cardwell’s convictions for aggravated battery, as a Level 3

       felony, and battery, as a Level 5 felony.


[11]   Affirmed.


       Baker, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2605 | May 6, 2019   Page 5 of 5
