Eugene L. Cardwell v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: May 6, 2019
• Docket: 18A-CR-2605
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any May 06 2019, 10:56 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Jennifer L. Koethe Curtis T. Hill, Jr. Navarre, Florida Attorney General of Indiana

Evan Matthew Comer Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Eugene L. Cardwell, May 6, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-2605 v. Appeal from the LaPorte Superior Court State of Indiana, The Honorable Richard R. Appellee-Plaintiff. Stalbrink, Jr., Judge Trial Court Cause No. 46D02-1606-F3-535

Najam, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2605 | May 6, 2019 Page 1 of 5 Statement of the Case [1] Eugene L. Cardwell appeals his convictions for aggravated battery, as a Level 3

felony, and battery, as a Level 5 felony, following a jury trial. Cardwell raises a

single issue for our review, namely, whether the State presented sufficient

evidence to support his convictions. We affirm.

Facts and Procedural History [2] In November of 2015, Cardwell was an inmate at the Indiana State Prison in

Michigan City along with Richard Anderson. On November 8, Correctional

Officer Hanna Zaknoun was escorting Anderson to Anderson’s prison cell. En

route, Cardwell attacked Anderson with a shank. Cardwell’s attack knocked

Anderson down, and Cardwell then started stabbing Anderson while he was on

the floor.

[3] Before Officer Zaknoun could react to the attack, and while Cardwell was

attacking Anderson on the floor, Cardwell told Officer Zaknoun, “if you Mace

me, I’ll stab you too.” Tr. Vol. II at 39. Cardwell “slashed at [Officer

Zaknoun]” and cut him on his left hand. Id. at 60. Officer Zaknoun then

sprayed Cardwell with a pepper-spray-like substance, and Cardwell began to

walk back toward his cell. On the way, he grabbed a broomstick that was on

the floor and “threw it” at Officer Zaknoun. Id. at 62.

[4] Cardwell had cut Anderson across Anderson’s face and right shoulder with the

shank. Anderson lost “a lot” of blood during the attack, and he later needed

multiple stiches to repair the puncture-wound injuries. Id. at 41-42. The attack

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2605 | May 6, 2019 Page 2 of 5 left Anderson with visible scars under his lip and on his right shoulder, and his

right shoulder is now “noticeabl[y]” “smaller” than his left shoulder. Id. at 47.

Anderson also lost range of motion in his right shoulder for “at least a month”

following the attack. Id. at 55.

[5] The State charged Cardwell with, among other offenses, aggravated battery, as

a Level 3 felony, for Cardwell’s attack on Anderson and battery, as a Level 5

felony, for Cardwell’s attack on Officer Zaknoun. Following a jury trial at

which Anderson and Officer Zaknoun testified and the State presented a

surveillance video of the attacks, the jury found Cardwell guilty of those two

offenses, and Cardwell admitted to an habitual offender enhancement. The

trial court then entered its judgment of conviction and sentenced Cardwell, and

this appeal ensued.

Discussion and Decision [6] Cardwell asserts on appeal that the State failed to present sufficient evidence to

support his convictions for aggravated battery against Anderson and battery

against Officer Zaknoun. When reviewing the sufficiency of the evidence to

support a conviction, we do not reweigh the evidence or judge witness

credibility. E.g., B.T.E. v. State, 108 N.E.3d 322, 326 (Ind. 2018). We consider

only the evidence favorable to the judgment and the reasonable inferences

supporting it. Id. We will affirm if a reasonable trier of fact could have

concluded that the defendant was guilty beyond a reasonable doubt. Id.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2605 | May 6, 2019 Page 3 of 5 [7] Cardwell does not contend that he did not commit a battery on Anderson, only

that his battery was not an aggravated battery. To show that Cardwell

committed the offense of aggravated battery, as a Level 3 felony, the State was

required to show beyond a reasonable doubt that Cardwell knowingly or

intentionally inflicted injury on Anderson that caused serious permanent

disfigurement or protracted loss or impairment of the function of a bodily

member. Ind. Code § 35-42-2-1.5 (2018). And to show that Cardwell

committed the offense of battery, as a Level 5 felony, the State was required to

show beyond a reasonable doubt that Cardwell knowingly or intentionally

touched Officer Zaknoun in a rude, insolent, or angry manner, which resulted

in bodily injury to a public safety official while the official was engaged in his

official duties. I.C. § 35-42-2-1(g)(5)(A).

[8] On appeal, Cardwell first asserts that the State failed to prove that he

committed aggravated battery against Anderson because Anderson’s injuries

were insufficient to show “serious permanent disfigurement or protracted loss

or impairment of a bodily member.” See I.C. § 35-42-2-1.5. We cannot agree.

Anderson testified that his right shoulder is now noticeably smaller than his left

shoulder. Anderson also testified that Cardwell’s attack left him without the

full range of motion in his right shoulder for “at least a month.” Tr. Vol. II at

55. We hold that a reasonable fact finder could have concluded from that

evidence that Cardwell’s attack resulted in serious permanent disfigurement or

protracted loss or impairment of a bodily member to Anderson. Thus, we

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2605 | May 6, 2019 Page 4 of 5 decline Cardwell’s invitation to reduce his battery conviction to a Level 5 felony

and affirm his conviction for aggravated battery, as a Level 3 felony.

[9] Cardwell also asserts that the State failed to show that Cardwell knowingly or

intentionally attacked Officer Zaknoun. We again cannot agree. Anderson

testified, without objection, that he had heard Cardwell tell Officer Zaknoun,

“if you Mace me, I’ll stab you too.” Id. at 39. And Officer Zaknoun testified

that, while Cardwell was attacking Anderson on the floor, Cardwell “slashed at

[Officer Zaknoun]” and cut him on his left hand. Id. at 60. A reasonable fact

finder could have concluded from that evidence that Cardwell knowingly or

intentionally attacked Officer Zaknoun. Accordingly, we affirm Cardwell’s

conviction for battery, as a Level 5 felony.

[10] In sum, we affirm Cardwell’s convictions for aggravated battery, as a Level 3

felony, and battery, as a Level 5 felony.

[11] Affirmed.

Baker, J., and Robb, J., concur.

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