Tait Banham v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Nov 29 2017, 10:43 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Timothy J. O’Connor Curtis T. Hill, Jr.
O’Connor & Auersch Attorney General of Indiana
Indianapolis, Indiana Caroline G. Templeton
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Tait Banham, November 29, 2017
Appellant-Defendant, Court of Appeals Case No.
49A04-1707-CR-1497
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Grant W.
Appellee-Plaintiff. Hawkins, Judge
The Honorable Peggy Hart,
Magistrate
Trial Court Cause No.
49G05-1701-F5-1801
Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A04-1707-CR-1497 | November 29, 2017 Page 1 of 6
STATEMENT OF THE CASE
[1] Appellant-Defendant, Tait Banham (Banham), appeals his conviction for Count
I, battery resulting in bodily injury to a public safety officer, a Level 5 felony,
Ind. Code § 35-42-2-1; and Count II, theft, a Class A misdemeanor, I.C. § 35-
43-4-2(a).
[2] We affirm.
ISSUE
[3] Banham presents us with one issue on appeal, which we restate as: Whether
the State presented sufficient evidence beyond a reasonable doubt that
Banham’s actions caused bodily injury to the police officer to sustain his
conviction for battery, as a Level 5 felony.
FACTS AND PROCEDURAL HISTORY
[4] At approximately 2:00 p.m. on October 17, 2016, Cheree Campbell (Campbell),
the store manager at the Dollar General on East Washington Street, in
Indianapolis, Indiana, noticed Banham and his girlfriend enter the store. “They
didn’t get a cart or a basket, they grabbed one of [the store’s] bags and they were
throwing the clothes over them. They were paying more attention to
[Campbell]” than to the clothes. (Transcript. p. 68). Suspicious that Banham
and his girlfriend might be shoplifting, Campbell called 911 approximately forty
minutes after Banham and his girlfriend first entered the store. Campbell
waited outside the store and observed that Banham and his girlfriend exited the
store without paying for the merchandise.
Court of Appeals of Indiana | Memorandum Decision 49A04-1707-CR-1497 | November 29, 2017 Page 2 of 6
[5] Patrol Officer Eric Baker with the Indianapolis Metropolitan Police
Department (Officer Baker) was informed by dispatch of the possible theft in
progress. When Officer Baker arrived at the Dollar General in full uniform,
Campbell directed him to Banham and his girlfriend. As the two were getting
into their car which was parked in front of the store’s entrance, Officer Baker
started running towards them and shouted “police” several times until he
reached the vehicle. (Tr. p. 30). Banham got into the driver’s side of the
vehicle, while his girlfriend entered the front passenger’s side. Officer Baker
approached the vehicle on the passenger’s side. At that point, the passenger’s
side door was still open and Officer Baker positioned himself in the doorway,
between the open passenger door and the vehicle. He ordered Banham not to
start the car and told both of them to exit the vehicle. Banham and his
girlfriend refused to follow Officer Baker’s directions.
[6] Instead, Banham put the car in reverse and hit Officer Baker’s body armor.
Initially, Officer Baker “just felt the pressure of something striking” him. (Tr. p.
40). “[T]he vehicle was powerful so even though the vehicle’s not moving
extremely fast, [], it was [] enough force on it to where [the officer] could feel it
through [his] body armor.” (Tr. p. 40). Campbell heard the door “smack[]” the
officer. (Tr. p. 80). Officer Baker did not feel the “stinging pain” in his back
and right arm until the vehicle was gone. (Tr. p. 41). He just assumed the
delayed pain experience was due to “the adrenaline” he experienced while
trying to apprehend Banham. (Tr p. 41). After the car exited the parking lot,
“narrowly missing running over [Officer Baker’s] foot,” the stolen items “just
Court of Appeals of Indiana | Memorandum Decision 49A04-1707-CR-1497 | November 29, 2017 Page 3 of 6
fell out [the vehicle] from the rate of speed the car was moving and the vehicle
was turning at the same time[.]” (Tr. pp. 36, 39).
[7] Officer Baker got the vehicle’s license plate number and determined that the car
belonged to a Monique Annette Banham. Further investigation of the BMV
records revealed driver’s records containing pictures of Banham, whom the
officer recognized as the driver of the vehicle. Banham was subsequently
arrested.
[8] On January 13, 2017, the State filed an Information, charging Banham with
Count I, battery causing bodily injury to a public safety officer, a Level 5 felony;
and Count II, theft, a Class A misdemeanor. On May 11, 2017, Banham
waived his right to a jury trial and the case was tried to the bench. At the close
of the evidence, the trial court found Banham guilty as charged. On June 14,
2017, Banham was sentenced to three years on the battery conviction and one
year on the theft conviction, with sentences to run concurrently.
[9] Banham now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
[10] Banham contends that the State failed to present sufficient evidence beyond a
reasonable doubt to sustain his conviction for battery causing bodily injury to a
public safety officer, a Level 5 felony. 1 Our standard of review for a sufficiency
1
Banham does not challenge his conviction for theft, a Class A misdemeanor.
Court of Appeals of Indiana | Memorandum Decision 49A04-1707-CR-1497 | November 29, 2017 Page 4 of 6
of the evidence claim is well settled. In reviewing sufficiency of the evidence
claims, we will not reweigh the evidence or assess the credibility of the
witnesses. Moore v. State, 869 N.E.2d 489, 492 (Ind. Ct. App. 2007). We will
consider only the evidence most favorable to the judgment, together with all
reasonable and logical inferences to be drawn therefrom. Id. The conviction
will be affirmed if there is substantial evidence of probative value to support the
conviction of the trier of fact. Id.
[11] To convict Banham of battery causing bodily injury to a public safety officer, as
a Level 5 felony, the State was required to establish that Banham “knowingly or
intentionally touch[ed] [Officer Baker] in a rude, insolent, or angry manner . . .
[and] the offense result[ed] in bodily injury to [Officer Baker] while engaged in
[his] official duties.” I.C. § 35-42-2-1(c)(1); -(g)(5)(A). For purposes of the
offense, bodily injury is statutorily defined as “any impairment of physical
condition, including physical pain.” I.C. § 35-31.5-2-29.
[12] Focusing on the bodily injury requirement of the charge, Banham now
contends that Officer Baker “suffered, at worst, only slight pain which was mild
and transitory in nature” and which should not be a sufficient basis on which to
elevate the charge to a Level 5 felony. (Appellant’s Br. p. 9). To establish
battery on a law enforcement officer as a Level 6 felony, it is only necessary to
prove a “touching” “in a rude, insolent, or angry manner.” Compare I.C. § 35-
42-2-1(e)(2) with I.C. § 35-42-2-1(g)(5)(A). It is exactly this bodily injury
requirement that differentiates the Level 5 felony from the Level 6 felony where
a public safety official, including a law enforcement officer, is the victim.
Court of Appeals of Indiana | Memorandum Decision 49A04-1707-CR-1497 | November 29, 2017 Page 5 of 6
[13] In the case at hand, Banham’s conduct went beyond the mere touching element
of a Level 6 felony. Banham used his vehicle to strike Officer Baker as he was
standing in the passenger’s side door while attempting to stop Banham and his
girlfriend from leaving. Officer Baker testified that, as a result of Banham’s
actions, he could feel the impact of the car through his body armor and he
experienced a stinging pain in his right arm and back.
[14] In reviewing ‘bodily injury,’ our supreme court focused in Bailey v. State, 979
N.E.2d 133, 136 (Ind. 2012), on whether “pain alone—regardless of severity or
duration—[is] sufficient to constitute an impairment of physical condition, or
must the pain first rise to some unstated level?” The court answered its own
question by concluding that “any physical pain is enough to constitute bodily
injury.” Id. By eliciting testimony from Officer Baker that he experienced pain
after feeling the pressure of the vehicle through his body armor, the State
presented sufficient evidence beyond a reasonable doubt to sustain Banham’s
conviction.
CONCLUSION
[15] Based on the foregoing, we hold that the State presented sufficient evidence
beyond a reasonable doubt that Banham’s actions caused bodily injury to the
police officer and we affirm his conviction for battery, as a Level 5 felony.
[16] Affirmed.
[17] Baker, J. and Brown, J. concur
Court of Appeals of Indiana | Memorandum Decision 49A04-1707-CR-1497 | November 29, 2017 Page 6 of 6