FILED Feb 09 2012, 8:33 am
FOR PUBLICATION CLERK of the supreme court, court of appeals and tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
ADAM G. FORREST GREGORY F. ZOELLER Boston Bever Klinge Cross & Chidester Attorney General of Indiana Richmond, Indiana JODI KATHRYN STEIN Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
ANGUS TONEY, ) ) Appellant-Defendant, ) ) vs. ) No. 89A01-1108-CR-374 ) STATE OF INDIANA, ) ) Appellee. )
APPEAL FROM THE WAYNE CIRCUIT COURT The Honorable David A. Kolger, Judge Cause No. 89C01-1010-FA-012
February 9, 2012
OPINION – FOR PUBLICATION
MATHIAS, Judge Angus Toney (“Toney”) was convicted of Class A felony burglary in Wayne
Circuit Court. Toney appeals and argues that the evidence was insufficient to establish
the element of bodily injury, which elevated his conviction to a Class A felony. Because
the plain language of the statute provides that physical pain is sufficient to establish
bodily injury, and because the evidence clearly shows that the victim experienced
physical pain, we affirm.
Facts and Procedural History
The parties do not dispute the relevant facts of this case. On the evening of July
19, 2010, Toney and his accomplice, Chris Gregory (“Gregory”), entered into the home
of G.R. while wearing bandanas over their faces. Once inside the home, Toney
approached G.R., who was with her son C.R. Toney ordered C.R. to the floor and put is
foot on the back of the boy’s head. Toney put his knife to C.R.’s throat and told G.R. to
“shut up” as he demanded her purse, money, and drugs. When she realized that she was
still holding her mobile phone, G.R. attempted to dial 911. When Toney saw this, he
grabbed G.R.’s hand, twisted the phone out of her hand, and threw the phone across the
room. G.R. later testified that this caused her pain. G.R.’s other son heard his mother
screaming and came downstairs with a baseball bat. He struck Toney in the head with
the bat, causing Toney to bleed. Toney left and sought treatment at the hospital. Drops
of Toney’s blood were found at G.R.’s house. DNA evidence obtained from this blood
was later determined to match Toney.
On October 25, 2010, the State charged Toney with Class A felony burglary
resulting in bodily injury and Class B felony robbery. Toney admitted to committing
2 Class B felony burglary and Class B felony robbery, but a bench trial was held on the
issue of whether the burglary resulted in bodily injury, which would elevate the burglary
to a Class A felony. On July 25, 2011, the trial court found Toney guilty of Class A
felony burglary. The trial court sentenced Toney to forty years on the Class A felony
burglary conviction and to a concurrent term of sixteen years on the Class B felony
robbery conviction. Toney now appeals.
Discussion and Decision
On appeal, Toney claims that there was insufficient evidence to support his
conviction for Class A felony burglary resulting in bodily injury. Upon a challenge to the
sufficiency of evidence to support a conviction, we neither reweigh the evidence nor
judge the credibility of the witnesses; instead, we respect the exclusive province of the
trier of fact to weigh any conflicting evidence. McHenry v. State, 820 N.E.2d 124, 126
(Ind. 2005). We consider only the probative evidence and reasonable inferences
supporting the verdict, and we will affirm if the probative evidence and reasonable
inferences drawn from the evidence could have allowed a reasonable trier of fact to find
the defendant guilty beyond a reasonable doubt. Id.
Pursuant to Indiana Code section 35-43-2-1 (2004), “[a] person who breaks and
enters the building or structure of another person, with intent to commit a felony in it,
commits burglary, a Class C felony.” Burglary is elevated to a Class B felony if it is
committed while armed with a deadly weapon or if the building or structure is a dwelling
or structure used for religious worship. I.C. § 35-43-2-1(1). Burglary is further elevated
3 to a Class A felony if it results in “bodily injury” or “serious bodily injury” to “any
person other than the defendant.” I.C. § 35-43-2-1(2).
Toney claims that there was insufficient evidence to support a finding that G.R.
suffered any bodily injury. Unfortunately for Toney, Indiana Code section 35-41-1-4
(2004) defines “bodily injury” as “any impairment of physical condition, including
physical pain.” (emphasis added). But according to Toney, G.R. only experienced a
fleeting or momentary pain, which he argues is insufficient to establish bodily injury. To
us, however, the statutory definition of bodily injury is clear and unambiguous. It
contains no requirement that the pain be of any particular severity, nor does it require that
the pain endure for any particular length of time. It must simply be physical pain.
Toney bases much of his argument on Judge Crone’s concurring opinion Lewis v.
State, 898 N.E.2d 429 (Ind. Ct. App. 2008), trans. denied. In that case, Judge Crone
disagreed with the lead opinion to the extent that it “suggest[ed] that any degree of pain,
no matter how slight, is sufficient to constitute an ‘impairment of physical condition’ and
therefore constitute ‘bodily injury’ for purposes of Indiana Code Section 35-41-1-4.” Id.
at 436. Judge Crone was of the opinion that “something more than the mere sensation of
pain is required; to hold otherwise is to read ‘impairment’ out of the statute.” Id. But
Judge Crone concurred in the result with the lead opinion that the evidence was sufficient
to establish bodily injury because the victim testified that the punch “didn’t feel good”
and because “anyone who has been punched ‘pretty hard’ in the face would readily agree
4 that such an impact is sufficiently painful to allow an inference of impairment and
therefore bodily injury.”1 Id.
Here, Toney cites Judge Crone’s concurring opinion in Lewis in support of his
position that, to constitute bodily injury, the pain experienced must be of a certain
magnitude or duration. We respectfully disagree. The relevant statute makes no mention
that the physical pain be of any particular magnitude or of any particular duration. All
that is required is the experience of physical pain. Nor do we think this reads the
requirement of “impairment” out of the statute. The statute defines bodily injury as any
impairment of physical condition, including physical pain.” I.C. § 35-41-1-4 (emphasis
added). By listing “physical pain,” the statute itself includes physical pain—of any
degree—in the definition of an impairment of physical condition.
As our supreme court explained almost thirty years ago, to establish bodily injury,
it is “sufficient that the victim experienced physical pain by Defendant’s action.” Lewis
v. State, 438 N.E.2d 289, 294 (Ind. 1982). Although the pain experienced by the victim
in this older Lewis case appears to have been more severe than that experienced by the
victim in the present case, our supreme court did not base its decision on the severity or
the duration of the pain experienced by the victim. The court instead followed the plain
Free access — add to your briefcase to read the full text and ask questions with AI
FILED Feb 09 2012, 8:33 am
FOR PUBLICATION CLERK of the supreme court, court of appeals and tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
ADAM G. FORREST GREGORY F. ZOELLER Boston Bever Klinge Cross & Chidester Attorney General of Indiana Richmond, Indiana JODI KATHRYN STEIN Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
ANGUS TONEY, ) ) Appellant-Defendant, ) ) vs. ) No. 89A01-1108-CR-374 ) STATE OF INDIANA, ) ) Appellee. )
APPEAL FROM THE WAYNE CIRCUIT COURT The Honorable David A. Kolger, Judge Cause No. 89C01-1010-FA-012
February 9, 2012
OPINION – FOR PUBLICATION
MATHIAS, Judge Angus Toney (“Toney”) was convicted of Class A felony burglary in Wayne
Circuit Court. Toney appeals and argues that the evidence was insufficient to establish
the element of bodily injury, which elevated his conviction to a Class A felony. Because
the plain language of the statute provides that physical pain is sufficient to establish
bodily injury, and because the evidence clearly shows that the victim experienced
physical pain, we affirm.
Facts and Procedural History
The parties do not dispute the relevant facts of this case. On the evening of July
19, 2010, Toney and his accomplice, Chris Gregory (“Gregory”), entered into the home
of G.R. while wearing bandanas over their faces. Once inside the home, Toney
approached G.R., who was with her son C.R. Toney ordered C.R. to the floor and put is
foot on the back of the boy’s head. Toney put his knife to C.R.’s throat and told G.R. to
“shut up” as he demanded her purse, money, and drugs. When she realized that she was
still holding her mobile phone, G.R. attempted to dial 911. When Toney saw this, he
grabbed G.R.’s hand, twisted the phone out of her hand, and threw the phone across the
room. G.R. later testified that this caused her pain. G.R.’s other son heard his mother
screaming and came downstairs with a baseball bat. He struck Toney in the head with
the bat, causing Toney to bleed. Toney left and sought treatment at the hospital. Drops
of Toney’s blood were found at G.R.’s house. DNA evidence obtained from this blood
was later determined to match Toney.
On October 25, 2010, the State charged Toney with Class A felony burglary
resulting in bodily injury and Class B felony robbery. Toney admitted to committing
2 Class B felony burglary and Class B felony robbery, but a bench trial was held on the
issue of whether the burglary resulted in bodily injury, which would elevate the burglary
to a Class A felony. On July 25, 2011, the trial court found Toney guilty of Class A
felony burglary. The trial court sentenced Toney to forty years on the Class A felony
burglary conviction and to a concurrent term of sixteen years on the Class B felony
robbery conviction. Toney now appeals.
Discussion and Decision
On appeal, Toney claims that there was insufficient evidence to support his
conviction for Class A felony burglary resulting in bodily injury. Upon a challenge to the
sufficiency of evidence to support a conviction, we neither reweigh the evidence nor
judge the credibility of the witnesses; instead, we respect the exclusive province of the
trier of fact to weigh any conflicting evidence. McHenry v. State, 820 N.E.2d 124, 126
(Ind. 2005). We consider only the probative evidence and reasonable inferences
supporting the verdict, and we will affirm if the probative evidence and reasonable
inferences drawn from the evidence could have allowed a reasonable trier of fact to find
the defendant guilty beyond a reasonable doubt. Id.
Pursuant to Indiana Code section 35-43-2-1 (2004), “[a] person who breaks and
enters the building or structure of another person, with intent to commit a felony in it,
commits burglary, a Class C felony.” Burglary is elevated to a Class B felony if it is
committed while armed with a deadly weapon or if the building or structure is a dwelling
or structure used for religious worship. I.C. § 35-43-2-1(1). Burglary is further elevated
3 to a Class A felony if it results in “bodily injury” or “serious bodily injury” to “any
person other than the defendant.” I.C. § 35-43-2-1(2).
Toney claims that there was insufficient evidence to support a finding that G.R.
suffered any bodily injury. Unfortunately for Toney, Indiana Code section 35-41-1-4
(2004) defines “bodily injury” as “any impairment of physical condition, including
physical pain.” (emphasis added). But according to Toney, G.R. only experienced a
fleeting or momentary pain, which he argues is insufficient to establish bodily injury. To
us, however, the statutory definition of bodily injury is clear and unambiguous. It
contains no requirement that the pain be of any particular severity, nor does it require that
the pain endure for any particular length of time. It must simply be physical pain.
Toney bases much of his argument on Judge Crone’s concurring opinion Lewis v.
State, 898 N.E.2d 429 (Ind. Ct. App. 2008), trans. denied. In that case, Judge Crone
disagreed with the lead opinion to the extent that it “suggest[ed] that any degree of pain,
no matter how slight, is sufficient to constitute an ‘impairment of physical condition’ and
therefore constitute ‘bodily injury’ for purposes of Indiana Code Section 35-41-1-4.” Id.
at 436. Judge Crone was of the opinion that “something more than the mere sensation of
pain is required; to hold otherwise is to read ‘impairment’ out of the statute.” Id. But
Judge Crone concurred in the result with the lead opinion that the evidence was sufficient
to establish bodily injury because the victim testified that the punch “didn’t feel good”
and because “anyone who has been punched ‘pretty hard’ in the face would readily agree
4 that such an impact is sufficiently painful to allow an inference of impairment and
therefore bodily injury.”1 Id.
Here, Toney cites Judge Crone’s concurring opinion in Lewis in support of his
position that, to constitute bodily injury, the pain experienced must be of a certain
magnitude or duration. We respectfully disagree. The relevant statute makes no mention
that the physical pain be of any particular magnitude or of any particular duration. All
that is required is the experience of physical pain. Nor do we think this reads the
requirement of “impairment” out of the statute. The statute defines bodily injury as any
impairment of physical condition, including physical pain.” I.C. § 35-41-1-4 (emphasis
added). By listing “physical pain,” the statute itself includes physical pain—of any
degree—in the definition of an impairment of physical condition.
As our supreme court explained almost thirty years ago, to establish bodily injury,
it is “sufficient that the victim experienced physical pain by Defendant’s action.” Lewis
v. State, 438 N.E.2d 289, 294 (Ind. 1982). Although the pain experienced by the victim
in this older Lewis case appears to have been more severe than that experienced by the
victim in the present case, our supreme court did not base its decision on the severity or
the duration of the pain experienced by the victim. The court instead followed the plain
1 The lead opinion in Lewis noted that the victim testified that the defendant punched him in the face “pretty hard” and that this “didn’t feel good.” Id. at 435. The lead opinion concluded that the jury could reasonably infer from this that the victim “felt physical pain, thus experiencing bodily injury.” Id. (citing Mathis v. State, 859 N.E.2d 1275, 1281 (Ind. Ct. App. 2007) (concluding that evidence was sufficient to support “bodily injury” element of battery where victim testified that defendant’s actions caused her to “hurt” and “kinda see[] stars for a second.”)). Judge Kirsch dissented in part, concluding that the evidence was insufficient to establish bodily injury because the victim never directly testified that he experienced physical pain. Id.
5 language of the statute and held that bodily injury was shown by the simple fact that the
victim experienced physical pain by the defendant’s actions. Id.
And as the Seventh Circuit Court of Appeals, in a discussion of Indiana law, stated
in Flores v. Ashcroft, 350 F.3d 666, 670 (7th Cir. 2003), “any physical hurt” qualifies as
bodily injury:
It follows, Indiana’s judiciary concluded, that any physical hurt satisfies § 35-42-2-1(a)(1)(A) [elevating battery to a Class A misdemeanor if it results in bodily injury]. So if the paper airplane inflicts a paper cut, the snowball causes a yelp of pain, or a squeeze of the arm causes a bruise, the aggressor has [inflicted bodily injury].
Id. (emphasis added).
We find further support for our conclusion in the statutory definition of “serious
bodily injury,” which is defined to include “extreme pain.” Ind. Code § 35-41-1-25(3)
(2004). Our supreme court has set the threshold for “serious bodily injury” rather high.
See Davis v. State, 813 N.E.2d 1176, 1178 (Ind. 2004) (holding that evidence was
insufficient to establish serious bodily injury even though defendant had pushed the
victim onto the street and, when she attempted to get up, punched her in the mouth,
causing the victim to have a swollen, lacerated lip, an abrasion to the knee, and a broken
pinky finger). In contrast to this requirement for “extreme pain,” there is no similar
qualifying language with regard to bodily injury. All that is required is physical pain.
We therefore conclude that all that is required to establish bodily injury is that the
victim experience any physical pain as a result of the defendant’s actions. See Lewis,
438 N.E.2d at 294; Flores, 350 F.3d at 670. The statute defining bodily injury contains
no requirement that the physical pain be of any particular magnitude or duration.
6 Applying this to the facts of the present case, it is readily apparent that G.R.
experienced physical pain as a result of Toney’s action of grabbing her hand and twisting
her phone out of her hand. This is enough to establish bodily injury sufficient to elevate
Toney’s conviction to a Class A felony.
Moreover, there was certainly evidence that suggests that the victim here
experienced more than the slightest of pain, as suggested by Toney. G.R. suffered from
multiple myeloma, a cancer of the plasma cells in bone marrow. See Tr. pp. 34, 39, 41,
43. 2 As a result, G.R. experienced chronic pain and was on prescription narcotic
analgesic medications, including the opiate oxycodone. Despite this, she still
experienced pain when Toney grabbed her and twisted the phone out of her hand. The
trial court, acting as the trier of fact, could readily conclude from this evidence that G.R.
experienced physical pain as a result of Toney’s actions. And this is sufficient to
establish the element of bodily injury which elevates Toney’s burglary conviction to a
Class A felony.
Conclusion
The evidence was sufficient to establish that Toney’s actions resulted in bodily
injury to the victim because there was evidence that she experienced physical pain. This
is all that is statutorily required to establish bodily injury. The evidence was therefore
sufficient to convict Toney of Class A felony burglary resulting in bodily injury.
2 See also Multiple myeloma, A.D.A.M. Medical Encyclopedia, U.S. National Library of Medicine, http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0001609/.
7 Affirmed.
FRIEDLANDER, J., and RILEY, J., concur.