Defendant Thomas Fox was convicted by a jury of two counts of Aggravated Assault and Battery. 1 On appeal, Fox raises the following issues for our review:
1. whether there was sufficient evidence to support the convictions, and
2. whether the trial court erred in denying defendant’s motion for a mistrial and motion to strike certain evidence pertaining to police “mug files.”
Reversed.
The facts most favorable to the State show Fox created a bar-room disturbance shortly after midnight on September 7, 1973. The bar was crowded when Fox began to harass a patron. Lois Sullivan, a waitress, ordered Fox to “sit down and shut up.” When Fox began to yell and scream, the bartender on duty approached him in an effort to quiet things down. Fox then began throwing bottles, glasses and ashtrays. Ms. Sullivan was standing next to Fox, facing in the opposite direction, when she was hit in the back of the head. The injury apparently occurred as Fox drew back his arm in an effort to throw one of the objects he had picked up. Another patron, Raymond Garven, was struck in the face by flying glass, and required some thirty-five stitches to close his wounds.
I. SUFFICIENCY OF THE EVIDENCE
Fox argues the convictions are not supported by sufficient evidence in that neither victim identified him as the perpetrator of the injurious acts. It is true that neither Ms. Sullivan nor Mr. Garven could identify Fox as the individual who threw the objects which struck them. However, several other eyewitnesses testified defendant was the only person throwing objects in the bar at the time the victims suffered their injuries. Though no testimony links Fox to the infliction of injury by means of a particular object, the inference that Fox threw the objects which struck Sullivan and Garven is inescapable. The issue of identity was a question of fact for the jury’s resolution,
Norris v. State,
(1968)
Fox next argues the striking of Ms. Sullivan was “inadvertent” and therefore the requisite intent to sustain the conviction is lacking. Similarly, Fox contends the lack of any evidence connecting him to the particular object which injured Mr. Garven precludes the inference that he intended to inflict injury.
Ind.Code 35-13-3-1 provides:
Whoever intentionally or knowingly and unlawfully inflicts great bodily harm or disfigurement upon another person is guilty of aggravated assault and battery
Our Supreme Court has held the disjunctive language of the statute, i. e., “intentionally or knowingly and unlawfully,” permits a conviction upon proof of a general mens rea.
Defries v. State,
(1976)
Finally, Fox argues the injuries sustained by Ms. Sullivan are “minor or moderate” and therefore do not constitute “great bodily harm” within the meaning of IC 35-13-3 — 1. We disagree.
Ms. Sullivan testified that as a result of her injuries she was hospitalized six days and was off work five weeks, suffering blurred vision, vomiting, and severe headaches. Dr. Fred E. Dunbar testified Ms. Sullivan suffered from a concussion and cervical strain with muscle spasms.' Ms. Sullivan stated her vision problems and headaches were still present at the time the case went to trial, some fifteen months after the bar-room incident. This evidence is sufficient to support a finding of great bodily harm.
See generally Barbee v. State,
(1977) Ind.,
II. MOTION FOR MISTRIAL
Following the State’s unsuccessful attempt to have Mr. Garven identify Fox as his assailant, the prosecution called Officer Ron Mowery to the stand in an apparent attempt to show Garven had previously identified Fox from police photographs. During direct examination, Mowery was asked:
Q. And what did you do if anything while he [Garven] was at the police station? And I will ask you, of course, not to recite anything that was said, which would be hearsay. Just what in effect was done.
A. Uh, we asked him to look through our mug files.
Q. Okay. Did he in fact do that?
A. He did.
Q. Is that in fact the mug file that he looked through?
A. It is.
Q. All right. Do you know which photograph he identified?
A. Ido.
The defense then objected to the entire line of questioning, arguing 1) the question called for hearsay, and 2) any reference to police “mug files” was an evidentiary harpoon which improperly brought the defendant’s prior criminal record to the attention of the jury. Defendant requested the testimony of Mowery be stricken from the record and moved for a mistrial. The trial court denied the defendant’s motion for a mistrial, but sustained the defendant’s hearsay objection and refused to permit Mowery to testify further as to the photographic identification. On appeal, Fox argues the lower court erred by refusing to declare a mistrial or strike the improper testimony and admonish the jury. We find the trial court committed reversible error by refusing to strike the improper evidence and admonish the jury.
The indiscreet use of or reference to police “mug files” has been discouraged by our courts for over four decades. The rationale is plain: improper use of these police photographs may be sufficient to cause a juror of average intelligence to strongly suspect the defendant has a criminal record. In
Vaughn v. State,
(1939)
It was not proper to prove that the defendant had a criminal record, and what may not be done directly may not be done by indirection or subterfuge. Since proof of another crime improperly admitted is always treated as prejudicial error, and, since it cannot be said that this exhibit and the manner in which it was presented was not sufficient to cause a juror of average intelligence to at least *830 strongly suspect that the defendant had a criminal history, we cannot say that the admission of the exhibit was not prejudicial.
In
Blue
v.
State,
(1968)
Drawing from the language of
Vaughn, supra,
and
Blue, supra,
our courts have more recently held police mug shots may be admissible if the pictures have independent probative value
and
the prosecution has made every effort to minimize the prejudicial effect of .the photographs.
Gray v. State,
(1978) Ind.,
In the present case, no police photographs of the defendant were actually introduced into evidence. Because of the defendant’s timely objection, the trial court did not permit the police officer to testify as to which photograph the victim identified from police “mug files.” However, the jury knew well that Mr. Garven, the victim, had problems identifying defendant Fox as his assailant. In fact, Garven had identified a juror as the perpetrator of the crime. When the prosecutor called Officer Mowery to the stand and asked which photograph Garven had identified from police “mug files,” the jury most certainly anticipated a photographic identification of defendant Fox to be forthcoming. It requires no great leap of logic to conclude that if police mug shots may be highly prejudicial when introduced into evidence and shown to a jury, a reference to police “mug files” or “mug shots” by the prosecution is improper and may be, in certain instances, just as prejudicial.
See Bayer v. State,
(1973)
The State’s use and reference to the police mug file in this case was reckless and inexcusable. While a photographic identification may well have had independent probative value, it was highly improper for the prosecution to bring the entire picture file into the court room, place it before the witness, and then unhesitatingly refer to the file as a police “mug file.” The trial court then erred when it denied defendant the curative effect of an admonishment by refusing to strike the State’s improper reference to the mug file and Officer Mow-ery’s related testimony.
Our Supreme Court has held that in order to justify a reversal in a case such as this, we must find the prosecutorial misconduct and related error placed the defendant in a position of grave peril to which he should not have been subjected, or that the prosecution attempted to deliberately prejudice the defendant.
Maldonado v. State,
(1976)
*831 1. The effect of constitutional provisions, statutes or rules relating to harmless error.
2. The degree of materiality of the testimony.
3. Other evidence of guilt.
4. Other evidence tending to prove the same fact.
5. Other evidence that may cure the improper testimony.
6. Possible waiver by the injured party.
7. Whether the statement was volunteered by the witness and whether there had been deliberate action on the part of the prosecution to present the matter to the jury.
8. The penalty assessed.
9. Whether or not the testimony, although volunteered by the witness, was in part brought out by action of the defendant or his counsel.
10. The existence of other errors.
11. Whether the question of guilt is close or clear and compelling.
12. The standing and experience of the person giving the objectionable testimony.
13. Whether or not the objectionable testimony or misconduct was repeated.
The facts of this case are unlike those in Bayer v. State, supra, where a police officer, in a non-responsive answer, volunteered the statement that a picture of the defendant was carried in a police “mug file.” Applying the guidelines announced in White, supra, the court in Bayer noted there was no deliberate action on the part of the prosecution to bring out the words “mug files” and the state made no attempt whatsoever to refer to or reintroduce the objectionable phrase. The court also stated:
Perhaps as important to our decision as the absence of a deliberate attempt to prejudice is the fact that the “door way” was first opened by the defense. The defense on cross examination established that the police officers carried Bayer’s picture in a group with several others and showed them to victims of armed robberies. When this file was eventually and inadvertently referred to as a “mug file”, it was not a startling revelation of a new and material fact.
Finally, we note that while the evidence presented in this case was sufficient to support the defendant’s convictions, it cannot be considered overwhelming. Particularly significant is the fact that defendant Fox raised the issue of self defense at trial. Fox took the stand in an effort to establish he acted in self defense by throwing objects at a bartender who he claimed assaulted him with a broken pool cue. The bartender on duty denied the existence of any such pool cue; however, another bartender employed at the tavern testified for the defendant and stated a broken pool cue, referred to as the “providence persuader," was kept behind the bar.,
Applying the guidelines announced in White, supra, to the facts before us, we are unable to dismiss the possibility that the prosecutorial misconduct in this case had a substantial influence on the jury in arriving at its verdict. Therefore, we hold the defendant was placed in a position of grave *832 peril to which he should not have been subjected.
Accordingly, the judgment is reversed and a new trial ordered.
Notes
. Ind.Code 35-13-3-1 [since repealed].