MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                   FILED
this Memorandum Decision shall not be                               Jan 13 2017, 9:46 am

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


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Sean P. Hilgendorf                                        Curtis T. Hill, Jr.
South Bend, Indiana                                       Attorney General of Indiana
                                                          Eric P. Babbs
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                           IN THE
     COURT OF APPEALS OF INDIANA
Kazie Sekou Cole,                                         January 13, 2017
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          71A03-1605-CR-1034
        v.                                                Appeal from the St. Joseph
                                                          Superior Court
State of Indiana,                                         The Honorable Jane Woodward
Appellee-Plaintiff                                        Miller, Judge
                                                          Trial Court Cause No.
                                                          71D01-1512-F3-66



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A03-1605-CR-1034 | January 13, 2017      Page 1 of 6
[1]   Kazie Sekou Cole appeals his conviction for Aggravated Battery,1 a Level 3

      Felony, arguing that the evidence is insufficient to support the conviction.

      Finding the evidence sufficient, we affirm.


                                                      Facts
[2]   G.P. and Cole had been friends for about three years and romantically involved

      for about three months in December 2015. On December 10, 2015, G.P. went

      to Cole’s house. At some point, she left the house to go shopping; when she

      returned, Cole met her at the door and demanded her cell phone. G.P. refused

      to give him her phone, and he then shoved G.P. and told her to go into the back

      bedroom. They began arguing because G.P. refused to give him her phone or

      the correct password.


[3]   While they argued, Cole began choking G.P. with his hands, eventually putting

      his arm around her neck and choking her until she lost consciousness. When

      G.P. regained consciousness, Cole still had his arm around her neck. He then

      proceeded to hit G.P. “pretty good several times . . . in the side of the head.”

      Tr. p. 93. Cole then choked G.P. again. She lost consciousness at least two

      more times during the altercation.


[4]   G.P. awoke on Sunday and retrieved her phone, which Cole had taken from

      her, and texted her cousin, saying that Cole had beaten her up and she needed




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


      Court of Appeals of Indiana | Memorandum Decision 71A03-1605-CR-1034 | January 13, 2017   Page 2 of 6
      to go to the hospital. When G.P.’s family members arrived to take her to the

      hospital, they observed that she had been badly beaten around her head and

      seemed disoriented and confused.


[5]   Dr. Adam Losch treated G.P. in the emergency room. He noticed that she had

      bruising around the eyes and neck, swelling of the face and cheeks, bruising

      behind the ear, a ruptured eardrum, and two broken teeth. X-rays revealed that

      G.P. had a broken rib, and a C.T. scan revealed that G.P. had suffered from a

      subdural hemorrhage—internal bleeding between the brain and the skull.

      Because of her severe injuries, G.P. was admitted to the hospital and stayed for

      three days.


[6]   On December 18, 2015, the State charged Cole with Level 3 felony rape, Level

      3 felony aggravated battery, and Level 6 felony criminal confinement. Cole’s

      jury trial began on March 9, 2016. At trial, Dr. Losch testified that “[a]nytime

      there’s bleeding within the skull[,] that can produce basically death . . . . It can

      lead to death, because anytime there’s bleeding within the skull it’s an enclosed

      space, and so that can result in basically massive brain damage.” Tr. p. 150.

      Dr. Losch also testified that if G.P.’s injuries had been left untreated, they could

      have been life-threatening. Id. at 169. Another physician who treated G.P.

      testified that increased pressure on the brain due to bleeding could cause death.

      Id. at 245.




      Court of Appeals of Indiana | Memorandum Decision 71A03-1605-CR-1034 | January 13, 2017   Page 3 of 6
[7]   On March 11, 2016, the jury found Cole guilty of aggravated battery and not

      guilty of the remaining charges. On April 8, 2016, the trial court sentenced

      Cole to twelve years imprisonment. Cole now appeals.


                                    Discussion and Decision
[8]   Cole’s sole argument on appeal is that the evidence is insufficient to support the

      conviction. When reviewing a claim of insufficient evidence, we will consider

      only the evidence and reasonable inferences that support the conviction. Gray

      v. State, 957 N.E.2d 171, 174 (Ind. 2011). We will affirm if, based on the

      evidence and inferences, a reasonable jury could have found the defendant

      guilty beyond a reasonable doubt. Bailey v. State, 907 N.E.2d 1003, 1005 (Ind.

      2009).


[9]   To convict Cole of Level 3 felony aggravated battery, the State was required to

      prove beyond a reasonable doubt that he knowingly or intentionally inflicted

      injury on G.P., which created a substantial risk of death to G.P. I.C. § 35-42-2-

      1.5. Cole argues that the evidence did not establish that the injuries created a

      substantial risk of death. In reviewing a claim concerning whether a victim’s

      injuries created a substantial risk of death, we “look to the observable facts

      including the nature and location of the injury, and the treatment provided.”

      Oeth v. State, 775 N.E.2d 696, 702 (Ind. Ct. App. 2002). Medical expert

      testimony is not required to prove that a victim’s injuries created a substantial

      risk of death. Wilcher v. State, 771 N.E.2d 113, 117 (Ind. Ct. App. 2002).




      Court of Appeals of Indiana | Memorandum Decision 71A03-1605-CR-1034 | January 13, 2017   Page 4 of 6
[10]   In this case, the observable facts in evidence reveal that Cole repeatedly and

       violently struck and choked G.P. She lost consciousness at least three times

       and had multiple bruises, swelling, a broken rib, a ruptured eardrum, and two

       broken teeth. She appeared disoriented and confused, and felt dizzy and

       nauseated. Medical testimony established that G.P. sustained a subdural

       hemorrhage, or bleeding between her skull and her brain. Because of her

       injuries, G.P. had to stay in the hospital for three days so that doctors could

       monitor her brain’s condition. Two of G.P.’s treating physicians testified that

       subdural hemorrhages can cause death; each of those doctors also testified that

       if G.P. had not received medical treatment, her injuries could have been life-

       threatening. Tr. Vol. I p. 169, Vol. II p. 247.

[11]   Cole argues, essentially, that because G.P. did not suffer from any external

       bleeding, did not have to have surgery, and received medical treatment

       preventing her injuries from becoming life-threatening, the evidence does not

       support a conclusion that her injuries created a substantial risk of death. We

       disagree. Taking the latter argument first, we certainly do not require a battery

       victim to refrain from seeking medical treatment, causing an actual, imminent

       risk of death, to prove a substantial risk of death. And as for the first two

       arguments, these amount to requests that we reweigh the evidence, which we

       may not do. Whether a risk of death is substantial enough to meet the statutory

       definition is largely a matter of degree “and therefore a question reserved for the

       factfinder.” Cf. Young v. State, 725 N.E.2d 78, 82 (Ind. 2000) (explaining that

       whether a bodily injury is “serious” “has been held to be a matter of degree and


       Court of Appeals of Indiana | Memorandum Decision 71A03-1605-CR-1034 | January 13, 2017   Page 5 of 6
       therefore a question reserved for the factfinder”). There is ample evidence in the

       record supporting the jury’s conclusion that G.P.’s injuries caused a

       substantial risk of death. See Beanblossom v. State, 530 N.E.2d 741, 742-43 (Ind.

       1988) (holding that a blow to the back of victim’s head, causing victim to fall to

       his knees and leaving victim in a semiconscious state, was sufficient to prove an

       injury that created a substantial risk of death). In other words, the evidence is

       sufficient.


[12]   The judgment of the trial court is affirmed.


       Mathias, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1605-CR-1034 | January 13, 2017   Page 6 of 6
