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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Justices overturned an Indiana Court of Appeals panel that in an unpublished opinion reversed Elmer Bailey’s conviction.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. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

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