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Burgh v. State

Court of Appeals of Indiana

June 23, 2017

Troy Burgh, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff.

         Appeal from the St. Joseph Superior Court The Honorable John M. Marnocha, Judge Trial Court Cause No. 71D02-1605-F3-29

          Attorney for Appellant Jeffrey E. Kimmell South Bend, Indiana.

          Attorneys for Appellee Curtis T. Hill, Jr. Attorney General of Indiana Eric P. Babbs Deputy Attorney General Indianapolis, Indiana.

          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 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 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." 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. ยง 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 victim. The Indiana Supreme Court has held that the use of such an ...


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