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Clemons v. State

Court of Appeals of Indiana

August 30, 2017

Vicki Jo Clemons, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff

         Appeal from the Shelby Superior Court The Honorable R. Kent Apsley, Judge Trial Court Cause No. 73D01-1507-F5-66

          ATTORNEY FOR APPELLANT Cara Schaefer Wieneke Wieneke Law Office, LLC Brooklyn, Indiana.

          ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Katherine Cooper Deputy Attorney General Indianapolis, Indiana.

          ALTICE, JUDGE.

         Case Summary

         [¶1] Vicki Clemons appeals her conviction for Level 5 felony battery with a deadly weapon. On appeal, Clemons argues that the trial court committed fundamental error when it did not instruct the jury on the legal definition of "serious bodily injury" and that a probation condition prohibiting her from associating with anyone of bad character or reputation was impermissibly vague.

         [¶2] We affirm in part, reverse in part, and remand for further proceedings.

         Facts & Procedural History

         [¶3] Clemons and her neighbor, Margaret Willoughby, did not get along. On July 12, 2015, Willoughby, her two young children, and fifteen-year-old Casee Johnston were taking a walk in the neighborhood. As they neared Clemons's home, Willoughby observed Clemons standing on the porch. When Clemons spotted the group, she approached Willoughby and said that she was going to teach her a lesson. Clemons struck Willoughby in the head with a metal rod and said that she was "gonna end [Willougby's] f**king life[.]" Transcript at 82. Willoughby put up her hand to block a second blow, and Clemons "hit [her] right across [her] wrist." Id. When Willoughby turned around to walk away, Clemons hit her across her back.

         [¶4] Following this incident, Clemons returned home, and Willoughby called 911. One of the responding officers observed that Willoughby had a large bump on the outside of her left arm and that her injuries were the type that he would expect to see in "a car accident or something." Id. at 117. Willoughby suffered a fractured wrist. She testified that the injury "would shoot pain all the way up through [her] arm. It was painful. I only slept two or three hours that night cause it hurt that bad." Id. at 90.

         [¶5] On July 28, 2015, the State charged Clemons with Level 5 felony battery with a deadly weapon and Level 6 felony battery resulting in moderate bodily injury. A jury trial took place on October 11, 2016. During trial, the trial court provided both parties with a copy of the proposed jury instructions to review; neither party objected to the proposed instructions. The trial court's final jury instructions did not include an instruction defining the phrase "serious bodily injury." During trial, Willoughby testified that the rod was "real heavy" and "long and gray, and it had two black things on, like each end of it. And I would say it was a really, really hard aluminum. Maybe a light metal." Id. at 87-88.

         [¶6] The jury found Clemons guilty as charged. The trial court merged the Level 6 felony battery resulting in moderate bodily injury conviction into the Level 5 felony battery with a deadly weapon due to double jeopardy concerns. The trial court then imposed a two-year sentence, fully suspended to probation, for the Level 5 felony conviction. One of the standard conditions of probation provided: "You shall not associate with any person of bad character or reputation or with any person who is likely to influence you to commit a crime or crimes." Appellant's Appendix Vol. II at 117. Clemons now appeals.

         Discussion ...


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