ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
ELLEN H. MEILAENDER
SARAH L. NAGY STEVE CARTER
General of Indiana
Deputy Attorney General
COURT OF APPEALS OF INDIANA
FRANK JAMES, )
vs. ) No. 89A04-0101-CR-25
STATE OF INDIANA, )
APPEAL FROM THE WAYNE SUPERIOR COURT
The Honorable Gregory Horn, Judge
Cause No. 89D02-0005-CF-025
September 14, 2001
OPINION - FOR PUBLICATION
Frank James appeals his convictions for Aggravated Battery, a Class B felony
See footnote and
Resisting Law Enforcement, a Class D felony.See footnote He argues that there is
insufficient evidence to support his convictions and that they violate Indianas Double Jeopardy
Clause. Because we find that there is sufficient evidence to support his
conviction for aggravated battery, we affirm that conviction. However, we find that
his conviction for Resisting Law Enforcement violates the principles of double jeopardy, therefore,
we reverse and remand to the trial court to vacate that conviction.
Facts and Procedural History
On May 22, 2000, Officer Patrick Tudor of the Richmond Police Department was
dispatched to the Eagles Lodge in Richmond, Indiana. He and another police
officer entered the Bingo Hall at the Lodge in search of James for
whom they had a warrant. Officer Tudor knew and located James inside
the Bingo Hall where he was sitting at a table with his girlfriend.
Officer Tudor approached James and informed him that he needed to speak
with him outside. After James denied that he was in fact Frank
James, Officer Tudor told James that he had a warrant for his arrest.
Eventually, James left the Bingo Hall with Officer Tudor.
Officer Tudor led James to a hallway. James girlfriend followed the men
into the hallway. Once in the hallway, James became agitated and argumentative.
Officer Tudor attempted to place him in handcuffs, but James resisted.
Eventually, Officer Tudor succeeded in placing him in the handcuffs. However, James
continued to use profanity and pull away from Officer Tudor and toward his
Officer Tudor pulled James back and directed him to walk down a flight
of stairs toward the exit of the building. When they reached the
bottom of the stairs, James made a quick, abrupt turn. Tr. P.114.
As he did so, his elbow struck Officer Tudor in the mouth
and knocked out one of Officer Tudors top front teeth. The blow
also loosened one of Tudors bottom teeth.
After his tooth was knocked out of his mouth, Officer Tudors mouth began
bleeding and he experienced pain. Officer Tudors tooth was found on the
ground and returned to him. He then proceeded to the hospital with
his tooth. Officer Tudor stuffed tissues in his mouth to absorb the
blood. He testified that it was very painful. At the hospital,
a doctor attempted to reinsert his tooth into his jaw. Specifically, the
doctor placed his arm around Tudors head, grabbed the tooth, and shoved the
tooth back into his mouth. Although the doctor attempted to reinsert the
tooth two or three times, the tooth would not stay in Tudors mouth.
At that point, the doctor told Tudor there was nothing further he
could do for him.
The next morning Officer Tudor went to a dentist. The doctor recommended
that Officer Tudor see an oral surgeon to remove his bottom tooth
that had been loosened by the impact of Jamess elbow. The oral
surgeon surgically removed the bottom tooth. In addition, another tooth was knocked
out of its normal alignment in his mouth and another tooth was broken
Officer Tudor continued to need dental work as a result of the incident.
He had several teeth filed down, as well as posts, fake teeth
and a bridge inserted into his mouth. For approximately three to four
months he wore a partial tooth. In addition, he still has a
large hole in the top of his gum line where one tooth was
surgically removed and he will need to have reconstructive gum surgery.
The State charged James with two counts of battery, one count of resisting
law enforcement, and two counts of aggravated battery. Before trial, the State
dismissed one count of battery. Following a jury trial, James was convicted
of the four remaining counts. Due to double jeopardy violations, the trial
court vacated the battery count and one of the counts of aggravated battery.
Thus, James was convicted of one count of aggravated battery and one
count of resisting law enforcement. The trial court sentenced James to twelve
years imprisonment with four years suspended for the aggravated battery conviction and three
years imprisonment for the resisting law enforcement conviction. His sentences are to
run concurrently. This appeal followed.
Discussion and Decision
James argues that there is insufficient evidence to support his convictions. He
also contends that his convictions for aggravated battery and resisting law enforcement violate
the double jeopardy clause. We address each argument in turn.
I. Sufficiency of the Evidence
James argues that there is insufficient evidence to support his conviction for aggravated
battery. In particular, he contends that the State failed to prove that
he acted knowingly or intentionally and that Officer Tudor sustained permanent disfigurement.
He also asserts that Officer Tudors testimony is incredibly dubious.
When reviewing the sufficiency of the evidence, we neither reweigh evidence nor judge
witness credibility. Salone v. State, 652 N.E.2d 552, 559 (Ind. Ct. App.
1995), trans. denied. Instead, we examine only the evidence favorable to the
judgment, together with the reasonable inferences to be drawn therefrom. Id.
The State charged James with aggravated battery and specifically with knowingly or intentionally
inflict[ing] injury on Pat Tudor which created a substantial risk of death or
caused serious permanent disfigurement, to-wit: the permanent loss of a number of
teeth . . . . Appellants App. P.23. Thus, in order
to convict James of aggravated battery, the State was required to prove that
James knowingly or intentionally inflicted injury on a person that created a substantial
risk of death or caused serious permanent disfigurement. Ind.Code § 35-42-2-1.5.
First, James argues that the State failed to prove that he acted knowingly
or intentionally. Intent is a mental function. Spann v. State, 632
N.E.2d 741, 743 (Ind. Ct. App. 1994). Absent an admission by the
defendant, it must be determined from a consideration of the defendants conduct and
the natural and usual consequences thereof. Id. The trier of fact
must resort to reasonable inferences based upon an examination of the surrounding circumstances
to determine whether, from the persons conduct and the natural consequences that might
be expected from that conduct, a showing or inference [of] the intent to
commit that conduct exists. Id. (quoting Metzler v. State, 540 N.E.2d 606,
609 (Ind. 1989)). Here, James was argumentative and agitated when Officer Tudor
escorted him into the hallway. Once they were in the hallway, his
resistance escalated as he tried to avoid being placed in the handcuffs.
In addition, when they reached the bottom of the steps, James turned away
from Officer Tudor with such force that he knocked one of Officer Tudors
teeth out and knocked several of his teeth loose with his elbow.
Based on the surrounding circumstances the jury could reasonably infer that James possessed
the necessary intent.
Next, James asserts that the State failed to prove that Officer Tudor suffered
permanent disfigurement. Initially, we note that the phrase permanent disfigurement has not
been defined by the legislature. Therefore, we must turn to our rules
of statutory interpretation. D.R. v. State, 729 N.E.2d 597, 599 (Ind. Ct.
App. 2000). The primary goal in interpreting the meaning of a statute
is to determine and effectuate the legislative intent. Id. To determine
legislative intent, courts must consider the objectives and the purposes of the statute
in question and the consequences of the statutes interpretation. Id. We
look to the plain language of the statute and attribute the common, ordinary
meaning to terms found in everyday speech. Herron v. State, 729 N.E.2d
1008, 1010 (Ind. Ct. App. 2000), trans. denied. In determining the plain
and ordinary meaning of a statutory term, courts may use English language dictionaries
as well as consider the relationship with other words and phrases. State
v. Eilers, 697 N.E.2d 969, 971 (Ind. Ct. App. 1998).
The word permanent is defined in relevant part as: continuing or enduring
without fundamental or marked change. Websters Third New International Dictionary 1683 (1993).
The word disfigure is defined in part as: to make less
complete, perfect or beautiful in appearance or character: deface, deform, mar.
Id. at 649. Based upon these definitions, we conclude that the legislature
intended to protect against continuing or enduring injuries that mar or deface the
appearance or physical characteristics of a person. At trial, Officer Tudor testified
that initially one of his teeth was knocked out and could not be
put back into his mouth. He testified further that one tooth was
loosened to the point that it had to be removed and others were
broken and had to be filed down. Although he was fitted with
fake teeth, he continues to have a large hole in his gum line
and has lost several of his original teeth. Based on his testimony,
Officer Tudor has suffered disfigurement of his mouth that will last indefinitely.
This is sufficient to establish permanent disfigurment.
Additionally, we note that in making this argument, James relies on Salone v.
State, 652 N.E.2d 552 (Ind. Ct. App. 1995), trans. denied. However, Salone
is distinguishable from the present case. In Salone, this court found that
there was insufficient evidence to support the injury element of aggravated battery.
J.B., the victim, suffered burns on his hands when forced to grasp a
hot knife by the defendant. At trial, a doctor testified that J.B.
suffered a pretty severe burn on his hand that would take longer to
heal and that because the burns were on his hands it was usual
to have more complications. Salone, 652 N.E.2d at 559. The doctor
also testified that such burned skin can constrict, and a lot of times
cause secondary contraction which maybe will result in an inability to fully expand
the hand, thus usually necessitating physical therapy. Id. Upon review, we
held that the doctors testimony was insufficient to prove permanent disfigurement because the
doctor provided equivocal testimony regarding the severity of J.B.s burns and testified primarily
about burns in the abstract without providing detail about J.B.s injuries. In
contrast, Officer Tudor testified unequivocally and specifically about his own injuries. In
particular, he testified that he lost several teeth due to the incident with
James and that he continues to have a large hole in his gum
line. Therefore, the holding in Salone does not apply in this case
and the State produced sufficient evidence to support Jamess conviction for aggravated battery.
Finally, James contends that Officer Tudors testimony is incredibly dubious. In particular,
he argues that Officer Tudor could not articulate where he was standing when
James struck him. He could not articulate even how James accomplished the
task of knocking out his teeth when James hands were handcuffed behind his
back. Appellants Br. P.7. However, the rule of incredible dubiosity is
limited to cases where a sole witness presents inherently contradictory testimony that is
equivocal or the result of coercion and there is a complete lack of
circumstantial evidence of guilt. Williams v. State, 741 N.E.2d 1209, 1213 (Ind.
2001). Here, Officer Tudors testimony was not inherently contradictory or equivocal.
He testified that James was uncooperative and verbally abusive. He testified further
that as he walked down the stairs behind the defendant, James turned abruptly
and hit him in the mouth with his elbow. Officer Tudors testimony
was not equivocal or contradictory. Thus, we are unconvinced by Jamess argument
and affirm his conviction for aggravated battery.
II. Double Jeopardy
Next, James argues his convictions for aggravated battery and resisting law enforcement violate
Indianas Double Jeopardy Clause.
See footnote Specifically, he argues that the same evidence
was used to convict him of both charges.
Our supreme court set forth a two-part test for analyzing double jeopardy claims
under our state constitution in
Richardson v. State, 717 N.E.2d 32 (Ind. 1999).
In particular, our supreme court established that two or more criminal offenses
violate our double jeopardy clause if with respect to either the statutory elements
of the charged offenses or the actual evidence used to convict, the essential
elements of one challenged offense establish the essential elements of the other offense.
Id. at 49. Under the actual evidence test, the evidence presented
at trial is examined to determine whether each offense was proven by separate
and distinct facts. Id. at 53. To prove a claim under
the actual evidence test, the defendant must demonstrate a reasonable possibility that the
evidentiary facts used by the fact-finder to establish the essential elements of one
offense may also have been used to establish the essential elements of a
second challenged offense. Id.
Here, with regard to resisting law enforcement the State charged that Frank James
did knowingly or intentionally forcibly resist a law enforcement officer, to-wit: Officer
Pat Tudor of the Richmond Police Department, while the officer was engaged in
the execution of his duties as a law enforcement officer, the said Frank
James inflicting bodily injury on Officer Pat Tudor . . . .
Appellants App. P.23. With regard to aggravated battery, the State charged that
Frank James did knowingly or intentionally inflict injury on Pat Tudor which created
a substantial risk of death or caused serious permanent disfigurement, to-wit: the
permanent loss of a number of teeth . . . . Appellants
App. P.23. According to James, there is a reasonable possibility that the
same evidentiary facts used by the jury to establish the injury for aggravated
battery may have also been used to establish the injury for resisting law
enforcement conviction. We agree.
The injury alleged by the State for the charge of aggravated battery was
Officer Tudors loss of teeth. This was the same injury that supported
the resisting law enforcement charge. Thus, there is a reasonable possibility that
the jury used the same evidence to convict James of both aggravated battery
and resisting law enforcement. As a result, we remand to the trial
court to vacate his conviction for resisting law enforcement.
See footnote Because we reverse
his conviction for resisting law enforcement, we need not address his argument that
there is insufficient evidence to support this conviction.
Judgment affirmed in part and reversed in part and remanded to vacate the
resisting law enforcement conviction.
DARDEN, J., and MATHIAS, J., concur.
Footnote: Ind.Code § 35-42-2-1.5.
Footnote: Ind.Code § 35-44-3-3(a)(1); (b)(1)(B).
Footnote: James does not allege that his convictions raise a federal double
jeopardy issue. Accordingly, we do not address this.
Footnote: The State asks us to reduce the resisting law enforcement conviction from
a Class D felony to a Class A misdemeanor. However, we decline
to do so as this would require us to perform a fact finding
function. Specifically, by reducing the charge to a Class A misdemeanor, we
would be finding that James resisted Tudor at another point in time that
evening despite the fact that the State charged him with resisting at the
point in time that the bodily injury occurred.