Shawn Thayer v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: October 15, 2015
• Docket: 79A04-1503-CR-110
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Oct 15 2015, 8:57 am 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 Bruce W. Graham Gregory F. Zoeller Lafayette, Indiana Indianapolis, Indiana Tyler G. Banks Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Shawn Thayer, October 15, 2015 Appellant-Defendant, Court of Appeals Case No. 79A04-1503-CR-110 v. Appeal from the Tippecanoe Superior Court 1 State of Indiana, The Honorable Randy J. Williams, Appellee-Plaintiff Judge Trial Court Cause No. 79D01-1403-FC-15

Altice, Judge.

Case Summary

Court of Appeals of Indiana | Memorandum Decision 79A04-1503-CR-110 | October 15, 2015 Page 1 of 9 [1] Following a jury trial, Shawn Thayer was convicted of class C felony Battery

Resulting in Serious Bodily Injury,1 class D felony Theft,2 class D felony

Strangulation,3 and class B misdemeanor Criminal Mischief.4 On appeal,

Thayer presents the following issues: (1) Whether the State presented sufficient

evidence to support his class C felony battery conviction; and (2) Whether the

State impermissibly presented evidence that Thayer exercised his Fifth

Amendment right to remain silent.

[2] We affirm.

Facts & Procedural History

[3] On November 3, 2013, Thayer and his on-again, off-again girlfriend, Shannon

Scheumann, made plans to watch a movie together at Thayer’s home in

Lafayette. At Thayer’s request, Scheumann arrived at Thayer’s home at

around 8 p.m. and brought a bottle of vodka with her. When Scheumann

arrived, Thayer took the bottle to make cocktails for both of them. The two

began watching the movie, and Thayer finished his drink a short time later. He

got up to make himself another and grabbed Sheumann’s unfinished drink to

1 Ind. Code § 35-42-2-1. Effective July 1, 2014, this offense was reclassified as a Level 5 felony. Because Thayer committed this offense prior to that date, it retains its prior classification as a class C felony. 2 Ind. Code § 35-43-4-2. Effective July 1, 2014, this offense was reclassified as a class A misdemeanor. Because Thayer committed this offense prior to that date, it retains its prior classification as a class D felony. 3 I.C. § 35-42-2-9. Effective July 1, 2014, this offense was reclassified as a Level 6 felony. Because Thayer committed this offense prior to that date, it retains its prior classification as a class D felony. 4 I.C. § 35-43-1-2.

Court of Appeals of Indiana | Memorandum Decision 79A04-1503-CR-110 | October 15, 2015 Page 2 of 9 top it off. When Thayer brought Scheumann her refilled drink, he told her he

had made it much stronger than the first. Scheumann thought the drink had a

strange, bitter taste, and she did not finish it.

[4] The next thing Scheumann recalled was being on the floor, with Thayer

choking her from behind and swearing at her. Scheumann’s vision then began

to fade, as if someone had “turned the lights out on [her].” Transcript at 129.

Scheumann’s next memory was lying on the floor in the same spot, with

Thayer out of her view. Scheumann got up, exited the house, and walked a

couple of steps before feeling “tremendous pain” in the back of her head and

falling to the ground. Id. at 132. Thayer then began screaming at Scheumann

and kicking her as she lay on the ground. Thayer also kicked Scheumann’s car.

[5] Thayer’s neighbors, Travis and T.J. Wycoff, heard the commotion and went

outside to see what was going on. As he approached Thayer’s home, Travis

saw Scheumann on the ground and Thayer on top of her. Scheumann was

screaming for Thayer to get away from her. Travis told T.J. to call 911 before

going to Scheumann’s aid. When Travis knelt down to prop up Scheumann’s

head, he felt a large knot on the back of her head. Thayer demanded that

Travis leave his property, at one point taking off his shirt and “puff[ing] his

chest up” aggressively. Id. at 56. Travis refused to leave the property without

Scheumann, and police arrived a short time later.

[6] After Scheumann was transported to the hospital by ambulance, Officer Ryan

French attempted to locate her car keys and cell phone. During a consensual

Court of Appeals of Indiana | Memorandum Decision 79A04-1503-CR-110 | October 15, 2015 Page 3 of 9 search of Thayer’s home, Officer French located a cell phone in Thayer’s

couch. Thayer claimed the phone belonged to him, but it was in fact

Scheumann’s.

[7] At the hospital, Scheumann was treated for numerous injuries, including a scalp

hematoma, throat and facial swelling, and a fractured rib. It was later

determined that Scheumann also had a sprained ankle and injuries to her jaw,

which made it difficult for her to open her mouth. These injuries caused

Scheumann severe pain.

[8] Thereafter, Thayer was charged with battery causing serious bodily injury,

strangulation, theft, and criminal mischief. A two-day jury trial commenced on

February 3, 2015, at the conclusion of which Thayer was found guilty as

charged. Thayer now appeals. Additional facts will be provided as necessary.

Sufficiency of the Evidence

[9] Thayer first challenges the sufficiency of the evidence to support his conviction

for battery causing serious bodily injury. In reviewing a challenge to the

sufficiency of the evidence, we neither reweigh the evidence nor judge the

credibility of witnesses. Atteberry v. State, 911 N.E.2d 601, 609 (Ind. Ct. App.

2009). Instead, we consider only the evidence supporting the conviction and

the reasonable inferences flowing therefrom. Id. If there is substantial evidence

of probative value from which a reasonable trier of fact could have drawn the

conclusion that the defendant was guilty of the crime charged beyond a

Court of Appeals of Indiana | Memorandum Decision 79A04-1503-CR-110 | October 15, 2015 Page 4 of 9 reasonable doubt, the judgment will not be disturbed. Baumgartner v. State, 891

N.E.2d 1131, 1137 (Ind. Ct. App. 2008).

[10] In order to convict Thayer of class C felony battery as charged, the State was

required to prove that Thayer knowingly or intentionally touched Scheumann

in a rude, insolent, or angry manner, and that such touching resulted in serious

bodily injury to Scheumann. See I.C. § 35-42-2-1. On appeal, Thayer does not

dispute that he knowingly or intentionally touched Scheumann in a rude,

insolent, or angry manner. Instead, he argues that the State presented

insufficient evidence to prove that the touching resulted in serious bodily injury

to Scheumann. “Serious bodily injury” is defined by statute as follows: “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.” Ind. Code § 35-31.5-2-292.

[11] The evidence presented in this case was sufficient to establish serious bodily

injury in the form of extreme pain. Scheumann suffered a scalp hematoma,

facial swelling, swelling in the back of her throat, a fractured rib, a sprained

ankle, and injuries to her jaw. At the hospital, she was treated with both

prescription painkillers and intravenous morphine. Scheumann testified that as

a result of her injuries, she experienced pain like she had never felt before, so

severe that she “couldn’t think straight.” Transcript at 181. Scheumann’s

dentist testified that Scheumann reported suffering “debilitating pain and

headaches” as a result of the injuries to her jaw. Id. at 260. We are therefore

Court of Appeals of Indiana | Memorandum Decision 79A04-1503-CR-110 | October 15, 2015 Page 5 of 9 unpersuaded by Thayer’s reliance on Davis v. State, 813 N.E.2d 1176, 1178 (Ind.

2004) (finding insufficient evidence to support an inference of extreme pain

where the victim suffered only an abrasion to her knee, a superficially lacerated

lip, and broken pinky finger, did not receive a prescription for pain medication,

and did not testify concerning her level of pain). Based on the evidence

presented here, the jury could reasonably infer that Scheumann suffered

extreme pain as a result of Thayer’s attack, which is sufficient standing alone to

support a finding of serious bodily injury.

[12] We note further that the evidence was also sufficient to support a finding that

Scheumann suffered “permanent or protracted loss or impairment of the

function of a bodily member or organ[.]” I.C. § 35-31.5-2-292. Scheumann’s

dentist, who treated her jaw injuries, testified that he had diagnosed her with

acute temporomandibular joint dysfunction. Over two months after the attack,

Scheumann still had problems opening her mouth and suffered debilitating pain

and headaches as a result of the injuries to her jaw. These injuries caused

Scheumann to have such difficulty eating that she lost twenty-five pounds.

Further, a radiologist testified that Scheumann’s rib fracture would make it

difficult to move and breathe freely without pain, and would typically take four

to six months to heal. We conclude that the State presented sufficient evidence

to support a finding of serious bodily injury.

Fifth Amendment

Court of Appeals of Indiana | Memorandum Decision 79A04-1503-CR-110 | October 15, 2015 Page 6 of 9 [13] Thayer also argues that the trial court abused its discretion when it allowed the

State to elicit testimony concerning Thayer’s exercise of his Fifth Amendment

right to remain silent. “Rulings on the admission of evidence are subject to

appellate review for abuse of discretion.” McHenry v. State, 820 N.E.2d 124, 128

(Ind. 2005) (footnote omitted). A trial court abuses its discretion when its

ruling is clearly against the logic, facts, and circumstances presented. Gray v.

State, 982 N.E.2d 434, 437 (Ind. Ct. App. 2013).

[14] On direct examination, Thayer testified that he cooperated with the police

“absolutely[,] every time.” Transcript at 286. Then, during the State’s cross-

examination of Thayer, the following exchange took place:

Q: If I understand your testimony earlier your statement to your attorney was that you cooperated with the police fully. Is that accurate?

A: Yes.

Q: What about Sergeant [Jay] Rosen? Did you cooperate with Sergeant Rosen?

A: Yes, I did. Yes, I offered Officer Rosen to come to my home and have a sit down conversation with me.

Transcript at 294. At that point, Thayer’s counsel objected on the basis that the

State’s question constituted an improper reference to Thayer’s invocation of his

right to remain silent. The State responded that the question was not improper

because Thayer had testified that he cooperated with police. Although the trial

Court of Appeals of Indiana | Memorandum Decision 79A04-1503-CR-110 | October 15, 2015 Page 7 of 9 court did not expressly rule on Thayer’s objection, neither the question nor his

response was stricken from the record. The State went on to assert that

Thayer’s claim that he had offered to provide a statement to Sergeant Rosen

was inaccurate and that Sergeant Rosen would testify to that effect. Thayer did

not object, and the trial court ruled that the State would be limited to asking

Sergeant Rosen whether Thayer had offered to give a statement. The State

subsequently called Sergeant Rosen as a rebuttal witness and, again without

objection from Thayer, elicited testimony that Thayer had not offered to give

him a statement.

[15] On appeal, Thayer challenges on Fifth Amendment grounds both the State’s

question regarding whether Thayer had cooperated with Sergeant Rosen and

the admission of Sergeant Rosen’s testimony. Thayer’s argument fails on

multiple bases. First, at least with respect to Sergeant Rosen’s testimony,

Thayer has waived the argument by failing to object at trial. See Konopasek v.

State, 946 N.E.2d 23, 27 (Ind. 2011) (explaining that failure to object to the

admission of evidence normally results in waiver precluding appellate review,

and that “an objection to one question does not serve as an objection to another

distinct question”). Second, because there is no indication on the record before

us that Thayer invoked his Fifth Amendment right to remain silent, he cannot

claim the Amendment’s protections. See Salinas v. Texas, 133 S.Ct. 2174, 2179-

81 (2013) (explaining that a witness who desires the protection of the privilege

against self-incrimination must claim it, and one generally does not do so by

simply standing mute); Mira v. State, 3 N.E.3d 985, 989 (Ind. Ct. App. 2013)

Court of Appeals of Indiana | Memorandum Decision 79A04-1503-CR-110 | October 15, 2015 Page 8 of 9 (finding no Fifth Amendment violation where evidence was presented that the

defendant did not call a detective back to schedule a meeting to discuss a theft

investigation because his failure to do so did not support a finding that he

invoked his right to remain silent). Third, even assuming arguendo that the

State’s question and Sergeant Rosen’s testimony could otherwise be considered

a violation of Thayer’s privilege against self-incrimination, Thayer opened the

door to this testimony by testifying that he had cooperated with the police

“absolutely[,] every time.” See Pennycuff v. State, 745 N.E.2d 804, 813 (Ind.

2001) (concluding that evidence of defendant’s silence was admissible to rebut

the defendant’s claims that he had cooperated with police). For all of these

reasons, Thayer has not established a Fifth Amendment violation.

[16] Judgment affirmed.

[17] Riley, J., and Brown, J., concur.

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