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,
Attorneys for Appellee Curtis T. Hill, Jr. Attorney General
of Indiana Eric P. Babbs Deputy Attorney General
of the Case
Troy Burgh appeals his conviction for battery, as a Level 5
felony, following a bench trial. 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.
and Procedural History
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.
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.
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.
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.
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.
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 victim. The
Indiana Supreme Court has held that the use of such an ...