Troy Burgh v. State of Indiana

FILED
Jun 23 2017, 8:56 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jeffrey E. Kimmell Curtis T. Hill, Jr.
South Bend, Indiana Attorney General of Indiana
Eric P. Babbs
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Troy Burgh, June 23, 2017
Appellant-Defendant, Court of Appeals Case No.
71A03-1611-CR-2669
v. Appeal from the St. Joseph
Superior Court
State of Indiana, The Honorable John M.
Appellee-Plaintiff. Marnocha, Judge
Trial Court Cause No.
71D02-1605-F3-29
Najam, Judge.
Court of Appeals of Indiana | Opinion 71A03-1611-CR-2669 | June 23, 2017 Page 1 of 5
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
State 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
[2] 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.
[3] 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
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.
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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
[4] 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.[5] 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.”
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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
[6] 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.[7] 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
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.
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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.
[8] In sum, we 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 argument 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.
[9] Affirmed.
Riley, J., and Bradford, J., concur.
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