Raymond James Talor, II v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jun 14 2017, 9:44 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Abraham A. Navarro Curtis T. Hill, Jr.
Clark County Public Defender Office Attorney General of Indiana
Jeffersonville, Indiana
Larry D. Allen
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Raymond James Taylor II, June 14, 2017
Appellant-Defendant, Court of Appeals Case No.
10A01-1611-CR-2629
v. Appeal from the Clark Circuit
Court
State of Indiana, The Honorable Vicki L.
Appellee-Plaintiff Carmichael, Judge
Trial Court Cause No.
10C04-1604-F3-25
Vaidik, Chief Judge.
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Case Summary
Raymond James Taylor II appeals his conviction for Level 3 felony aggravated
battery. He argues that the evidence is insufficient to support his conviction
and that his sentence violates the Proportionality Clause of the Indiana
Constitution. Finding the evidence sufficient and no constitutional violation,
we affirm.
Facts and Procedural History
[1] On May 13, 2016, Taylor was booked into the Clark County Jail and placed in
Pod 3A. There were tables inside the pod for inmates to eat their meals. It was
against jail policy for inmates to sit on these tables.
[2] Around 9:15 p.m. on May 13, Correctional Officer James Disponett entered the
pod and noticed that Taylor was sitting on a table. He asked Taylor to get off
the table. After a brief exchange in which Taylor used profanity, Taylor got off
the table. Officer Disponett left the pod.
[3] A few minutes later, Correctional Officer Aaron Lewis completed his rounds
distributing medication and went to the office near Pod 3A, where he was
joined by Officer Disponett. Both officers saw on the monitor that Taylor was
sitting on a table. Around 9:30 p.m., Officers Disponett and Lewis entered Pod
3A and Officer Lewis asked Taylor to get off the table. Taylor respond, “No, F
you, you’re a bit**.” Tr. p. 76. Officer Lewis asked Taylor several more times
to get off the table. Taylor still refused. Officer Lewis then gave Taylor a
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choice: get off the table or go to lock-down. Taylor chose lock-down. Officer
Lewis instructed Taylor to put his hands behind his back so that he could be
handcuffed and taken to lock-down. But instead of putting his hands behind his
back, Taylor punched Officer Lewis in the jaw.
[4] Officer Lewis was taken to Clark Memorial Hospital where imaging revealed
that his jaw was fractured in two places. He was then transported by
ambulance to University of Louisville Hospital, where he underwent surgery on
May 15. One of the fractures required the installation of a plate and six screws.
The other fracture required wiring Lewis’s mouth shut for two weeks. For
those two weeks, Lewis could not talk and was on a liquid diet. After those two
weeks, the wires were removed and replaced with bands (which limited his jaw
function) for six weeks. Lewis was on a soft diet for those six weeks.
[5] The State charged Taylor with Level 3 felony aggravated battery and being a
habitual offender. At the jury trial, which was about four months after the
incident, Officer Lewis testified that he was experiencing numbness in his
mouth, which caused him to drool, and that he had pain when he chewed.
Officer Lewis’s surgeon testified that there was still a chance that the numbness
could go away but that it could be permanent, too. A jury found Taylor guilty
of Level 3 felony aggravated battery. Taylor then admitted to being a habitual
offender. The trial court sentenced Taylor to sixteen years for aggravated
battery, enhanced by fourteen years for being a habitual offender, for a total of
thirty years.
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[6] Taylor now appeals.
Discussion and Decision
[7] Taylor raises two issues on appeal. He contends that the evidence is insufficient
to support his conviction and that his sentence violates the Proportionality
Clause of the Indiana Constitution.
I. Sufficiency of the Evidence
[8] Taylor first contends that the evidence is insufficient to support his conviction
for Level 3 felony aggravated battery. When reviewing the sufficiency of the
evidence to support a conviction, appellate courts must consider only the
probative evidence and reasonable inferences supporting the verdict. Sallee v.
State, 51 N.E.3d 130, 133 (Ind. 2016). It is the fact-finder’s role, not that of
appellate courts, to assess witness credibility and weigh the evidence to
determine whether it is sufficient to support a conviction. Id. It is not necessary
that the evidence “overcome every reasonable hypothesis of innocence.” Id.(quotation omitted). “[T]he evidence is sufficient if an inference may
reasonably be drawn from it to support the verdict.” Drane v. State, 867 N.E.2d
144, 147 (Ind. 2007) (quotation omitted).
[9] In order to convict Taylor as charged here, the State had to prove that he
knowingly or intentionally inflicted injury on Officer Lewis that caused
protracted loss or impairment of the function of a bodily member of Officer
Lewis, “to wit: a fractured jaw which required his jaw to be wired shut.”
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Appellant’s App. Vol. II p. 9; see also Ind. Code § 35-42-2-1.5. Taylor does not
dispute that he knowingly or intentionally inflicted injury on Officer Lewis;
rather, he argues that the State did not present sufficient evidence that Officer
Lewis suffered a protracted impairment because he had limitations for only
eight weeks. See Appellant’s Br. p. 8 (“Here, the record reflects that Lewis
merely showed a loss of jaw function for two (2) weeks and impaired function
for six (6) more weeks thereafter.”).
[10] This Court has held that “protracted” means “to draw out or lengthen in time”
and “impairment” means the “fact or state of being damaged, weakened, or
diminished.” Mann v. State, 895 N.E.2d 119, 122 (Ind. Ct. App. 2008)
(quotations omitted). Here, the evidence shows that Officer Lewis’s jaw was
fractured in two places. He was hospitalized and underwent surgery. For two
weeks, his mouth was wired shut. Then, the wires were removed and replaced
with bands for six weeks; the bands restricted his jaw function. At the time of
trial, which was about four months after the incident, Officer Lewis had pain
when he chewed and numbness in his mouth, which, according to his surgeon,
may never go away. This evidence is sufficient to prove that Officer Lewis
suffered a protracted impairment. See Mann, 895 N.E.2d at 122 (evidence that
for approximately two months after the attack victim experienced “muffled
hearing” was sufficient to prove protracted impairment); see also Grundy v. State,
38 N.E.3d 675, 682 (Ind. Ct. App. 2015) (evidence that for more than six
months after the attack victim suffered headaches, numbness, and degraded
vision was sufficient to prove protracted impairment), trans. denied.
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II. Proportionality Clause
[11] Taylor next contends that his sentence for Level 3 felony aggravated battery
violates the Proportionality Clause of Article 1, Section 16 of the Indiana
Constitution, which provides, “All penalties shall be proportioned to the nature
of the offense.” The nature and extent of penal sanctions is primarily a
legislative consideration, and our review of these sanctions is highly restrained
and very deferential. Newkirk v. State, 898 N.E.2d 473, 477 (Ind. Ct. App.
2008), trans. denied. We will not disturb the General Assembly’s determination
of the appropriate penalty absent a showing of clear constitutional infirmity. Id.[12] Taylor specifically argues that because Level 3 felony aggravated battery and
Level 5 felony battery resulting in serious bodily injury contain similar
elements, he should have been punished for only the lesser felony. See Poling v.
State, 853 N.E.2d 1270, 1276-77 (Ind. Ct. App. 2006) (proportionality clause
violated when offenses with identical elements given different sentences), reh’g
denied. A person who knowingly or intentionally inflicts injury on a person that
causes protracted loss or impairment of the function of a bodily member or
organ commits Level 3 felony aggravated battery. I.C. § 35-42-2-1.5. In
contrast, a person who knowingly or intentionally touches another person in a
rude, insolent, or angry manner and the offense results in serious bodily injury
commits Level 5 felony battery. Ind. Code § 35-42-2-1(c)(1), (g)(1). “Serious
bodily injury” includes “permanent or protracted loss or impairment of the
function of a bodily member or organ.” Ind. Code § 35-31.5-2-292.
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[13] This Court has already addressed this precise issue in Mann, where we held:
[T]he mental states for these offenses do not have the same
conduct as their aim—aggravated battery requires the defendant
to knowingly or intentionally inflict injury on another, see Ind.
Code § 35-42-2-1.5, while battery merely requires the defendant
to knowingly or intentionally touch another in a rude, insolent,
or angry manner, see Ind. Code § 35-42-2-1. Because the
legislature could rationally conclude that defendants who intend
to inflict injury on another are more blameworthy than
defendants who intend to touch another rudely (and, more to the
point, do not intend to inflict injury), it follows that a more
severe punishment for defendants who commit . . . aggravated
battery does not violate the Proportionality Clause.
895 N.E.2d at 124. Taylor recognizes our holding in Mann but does not argue
that it was wrongly decided. Accordingly, we find no violation of Indiana’s
Proportionality Clause.
[14] Affirmed.
Bailey, J., and Robb, J., concur.
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