W H v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: March 27, 2024
• Docket: 23A-JV-02451
• Status: Published

Opinion

FILED Mar 27 2024, 9:35 am

CLERK Indiana Supreme Court Court of Appeals and Tax Court

IN THE

Court of Appeals of Indiana W.H., Appellant-Defendant

v.

State of Indiana, Appellee-Plaintiff

March 27, 2024 Court of Appeals Case No. 23A-JV-2451 Appeal from the Marion Superior Court The Honorable Danielle Gaughan, Judge The Honorable Tara Y. Melton, Magistrate Trial Court Cause No. 49D15-2307-JD-5553

Opinion by Judge Pyle

Court of Appeals of Indiana | Opinion 23A-JV-2451 | March 27, 2024 Page 1 of 10 Judges Bailey and Crone concur.

Pyle, Judge.

Statement of the Case [1] W.H. (“W.H.”) appeals his juvenile adjudication for Level 3 felony aggravated

battery if committed by an adult.1 W.H. argues that there is insufficient

evidence to support his juvenile adjudication for aggravated battery because the

State failed to prove that the injury that W.H. had inflicted on the victim’s

lower leg created a substantial risk of death to the victim. Agreeing with W.H.

and concluding that the State failed to present sufficient evidence to support

W.H.’s juvenile adjudication for aggravated battery, we reverse the juvenile

court’s judgment.

[2] We reverse.

Issue Whether there was sufficient evidence to support W.H.’s juvenile adjudication for aggravated battery.

1 IND. CODE § 35-42-2-1.5. Additionally, the juvenile court determined that W.H. had committed the following delinquent acts if committed by an adult: Level 5 felony battery by means of a deadly weapon; Level 5 felony battery resulting in serious bodily injury (which the juvenile court then merged into the other Level 5 felony adjudication during the disposition hearing); and Class A misdemeanor dangerous possession of a firearm. W.H. does not challenge the sufficiency of the evidence to support these other juvenile adjudications. Therefore, we will not discuss them any further.

Court of Appeals of Indiana | Opinion 23A-JV-2451 | March 27, 2024 Page 2 of 10 Facts [3] On June 21, 2023, seventeen-year-old E.N. (“E.N.”) was playing soccer with

his brother and some friends at E.N.’s apartment complex in Marion County.

Sixteen-year-old W.H. and some of his friends approached E.N. and the others

who were playing soccer. W.H. “talk[ed] about fighting[,]” and E.N. told him

that he did not want to fight. (Tr. Vol. 2 at 21). As E.N. and his brother ran

away from the scene, W.H. pulled out a gun and fired multiple shots. One of

the shots fired by W.H. struck E.N.’s lower right leg. E.N. continued running

and ran to a neighbor’s apartment, where someone called 911.

[4] Indianapolis Metropolitan Police Department (“IMPD”) officers and EMS

were dispatched to the scene. When one of the officers arrived, he saw E.N.

“standing up against the wall to the apartment complex” while E.N. was

putting “his weight [on] one foot[]” and holding his other foot in the air. (Tr.

Vol. 2 at 69). The officer noticed that E.N. had “an obvious gunshot wound on

his leg” that he had raised in the air. (Tr. Vol. 2 at 69). The police processed

the scene and recovered six shell casings, which were the type that could have

been fired by a “five five six caliber weapon” such as “an AR-15 style weapon

or a rifle[.]” (Tr. Vol. 2 at 78, 79).

[5] EMS transported E.N. to the hospital. That same day, Detective Todd Lappin

(“Detective Lappin”) went to the hospital to talk to E.N. Detective Lappin saw

E.N. “in the hospital bed with a gunshot wound to the right lower calf of his . . .

right leg.” (Tr. Vol. 2 at 85). Detective Lappin took three photographs of E.N.

and his leg while he was at the hospital. Court of Appeals of Indiana | Opinion 23A-JV-2451 | March 27, 2024 Page 3 of 10 [6] “[S]everal days later, . . . once [E.N.] [had] already been treated for his

wound[,]” Detective Lappin went to E.N.’s house and separately showed E.N.

and his brother some photo arrays. E.N. and his brother both identified W.H.

as the person who had shot E.N.’s leg.

[7] The State filed a petition alleging, in relevant part, that W.H. was a delinquent

child for committing Level 3 felony aggravated battery if committed by an

adult. Specifically, the State alleged that W.H. had “inflict[ed] [an] injury on

[E.N.] that created a substantial risk of death.” (App. Vol. 2 at 22).

[8] During the juvenile hearing, E.N. provided limited testimony regarding the

nature of his wound and any treatment that he had received. E.N. merely

answered in the affirmative when the State asked him if he had been “taken to

the hospital” and had “receive[d] treatment at the hospital[.]” (Tr. Vol. 2 at

25). The State introduced photographs that depicted the wound on E.N.’s leg

while he was on his hospital bed. The photographs reveal that E.N.’s injury

was to the outside portion of his lower leg between his shin and his calf. The

photographs also show that E.N. had a bandage on his leg. Apparently, the

detective had removed the bandage to take photographs of the wound.

[9] When Detective Lappin testified, he explained that he had worked for IMPD

for twenty-five years and had been an emergency paramedic before joining

IMPD. Detective Lappin testified that he had observed “[h]undreds” of

gunshot wounds during his career, and he confirmed that the injury to E.N.’s

leg was consistent with a gunshot wound. (Tr. Vol. 2 at 85). Detective Lappin

Court of Appeals of Indiana | Opinion 23A-JV-2451 | March 27, 2024 Page 4 of 10 also testified that E.N.’s leg had an entrance wound but no exit wound. When

the State asked Detective Lappin to describe E.N.’s demeanor at the hospital,

Detective Lappin responded that E.N. “was in pain obviously and . . . scared a

little bit . . . not knowing what’s going to happen as far as you know, the

treatment with the leg, surgery, whether or not it was fractured.” (Tr. Vol. 2 at

85). The State then asked Detective Lappin two questions about gunshot

wounds in general, and Detective Lappin responded as follows:

[The State]: In, in your training experience, um, have you seen the result of gunshot wounds to the leg? As in uh the outcome of, of a gunshot wound to the to to the leg?

[Detective Lappin]: There could be numerous outcomes such as, you know, depending on the caliber or the type of bullet, the, the extent of the actual soft tissue injuries, whether or not bone was involved, whether or not there’s a fracture involved[.]

[The State]: So what kind of injuries or, uh, have you seen death result from a, a gunshot wound?

[Detective Lappin]: I’ve seen, I mean, single gunshot wounds to multiple gunshot wounds. I’ve observed death from, from gunshot wounds, depending on [the] area of the body and, and what structures are hit.

(Tr. Vol. 2 at 85-86) (verbal ticks unchanged).

[10] During closing arguments, the State argued that it had proven the elements of

aggravated battery based on E.N.’s testimony and Detective Lappin’s

testimony. The State pointed out that E.N.’s testimony showed that “he had

been shot” and that Detective Lappin’s testimony revealed that E.N.’s “wound

was consistent with a gunshot wound[.]” (Tr. Vol. 2 at 97). The State also Court of Appeals of Indiana | Opinion 23A-JV-2451 | March 27, 2024 Page 5 of 10 inaccurately asserted that Detective Lappin had testified that “the injury uh

created a substantial risk of death.” (Tr. Vol. 2 at 97-98). The State then

pointed to Detective Lappin’s testimony that “he had seen people die from

gunshot wounds including, uh, those to the extremities of the body, depending

on where, uh, the bullet hits.” (Tr. Vol. 2 at 98).

[11] During W.H.’s closing argument, his counsel argued that the State had failed to

prove that E.N. had suffered an injury that had created a substantial risk of

death. W.H.’s counsel pointed out that Detective Lappin had merely testified

about “hypothetically what could happen” when “a person is injured by a

gunshot wound on a limb” but that the State had not proven a substantial risk

of death in relation to E.N.’s injury. (Tr. Vol. 2 at 100). W.H.’s counsel argued

that “[a]ll we know is that [E.N.] suffered a wound to his . . . right calf[,] . . .

that he was in the hospital[,] and [that he] . . . had treatment.” (Tr. Vol. 2 at

100). W.H.’s counsel further argued that the State had failed to present any

evidence—medical and non-medical—on the extent of the treatment, the extent

of the wound, and “where exactly inside his body it . . . injured him.” (Tr. Vol.

2 at 100). Additionally, W.H.’s counsel pointed out that “while medical

testimony and expert testimony is not required to prove . . . that a person

suffered a substantial risk of death, there has to be something more than simply

testimony that he suffered an injury.” (Tr. Vol. 2 at 100).

[12] The juvenile court entered a “true” finding on the aggravated battery allegation

against W.H. (Tr. Vol. 2 at 105). The juvenile court did not discuss the

evidence in relation to this juvenile adjudication. The juvenile court placed

Court of Appeals of Indiana | Opinion 23A-JV-2451 | March 27, 2024 Page 6 of 10 W.H. on probation with a suspended commitment to the Indiana Department

of Corrections, and it placed W.H. in Transitions Academy.

[13] W.H. now appeals his juvenile adjudication for aggravated battery.

Decision [14] W.H. argues that there is insufficient evidence to support his juvenile

adjudication for aggravated battery. Specifically, W.H. contends that the State

failed to prove that the injury to E.N.’s lower leg created a substantial risk of

death to E.N. We agree.

[15] The aggravated battery statute, INDIANA CODE § 35-42-2-1.5, provides, in

relevant part, that a person commits Level 3 felony aggravated battery when he

“knowingly or intentionally inflicts injury on a person that creates a substantial

risk of death[.]” Thus, to obtain a juvenile adjudication for what would be

Level 3 felony aggravated battery if committed by an adult, the State was

required to prove beyond a reasonable doubt that W.H. knowingly or

intentionally inflicted an injury on E.N. that created a substantial risk of death

to E.N.

[16] W.H. does not challenge the evidence that W.H. shot E.N. and inflicted an

injury to E.N.’s lower leg. W.H.’s sole argument on appeal is that the evidence

presented by the State was insufficient to prove that E.N.’s injury created a

substantial risk of death to E.N. W.H. contends that the State’s reliance on

“general testimony from a detective about the potential consequences of

gunshot wounds” was insufficient to prove the required element of a substantial Court of Appeals of Indiana | Opinion 23A-JV-2451 | March 27, 2024 Page 7 of 10 risk of death resulting from the injury. (W.H.’s Br. 8). W.H. relies on this

Court’s opinion in Alexander v. State, 13 N.E.3d 917 (Ind. Ct. App. 2014), in

which we reversed the defendant’s conviction because the State had failed to

present sufficient evidence to show that the victim’s gunshot injury had created

a substantial risk of death to the victim.

[17] We will uphold W.H.’s juvenile adjudication if we can conclude that the

juvenile court could have reasonably inferred, based upon the evidence

presented during the disposition hearing, that the injury W.H. inflicted on E.N.

created a substantial risk of death to E.N. See Alexander, 13 N.E.3d at 921.

“[I]n reviewing a sufficiency claim concerning whether the 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.” Id. (internal quotation

marks and citations omitted).

[18] Here, the State presented limited evidence regarding the nature of E.N.’s injury

and the treatment provided. E.N. testified that W.H. had shot at and hit E.N.’s

leg while E.N. was running and that, thereafter, E.N. had continued to run to a

neighbor’s apartment. The State also presented testimony that when the police

arrived on the scene, E.N. was standing on one foot and was thereafter taken by

ambulance to the hospital for his injury. Additionally, the State presented

testimony that E.N.’s injury consisted of a gunshot entrance wound to his lower

leg, and the State presented photographs of the wound. However, the State did

not present any testimony or medical records explaining the specific nature of

the injury or the treatment thereof. Instead, to support the allegation that

Court of Appeals of Indiana | Opinion 23A-JV-2451 | March 27, 2024 Page 8 of 10 E.N.’s injury created a substantial risk of death to E.N., the State relied upon

general or hypothetical questions posed to Detective Lappin about his prior

experience with gunshot wounds. The State did not present any evidence—

specific to E.N.—to show that E.N.’s injury created a substantial risk of death.

Because the State did not present sufficient evidence to prove that E.N.’s injury

created a substantial risk of death to E.N., we reverse W.H.’s juvenile

adjudication for Level 3 felony aggravated battery. See e.g., Alexander, 13

N.E.3d at 922 (holding that the State had failed to present sufficient evidence to

prove that the victim’s gunshot injury had created a substantial risk of death

where the State’s evidence merely showed that the victim had sustained a graze

wound to his back and had received no medical treatment); Tingle v. State, 632

N.E.2d 345, 354 (Ind. 1994) (holding that the evidence of victim’s injuries was

insufficient to support an aggravated battery conviction because the evidence

showed only a “possibility but not a substantial risk of death”).

[19] We note that the State points to information outside the record on appeal in an

attempt to show that E.N.’s injury could have created a substantial risk of death

to him. Specifically, the State cites to medical websites and journals to argue

that the “lower limb contains many arteries and veins” that could have placed

E.N. “at a high risk for life-threatening blood loss.” (State’s Br. 11). The State

also argues that E.N.’s “injury placed [him] at risk for potential infection that

could have led to sepsis and ultimately death.” (State’s Br. 11). We agree with

W.H. that “[a]n appeal is the wrong time and wrong venue to fill the[]

evidentiary gaps” that the State failed to prove to the juvenile court. (W.H.’s

Court of Appeals of Indiana | Opinion 23A-JV-2451 | March 27, 2024 Page 9 of 10 Reply Br. 5). See Dolkey v. State, 750 N.E.2d 460, 462 (Ind. Ct. App. 2001)

(rejecting the State’s “belated attempt to close th[e] evidentiary barn door” and

explaining that it “is axiomatic that appellate review of the factfinder’s

assessment is limited to those matters contained in the record which were

presented to and considered by the factfinder”). Thus, we reject the State’s

attempt to fill the evidentiary gaps left open by the prosecutor’s office when it

failed to present sufficient evidence below to prove that E.N.’s injury created a

substantial risk of death to E.N.

[20] Reversed.2

Bailey, J., and Crone, J. concur.

ATTORNEY FOR APPELLANT Joel M. Schumm Indianapolis, Indiana

ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Jennifer Anwarzai Deputy Attorney General Indianapolis, Indiana

2 Additionally, we note that “when we reverse a conviction for insufficient evidence, we may remand to the trial court to enter a judgment of conviction upon a lesser-included offense if the evidence is sufficient to support the lesser offense.” Alexander, 13 N.E.3d at 922. Here, however, W.H. already has a juvenile adjudication for Level 5 felony battery by means of a deadly weapon, which is a lesser-included offense to the Level 3 felony aggravated battery.

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