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. Can I get this form on line,if not where can I obtain one. I am eligible.

  2. What a fine example of the best of the Hoosier tradition! How sad that the AP has to include partisan snark in the obit for this great American patriot and adventurer.

  3. Why are all these lawyers yakking to the media about pending matters? Trial by media? What the devil happened to not making extrajudicial statements? The system is falling apart.

  4. It is a sad story indeed as this couple has been only in survival mode, NOT found guilty with Ponzi, shaken down for 5 years and pursued by prosecution that has been ignited by a civil suit with very deep pockets wrenched in their bitterness...It has been said that many of us are breaking an average of 300 federal laws a day without even knowing it. Structuring laws, & civilForfeiture laws are among the scariest that need to be restructured or repealed . These laws were initially created for drug Lords and laundering money and now reach over that line. Here you have a couple that took out their own money, not drug money, not laundering. Yes...Many upset that they lost money...but how much did they make before it all fell apart? No one ask that question? A civil suit against Williams was awarded because he has no more money to fight...they pushed for a break in order...they took all his belongings...even underwear, shoes and clothes? who does that? What allows that? Maybe if you had the picture of him purchasing a jacket at the Goodwill just to go to court the next day...his enemy may be satisfied? But not likely...bitterness is a master. For happy ending lovers, you will be happy to know they have a faith that has changed their world and a solid love that many of us can only dream about. They will spend their time in federal jail for taking their money from their account, but at the end of the day they have loyal friends, a true love and a hope of a new life in time...and none of that can be bought or taken That is the real story.

  5. Could be his email did something especially heinous, really over the top like questioning Ind S.Ct. officials or accusing JLAP of being the political correctness police.

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