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Wife’s pain from shove, poked forehead ‘bodily injury,’ justices rule

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The Indiana Supreme Court late Monday reconciled conflicting interpretations of the “bodily injury” requirement for domestic battery and other criminal offenses using that language, concluding that any such offense that causes the victim physical pain meets the test.

Justices drew a “bright line” in a unanimous 18-page opinion written by Justice  Mark Massa in Elmer J. Bailey v. State of Indiana, 49S02-1204-CR-234.

Elmer Bailey was convicted in Marion Superior Court of two counts of Class D felony domestic battery, enhanced from misdemeanors because of his prior convictions against the victim, his wife of 11 years, Farrenquai Bailey.

During a night in which the couple was drinking at home, Elmer Bailey became verbally abusive before poking Farrenquai Bailey multiple times in the forehead with his finger hard enough to push her head back, she testified. He also shoved her, and the actions caused physical pain, she said.

Justices overturned an Indiana Court of Appeals panel that in an unpublished opinion reversed Elmer Bailey’s conviction. That panel ruled that, “[I]n order for (the victim) to have suffered ‘bodily injury’ sufficient to justify Elmer’s conviction, her pain ‘must be sufficient to rise to a level of ‘impairment of physical condition.’”

“We think this is the wrong approach,” Massa wrote. “Nothing in our prior treatment of this statute implies such a hurdle, despite the facts of the particular cases. Rather, our prior treatment establishes a structure that mirrors statutes from other states and the Model Penal Code by creating a very low threshold for ‘bodily injury’ while maintaining a much more rigorous standard for ‘serious bodily injury.’”

The opinion pointed to a conflicting appellate panel’s opinion in a separate case issued just six days after the COA ruled in Bailey –  Toney v. State, 961 N.E.2d 57, 59 (Ind. Ct. App. 2012). That panel ruled, “The statutory definition of bodily injury is clear and unambiguous. It contains no requirement that the pain be of any particular severity, nor does it require that the pain endure for any particular length of time. It must simply be physical pain.”

“Our holding today settles a question of statutory interpretation about which reasonable minds can differ. We choose this approach, in part, because we believe the alternative — requiring physical pain to rise to a particular level of severity before it constitutes an impairment of physical condition — could bring uncertainty to our relatively straightforward statutory structure,” Massa wrote.

The justices acknowledged the opinion risks witness coaching and potential false claims of pain in emotionally charged he said/she said cases. “But those are challenges of witness credibility, not statutory construction, and they are not new to criminal litigation. They are largely addressed through zealous advocacy and effective cross-examination,” according to the opinion.

The opinion noted that Indiana’s statutory language regarding bodily injury has been on the books for more than 35 years without modification. “Certainly, had the General Assembly disapproved of our approach and desired to create a threshold standard for physical pain, it could have done so. In the absence of such a change, we think it fair to infer a persuasive degree of legislative acquiescence with respect to our approach.”

The justices also affirmed Elmer Bailey’s sentence as appropriate because he was on probation at the time for a similar offense, and he has 11 prior adult convictions.

 
 



 

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  3. Law school is social control the goal to produce a social product. As such it began after the Revolution and has nearly ruined us to this day: "“Scarcely any political question arises in the United States which is not resolved, sooner or later, into a judicial question. Hence all parties are obliged to borrow, in their daily controversies, the ideas, and even the language, peculiar to judicial proceedings. As most public men [i.e., politicians] are, or have been, legal practitioners, they introduce the customs and technicalities of their profession into the management of public affairs. The jury extends this habitude to all classes. The language of the law thus becomes, in some measure, a vulgar tongue; the spirit of the law, which is produced in the schools and courts of justice, gradually penetrates beyond their walls into the bosom of society, where it descends to the lowest classes, so that at last the whole people contract the habits and the tastes of the judicial magistrate.” ? Alexis de Tocqueville, Democracy in America

  4. Attorney? Really? Or is it former attorney? Status with the Ind St Ct? Status with federal court, with SCOTUS? This is a legal newspaper, or should I look elsewhere?

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