Christopher R. Marks v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: January 29, 2016
• Docket: 02A05-1506-CR-669
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), Jan 29 2016, 7:36 am this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Mark Olivero Gregory F. Zoeller Fort Wayne, Indiana Attorney General of Indiana Jodi Kathryn Stein Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Christopher R. Marks, January 29, 2016 Appellant-Defendant, Court of Appeals Case No. 02A05-1506-CR-669 v. Appeal from the Allen Superior Court State of Indiana, The Honorable Frances C. Gull, Appellee-Plaintiff Judge The Honorable Samuel R. Keirns, Magistrate Trial Court Cause No. 02D05-1411-F6-396

Baker, Judge.

Court of Appeals of Indiana | Memorandum Decision 02A05-1506-CR-669 | January 29, 2016 Page 1 of 6 [1] Christopher Marks appeals his conviction of Class A Misdemeanor Domestic

Battery,1 arguing that the trial court’s jury instructions constitute reversible

error. Finding no error, we affirm.

Facts [2] For three years prior to November 2014, Marks and Paige Richie had been in a

romantic relationship, and for one year prior they had lived together. On

November 3, 2014, Marks became suspicious that Richie was involved with

another man. He tried to contact her, and changed her social media passwords,

but could not reach her. Upset, Marks left work, went home, and began

drinking.

[3] Richie returned home around 5:30 p.m. to find Marks on the patio. The two

quickly began arguing. Marks grabbed Richie’s cell phone, looking for proof of

infidelity. She attempted to regain possession of her phone, but he pushed her

face. She then grabbed his cell phone and threatened to call the police.

[4] Marks grabbed Richie’s arm, pulled it around her back, and forced her to the

ground. Neither knew that Richie’s call had gone through to 911, and that the

911 dispatch was overhearing and recording the encounter. Two officers were

dispatched.

1 Ind. Code § 35-42-2-1.3.

Court of Appeals of Indiana | Memorandum Decision 02A05-1506-CR-669 | January 29, 2016 Page 2 of 6 [5] Marks rubbed Richie’s face into the carpet. She screamed, “Stop, get off me,”

but to no avail. Tr. 46-47. He wrapped his arm around her throat and dragged

her through the apartment. Still looking for proof of infidelity, he forcibly

removed her jeans and underwear. Just then, there was the knock of the police

at the door.

[6] Marks went to answer the door, but only after dragging Richie by her hair into

the bedroom. As he exited the apartment, police officers noticed that he was

breathing heavily and that he smelled of alcohol. The officers placed Marks in

handcuffs and went to aid Richie. They found her naked from the waist down,

shaking, crying, hyperventilating, and with a laceration above her forehead.

[7] On November 7, 2014, the State charged Marks with Level 6 felony

strangulation and Class A misdemeanor domestic battery. The charging

information included an allegation that Marks’s actions “result[ed] in bodily

injury, to wit: physical pain or visible injury. . . .” Appellant’s App. 15.

[8] At the outset of the May 5, 2015, jury trial, the parties disagreed over the

wording of the jury instructions. The State was concerned that the proposed

jury instruction, which included the language, “physical pain and/or visible

injury,” would require the State to prove both physical pain and visible injury.

Tr. 3. The State wanted the jury instruction to reflect the language in the

charging information, which was clearly stated in the disjunctive. The trial

court noted that Indiana Code section 35-31.5-2-29 defines bodily injury as

Court of Appeals of Indiana | Memorandum Decision 02A05-1506-CR-669 | January 29, 2016 Page 3 of 6 “any impairment of physical condition, including physical pain.” The trial

court sided with the State, and eventually instructed the jury as follows:

Before you may convict the Defendant, the State must have proved each of the following beyond a reasonable doubt:

1. The Defendant, Christopher Marks, 2. knowingly or intentionally, 3. touched Paige Richie, 4. in a rude, insolent, or angry manner, 5. which resulted in bodily injury to Paige Richie, to wit: physical pain or visible injury, 6. when Paige Richie was living as if defendant’s spouse.

Appellant’s App. 54. The jury instructions also said, “The term ‘bodily injury’

is defined by law as meaning any impairment of physical condition, including

physical pain.” Id. at 55.

[9] At trial, Marks argued that his actions were taken in self-defense. He never

argued that Richie was not injured. The jury found Marks not guilty of

strangulation but guilty of domestic battery. Following a sentencing hearing,

the trial court sentenced him to one year, suspended to probation. Marks now

appeals.

Discussion and Decision [10] Marks has one argument on appeal: that the jury instructions were improper.

He contends, first, that the language regarding “visible injury” altered the

elements of domestic battery, and, second, that it improperly focused the jury

Court of Appeals of Indiana | Memorandum Decision 02A05-1506-CR-669 | January 29, 2016 Page 4 of 6 on the visual evidence, namely, the photographs of Richie. He points to Ludy v.

State, in which our Supreme Court found error, albeit harmless error, in a jury

instruction that improperly focused the jury’s attention on and highlighted a

single witness’s testimony. 784 N.E.2d 459, 461 (Ind. 2003).

[11] We find both contentions to be unavailing. As for the first, we cannot agree

that a jury, using these instructions, could have convicted Marks without

finding that all of the elements of battery were met. Marks acknowledges that if

the jury found that Richie experienced physical pain, the requirement of bodily

injury would be satisfied. I.C. § 35-31.5-2-29. But he believes that if the jury

only found “visible injury,” the requirement of bodily injury would not have

been satisfied.

[12] We cannot see how a jury could find that a victim was visibly injured without

also finding that he or she was bodily injured. A visible injury is merely a

species of bodily injury. There can be no visible injury of a person that is not

also a bodily injury of that person. Therefore, even assuming that the jury did

not find that Richie had experienced physical pain—and this is a big

assumption, given Richie’s testimony that when Marks was attacking her, “It

hurt so bad,” “It was terrible,” “It was awful,” and “It felt like I had to say

goodbye to everybody,” tr. 34—the jury would necessarily have found that she

was bodily injured if it found that she was visibly injured.

[13] Turning to Marks’s second contention, we cannot agree that the instruction

improperly focused the jury’s attention on a single witness or a single piece of

Court of Appeals of Indiana | Memorandum Decision 02A05-1506-CR-669 | January 29, 2016 Page 5 of 6 evidence. Marks believes that the word “visible” impermissibly narrowed the

jury’s attention to the photographs in the record. But this was not the only

evidence of bodily, or visible, injury. Richie testified that she suffered a scratch

on her face. Tr. 37. Such a scratch would be a visible injury. Further, the

responding police officer testified that he observed injuries on Richie’s face. Tr.

56. Such injuries would be visible injuries. The photographs corroborated both

of these observations. State’s Ex. 2-6.

[14] We do not believe that the word “visible” restricted the jury’s attention in any

meaningful way. All of the evidence of bodily injury consisted of either

Richie’s experience of pain or her visible injuries—if the instructions

“narrowed” the jury’s attention, its attention would have been “narrowed” to

the entirety of evidence presented to prove bodily injury. This is clearly not an

error.

[15] The judgment of the trial court is affirmed.

Bradford, J., and Pyle, J., concur.

Court of Appeals of Indiana | Memorandum Decision 02A05-1506-CR-669 | January 29, 2016 Page 6 of 6