MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                              FILED
regarded as precedent or cited before any                     Jun 14 2017, 9:44 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.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Abraham A. Navarro                                       Curtis T. Hill, Jr.
Clark County Public Defender Office                      Attorney General of Indiana
Jeffersonville, Indiana
                                                         Larry D. Allen
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Raymond James Taylor II,                                 June 14, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         10A01-1611-CR-2629
        v.                                               Appeal from the Clark Circuit
                                                         Court
State of Indiana,                                        The Honorable Vicki L.
Appellee-Plaintiff                                       Carmichael, Judge
                                                         Trial Court Cause No.
                                                         10C04-1604-F3-25



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 10A01-1611-CR-2629 | June 14, 2017   Page 1 of 7
                                          Case Summary
      Raymond James Taylor II appeals his conviction for Level 3 felony aggravated

      battery. He argues that the evidence is insufficient to support his conviction

      and that his sentence violates the Proportionality Clause of the Indiana

      Constitution. Finding the evidence sufficient and no constitutional violation,

      we affirm.



                            Facts and Procedural History
[1]   On May 13, 2016, Taylor was booked into the Clark County Jail and placed in

      Pod 3A. There were tables inside the pod for inmates to eat their meals. It was

      against jail policy for inmates to sit on these tables.

[2]   Around 9:15 p.m. on May 13, Correctional Officer James Disponett entered the

      pod and noticed that Taylor was sitting on a table. He asked Taylor to get off

      the table. After a brief exchange in which Taylor used profanity, Taylor got off

      the table. Officer Disponett left the pod.

[3]   A few minutes later, Correctional Officer Aaron Lewis completed his rounds

      distributing medication and went to the office near Pod 3A, where he was

      joined by Officer Disponett. Both officers saw on the monitor that Taylor was

      sitting on a table. Around 9:30 p.m., Officers Disponett and Lewis entered Pod

      3A and Officer Lewis asked Taylor to get off the table. Taylor respond, “No, F

      you, you’re a bit**.” Tr. p. 76. Officer Lewis asked Taylor several more times

      to get off the table. Taylor still refused. Officer Lewis then gave Taylor a

      Court of Appeals of Indiana | Memorandum Decision 10A01-1611-CR-2629 | June 14, 2017   Page 2 of 7
      choice: get off the table or go to lock-down. Taylor chose lock-down. Officer

      Lewis instructed Taylor to put his hands behind his back so that he could be

      handcuffed and taken to lock-down. But instead of putting his hands behind his

      back, Taylor punched Officer Lewis in the jaw.

[4]   Officer Lewis was taken to Clark Memorial Hospital where imaging revealed

      that his jaw was fractured in two places. He was then transported by

      ambulance to University of Louisville Hospital, where he underwent surgery on

      May 15. One of the fractures required the installation of a plate and six screws.

      The other fracture required wiring Lewis’s mouth shut for two weeks. For

      those two weeks, Lewis could not talk and was on a liquid diet. After those two

      weeks, the wires were removed and replaced with bands (which limited his jaw

      function) for six weeks. Lewis was on a soft diet for those six weeks.

[5]   The State charged Taylor with Level 3 felony aggravated battery and being a

      habitual offender. At the jury trial, which was about four months after the

      incident, Officer Lewis testified that he was experiencing numbness in his

      mouth, which caused him to drool, and that he had pain when he chewed.

      Officer Lewis’s surgeon testified that there was still a chance that the numbness

      could go away but that it could be permanent, too. A jury found Taylor guilty

      of Level 3 felony aggravated battery. Taylor then admitted to being a habitual

      offender. The trial court sentenced Taylor to sixteen years for aggravated

      battery, enhanced by fourteen years for being a habitual offender, for a total of

      thirty years.



      Court of Appeals of Indiana | Memorandum Decision 10A01-1611-CR-2629 | June 14, 2017   Page 3 of 7
[6]   Taylor now appeals.



                                 Discussion and Decision
[7]   Taylor raises two issues on appeal. He contends that the evidence is insufficient

      to support his conviction and that his sentence violates the Proportionality

      Clause of the Indiana Constitution.


                               I. Sufficiency of the Evidence
[8]   Taylor first contends that the evidence is insufficient to support his conviction

      for Level 3 felony aggravated battery. When reviewing the sufficiency of the

      evidence to support a conviction, appellate courts must consider only the

      probative evidence and reasonable inferences supporting the verdict. Sallee v.

      State, 51 N.E.3d 130, 133 (Ind. 2016). It is the fact-finder’s role, not that of

      appellate courts, to assess witness credibility and weigh the evidence to

      determine whether it is sufficient to support a conviction. Id. It is not necessary

      that the evidence “overcome every reasonable hypothesis of innocence.” Id.

      (quotation omitted). “[T]he evidence is sufficient if an inference may

      reasonably be drawn from it to support the verdict.” Drane v. State, 867 N.E.2d

      144, 147 (Ind. 2007) (quotation omitted).


[9]   In order to convict Taylor as charged here, the State had to prove that he

      knowingly or intentionally inflicted injury on Officer Lewis that caused

      protracted loss or impairment of the function of a bodily member of Officer

      Lewis, “to wit: a fractured jaw which required his jaw to be wired shut.”

      Court of Appeals of Indiana | Memorandum Decision 10A01-1611-CR-2629 | June 14, 2017   Page 4 of 7
       Appellant’s App. Vol. II p. 9; see also Ind. Code § 35-42-2-1.5. Taylor does not

       dispute that he knowingly or intentionally inflicted injury on Officer Lewis;

       rather, he argues that the State did not present sufficient evidence that Officer

       Lewis suffered a protracted impairment because he had limitations for only

       eight weeks. See Appellant’s Br. p. 8 (“Here, the record reflects that Lewis

       merely showed a loss of jaw function for two (2) weeks and impaired function

       for six (6) more weeks thereafter.”).

[10]   This Court has held that “protracted” means “to draw out or lengthen in time”

       and “impairment” means the “fact or state of being damaged, weakened, or

       diminished.” Mann v. State, 895 N.E.2d 119, 122 (Ind. Ct. App. 2008)

       (quotations omitted). Here, the evidence shows that Officer Lewis’s jaw was

       fractured in two places. He was hospitalized and underwent surgery. For two

       weeks, his mouth was wired shut. Then, the wires were removed and replaced

       with bands for six weeks; the bands restricted his jaw function. At the time of

       trial, which was about four months after the incident, Officer Lewis had pain

       when he chewed and numbness in his mouth, which, according to his surgeon,

       may never go away. This evidence is sufficient to prove that Officer Lewis

       suffered a protracted impairment. See Mann, 895 N.E.2d at 122 (evidence that

       for approximately two months after the attack victim experienced “muffled

       hearing” was sufficient to prove protracted impairment); see also Grundy v. State,

       38 N.E.3d 675, 682 (Ind. Ct. App. 2015) (evidence that for more than six

       months after the attack victim suffered headaches, numbness, and degraded

       vision was sufficient to prove protracted impairment), trans. denied.


       Court of Appeals of Indiana | Memorandum Decision 10A01-1611-CR-2629 | June 14, 2017   Page 5 of 7
                                   II. Proportionality Clause
[11]   Taylor next contends that his sentence for Level 3 felony aggravated battery

       violates the Proportionality Clause of Article 1, Section 16 of the Indiana

       Constitution, which provides, “All penalties shall be proportioned to the nature

       of the offense.” The nature and extent of penal sanctions is primarily a

       legislative consideration, and our review of these sanctions is highly restrained

       and very deferential. Newkirk v. State, 898 N.E.2d 473, 477 (Ind. Ct. App.

       2008), trans. denied. We will not disturb the General Assembly’s determination

       of the appropriate penalty absent a showing of clear constitutional infirmity. Id.


[12]   Taylor specifically argues that because Level 3 felony aggravated battery and

       Level 5 felony battery resulting in serious bodily injury contain similar

       elements, he should have been punished for only the lesser felony. See Poling v.

       State, 853 N.E.2d 1270, 1276-77 (Ind. Ct. App. 2006) (proportionality clause

       violated when offenses with identical elements given different sentences), reh’g

       denied. A person who knowingly or intentionally inflicts injury on a person that

       causes protracted loss or impairment of the function of a bodily member or

       organ commits Level 3 felony aggravated battery. I.C. § 35-42-2-1.5. In

       contrast, a person who knowingly or intentionally touches another person in a

       rude, insolent, or angry manner and the offense results in serious bodily injury

       commits Level 5 felony battery. Ind. Code § 35-42-2-1(c)(1), (g)(1). “Serious

       bodily injury” includes “permanent or protracted loss or impairment of the

       function of a bodily member or organ.” Ind. Code § 35-31.5-2-292.



       Court of Appeals of Indiana | Memorandum Decision 10A01-1611-CR-2629 | June 14, 2017   Page 6 of 7
[13]   This Court has already addressed this precise issue in Mann, where we held:


               [T]he mental states for these offenses do not have the same
               conduct as their aim—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. Because the
               legislature could rationally conclude that defendants who intend
               to inflict injury on another are more blameworthy than
               defendants who intend to touch another rudely (and, more to the
               point, do not intend to inflict injury), it follows that a more
               severe punishment for defendants who commit . . . aggravated
               battery does not violate the Proportionality Clause.


       895 N.E.2d at 124. Taylor recognizes our holding in Mann but does not argue

       that it was wrongly decided. Accordingly, we find no violation of Indiana’s

       Proportionality Clause.

[14]   Affirmed.

       Bailey, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 10A01-1611-CR-2629 | June 14, 2017   Page 7 of 7
