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. Just an aside, but regardless of the outcome, I 'm proud of Judge William Hughes. He was the original magistrate on the Home place issue. He ruled for Home Place, and was primaried by Brainard for it. Their tool Poindexter failed to unseat Hughes, who won support for his honesty and courage throughout the county, and he was reelected Judge of Hamilton County's Superior Court. You can still stand for something and survive. Thanks, Judge Hughes!

  2. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  3. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  4. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  5. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

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