Pursuant to Ind.Appellate Rule 65(D), this

Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing t he defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT : ATTORNEYS FOR APPELLEE : NICOLE A. ZELIN GREGORY F. ZOELLER Greenfield, Indiana Attorney General of Indiana KARL M. SCHARNBERG Deputy Attorney General Indianapolis, Indiana



## IN THE COURT OF APPEALS OF INDIANA

TABATHA MURPHY, ) ) Appellant

- Defendant, ) ) vs. ) No. 30A04

- 1302

- CR

- 82 ) STATE OF INDIANA, ) ) Appellee

- Plaintiff. )

APPEAL FROM THE HANCOCK SUPERIOR COURT The Honorable Terry K. Snow, Judge Cause No. 30D01

- 1112

- FB

- 2257
October 10, 2013 MEMORANDUM DECISION

– NOT FOR PUBLICATION RILEY, Judge2 STATEMENT OF THE CASE
A ppellant

- Defendant , Tabatha Murphy ( Murphy ) , appeals her conviction s for battery with a deadly weapon, a Class C felony, Ind. Code § 35

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- 1; battery resulting in serious bodily inj ury, a Class C felony , I.C. § 35

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- 1; and battery, a Class A misdemeanor, I.C. § 35

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- 1.
We affirm.
ISSUE S Murphy raises three issues which we consolidate and restate as follows: (1) Whether the State presented sufficient evidence beyond a reasonabl e doubt to sustain h er conviction s for battery armed with a deadly weapon and battery resulting in serious bodily injury; and (2) Whether her conviction s for battery with a deadly weapon and battery resulting in serious bodily injury violate s I ndiana’s Double J eopardy clause.

FACTS AND PROCEDURAL HISTORY On the evening of July 6, 2010, Murphy arrived at her ex

- husband’s house, intending to take her son, Martin Murphy IV (M .M

. ), who was staying with his father, Martin Murphy III (Martin) , with her. Martin’s fiancé e , Stacy Zentz (Zentz) , and their

son also lived at the residence, located in Fortville, Indiana

. Murphy’s friend, Mark Laffin (Laffin), drove Murphy and Murphy’s daughter in his vehicle to Martin’s house

. Martin was not home at the time and Murph y told Zentz she came to pick up her food stamp card . Zentz returned Murphy’s card. However, Murphy informed Zentz that she3

wanted to wait for Martin to return home. A fter about twenty

- five minutes Murphy began to grow impatient and irritable. When Zen tz went inside the house with M.M. to get a drink , Murphy followed her and told M .M

. to get his “f

--- ing shoes on.” (Transcript p. 39). Murphy picked up M.M.’s shoes, grabbed him by the arm, and led him out of the house and into the yard

. As Zentz follo wed them out, she inquired what was happening because it was her understanding that M.M. would be spending the summer with her and Martin. Murphy informed Zentz that she and Martin would never see M.M. again. Challenging Zentz, Murphy asked her, “ D o you want to fight me, bitch?” and shoved Zentz. (Tr. p. 40). Zentz shoved her back. Murphy placed Zentz in a headlock, pulling both her arms behind her back , and biting her right hand. Murphy attempted to g o uge Zentz’ eyes, digging her fingernails
into her eyes, and scratching her badly enough to draw blood. At some point, Zentz fell to the ground. Murphy reached for a hammer lying nearby and struck Zentz’ head, inflicting a three

- inch cut that later required eleven staples to close. Before Zentz could get up, Murphy began to hit her with a skateboard. In an effort to defend herself, Zentz picked up a plastic flowerpot and threw it at Murphy, hoping that the dirt would obscure her vision and allow Zentz to escape. At some point, Murphy yelled at Laff in to put M.M. in the ca r . While continuing to swing the skateboard, Murphy also got into the car. Zentz reached through the window in an attempt to get her son’s skateboard back. However, Murphy grabbed Zentz’ right arm, and turned to Laffin, telling h im “We’re gonna drive this bitch into the4

ground.” (Tr. p. 48). Laffin sped out of the residence’s driveway, into the street, dragging Zentz’ alongside the car. A neighbor, Mark Alte (Alte ), had observed the altercation between the two women. When he noticed Zentz holding on to a moving car, he stepped into the road and yelled for the car to stop. Murphy released Zentz’ arm, causing her to fall onto the pavement. When Alte reached Zentz, she was unconscious. After shaking her, she regained consciou sness and Alte helped Zentz back to her house , where he dialed 911

. Zentz was taken to the hospital where she was diagnosed with “ road rash ” on both of her feet and legs. (Tr. p. 50). She had sustained nerve damage to the finger Murphy had bitten as wel l as head injuries. On December 30, 2011, the State filed an Information charging Murphy with Count I, criminal confinement, a Class B felony, I.C. § 35

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- 3; Count II, battery with a deadly weapon, a Class C felony, I

. C

. § 35

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- 1; Count III, batte ry resulting in serious bodily injury, a Class C felony. I.C. § 35

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- 1; and Count IV, battery, a Class A misdemeanor, I.C. § 35

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- 1 . On April 16 and 18, 2012, the trial court conducted a bench trial. At the conclusion of the evidence, the trial cou rt found Murphy not guilty of criminal confinement, but guilty of all three battery Counts. On May 23, 2012, during the sentencing hearing, the trial court sentenced Murphy to four years with two years suspended and two years on probation for each felony battery Count and one year for the misdemeanor battery, with all sentences to run concurrent ly

. Murphy now appeals

. Additional facts will be provided as necessary.

DISCUSSION AND DECISION5 I. Sufficiency of the Evidence Murphy argues that the State fai led to present sufficient evidence beyond a reasonable doubt to sustain h er conviction for battery armed with a deadly weapon and battery resulting in serious bodily injury. When reviewing a sufficiency of the evidence claim, we neither reweigh the eviden ce nor assess the credibility of the witnesses. Walker v. State , 984 N.E.2d 642, 644 ( Ind. Ct. App. 2013). We may look only to the evidence most favorable to the judgment and reasonable inferences therefrom and will affirm if we conclude that evidence of probative value exists such that a reasonable fact finder could find the elements of the underlying crime proven beyond a reasonable doubt. Id.
A. Battery A rmed with a Deadly Weapon To convict Murphy of battery with a deadly weapon, a Class C felony, the State was required to establish that Murphy knowingly or intentionally touched Zentz in a rude, insolent, or angry manner while armed with a deadly weapon. See I.C. § 35

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- 1. Murphy ’s sole contention rev olves around the element of a deadly weapon

. Focusing on her admission at trial that she threw a barbec ue tool at Zentz, Murphy maintains that “a grilling or barbecue tool as utilized” cannot statutorily be categorized as a deadly weapon. (Appellant’s Br. p. 7)

. Indiana Code section 35

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- 8 (2010) 1 defined a deadly weapon as (a) Except as provided in subsection (b), deadly weapon means the following: (1) A loaded or unloaded firearm.

1 The current codification of the statute can be found at I.C. § 35

- 31.5

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- 86 (2013).6 (2) A destructive device, weapon, device, taser [] or electronic stun weapon [], equipment, chemical substance , or other 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. Whether a weapon is a deadly weapon is determined from a description of the weapon,
t he manner of it s use, and the circumstances of the case. Merriweather v. State , 778 N.E.2d 449, 457 (Ind. Ct. App. 2002). In describing her ordeal at trial, Zentz testified that Murphy struck her in the head with a hammer, inflicting a three

- inch cut t hat required eleven staples to close. Used as such, the hammer falls within the purview of the statute’s deadly weapon definition. See also Morris v. State , 364 N.E.2d 132, 138 (Ind. 1977) (a hammer is a deadly weapon when used in a harmful manner). How ever, by now arguing that she used a grilling tool instead, Murphy invites us to reweigh the evidence and the credibility of the witnesses. We decline her invitation. See Walker , 984 N.E.2d at 644. Moreover, even assuming arguendo that a grilling tool w as used, Murphy’s claim is without merit. It is clear that whatever implement Murphy used inflicted a serious injury which required eleven staples to close. Therefore, the tool was “readily capable of causing serious bodily injury.” See I.C. § 35

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- 8 (2010). Consequently, b ased on the evidence before us, we conclude that the State presented sufficient evidence beyond a reasonable doubt to sustain Murphy’s conviction of battery with a deadly weapon.

2. Battery resulting in Serious Bodily Injury

.7

To convict Murphy of battery resulting in serious bodily injury, a Class C felony, the State was required to establish that Murphy knowingly or intentionally touched Zentz in a rude, insolent, or angry manner which resulted in serious bodily injury. See I.C. § 35

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- 1. The charging information clarifies that the “serious bodily injury” is factually defined as “unconsciousness.” (Appellant’s App. p. 6). To support this conviction, the State presented evidence that Zentz was dragged down the street by a moving vehicle as Murphy was holding on to her arm through the open window. When Murphy finally released Zentz’ arm, Zentz fell to the pavement. Alte rushed to Zentz’ assistance and found her unconscious. After shaking her, Zentz regained consciousness and Alte helped her back to the house. Murphy now contends that this momentary unconsciousness did not amount to serious bodily harm. Serious bodily injury is defined by statute as “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. I.C. § 35

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- 25 (2010). 2 In support of her argument, Murphy re lies on Ricks v. State , 446 N.E.2d 648, 650 (Ind. Ct. App. 1983), in which this court affirmed Ricks’ con v iction for battery causing serious bodily injury where the victim lay motionless for a few minutes and appeared to
be unconscious after Ricks had stru ck him. The victim also suffered a laceration to his forehead and a black eye, and he complained of nec k , shoulder, and back pain that

2 Currently codified at I.C. § 35

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- .292 (2013)

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continued until the time of trial. Id . In considering the statutory definition of serious bodily injury, we stated: Wh ether pain is “extreme” or impairment is “protracted” is, of course, a matter of degree. We think the same is to be said of “unconsciousness” in the context of the statute. Momentary unconsciousness without more does not necessitate a finding of serious bodily injury. The purpose of the definitional statute is to provide meaning to the requirement that the injury be “serious.” It is not its purpose to distort the meaning.
Id

. The court then acknowledged that, “within the framework provided by the defi nition, it remains for the factfinder to determine the question of degree: that the bodily injury is serious. ” Id . at 650

- 51. Although the Ricks court noted that “serious” permanent disfigurement, “extreme” pain, and “protracted” impairment are imprec ise terms, “unconsciousness” is not qualified by any such vague term in the statute

. See id . at 650. Thus, whether disfigurement, pain, or impairment constitute serious bodily injury may be subject to a degree of discretion, unconsciousness

— without any f urther qualification

— is a verifiable standard and the statute , as written , does not support a discretionary decision based on the length or the severity of the unconsciousness. Here, Alte testified that when he reached Zentz, after being dragged by Laffi n’s vehicle, Zentz “appeared to be unconscious.” (Tr. p. 17). He added that Zentz was “laying there and there was blood coming from her head and her kn e es and her face.” (Tr. p. 17). S he regained consciousness when A lte shook her. Later, in the hospit al, Zentz was also diagnosed with road rash on both of her feet and legs. Considering the9

uncontradicted testimony that Zentz was unconscious, we hold that this is sufficient to sustain a finding of battery resulting in serious bodily injury. 3
II. Dou ble Jeopardy Lastly, Murphy contends that her conviction for battery with a deadly weapon and battery resulting in serious bodily injury violates I ndiana’s Double J eopardy clause. The Indiana Double Jeopardy clause provides, “No person shall be put in je opardy twice of the same offense.” Ind. Const. art. I, § 14. We analyze alleged violations of this clause pursuant to our supreme court’s opinion in Richardson v. State , 717 N.E.2d 32, 49 (Ind. 1999), where our supreme court held that “two or more offens es are the same offense in violation of Article I, Section 14 of the Indiana Constitution, if with respect to either the statutory elements of the challenged crimes or the actual evidence used to convict, the essential elements of one challenged offense al so establish the essential elements of another challenged offense. ” Here, Murphy claims that her convictions constitute double jeopardy under the actual evidence test. Under the actual evidence test, a defendant must demonsterate a reasonable possibility that the evidentiary facts used by the fact

- finder to establish the essential elements of one offense may also have been used to establish all of the essential elements

3 In our unpublished memorandum opinion, D.T. v. State , 904 N.E.2d 728, at 4 n.2 (Ind. Ct. App. 2009), we noted , In construing a statute, our primary goal is to determine and give effect to the intent of the legislature, but we presume the legislature intended the language used in the statute “to be applied logically and not to bring about an unjust or absurd result.” Unconsciousness for less than five minutes [as in D.T. ] hardly seems an injury on par with loss of a limb or a fetus, o r with being permanently disfigured. We leave it to the Indiana Supreme Court or the Indiana Legislature, however, to clarify if necessary whether a case like this one that seems to stretch the outer boundaries of the statutory definition of serious bodil y injury was intended to be covered by the statute.10

of a second challenged offense. Id . at 53. “Application of this test requires the co urt to ‘identify the essential elements of each of the challenged crimes and to evaluate the evidence from the jury’s perspective[.]’” Lee v. State , 892 N.E.2d 1231, 1234 (Ind. 2008) (quoting Spivey v. State , 761 N.E.2d 831, 832 (Ind. 2002)). Therefore, we consider the essential elements of the offenses, the charging information, the jury instructions, the evidence, and the arguments of counsel. Id . The term “reasonable probability” turns on a practical assessment of whether the jury may have latched on to exactly the same facts for both convictions. Id . at 1236. However, as long as “each conviction require[s] proof of at least one unique evidentiary fact” no violation of the actual evidence principle
occurred. Bald v. State , 766 N.E.2d 1170, 1172 (In d. 2002). In a novel twist on the evidence presented at trial, Murphy now contends that “the State alleges and the court found Murphy guilty of battery resulting in serious bodily injury due to Zent z’ unconsciousness which most likely would have occurred due to being struck in the head.” (Appellant’s Br. p. 11). Thus, focusing on the specific injury, Murphy now asserts that unconsciousness presents the “bodily injury” element to sustain both her convictions. We disagree. The evidence reflects that afte r Murphy struck Zentz in the head with the hammer, the fighting continued without interruption. In fact, after Murphy used a hammer on Zentz, she continued to batter Zentz with a skateboard. It was not until after Zentz was dragged onto the street by a m oving vehicle and fell to the pavement, that she was rendered unconscious. Based on the evidence before us , Zentz’ head injury and unconsciousness occurred at different times and were inflicted by different means. Thus,11

w e conclude that Murphy’s convicti ons do not violate Indiana’s prohibition against
Doubl e Jeopardy.
CONCLUSION Based on the foregoing, we conclude that (1) the State presented sufficient evidence beyond a reasonable doubt to sustain Murphy’s convictions for battery with a deadly weapon and battery resulting in serious bodily injury ; and (2) Murphy’s convictions do not violate Indiana’s Double Jeopardy clause.
Affirmed. ROBB, C. J. and KIRSCH, J. concur