Foster v. State

990 N.E.2d 70

Daniel Paul FOSTER, Appellant–Defendant,

v.STATE of Indiana, Appellee–Plaintiff.

No. 53A01–1209–CR–414.

Court of Appeals of Indiana.

July 8, 2013.

Appeal from the Monroe Circuit Court, The Honorable Marc R. Kellams, Judge; Cause No. 53C02–1102–FB–128.

Andrew J. Baldwin, Baldwin, Adams & Kamish, Franklin, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Angela N. Sanchez, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

MEMORANDUM DECISION—NOT FOR PUBLICATION

MATHIAS, Judge.

Daniel Paul Foster (“Foster”) appeals his convictions and sentence following a jury trial in Monroe Circuit Court in which he was found guilty of Class B felony aggravated battery, Class C felony battery resulting in serious bodily injury, two counts of Class D felony battery resulting in bodily injury to a penal facility employee, and Class A misdemeanor criminal mischief. Foster argues that the trial court abused its discretion by failing to tender his proposed instruction for the Class B felony aggravated battery charge to the jury, that the State failed to present sufficient evidence to convict him of Class B felony aggravated battery, and that his twenty-six year aggregate sentence was inappropriate.

We affirm.

Facts and Procedural History

On February 16, 2011, Foster was an inmate at the Monroe County Jail, awaiting sentencing for attempted murder and criminal recklessness convictions. Foster's mother was scheduled to arrive for a video-monitoring visit ¹ at 2:30 p.m., but after she arrived approximately one to two minutes late, the visit was cancelled. At the time, Foster was in cell block D, awaiting his visit. After learning that the visit was cancelled, Foster became angry and ripped the phone receivers and monitors from the wall, causing a stipulated $330 in damage.

Following that outburst, Officer Sarah Dennison (“Dennison”), who was on post outside the cell block, called for other officers to assist her. Other officers arrived shortly thereafter, and Foster was told that he would have to pay for the damage he had caused, and also that he would be moved to a more secure cell block, C. Dennison escorted Foster back to his cell on the upper tier of cell block D so that he could pack his belongings. Officer Brian Creech (“Creech”) waited at the door to cell block D.

While packing, Foster became “riled up” when a fellow inmate began to make statements about how the officers' treatment of Foster was unfair. Tr. pp. 291–92. Foster threw down his belongings and began cussing at and threatening the officers on the main level from the balcony. Foster then turned around, ran down the stairs and charged at Creech. As Foster reached his arm back to aim a punch at Creech, Officer Jennifer Russ (“Russ”) stepped between the men. Foster's punch struck Russ in the shoulder and then landed a glancing blow on Creech's head.

Dennison then grabbed Foster's arms from behind in order to calm him and turn him around to walk back up the stairs. As Dennison followed Foster, she overheard someone say something about the cancelled visitations and observed Foster begin to make a quick turn. Concerned that Foster would become violent again, Dennison jumped on Foster's back and wrapped her arms around him from behind.

Foster turned his head and told Dennison, “Get off of me!,” and shifted his body weight.² Tr. pp. 298–99. Foster was then able to slide his foot behind Dennison's left foot, which she had planted on the ground. Dennison was trapped and unable to move, and Foster then grabbed her, and “forcefully twisted and pulled” her body. Tr. pp. 301, 332, 339. Dennison felt extreme pain and heard a “popping and cracking” noise that alerted her that her knee was severely injured. Tr. p. 301. She fell to the floor, screaming in pain before other officers carried her from the cell block.

As a result of the incident, Creech and Russ reported minor injuries; Creech experienced swelling and bruising, while Russ received physical therapy to regain full motion of her shoulder. Dennison suffered a severed anterior cruciate ligament (“ACL”), a “high grade sprain” of the medial collateral ligament (“MCL”), and a torn lateral meniscus. Tr. pp. 303–04, 374–75. Her torn ACL required surgery, and then one to one-and-a-half months on crutches, five to six months of physical therapy and an additional five to six months of recovery time. Dennison returned to work in April or May of 2011 ³ but was on limited duty for one month following her return.

The state charged Foster on February 25, 2011, with two counts of Class B felony aggravated battery, one count of Class C felony battery resulting in serious bodily injury, two counts of Class D felony battery resulting in bodily injury to a penal facility employee, and criminal mischief as a Class A misdemeanor. The State dismissed one count of aggravated battery before the jury trial.

On July 13, 2012, a jury found Foster guilty of all remaining charges. The trial court concluded that the conviction for Class C felony battery resulting in serious bodily injury should be merged with the conviction for Class B felony aggravated battery for the purposes of sentencing. On August 14, 2012, the trial court sentenced Foster to an aggregated twenty-six years executed in the Department of Correction: twenty years for Class B felony aggravated battery, three years each for the two counts of Class D felony battery resulting in bodily injury to a penal facility employee (to be served consecutively to each other and to the twenty year sentence for Class B felony aggravated battery), and one year for Class A misdemeanor criminal mischief (to be served concurrently to the other sentences).

Foster now appeals.

I. Jury Instruction for Aggravated Battery

Foster argues that the trial court abused its discretion by rejecting his proposed jury instruction for the Class B felony aggravated battery charge. We review a trial court's decision regarding jury instructions for abuse of discretion. Short v. State, 962 N.E.2d 146, 150 (Ind.Ct.App.2012). When evaluating a trial court's rejection of an appellant's proposed jury instructions on appeal, this Court considers: (1) whether the proposed instructions correctly state the law, (2) whether there is evidence in the record to support giving the proposed instruction; and (3) whether the substance of the proposed instruction is covered by other instructions. Id. (citing Treadway v. State, 924 N.E.2d 621, 636 (Ind.2010). We reverse a conviction only if the appellant demonstrates that the instructional error prejudices his or her substantial rights. Id.

Foster argues that the trial court's final instruction was “confusing, misleading and did not properly inform the jury as to the appropriate manner in which to apply the mens rea to the elements of that particular crime.” Appellant's Br. at 5. However, Foster misconstrues this court's decisions regarding mens rea in aggravated battery.

Indiana Code section 35–42–2–1.5(2) defines the offense of Class B felony aggravated battery as follows:

A person who knowingly inflicts injury on a person that causes protracted loss or impairment of the function of a bodily member or organ commits Aggravated Battery, a Class B felony.

A person engages in conduct knowingly if, while engaging in the conduct, he or she is aware of a high probability that he or she is engaging in such conduct. Ind.Code § 35–41–2–2. Foster correctly argues that the mens rea of “knowingly” applies to all of the conduct elements of the offense. However, he incorrectly classifies the offense's injury element as a conduct element.

In Salone v. State, 652 N.E.2d 552, 559 (Ind.Ct.App.1995), trans. denied, our court held that “[t]he element which distinguishes aggravated battery from battery is the nature of the injury caused by the touching.” The Salone court also held that aggravated battery differs from simple battery in that aggravated battery enhances the offense to a Class B felony because a more serious injury is inflicted upon the victim than in the case of a simple battery. Id. at 562. That is, aggravated battery's injury element is an aggravating circumstantial element, rather than an additional element of prohibited conduct. Therefore, Indiana Code section 35–42–2–1.5(2) does not require the State to prove that a defendant knew that his actions would cause any particular type of injury, but only that he or she knowingly would inflict an injury.

Foster's proposed instruction misconstrues this point of law and would have wrongly instructed the jury that:

In order to convict Daniel Foster of Aggravated battery, the State must prove beyond a reasonable doubt that Daniel Foster was aware of the high probability that his conduct would lead to protracted loss or impairment of the function of a bodily organ, and that he consciously set out to engage in that conduct.

Appellant's App. p. 34. Foster correctly identifies the mens rea required to establish his culpability for the crime. But, he fails to distinguish between elements of prohibited conduct and the other elements of the crime.

In Maldonado–Morales v. State, 985 N.E.2d 25, 27 (Ind.Ct.App.2013), our court also held that those elements are distinguishable. Importantly, “the culpability requirement applies only to the conduct elements.... In contrast, aggravating circumstances that increase the penalty for the crime must be proved beyond a reasonable doubt but do not require proof of culpability.” D.H. v. State, 932 N.E.2d 236, 238–39 (Ind.Ct.App.2010) (internal citations omitted) (citing Markley v. State, 421 N.E.2d 20, 21–22 (Ind.Ct.App.1981) (finding that the culpability requirement did not apply to the aggravating circumstance of “serious bodily injury,” enhancing a battery to a Class C felony)); see also Owens v. State, 742 N.E.2d 538, 542–43 (Ind.Ct.App.2001) (holding that “bodily injury to a law enforcement officer” is an aggravating circumstance and requires no...