                                                                            FILED
                                                                        Feb 20 2019, 9:21 am

                                                                            CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Ronald J. Moore                                           Curtis T. Hill, Jr.
The Moore Law Firm, LLC                                   Attorney General of Indiana
Richmond, Indiana                                         Angela N. Sanchez
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jonathon Barthalow,                                       February 20, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-CR-1366
        v.                                                Appeal from the Wayne Circuit
                                                          Court
State of Indiana,                                         The Honorable David A. Kolger,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause No.
                                                          89C01-1711-F2-21



Robb, Judge.




Court of Appeals of Indiana | Opinion 18A-CR-1366 | February 20, 2019                           Page 1 of 15
                                Case Summary and Issues
[1]   Following a jury trial, Jonathon Barthalow was convicted of burglary, a Level 3

      felony. Barthalow presents two issues for our review, namely: (1) whether the

      evidence is sufficient to sustain Barthalow’s burglary conviction, which required

      proof that he intended to commit felony battery; and (2) whether the trial court

      committed fundamental error by failing to instruct the jury on the definition of

      bodily injury. Concluding the evidence was sufficient and the trial court did not

      commit fundamental error, we affirm.



                            Facts and Procedural History
[2]   Carry Sester lived in a duplex in Richmond, Indiana. On November 10, 2017,

      Crimson Pitcher was staying with Sester and invited her friend, Joshua Mays,

      over to drink. At the time, Barthalow’s brother, Daryl, was dating Crimson’s

      cousin, Tessa Sittloh. Earlier in the evening, Sittloh, driving her white truck,

      dropped Mays and Pitcher off at Sester’s house and then returned to Daryl’s

      trailer. Mays had been dating Barthalow and Daryl’s sister, Ashley. Barthalow

      and Daryl heard from Ashley’s ex-boyfriend that Mays threatened to hit

      Ashley.


[3]   Mays, Pitcher, and Sester were in Pitcher’s room, sitting on the bed talking and

      drinking. They heard “banging on the door” and the sound of someone

      running up the stairs. Transcript, Volume II at 13. The bedroom door flew

      open and Daryl “rushed over to the bed where [Mays] was sitting[,]” kicked


      Court of Appeals of Indiana | Opinion 18A-CR-1366 | February 20, 2019     Page 2 of 15
      Mays off the bed, and began to beat him. Tr., Vol. I at 206. Barthalow came

      in and while Mays was curled up in the fetal position on the floor, the two

      kicked, punched, and beat him. Sester recalled that Daryl said, “this is for

      hitting my sister.” Id. Sester screamed and tried to get Daryl and Barthalow to

      stop.


[4]   Daryl and Barthalow were able to get Mays into a corner and Sester pulled

      Daryl off Mays. Daryl then threw her against the wall and said it was “none of

      [her] F’ing business.” Id. at 207. Sester attempted to call 911, but Daryl

      knocked the phone out of her hand. Sester’s sister, Freda Short, who lived next

      door on the other side of the duplex, heard the noise and believed someone was

      attacking Sester. Short, along with her husband and housemate, went next

      door to investigate. When they entered the room, the brothers were attempting

      to throw Mays out of the window. Short called the police and Sester called 911

      for an ambulance.


[5]   The brothers fled the house, ran up the road, and got into Sittloh’s truck. They

      went to Daryl’s trailer where Sittloh observed them in the bathroom as Daryl

      washed his hands. She overheard the two discussing that they visited Mays and

      heard Barthalow tell his sister on the phone that “they took care of it[.]” Tr.,

      Vol. II at 127. Barthalow asked Sittloh to “check on” Pitcher, so Sittloh and

      Daryl drove her white truck back toward Sester’s house. Id. at 129. Police

      received a call that two males had fled the scene and were heading westbound

      in a white truck. Police in the area then pulled the truck over en route. Daryl

      had blood on his clothes, boots, and hands, as well as a cut on his middle

      Court of Appeals of Indiana | Opinion 18A-CR-1366 | February 20, 2019     Page 3 of 15
      knuckle that was bleeding. Daryl was arrested and Barthalow was arrested

      shortly thereafter.


[6]   When police arrived at Sester’s house, Mays was “hunched over[,]” with

      numerous contusions, bruises, and bloody spots on him. Tr., Vol. I at 227.

      Mays’ “right arm was kind of at an angle. He said he couldn’t move it very

      well, and . . . his ribs hurt on his left side and he had a large bruise on his left

      side.” Id. Mays had blood on his face and in his mouth, making it difficult for

      him to speak with one of the officers, and he would not move his arm. Officers

      found blood on the baseboard and windowsill in the room where Mays told

      them the incident had taken place.


[7]   Mays was transported to Reid Hospital in Richmond, where he was treated by

      Dr. Jennifer Behrens. She ordered blood tests, X-rays, and CAT scans. Dr.

      Behrens diagnosed Mays with multiple facial contusions and bilateral upper

      extremity contusions. There was soft tissue swelling on his forehead, two black

      eyes, injuries to his lip, and swelling and abrasions around his ear. In addition,

      Mays had tenderness in his upper chest, ribs, left elbow, and right wrist. He

      had multiple abrasions and contusions over his upper extremities. Mays did

      not have any broken bones, did not lose consciousness during the incident, and

      was not admitted to the hospital. Mays rated his pain as a ten, the highest

      score. Dr. Behrens prescribed him pain and nausea medication and Mays was

      given head injury precautions.




      Court of Appeals of Indiana | Opinion 18A-CR-1366 | February 20, 2019         Page 4 of 15
[8]   On November 11, the State charged Barthalow with burglary, a Level 2 felony,

      and battery resulting in serious bodily injury, a Level 5 felony. At trial, Mays

      described his pain as “pretty bad[,]” id. at 89, but not “extreme[,]” id. at 92.

      Mays testified that he did not describe his pain as extreme “because I was still

      . . . conscious. I was still able to walk. I wasn’t dead . . . I didn’t break

      anything[.]” Id. at 93. Mays testified that he did not exaggerate his pain to get

      pain medicine.


[9]   A jury trial was held from April 18 through April 20. The jury was instructed

      on the elements of burglary as Level 2 and Level 3 felonies:


              The offense of Burglary, a level 2 felony, is defined by statute,
              insofar as it is applicable, as follows:


              “A person who breaks and enters the building or structure of
              another person, with intent to commit a felony or theft in it,
              commits burglary, a Level 5 felony. However, the offense is a
              Level 2 felony if it results in serious bodily injury to any person
              other than a defendant.”


              The included offense of Burglary, a level 3 felony, is defined by
              statute, insofar as it is applicable, as follows:


              “A person who breaks and enters the building or structure of
              another person, with intent to commit a felony or theft in it,
              commits burglary, a Level 5 felony. However, the offense is a
              Level 3 felony if it results in bodily injury to any person other than
              a defendant.”


              ***


      Court of Appeals of Indiana | Opinion 18A-CR-1366 | February 20, 2019           Page 5 of 15
        The included offense of Residential Entry, a level 6 felony, is
        defined by statute, insofar as it is applicable, as follows:


        “A person who knowingly or intentionally breaks and enters the
        dwelling of another person commits residential entry, a level 6
        felony.”


        ***


        The offense of Battery, as a felony, is defined as a knowing or
        intentional touching of another person in a rude, insolent or
        angry manner, resulting in either moderate bodily injury, or serious
        bodily injury, to another person.


        “Moderate bodily injury” means any impairment of physical
        condition that includes substantial pain.


        “Serious bodily injury” means 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.


Appellant’s Appendix, Volume Two at 105-07 (emphasis added).

Court of Appeals of Indiana | Opinion 18A-CR-1366 | February 20, 2019          Page 6 of 15
[10]   In closing argument, the State explained to the jury the elements and requisite

       intent to prove Level 2 felony burglary, as well as Level 3 felony burglary as a

       lesser-included offense and the two options for felony battery, moderate bodily

       injury and serious bodily injury. See Tr., Vol. II at 202-03. The State argued

       that Mays suffered extreme pain as a result of the incident and Barthalow

       argued the evidence did not reveal Mays suffered serious bodily injury.


[11]   The jury ultimately found Barthalow guilty of burglary, a Level 3 felony, a

       lesser included offense of Count I. The trial court entered a judgment of

       conviction and sentenced Barthalow to ten years in the Indiana Department of

       Correction. Barthalow now appeals.



                                  Discussion and Decision
                                I. Sufficiency of the Evidence
[12]   In reviewing the sufficiency of the evidence required to support a criminal

       conviction, we do not reweigh the evidence or judge the credibility of the

       witnesses. Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009). We consider only

       the evidence supporting the trial court’s judgment and any reasonable

       inferences that can be drawn therefrom. Id. Thus, we consider conflicting

       evidence “most favorably to the trial court’s ruling.” Drane v. State, 867 N.E.2d

       144, 146 (Ind. 2007) (internal quotation omitted). “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.” Bailey,

       907 N.E.2d at 1005.
       Court of Appeals of Indiana | Opinion 18A-CR-1366 | February 20, 2019     Page 7 of 15
[13]   The jury found Barthalow guilty of burglary, a Level 3 felony, the lesser

       included offense of Count I:


               A person who breaks and enters the building or structure of
               another person, with intent to commit a felony or theft in it,
               commits burglary, a Level 5 felony. However, the offense is . . .
               a Level 3 felony if it results in bodily injury to any person other
               than a defendant[.]


       Ind. Code § 35-43-2-1(2) (emphasis added). Bodily injury is defined as “any

       impairment of physical condition, including physical pain.” Ind. Code § 35-

       31.5-2-29. Barthalow is alleged to have intended to commit the felony of

       battery. The knowing or intentional touching of another person in a rude,

       insolent, or angry manner, resulting in moderate bodily injury or serious bodily

       injury to the other person constitutes felony battery. Ind. Code § 35-42-2-

       1(c)(1), (e)(1), (g)(1). Moderate bodily injury means “any impairment of

       physical condition that includes substantial pain.” Ind. Code § 35-31.5-2-204.5.

       Serious bodily injury, on the other hand, is bodily injury that creates substantial

       risk of death or that causes: serious permanent disfigurement; unconsciousness;

       extreme pain; permanent or protracted loss or impairment of the function of a

       bodily member or organ; or loss of a fetus. Ind. Code § 35-31.5-2-292.


[14]   Barthalow was convicted of burglary, a Level 3 felony, which required the State

       to prove beyond a reasonable doubt that Barthalow did: (1) break and enter; (2)

       the building or structure of Sester and Pitcher; (3) with the intent to commit a

       felony therein; and (4) that the burglary resulted in bodily injury to another

       person other than the defendant. See Ind. Code § 35-43-2-1(2). Barthalow does

       Court of Appeals of Indiana | Opinion 18A-CR-1366 | February 20, 2019         Page 8 of 15
       not specifically challenge the first two elements but appears to take issue with

       the extent of Mays’ resulting injuries.1


[15]   Because the jury did not find Barthalow guilty of Level 2 burglary, which

       requires infliction of serious bodily injury, and instead found him guilty of

       Level 3 burglary, he argues the jury “must have found the predicate felony

       battery for the [Level 3 burglary] to be one which resulted in moderate bodily

       injury.” Brief of Appellant at 16. As best as we can discern, Barthalow then

       argues that because the evidence was insufficient to establish May’s injuries

       were “anything beyond simple bodily injury[,]” the evidence was similarly

       insufficient to support his conviction of Level 3 burglary. Id. at 22.


[16]   Even if Barthalow’s assertion to that point was correct, however, his argument

       still misunderstands the difference between the intent to inflict “moderate” or

       “serious bodily injury”—required to satisfy the “with the intent to commit a

       felony” element of burglary—and the resulting injury—required to satisfy the

       “resulting in bodily injury” element of burglary. Ind. Code § 35-42-2-1(e)(1),

       (g)(1); Ind. Code § 35-43-2-1(2).


[17]   “Burglars rarely announce their intentions at the moment of entry, so the intent

       to commit a given felony is one fact which may be inferred from the

       circumstances.” Gilliam v. State, 508 N.E.2d 1270, 1271 (Ind. 1987). The




       1
        To the extent Barthalow claims Mays’ injuries are exaggerated and “inherently unbelievable[,]” Brief of
       Appellant at 22, we view such argument as simply an invitation to reweigh the evidence, which we will not
       do. See Bailey, 907 N.E.2d at 1005.

       Court of Appeals of Indiana | Opinion 18A-CR-1366 | February 20, 2019                          Page 9 of 15
       evidence of intent “need not be insurmountable, but only provide a solid basis

       to support a reasonable inference that the defendant intended to commit the

       underlying felony charged.” Id. Thus, the State had to prove that Barthalow

       had the intent to commit felony battery when he entered Sester’s house,

       meaning Barthalow intended to touch Mays in a rude, insolent or angry

       manner, resulting in moderate or serious bodily injury. Ind. Code § 35-42-2-1(c)(1),

       (e)(1), (g)(1). In other words, the State had to prove that Barthalow intended

       that his actions result in moderate or serious bodily injury of Mays, not that his

       actions actually resulted in moderate or serious bodily injury to Mays. The

       burglary statute only requires the intent to commit the felony, battery here, and

       that the burglary resulted in bodily injury to Mays.


[18]   Viewed most favorably to the judgment, the record reveals that Barthalow and

       Daryl broke into Sester’s house, went upstairs, and began kicking, punching,

       and beating Mays as he was curled up on the floor in the fetal position. Despite

       Sester’s attempts to stop them, Daryl and Barthalow continued to beat Mays

       and attempted to throw him out of a second-floor window. Thus, there is

       sufficient evidence from which a reasonable jury could infer that Barthalow

       intended to cause moderate or serious bodily injury to Mays. See Ind. Code §

       35-31.5-2-204.5; Ind. Code § 35-31.5-2-292.


[19]   With respect to the last element, Barthalow’s assertion that the jury predicated

       its felony battery for the burglary conviction on a battery that resulted in

       moderate bodily injury is misplaced. The statute only requires that he break

       and enter with the intent to commit a felony and the burglary resulted in bodily

       Court of Appeals of Indiana | Opinion 18A-CR-1366 | February 20, 2019      Page 10 of 15
       injury to Mays.2 Although Barthalow’s argument is focused on whether Mays’

       injuries meet the definition of moderate bodily injury, the burglary statute only

       requires bodily injury, which implies less proof is required than moderate or

       serious bodily injury. All that is required is that Mays experienced physical

       pain, not that the pain he experienced be of a certain magnitude or duration.

       Toney v. State, 961 N.E.2d 57, 59 (Ind. Ct. App. 2012). There is no dispute that

       Mays suffered physical pain and Barthalow concedes that Mays suffered bodily

       injury. See Br. of Appellant at 22.


[20]   Moreover, the evidence reveals that Mays had multiple contusions and

       abrasions on his body, soft tissue swelling on his forehead, two black eyes,

       injuries to his lip, swelling and abrasions around his ear, and tenderness in his

       upper chest, ribs, left elbow, and right wrist. Mays was also given medicine to

       manage his pain, which he rated as a ten on a scale of 1-10. We conclude there

       is “substantial evidence of probative value” such that the jury could have

       concluded Barthalow was guilty beyond a reasonable doubt of burglary, a Level

       3 felony. Bailey, 907 N.E.2d at 1005.


                                       II. Fundamental Error
[21]   We turn to Barthalow’s claim of fundamental error pertaining to the jury

       instructions. In his brief, Barthalow concedes that he did not object to the jury




       2
        Accordingly, we need not address whether there is sufficient evidence that Mays’ injuries met the definition
       of moderate bodily injury.

       Court of Appeals of Indiana | Opinion 18A-CR-1366 | February 20, 2019                           Page 11 of 15
       instructions. He argues, however, that the trial court’s failure to instruct the

       jury on “the several gradients of bodily injury resulted in manifest prejudicial

       injustice rising to the level of fundamental error.” Br. of Appellant at 24. We

       disagree.


[22]   “Failure to object to a jury instruction results in waiver on appeal, unless giving

       the instruction was fundamental error.” Wright v. State, 730 N.E.2d 713, 716

       (Ind. 2000). An error may be fundamental and thus not subject to waiver, if it

       is a “substantial blatant violation of basic principles.” Moreland v. State, 701

       N.E.2d 288, 294 (Ind. Ct. App. 1998) (internal quotation omitted). The error

       must be so prejudicial to the defendant’s rights as to make a fair trial

       impossible. Id. “This exception to the general rule requiring a

       contemporaneous objection is narrow, providing relief only in ‘egregious

       circumstances’ that made a fair trial impossible.” Pattison v. State, 54 N.E.3d

       361, 365 (Ind. 2016).


[23]   In considering a claim of fundamental error with respect to jury instructions, we

       look to the instructions as a whole to determine if they were adequate. Munford

       v. State, 923 N.E.2d 11, 14 (Ind. Ct. App. 2010). “When determining whether a

       defendant suffered a due process violation based on an incorrect jury

       instruction, we look not to the erroneous instruction in isolation, but in the

       context of all relevant information given to the jury, including closing

       argument, and other instructions.” Boesch v. State, 778 N.E.2d 1276, 1279 (Ind.

       2002) (internal citations omitted). When all information, as a whole, does not



       Court of Appeals of Indiana | Opinion 18A-CR-1366 | February 20, 2019      Page 12 of 15
       mislead the jury as to the correct understanding of the law, there is no due

       process violation. Id.


[24]   The jury was instructed on the elements of burglary as a Level 2 felony as well

       as the lesser included offenses of burglary as a Level 3 felony and residential

       entry, a Level 6 felony. The trial court also instructed the jury as to the

       definitions of felony battery, serious bodily injury, and moderate bodily injury.

       See supra ¶ 9. Barthalow appears to take issue with the trial court giving an

       instruction on residential entry, a lesser included offense of burglary while

       failing to provide an instruction with the definition of “bodily injury.” He

       argues the trial court’s failure to provide “the outer limit of bodily injury at the

       misdemeanor level even after the trial court gave a non-felony battery crime

       instruction as a lesser included offense” was prejudicial. Br. of Appellant at 27.


[25]   A trial court’s failure to sua sponte give instructions on lesser-included offenses

       does not constitute fundamental error. Lane v. State, 953 N.E.2d 625, 630 (Ind.

       Ct. App. 2011). The “entitlement to included offenses instructions, in an

       appropriate case, is not a fundamental right but rather is one that must be

       claimed and the claim preserved, in accordance with established rules of trial

       and appellate procedure.” Helton v. State, 273 Ind. 211, 213, 402 N.E.2d 1263,

       1266 (1980). Barthalow did not object to the jury instructions or tender his own

       instructions.




       Court of Appeals of Indiana | Opinion 18A-CR-1366 | February 20, 2019      Page 13 of 15
[26]   To the extent that Barthalow claims the trial court erred in failing to provide the

       definition of bodily injury, we first note that in closing argument, the State

       explained the key difference between Level 2 and Level 3 burglary:


               So instead of serious bodily injury, we have the option of bodily
               injury . . . And that’s really important. Bodily injury, I went
               ahead and put the definition up there. That does have a legal
               definition, which is, “Any impairment of physical condition,
               including physical pain.”


       Tr., Vol. II at 216.


[27]   Although the definition of bodily injury was not included in the jury

       instructions, it was provided in the State’s closing argument and displayed on a

       screen at that time. Moreover, the jury instructions included the definitions of

       serious bodily injury and moderate bodily injury. “When determining whether

       an element of an offense has been proven, the jury may rely on its collective

       common sense and knowledge acquired through everyday experiences –

       indeed, that is precisely what is expected of a jury.” Clemons v. State, 83 N.E.3d

       104, 108 (Ind. Ct. App. 2017), trans. denied. The trial court has a duty to

       provide further instruction defining words used in other instructions only if

       those words have technical or legal meaning “normally not understood by

       jurors unversed in the law.” Id. Based on the provided definitions, the jury

       could likely infer from common sense the meaning of bodily injury. Viewing

       the instructions as a whole, we cannot conclude that the trial court’s failure to

       provide the definition of bodily injury was a “substantial blatant violation of



       Court of Appeals of Indiana | Opinion 18A-CR-1366 | February 20, 2019    Page 14 of 15
       basic principles” amounting to fundamental error. Moreland, 701 N.E.2d at

       294.



                                               Conclusion
[28]   Concluding the evidence was sufficient to support Barthalow’s Level 3 felony

       burglary conviction and the trial court did not commit fundamental error in

       instructing the jury, we affirm.


[29]   Affirmed.


       Riley, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Opinion 18A-CR-1366 | February 20, 2019   Page 15 of 15
