MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                          Jan 29 2016, 7:36 am
this Memorandum Decision shall not be
regarded as precedent or cited before any
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
Mark Olivero                                             Gregory F. Zoeller
Fort Wayne, Indiana                                      Attorney General of Indiana
                                                         Jodi Kathryn Stein
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Christopher R. Marks,                                    January 29, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         02A05-1506-CR-669
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable Frances C. Gull,
Appellee-Plaintiff                                       Judge
                                                         The Honorable Samuel R. Keirns,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         02D05-1411-F6-396



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A05-1506-CR-669 | January 29, 2016        Page 1 of 6
[1]   Christopher Marks appeals his conviction of Class A Misdemeanor Domestic

      Battery,1 arguing that the trial court’s jury instructions constitute reversible

      error. Finding no error, we affirm.


                                                     Facts
[2]   For three years prior to November 2014, Marks and Paige Richie had been in a

      romantic relationship, and for one year prior they had lived together. On

      November 3, 2014, Marks became suspicious that Richie was involved with

      another man. He tried to contact her, and changed her social media passwords,

      but could not reach her. Upset, Marks left work, went home, and began

      drinking.


[3]   Richie returned home around 5:30 p.m. to find Marks on the patio. The two

      quickly began arguing. Marks grabbed Richie’s cell phone, looking for proof of

      infidelity. She attempted to regain possession of her phone, but he pushed her

      face. She then grabbed his cell phone and threatened to call the police.


[4]   Marks grabbed Richie’s arm, pulled it around her back, and forced her to the

      ground. Neither knew that Richie’s call had gone through to 911, and that the

      911 dispatch was overhearing and recording the encounter. Two officers were

      dispatched.




      1
          Ind. Code § 35-42-2-1.3.


      Court of Appeals of Indiana | Memorandum Decision 02A05-1506-CR-669 | January 29, 2016   Page 2 of 6
[5]   Marks rubbed Richie’s face into the carpet. She screamed, “Stop, get off me,”

      but to no avail. Tr. 46-47. He wrapped his arm around her throat and dragged

      her through the apartment. Still looking for proof of infidelity, he forcibly

      removed her jeans and underwear. Just then, there was the knock of the police

      at the door.


[6]   Marks went to answer the door, but only after dragging Richie by her hair into

      the bedroom. As he exited the apartment, police officers noticed that he was

      breathing heavily and that he smelled of alcohol. The officers placed Marks in

      handcuffs and went to aid Richie. They found her naked from the waist down,

      shaking, crying, hyperventilating, and with a laceration above her forehead.


[7]   On November 7, 2014, the State charged Marks with Level 6 felony

      strangulation and Class A misdemeanor domestic battery. The charging

      information included an allegation that Marks’s actions “result[ed] in bodily

      injury, to wit: physical pain or visible injury. . . .” Appellant’s App. 15.


[8]   At the outset of the May 5, 2015, jury trial, the parties disagreed over the

      wording of the jury instructions. The State was concerned that the proposed

      jury instruction, which included the language, “physical pain and/or visible

      injury,” would require the State to prove both physical pain and visible injury.

      Tr. 3. The State wanted the jury instruction to reflect the language in the

      charging information, which was clearly stated in the disjunctive. The trial

      court noted that Indiana Code section 35-31.5-2-29 defines bodily injury as




      Court of Appeals of Indiana | Memorandum Decision 02A05-1506-CR-669 | January 29, 2016   Page 3 of 6
       “any impairment of physical condition, including physical pain.” The trial

       court sided with the State, and eventually instructed the jury as follows:


               Before you may convict the Defendant, the State must have
               proved each of the following beyond a reasonable doubt:


               1.       The Defendant, Christopher Marks,
               2.       knowingly or intentionally,
               3.       touched Paige Richie,
               4.       in a rude, insolent, or angry manner,
               5.       which resulted in bodily injury to Paige Richie, to wit:
                        physical pain or visible injury,
               6.       when Paige Richie was living as if defendant’s spouse.


       Appellant’s App. 54. The jury instructions also said, “The term ‘bodily injury’

       is defined by law as meaning any impairment of physical condition, including

       physical pain.” Id. at 55.


[9]    At trial, Marks argued that his actions were taken in self-defense. He never

       argued that Richie was not injured. The jury found Marks not guilty of

       strangulation but guilty of domestic battery. Following a sentencing hearing,

       the trial court sentenced him to one year, suspended to probation. Marks now

       appeals.


                                    Discussion and Decision
[10]   Marks has one argument on appeal: that the jury instructions were improper.

       He contends, first, that the language regarding “visible injury” altered the

       elements of domestic battery, and, second, that it improperly focused the jury


       Court of Appeals of Indiana | Memorandum Decision 02A05-1506-CR-669 | January 29, 2016   Page 4 of 6
       on the visual evidence, namely, the photographs of Richie. He points to Ludy v.

       State, in which our Supreme Court found error, albeit harmless error, in a jury

       instruction that improperly focused the jury’s attention on and highlighted a

       single witness’s testimony. 784 N.E.2d 459, 461 (Ind. 2003).


[11]   We find both contentions to be unavailing. As for the first, we cannot agree

       that a jury, using these instructions, could have convicted Marks without

       finding that all of the elements of battery were met. Marks acknowledges that if

       the jury found that Richie experienced physical pain, the requirement of bodily

       injury would be satisfied. I.C. § 35-31.5-2-29. But he believes that if the jury

       only found “visible injury,” the requirement of bodily injury would not have

       been satisfied.


[12]   We cannot see how a jury could find that a victim was visibly injured without

       also finding that he or she was bodily injured. A visible injury is merely a

       species of bodily injury. There can be no visible injury of a person that is not

       also a bodily injury of that person. Therefore, even assuming that the jury did

       not find that Richie had experienced physical pain—and this is a big

       assumption, given Richie’s testimony that when Marks was attacking her, “It

       hurt so bad,” “It was terrible,” “It was awful,” and “It felt like I had to say

       goodbye to everybody,” tr. 34—the jury would necessarily have found that she

       was bodily injured if it found that she was visibly injured.


[13]   Turning to Marks’s second contention, we cannot agree that the instruction

       improperly focused the jury’s attention on a single witness or a single piece of


       Court of Appeals of Indiana | Memorandum Decision 02A05-1506-CR-669 | January 29, 2016   Page 5 of 6
       evidence. Marks believes that the word “visible” impermissibly narrowed the

       jury’s attention to the photographs in the record. But this was not the only

       evidence of bodily, or visible, injury. Richie testified that she suffered a scratch

       on her face. Tr. 37. Such a scratch would be a visible injury. Further, the

       responding police officer testified that he observed injuries on Richie’s face. Tr.

       56. Such injuries would be visible injuries. The photographs corroborated both

       of these observations. State’s Ex. 2-6.


[14]   We do not believe that the word “visible” restricted the jury’s attention in any

       meaningful way. All of the evidence of bodily injury consisted of either

       Richie’s experience of pain or her visible injuries—if the instructions

       “narrowed” the jury’s attention, its attention would have been “narrowed” to

       the entirety of evidence presented to prove bodily injury. This is clearly not an

       error.


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


       Bradford, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 02A05-1506-CR-669 | January 29, 2016   Page 6 of 6
