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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Justices overturned an Indiana Court of Appeals panel that in an unpublished opinion reversed Elmer Bailey’s conviction.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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  1. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

  2. As a lawyer who grew up in Fort Wayne (but went to a real law school), it is not that hard to find a mentor in the legal community without your school's assistance. One does not need to pay tens of thousands of dollars to go to an unaccredited legal diploma mill to get a mentor. Having a mentor means precisely nothing if you cannot get a job upon graduation, and considering that the legal job market is utterly terrible, these students from Indiana Tech are going to be adrift after graduation.

  3. 700,000 to 800,000 Americans are arrested for marijuana possession each year in the US. Do we need a new justice center if we decriminalize marijuana by having the City Council enact a $100 fine for marijuana possession and have the money go towards road repair?

  4. I am sorry to hear this.

  5. I tried a case in Judge Barker's court many years ago and I recall it vividly as a highlight of my career. I don't get in federal court very often but found myself back there again last Summer. We had both aged a bit but I must say she was just as I had remembered her. Authoritative, organized and yes, human ...with a good sense of humor. I also appreciated that even though we were dealing with difficult criminal cases, she treated my clients with dignity and understanding. My clients certainly respected her. Thanks for this nice article. Congratulations to Judge Barker for reaching another milestone in a remarkable career.

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