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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. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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