Kazie Sekou Cole v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: January 13, 2017
• Docket: 71A03-1605-CR-1034
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jan 13 2017, 9:46 am

regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Sean P. Hilgendorf Curtis T. Hill, Jr. South Bend, Indiana Attorney General of Indiana Eric P. Babbs Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA Kazie Sekou Cole, January 13, 2017 Appellant-Defendant, Court of Appeals Case No. 71A03-1605-CR-1034 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable Jane Woodward Appellee-Plaintiff Miller, Judge Trial Court Cause No. 71D01-1512-F3-66

Baker, Judge.

Court of Appeals of Indiana | Memorandum Decision 71A03-1605-CR-1034 | January 13, 2017 Page 1 of 6 [1] Kazie Sekou Cole appeals his conviction for Aggravated Battery,1 a Level 3

Felony, arguing that the evidence is insufficient to support the conviction.

Finding the evidence sufficient, we affirm.

Facts [2] G.P. and Cole had been friends for about three years and romantically involved

for about three months in December 2015. On December 10, 2015, G.P. went

to Cole’s house. At some point, she left the house to go shopping; when she

returned, Cole met her at the door and demanded her cell phone. G.P. refused

to give him her phone, and he then shoved G.P. and told her to go into the back

bedroom. They began arguing because G.P. refused to give him her phone or

the correct password.

[3] While they argued, Cole began choking G.P. with his hands, eventually putting

his arm around her neck and choking her until she lost consciousness. When

G.P. regained consciousness, Cole still had his arm around her neck. He then

proceeded to hit G.P. “pretty good several times . . . in the side of the head.”

Tr. p. 93. Cole then choked G.P. again. She lost consciousness at least two

more times during the altercation.

[4] G.P. awoke on Sunday and retrieved her phone, which Cole had taken from

her, and texted her cousin, saying that Cole had beaten her up and she needed

1 Ind. Code § 35-42-2-1.5

Court of Appeals of Indiana | Memorandum Decision 71A03-1605-CR-1034 | January 13, 2017 Page 2 of 6 to go to the hospital. When G.P.’s family members arrived to take her to the

hospital, they observed that she had been badly beaten around her head and

seemed disoriented and confused.

[5] Dr. Adam Losch treated G.P. in the emergency room. He noticed that she had

bruising around the eyes and neck, swelling of the face and cheeks, bruising

behind the ear, a ruptured eardrum, and two broken teeth. X-rays revealed that

G.P. had a broken rib, and a C.T. scan revealed that G.P. had suffered from a

subdural hemorrhage—internal bleeding between the brain and the skull.

Because of her severe injuries, G.P. was admitted to the hospital and stayed for

three days.

[6] On December 18, 2015, the State charged Cole with Level 3 felony rape, Level

3 felony aggravated battery, and Level 6 felony criminal confinement. Cole’s

jury trial began on March 9, 2016. At trial, Dr. Losch testified that “[a]nytime

there’s bleeding within the skull[,] that can produce basically death . . . . It can

lead to death, because anytime there’s bleeding within the skull it’s an enclosed

space, and so that can result in basically massive brain damage.” Tr. p. 150.

Dr. Losch also testified that if G.P.’s injuries had been left untreated, they could

have been life-threatening. Id. at 169. Another physician who treated G.P.

testified that increased pressure on the brain due to bleeding could cause death.

Id. at 245.

Court of Appeals of Indiana | Memorandum Decision 71A03-1605-CR-1034 | January 13, 2017 Page 3 of 6 [7] On March 11, 2016, the jury found Cole guilty of aggravated battery and not

guilty of the remaining charges. On April 8, 2016, the trial court sentenced

Cole to twelve years imprisonment. Cole now appeals.

Discussion and Decision [8] Cole’s sole argument on appeal is that the evidence is insufficient to support the

conviction. When reviewing a claim of insufficient evidence, we will consider

only the evidence and reasonable inferences that support the conviction. Gray

v. State, 957 N.E.2d 171, 174 (Ind. 2011). We will affirm if, based on the

evidence and inferences, a reasonable jury could have found the defendant

guilty beyond a reasonable doubt. Bailey v. State, 907 N.E.2d 1003, 1005 (Ind.

2009).

[9] To convict Cole of Level 3 felony aggravated battery, the State was required to

prove beyond a reasonable doubt that he knowingly or intentionally inflicted

injury on G.P., which created a substantial risk of death to G.P. I.C. § 35-42-2-

1.5. Cole argues that the evidence did not establish that the injuries created a

substantial risk of death. In reviewing a claim concerning whether a victim’s

injuries created a substantial risk of death, we “look to the observable facts

including the nature and location of the injury, and the treatment provided.”

Oeth v. State, 775 N.E.2d 696, 702 (Ind. Ct. App. 2002). Medical expert

testimony is not required to prove that a victim’s injuries created a substantial

risk of death. Wilcher v. State, 771 N.E.2d 113, 117 (Ind. Ct. App. 2002).

Court of Appeals of Indiana | Memorandum Decision 71A03-1605-CR-1034 | January 13, 2017 Page 4 of 6 [10] In this case, the observable facts in evidence reveal that Cole repeatedly and

violently struck and choked G.P. She lost consciousness at least three times

and had multiple bruises, swelling, a broken rib, a ruptured eardrum, and two

broken teeth. She appeared disoriented and confused, and felt dizzy and

nauseated. Medical testimony established that G.P. sustained a subdural

hemorrhage, or bleeding between her skull and her brain. Because of her

injuries, G.P. had to stay in the hospital for three days so that doctors could

monitor her brain’s condition. Two of G.P.’s treating physicians testified that

subdural hemorrhages can cause death; each of those doctors also testified that

if G.P. had not received medical treatment, her injuries could have been life-

threatening. Tr. Vol. I p. 169, Vol. II p. 247.

[11] Cole argues, essentially, that because G.P. did not suffer from any external

bleeding, did not have to have surgery, and received medical treatment

preventing her injuries from becoming life-threatening, the evidence does not

support a conclusion that her injuries created a substantial risk of death. We

disagree. Taking the latter argument first, we certainly do not require a battery

victim to refrain from seeking medical treatment, causing an actual, imminent

risk of death, to prove a substantial risk of death. And as for the first two

arguments, these amount to requests that we reweigh the evidence, which we

may not do. Whether a risk of death is substantial enough to meet the statutory

definition is largely a matter of degree “and therefore a question reserved for the

factfinder.” Cf. Young v. State, 725 N.E.2d 78, 82 (Ind. 2000) (explaining that

whether a bodily injury is “serious” “has been held to be a matter of degree and

Court of Appeals of Indiana | Memorandum Decision 71A03-1605-CR-1034 | January 13, 2017 Page 5 of 6 therefore a question reserved for the factfinder”). There is ample evidence in the

record supporting the jury’s conclusion that G.P.’s injuries caused a

substantial risk of death. See Beanblossom v. State, 530 N.E.2d 741, 742-43 (Ind.

1988) (holding that a blow to the back of victim’s head, causing victim to fall to

his knees and leaving victim in a semiconscious state, was sufficient to prove an

injury that created a substantial risk of death). In other words, the evidence is

sufficient.

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

Mathias, J., and Pyle, J., concur.

Court of Appeals of Indiana | Memorandum Decision 71A03-1605-CR-1034 | January 13, 2017 Page 6 of 6