Barthalow v. State

119 N.E.3d 204

Jonathon BARTHALOW, Appellant-Defendant,

v.STATE of Indiana, Appellee-Plaintiff.

Court of Appeals Case No. 18A-CR-1366

Court of Appeals of Indiana.

Filed February 20, 2019

Attorney for Appellant: Ronald J. Moore, The Moore Law Firm, LLC, Richmond, Indiana

Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Angela N. Sanchez, Deputy Attorney General, Indianapolis, Indiana

Robb, Judge.

Case Summary and Issues

[1] Following a jury trial, Jonathon Barthalow was convicted of burglary, a Level 3 felony. Barthalow presents two issues for our review, namely: (1) whether the evidence is sufficient to sustain Barthalow's burglary conviction, which required proof that he intended to commit felony battery; and (2) whether the trial court committed fundamental error by failing to instruct the jury on the definition of bodily injury. Concluding the evidence was sufficient and the trial court did not commit fundamental error, we affirm.

Facts and Procedural History

[2] Carry Sester lived in a duplex in Richmond, Indiana. On November 10, 2017, Crimson Pitcher was staying with Sester and invited her friend, Joshua Mays, over to drink. At the time, Barthalow's brother, Daryl, was dating Crimson's cousin, Tessa Sittloh. Earlier in the evening, Sittloh, driving her white truck, dropped Mays and Pitcher off at Sester's house and then returned to Daryl's trailer. Mays had been dating Barthalow and Daryl's sister, Ashley. Barthalow and Daryl heard from Ashley's ex-boyfriend that Mays threatened to hit Ashley.

[3] Mays, Pitcher, and Sester were in Pitcher's room, sitting on the bed talking and drinking. They heard "banging on the door" and the sound of someone running up the stairs. Transcript, Volume II at 13. The bedroom door flew open and Daryl "rushed over to the bed where [Mays] was sitting[,]" kicked Mays off the bed, and began to beat him. Tr., Vol. I at 206. Barthalow came in and while Mays was curled up in the fetal position on the floor, the two kicked, punched, and beat him. Sester recalled that Daryl said, "this is for hitting my sister." Id. Sester screamed and tried to get Daryl and Barthalow to stop.

[4] Daryl and Barthalow were able to get Mays into a corner and Sester pulled Daryl off Mays. Daryl then threw her against the wall and said it was "none of [her] F'ing business." Id. at 207. Sester attempted to call 911, but Daryl knocked the phone out of her hand. Sester's sister, Freda Short, who lived next door on the other side of the duplex, heard the noise and believed someone was attacking Sester. Short, along with her husband and housemate, went next door to investigate. When they entered the room, the brothers were attempting to throw Mays out of the window. Short called the police and Sester called 911 for an ambulance.

[5] The brothers fled the house, ran up the road, and got into Sittloh's truck. They went to Daryl's trailer where Sittloh observed them in the bathroom as Daryl washed his hands. She overheard the two discussing that they visited Mays and heard Barthalow tell his sister on the phone that "they took care of it[.]" Tr., Vol. II at 127. Barthalow asked Sittloh to "check on" Pitcher, so Sittloh and Daryl drove her white truck back toward Sester's house. Id. at 129. Police received a call that two males had fled the scene and were heading westbound in a white truck. Police in the area then pulled the truck over en route. Daryl had blood on his clothes, boots, and hands, as well as a cut on his middle knuckle that was bleeding. Daryl was arrested and Barthalow was arrested shortly thereafter.

[6] When police arrived at Sester's house, Mays was "hunched over[,]" with numerous contusions, bruises, and bloody spots on him. Tr., Vol. I at 227. Mays' "right arm was kind of at an angle. He said he couldn't move it very well, and ... his ribs hurt on his left side and he had a large bruise on his left side." Id. Mays had blood on his face and in his mouth, making it difficult for him to speak with one of the officers, and he would not move his arm. Officers found blood on the baseboard and windowsill in the room where Mays told them the incident had taken place.

[7] Mays was transported to Reid Hospital in Richmond, where he was treated by Dr. Jennifer Behrens. She ordered blood tests, X-rays, and CAT scans. Dr. Behrens diagnosed Mays with multiple facial contusions and bilateral upper extremity contusions. There was soft tissue swelling on his forehead, two black eyes, injuries to his lip, and swelling and abrasions around his ear. In addition, Mays had tenderness in his upper chest, ribs, left elbow, and right wrist. He had multiple abrasions and contusions over his upper extremities. Mays did not have any broken bones, did not lose consciousness during the incident, and was not admitted to the hospital. Mays rated his pain as a ten, the highest score. Dr. Behrens prescribed him pain and nausea medication and Mays was given head injury precautions.

[8] On November 11, the State charged Barthalow with burglary, a Level 2 felony, and battery resulting in serious bodily injury, a Level 5 felony. At trial, Mays described his pain as "pretty bad[,]" id. at 89, but not "extreme[,]" id. at 92. Mays testified that he did not describe his pain as extreme "because I was still ... conscious. I was still able to walk. I wasn't dead ... I didn't break anything[.]" Id. at 93. Mays testified that he did not exaggerate his pain to get pain medicine.

[9] A jury trial was held from April 18 through April 20. The jury was instructed on the elements of burglary as Level 2 and Level 3 felonies:

The offense of Burglary, a level 2 felony, is defined by statute, insofar as it is applicable, as follows:

"A person who breaks and enters the building or structure of another person, with intent to commit a felony or theft in it, commits burglary, a Level 5 felony. However, the offense is a Level 2 felony if it results in serious bodily injury to any person other than a defendant."

The included offense of Burglary, a level 3 felony, is defined by statute, insofar as it is applicable, as follows:

"A person who breaks and enters the building or structure of another person, with intent to commit a felony or theft in it, commits burglary, a Level 5 felony. However, the offense is a Level 3 felony if it results in bodily injury to any person other than a defendant."

* * *

The included offense of Residential Entry, a level 6 felony, is defined by statute, insofar as it is applicable, as follows:

"A person who knowingly or intentionally breaks and enters the dwelling of another person commits residential entry, a level 6 felony."

* * *

The offense of Battery, as a felony, is defined as a knowing or intentional touching of another person in a rude, insolent or angry manner, resulting in either moderate bodily injury, or serious bodily injury, to another person.

"Moderate bodily injury" means any impairment of physical condition that includes substantial pain.

"Serious bodily injury" means bodily injury that creates a substantial risk of death or that causes:

(1) serious permanent disfigurement;

(2) unconsciousness;

(3) extreme pain;

(4) permanent or protracted loss or impairment of the function of a bodily member or organ; or

(5) loss of a fetus.

Appellant's Appendix, Volume Two at 105-07 (emphasis added).

[10] In closing argument, the State explained to the jury the elements and requisite intent to prove Level 2 felony burglary, as well as Level 3 felony burglary as a lesser-included offense and the two options for felony battery, moderate bodily injury and serious bodily injury. See Tr., Vol. II at 202-03. The State argued that Mays suffered extreme pain as a result of the incident and Barthalow argued the evidence did not reveal Mays suffered serious bodily injury.

[11] The jury ultimately found Barthalow guilty of burglary, a Level 3 felony, a lesser included offense of Count I. The trial court entered a judgment of conviction and sentenced Barthalow to ten years in the Indiana Department of Correction. Barthalow now appeals.

Discussion and Decision

I. Sufficiency of the Evidence

[12] In reviewing the sufficiency of the evidence required to support a criminal conviction, we do not reweigh the evidence or judge the credibility of the witnesses.

Bailey v. State , 907 N.E.2d 1003, 1005 (Ind. 2009). We consider only the evidence supporting the trial court's judgment and any reasonable inferences that can be drawn therefrom. Id. Thus, we consider conflicting evidence "most favorably to the trial court's ruling." Drane v. State , 867 N.E.2d 144, 146 (Ind. 2007) (internal quotation omitted). "We will affirm if there is substantial evidence of probative value such that a reasonable trier of fact could have concluded the defendant was guilty beyond a reasonable doubt." Bailey , 907 N.E.2d at 1005.

[13] The jury found Barthalow guilty of burglary, a Level 3 felony, the lesser included offense of Count I:

A person who breaks and enters the building or structure of another person, with intent to commit a felony or theft in it, commits burglary, a Level 5 felony. However, the offense is ... a Level 3 felony if it results in bodily injury to any person other than a defendant[.]

Ind. Code § 35-43-2-1(2) (emphasis added). Bodily injury is defined as "any impairment of physical condition, including physical pain." Ind. Code § 35-31.5-2-29. Barthalow is alleged to have intended to commit the felony of battery. The knowing or intentional touching of another person in a rude, insolent, or angry manner, resulting in moderate bodily injury or serious bodily injury to the other person constitutes felony battery. Ind. Code § 35-42-2-1(c)(1), (e)(1), (g)(1). Moderate bodily injury means "any impairment of physical condition that includes substantial pain." Ind. Code § 35-31.5-2-204.5. Serious bodily injury, on the other hand, is bodily injury that creates substantial risk of death or that causes: serious permanent disfigurement; unconsciousness; extreme pain;...