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
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.
We affirm in part, reverse in part, and remand for further
& Procedural History
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.
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.
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.
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.