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Justices overturned an Indiana Court of Appeals panel that in an unpublished opinion reversed Elmer Bailey’s conviction.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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  1. I think the cops are doing a great job locking up criminals. The Murder rates in the inner cities are skyrocketing and you think that too any people are being incarcerated. Maybe we need to lock up more of them. We have the ACLU, BLM, NAACP, Civil right Division of the DOJ, the innocent Project etc. We have court system with an appeal process that can go on for years, with attorneys supplied by the government. I'm confused as to how that translates into the idea that the defendants are not being represented properly. Maybe the attorneys need to do more Pro-Bono work

  2. We do not have 10% of our population (which would mean about 32 million) incarcerated. It's closer to 2%.

  3. If a class action suit or other manner of retribution is possible, count me in. I have email and voicemail from the man. He colluded with opposing counsel, I am certain. My case was damaged so severely it nearly lost me everything and I am still paying dearly.

  4. There's probably a lot of blame that can be cast around for Indiana Tech's abysmal bar passage rate this last February. The folks who decided that Indiana, a state with roughly 16,000 to 18,000 attorneys, needs a fifth law school need to question the motives that drove their support of this project. Others, who have been "strong supporters" of the law school, should likewise ask themselves why they believe this institution should be supported. Is it because it fills some real need in the state? Or is it, instead, nothing more than a resume builder for those who teach there part-time? And others who make excuses for the students' poor performance, especially those who offer nothing more than conspiracy theories to back up their claims--who are they helping? What evidence do they have to support their posturing? Ultimately, though, like most everything in life, whether one succeeds or fails is entirely within one's own hands. At least one student from Indiana Tech proved this when he/she took and passed the February bar. A second Indiana Tech student proved this when they took the bar in another state and passed. As for the remaining 9 who took the bar and didn't pass (apparently, one of the students successfully appealed his/her original score), it's now up to them (and nobody else) to ensure that they pass on their second attempt. These folks should feel no shame; many currently successful practicing attorneys failed the bar exam on their first try. These same attorneys picked themselves up, dusted themselves off, and got back to the rigorous study needed to ensure they would pass on their second go 'round. This is what the Indiana Tech students who didn't pass the first time need to do. Of course, none of this answers such questions as whether Indiana Tech should be accredited by the ABA, whether the school should keep its doors open, or, most importantly, whether it should have even opened its doors in the first place. Those who promoted the idea of a fifth law school in Indiana need to do a lot of soul-searching regarding their decisions. These same people should never be allowed, again, to have a say about the future of legal education in this state or anywhere else. Indiana already has four law schools. That's probably one more than it really needs. But it's more than enough.

  5. This man Steve Hubbard goes on any online post or forum he can find and tries to push his company. He said court reporters would be obsolete a few years ago, yet here we are. How does he have time to search out every single post about court reporters and even spy in private court reporting forums if his company is so successful???? Dude, get a life. And back to what this post was about, I agree that some national firms cause a huge problem.