ILNews

Convict fights tooth and nail, loses on the tooth

Michael W. Hoskins
January 1, 2008
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A tooth is considered a "bodily member or organ" within the definition of the state's aggravated battery statute, the Indiana Court of Appeals ruled March 7.

Deciding a case of first impression in Derrick C. Smith v. State of Indiana, No. 45A03-0708-CR-357, the appellate court ruled that a Lake Superior judge properly determined that enough evidence existed to support Smith's conviction under the state's aggravated battery statute.

Incarcerated at the Lake County Jail in August 2006, Smith and another inmate overpowered a jail officer and tried to escape. Smith hit the female officer in the mouth, pushed her to the ground, and sat on her before dragging her into the bathroom and trying to get out of the facility using her clocking card and keys. Both were apprehended before an escape, and the officer later had to have the tooth surgically removed and get an artificial tooth cemented in its place.

Smith was charged with multiple counts of robbery, criminal confinement, aggravated battery, attempted escape, battery, and theft; a jury convicted him last year. Smith was sentenced to 23 years, but appealed on claims that included not enough evidence existed to support the aggravated battery conviction. His basis was that the officer's broken tooth doesn't fit the statute's definition of "bodily member or organ."

Evidence presented at trial established that the officer permanently lost the function of her tooth, and that was sufficient evidence to support Smith's aggravated battery conviction, Chief Judge John Baker wrote. Since the statute only requires that one of the listed injuries be supported, the court declined to address another of Smith's claims that the state didn't present enough evidence that the officer was permanently disfigured from the attack.

"While there is no Indiana precedent for the notion that a tooth is a bodily member or organ for purposes of our aggravated battery statute, several other jurisdictions have analyzed similar statutes and arrived at that conclusion," he wrote.

The court relied on decisions that included Rivers v. State, 565 S.E.2d 596, 597 (Ga. Ct. App. 2002); McBeath v. State, 739 So.2d 451, 455 (Miss. Ct. App. 1999); and Lenzy v. State, 689 S.W.2d 305, 310 (Tex. Ct. App. 1985). Those decisions held that teeth are included in the states' respective statutes, as teeth can be lost or rendered in a battery, loss of a tooth constituted "serious bodily injury," and that teeth are separate, definable parts of the body that meet the term "bodily member or organ."

While the court ruled against Smith on those and other claims, the panel did determine that his convictions for felony robbery and aggravated battery violate the Indiana Constitution's double jeopardy clause. Smith didn't raise the claim, but the court raised this issue on its own because of the fundamental right implication.

Evidence presented at trial was how Smith hit the officer twice in the mouth and knocked her tooth loose; the court believes that evidence would be the same used to establish essential injury elements of both the elevated robbery and aggravated battery charges. That also leads to a modification in the judge's sentencing decision, Chief Judge Baker wrote.

The appellate court's ruling remands this case to Lake Superior Judge Diane Ross Boswell with instructions to downgrade Smith's Class B felony robbery conviction to the lesser Class C level and impose an eight-year sentence. That means his sentence would remain the same, as the sentence runs at the same time as the 20-year aggravated battery sentence component and doesn't impact the three-year confinement sentence that runs consecutively.
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  1. The is an unsigned editorial masquerading as a news story. Almost everyone quoted was biased in favor of letting all illegal immigrants remain in the U.S. (Ignoring that Obama deported 3.5 million in 8 years). For some reason Obama enforcing part of the immigration laws was O.K. but Trump enforcing additional parts is terrible. I have listed to press conferences and explanations of the Homeland Security memos and I gather from them that less than 1 million will be targeted for deportation, the "dreamers" will be left alone and illegals arriving in the last two years -- especially those arriving very recently -- will be subject to deportation but after the criminals. This will not substantially affect the GDP negatively, especially as it will take place over a number of years. I personally think this is a rational approach to the illegal immigration problem. It may cause Congress to finally pass new immigration laws rationalizing the whole immigration situation.

  2. Mr. Straw, I hope you prevail in the fight. Please show us fellow American's that there is a way to fight the corrupted justice system and make them an example that you and others will not be treated unfairly. I hope you the best and good luck....

  3. @ President Snow - Nah, why try to fix something that ain't broken??? You do make an excellent point. I am sure some Mickey or Minnie Mouse will take Ruckers seat, I wonder how his retirement planning is coming along???

  4. Can someone please explain why Judge Barnes, Judge Mathias and Chief Judge Vaidik thought it was OK to re weigh the evidence blatantly knowing that by doing so was against the rules and went ahead and voted in favor of the father? I would love to ask them WHY??? I would also like to ask the three Supreme Justices why they thought it was OK too.

  5. How nice, on the day of my car accident on the way to work at the Indiana Supreme Court. Unlike the others, I did not steal any money or do ANYTHING unethical whatsoever. I am suing the Indiana Supreme Court and appealed the failure of the district court in SDIN to protect me. I am suing the federal judge because she failed to protect me and her abandonment of jurisdiction leaves her open to lawsuits because she stripped herself of immunity. I am a candidate for Indiana Supreme Court justice, and they imposed just enough sanction so that I am made ineligible. I am asking the 7th Circuit to remove all of them and appoint me as the new Chief Justice of Indiana. That's what they get for dishonoring my sacrifice and and violating the ADA in about 50 different ways.

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