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. I just wanted to point out that Congressman Jim Sensenbrenner, Senator Feinstein, former Senate majority leader Bill Frist, and former attorney general John Ashcroft are responsible for this rubbish. We need to keep a eye on these corrupt, arrogant, and incompetent fools.

  2. Well I guess our politicians have decided to give these idiot federal prosecutors unlimited power. Now if I guy bounces a fifty-dollar check, the U.S. attorney can intentionally wait for twenty-five years or so and have the check swabbed for DNA and file charges. These power hungry federal prosecutors now have unlimited power to mess with people. we can thank Wisconsin's Jim Sensenbrenner and Diane Feinstein, John Achcroft and Bill Frist for this one. Way to go, idiots.

  3. I wonder if the USSR had electronic voting machines that changed the ballot after it was cast? Oh well, at least we have a free media serving as vicious watchdog and exposing all of the rot in the system! (Insert rimshot)

  4. Jose, you are assuming those in power do not wish to be totalitarian. My experience has convinced me otherwise. Constitutionalists are nearly as rare as hens teeth among the powerbrokers "managing" us for The Glorious State. Oh, and your point is dead on, el correcta mundo. Keep the Founders’ (1791 & 1851) vision alive, my friend, even if most all others, and especially the ruling junta, chase only power and money (i.e. mammon)

  5. Hypocrisy in high places, absolute immunity handed out like Halloween treats (it is the stuff of which tyranny is made) and the belief that government agents are above the constitutions and cannot be held responsible for mere citizen is killing, perhaps has killed, The Republic. And yet those same power drunk statists just reel on down the hallway toward bureaucratic fascism.

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