Case Information
*1 A TTORNEY FOR A PPELLANT A TTORNEYS FOR A PPELLEE Jeffrey E. Kimmell Curtis T. Hill, Jr.
South Bend, Indiana Attorney General of Indiana
Eric P. Babbs Deputy Attorney General Indianapolis, Indiana I N T H E
COURT OF APPEALS OF INDIANA Troy Burgh, June 23, 2017 Court of Appeals Case No. Appellant-Defendant,
71A03-1611-CR-2669 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable John M. Marnocha, Judge
Appellee-Plaintiff.
Trial Court Cause No. 71D02-1605-F3-29
Najam, Judge.
Statement of the Case
[1] Troy Burgh appeals his conviction for battery, as a Level 5 felony, following a
bench trial. [1] Burgh raises a single issue for our review, namely, whether the Stat e presented sufficient evidence to show that the battery was “committed with a deadly weapon.” See Ind. Code § 35-42-2-1(g)(2) (2016). As a matter of first impression, we hold that, when the paved surface of a parking lot is used in a manner that makes that surface readily capable of causing serious bodily injury, a reasonable trier of fact may conclude that the battery was “committed with a deadly weapon. ” Thus, we affirm. [2]
Facts and Procedural History On May 12, 2016, Burgh and his girlfriend, Gabrielle Adams, got into a fight
with Ashley Banghart in a CVS Pharmacy parking lot in Walkerton. During the fight, Burgh pulled Banghart to the ground, which was a paved asphalt surface. While Banghart was on the ground, Adams slammed Banghart’s head onto the paved surface six times, which caused Banghart to suffer a concussion. Thereafter, the State charged Burgh with, in relevant part, battery enhanced to a Level 5 felony for having been committed with a deadly weapon, namely, “the *3 parking lot pavement.” Appellant’s App. Vol. 2 at 35. After a bench trial, the court found Burgh guilty, stating that “the asphalt was a deadly weapon in this case” and that Burgh aided, induced, or caused the battery. Tr. Vol. 2 at 140. The court entered its judgment of conviction and sentence accordingly, and this appeal ensued.
Discussion and Decision On appeal, Burgh contends that the evidence against him was insufficient to
demonstrate that Adams battered Banghart with a deadly weapon. In particular, Burgh asserts that the paved surface of a parking lot cannot satisfy the deadly weapon enhancement that elevates battery from a Class B misdemeanor to a Level 5 felony. In reviewing the sufficiency of the evidence, we consider only the evidence and reasonable inferences most favorable to the conviction, neither reweighing the evidence nor reassessing witness credibility. Griffith v. State , 59 N.E.3d 947, 958 (Ind. 2016). We will affirm the judgment unless no reasonable fact-finder could find the defendant guilty. Id. As relevant here, the Indiana Code provides that battery is a Level 5 felony
when it is committed with “a deadly weapon.” I.C. § 35 -42-2-1(g)(2). The Indiana Code further defines “deadly weapon” to mean, among other things, any “material that in the manner it: (A) is used; (B) could ordinarily be used; or (C) is intended to be used; is readily capable of causing serious bodily injury.” *4 I.C. § 35-31.5-2- 86(a)(2). And “serious bodily injury” is defined in relevant part as bodily injury that causes “extreme pain.” I.C. § 35 -31.5-2-292(3). [3] Thus, the Indiana Code has a broad and fact- sensitive definition of “deadly weapon.” I.C. § 35 -42-2-1(g)(2). In light of that statutory definition, we have repeatedly stated that whether an object is a “deadly weapon ” on a given set of facts is determined from the nature of the object, the manner of its use, and the circumstances of the case. E.g. , Gleason v. State , 965 N.E.2d 702, 708 (Ind. Ct. App. 2012). We have further instructed that “[w]hether an object is a deadly weapon based on these factors is a question of fact. The original purpose of the object is not considered. Rather, the manner in which the defendant actually used the object is examined.” Id. In light of those standards, we conclude that a reasonable trier of fact may find
that a paved surface constitutes a deadly weapon if the manner in which the defendant uses that surface is “readily capable of causing serious bodily injury.” I.C. § 35-31.5-2-86(a)(2). And, on these facts, a reasonable fact-finder could easily reach that conclusion: Adams used the paved surface as a blunt object against which to smash Banghart’s skull six times. In that sense, the paved surface is comparable to the use of a rock or similar object with which to hit a *5 victim. The Indiana Supreme Court has held that the use of such an object in such a manner falls within the definition of a deadly weapon. Majors v. State , 274 Ind. 261, 263, 410 N.E.2d 1196, 1197 (1980). We conclude likewise here. In sum, w e reject Burgh’s argument, in effect, that whether a defendant strikes a victim’s head with an object or whether the defendant strikes a stationary object with the victim’s head is relevant to the determination of whether that object was a “deadly weapon . ” Either way, the touching and the impact are the same. While we commonly think of a weapon as a moveable object, as this case illustrates a stationary object can also be used as a weapon. A paved surface is “other material” that is “readily capable of causing serious bodily injury” depending on the manner in which the surface is actually used. I.C. § 35-31.5- 2-86(a)(2). We also reject Burgh’s argu ment that a paved surface was not within our General Assembly’s contemplation when it defined “deadly weapon”; on this point, the broad and fact-sensitive language of Indiana Code Section 35-31.5-2-86(a)(2) speaks for itself. Accordingly, we affirm Burgh’ s conviction for battery, as a Level 5 felony. Affirmed.
Riley, J., and Bradford, J., concur.
[1] Burgh does not appeal his convictions for strangulation, a Level 6 felony, or battery, as a Class A misdemeanor.
[2] We decide Burgh’s appeal along with Gabrielle Adams’ appeal, as Adams raises the same issue on appeal that Burgh raises. See Adams v. State , No. 71A05-1611-CR-2659 (Ind. Ct. App. June 23, 2017). However, we have designated only Burgh’s appeal as a for-publication opinion as his briefing on appeal was completed first.
[3] We have held that loss of consciousness after being struck by a defendant is, by itself, sufficient to establish serious bodily injury, Davis v. State , 819 N.E.2d 91, 100-01 (Ind. Ct. App. 2004), trans. denied , and Burgh does not challenge the conclusion implicit in his conviction that Banghart suffered serious bodily injury. We also note that the State did not charge Burgh under Indiana Code § 35-42-2-1(g)(1), which enhances battery to a Level 5 felony if the battery resulted in serious bodily injury.