MEMORANDUM DECISION
                                                                       FILED
Pursuant to Ind. Appellate Rule 65(D),                            Sep 15 2016, 8:17 am

this Memorandum Decision shall not be                                  CLERK
regarded as precedent or cited before any                          Indiana Supreme Court
                                                                      Court of Appeals
                                                                        and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Donald J. Frew                                           Gregory F. Zoeller
Fort Wayne, Indiana                                      Attorney General of Indiana

                                                         Larry D. Allen
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Nathaniel W. Dickey,                                     September 15, 2016
Appellant-Defendant,                                     Court of Appeals Cause No.
                                                         02A04-1602-CR-274
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable Wendy W. Davis,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         02D05-1505-F6-440



Barnes, Judge.



Court of Appeals of Indiana | Memorandum Decision 02A04-1602-CR-274 | September 15, 2016   Page 1 of 8
                                             Case Summary
[1]   Nathaniel Dickey appeals his convictions for Level 6 felony battery and Level 5

      felony battery. We affirm in part, reverse in part, and remand.


                                                    Issues
[2]   Dickey raises two issues, which we restate as:


                       I.      whether the trial court properly excluded
                               evidence of the victim’s health conditions; and

                       II.     whether the evidence is sufficient to sustain
                               Dickey’s convictions.


                                                     Facts
[3]   Dickey was in a relationship with Robin Handley. On the evening of April 18,

      2015, Dickey was at Handley’s house, and they were drinking, listening to

      music, and visiting with Handley’s family. After Handley’s brother left,

      Handley told Dickey that he needed to leave because she had to get up early for

      an appointment. Dickey knocked Handley to the floor, and he repeatedly

      punched her face and kicked her. Handley kicked Dickey in the groin to stop

      him from hitting her. Handley’s daughter called 911, and Dickey was arrested.

      Handley required stitches in her mouth. She also sustained severe injuries to

      her eye, and as of the December 2015 trial, her vision was still affected.


[4]   The State charged Dickey with Level 6 felony battery resulting in moderate

      bodily injury, Level 6 felony strangulation, and later added a charge of Level 5

      felony battery resulting in serious bodily injury. On cross-examination of

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      Handley, Dickey’s counsel questioned her regarding her health history.

      Handley testified that she did not have “any issues” with her liver, that she did

      not have “HIV disease,” but that she had pancreatitis and elevated liver

      enzymes. Tr. p. 176. She also admitted that her alcohol level was almost lethal

      at the time of the battery. On re-cross-examination, Dickey’s counsel asked

      Handley if she had hepatitis C. The State objected on relevancy grounds, and

      Dickey argued that the evidence would show that Handley’s wounds were

      aggravated by a pre-existing condition. The trial court sustained the State’s

      objection.


[5]   Handley’s ophthalmologist also testified at the trial. He testified that he

      evaluated Handley at the hospital after the incident. Her cornea was inflamed,

      her retina was swollen, there was a hemorrhage in the back part of her eye,

      there were tears in her pupil, and her vision was significantly decreased. At the

      time of trial, Handley still had some vision loss. On cross-examination, Dickey

      asked the ophthalmologist if alcohol or liver disease could be a factor in

      bleeding of the eye. The ophthalmologist testified that liver disease would not

      cause spontaneous bleeding, but severe liver disease could cause “more

      coagulation problems.” Tr. p. 202. The trial court would not allow Dickey to

      question the ophthalmologist regarding whether Handley had a liver condition.


[6]   The jury found Dickey guilty of Level 6 felony battery and Level 5 felony

      battery but not guilty of strangulation. The trial court sentenced him to five

      years in the Department of Correction for the Level 5 felony conviction and



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      “merged” the Level 6 felony conviction. Sentencing Tr. p. 13. Dickey now

      appeals.


                                                  Analysis
                                         I. Exclusion of Evidence

[7]   Dickey first argues that the trial court abused its discretion by excluding

      evidence of Handley’s health conditions. We afford the trial court wide

      discretion in ruling on the admissibility and relevancy of evidence. Nicholson v.

      State, 963 N.E.2d 1096, 1099 (Ind. 2012). We review evidentiary decisions for

      an abuse of discretion and reverse only when the decision is clearly against the

      logic and effect of the facts and circumstances. Id. Indiana Evidence Rule 402

      requires evidence to be relevant, and Indiana Evidence Rule 403 permits the

      exclusion of relevant evidence if its probative value is substantially outweighed

      by the danger of unfair prejudice or misleading the jury. Smoote v. State, 708

      N.E.2d 1, 3 (Ind. 1999). “A claim of error in the exclusion or admission of

      evidence will not prevail on appeal unless the error affects the substantial rights

      of the moving party.” Nicholson, 963 N.E.2d at 1099.


[8]   Dickey sought to admit evidence of Handley’s alleged pre-existing liver disease

      and alleged hepatitis C infection. There is a “long-standing rule of both

      criminal and tort law that a defendant takes his victim as he finds him.” Bailey

      v. State, 979 N.E.2d 133, 142 (Ind. 2012). Dickey argued that the evidence was

      relevant to show that the “conditions might have exacerbated the victim’s

      physical appearance.” Appellant’s Br. p. 4. Dickey also argues that the


      Court of Appeals of Indiana | Memorandum Decision 02A04-1602-CR-274 | September 15, 2016   Page 4 of 8
       evidence was relevant to his self-defense claims because “the reasonableness of

       his self-defense argument would have been more apparent.” Id. at 5.


[9]    Dickey admitted that “maybe [his] elbow or something had hit her in the face.”

       Tr. p. 279. That Handley’s alleged medical history may have predisposed her

       to bleed more does not make Dickey any less culpable for causing serious

       bodily injury when he hit Handley in the face. It also does not make his self-

       defense argument more credible. The evidence was not relevant, and Dickey’s

       argument to the contrary fails.


[10]   Even if it was relevant, Handley had already testified that she had pancreatitis,

       elevated liver enzymes, and an almost lethal alcohol level at the time of the

       incident. The ophthalmologist testified that liver disease would not cause

       spontaneous bleeding, but severe liver disease could cause “more coagulation

       problems.” Tr. p. 202. The jury was already aware that Handley had

       significant health concerns, including elevated liver enzymes, and that severe

       liver disease could cause coagulation issues. Any error in the exclusion of

       Handley’s alleged hepatitis C status would not have affected Dickey’s

       substantial rights.


                                      II. Sufficiency of the Evidence

[11]   Dickey also argues that the evidence is insufficient to sustain his conviction.

       When reviewing the sufficiency of the evidence needed to support a criminal

       conviction, we neither reweigh evidence nor judge witness credibility. Bailey v.

       State, 907 N.E.2d 1003, 1005 (Ind. 2009). “We consider only the evidence


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       supporting the judgment and any reasonable inferences that can be drawn from

       such evidence.” Id. We will affirm if there is substantial evidence of probative

       value such that a reasonable trier of fact could have concluded the defendant

       was guilty beyond a reasonable doubt. Id.


[12]   Pursuant to Indiana Code Section 35-42-2-1, a person who knowingly or

       intentionally touches another person in a rude, insolent, or angry manner

       commits battery. The offense is a Level 5 felony if it results in serious bodily

       injury to another person. Ind. Code § 35-42-2-1. “Serious bodily injury” is a

       “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.” I.C. § 35-31.5-2-292. Whether bodily injury is “serious”

       is a question of degree and is reserved for the finder of fact. Sutton v. State, 714

       N.E.2d 694, 697 (Ind. Ct. App. 1999), trans. denied.


[13]   Dickey seems to argue that the jury would not have found a serious bodily

       injury if it had been aware of Handley’s pre-existing medical conditions.

       However, “a defendant takes his victim as he finds him [or her].” Bailey, 979

       N.E.2d at 142. The issue is not whether Handley’s pre-existing conditions

       made her injury more severe. Rather, the issue is whether Handley suffered a

       serious bodily injury as a result of the battery, regardless of her pre-existing

       conditions.




       Court of Appeals of Indiana | Memorandum Decision 02A04-1602-CR-274 | September 15, 2016   Page 6 of 8
[14]   The State presented evidence that Dickey hit Handley on the face and that her

       eye was swollen shut after the incident. Handley’s ophthalmologist testified

       that Handley’s cornea was inflamed, her retina was swollen, there was a

       hemorrhage in the back part of her eye, there were tears in her pupil, and her

       vision was significantly decreased. At the time of trial, Handley still had some

       vision loss. We conclude that the State presented sufficient evidence to show

       that Dickey knowingly or intentionally touched Handley in a rude, insolent, or

       angry manner, resulting in permanent or protracted loss or impairment of the

       function of her eye. The evidence is sufficient to sustain his conviction for

       Level 5 felony battery. See, e.g., Sutton, 714 N.E.2d at 696-97 (holding that the

       evidence was sufficient to sustain the defendant’s conviction for battery with

       serious bodily injury where the victim had a protruding knot on the side of her

       head, a black eye, vision problems, and a constant, migraine-like headache for

       one to two weeks after the incident).


[15]   We note that the trial court “merged” the Level 6 felony battery conviction with

       the Level 5 felony battery conviction. “[I]f the trial court does enter judgment

       of conviction on a jury’s guilty verdict, then simply merging the offenses is

       insufficient and vacation of the offense is required.” Kovats v. State, 982 N.E.2d

       409, 414-15 (Ind. Ct. App. 2013). The State concedes that, if we uphold the

       Level 5 felony conviction, we should remand with instructions to vacate the

       Level 6 felony conviction. Accordingly, we reverse and remand with respect to

       the Level 6 felony battery conviction.




       Court of Appeals of Indiana | Memorandum Decision 02A04-1602-CR-274 | September 15, 2016   Page 7 of 8
                                                 Conclusion
[16]   The trial court did not abuse its discretion by excluding evidence regarding

       Handley’s alleged health conditions. The evidence is sufficient to sustain

       Dickey’s Level 5 felony battery conviction, but we reverse and remand with

       instructions to vacate the Level 6 felony battery conviction. We affirm in part,

       reverse in part, and remand with instructions.


[17]   Affirmed in part, reversed in part, and remanded.


       Riley, J., and Bailey, J., concur.




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