COA finds probation condition vague, divided over fundamental error in jury instruction

The Indiana Court of Appeals agreed Wednesday that a condition of a woman’s probation after attacking her neighbor needed further clarification, but the judges disagreed as to whether her felony battery with a deadly weapon conviction should be reversed.

Vicki Clemons attacked her neighbor, Margaret Willoughby, as Willoughby walked near Clemons’ home. The two had a history of not getting along. Clemons struck Willoughby in the head with a metal rod and threatened to end her life. During the attack, Clemons struck Willoughby’s head, wrist and back.

Clemons was charged with and convicted of Level 5 felony battery with a deadly weapon and Level 6 felony battery resulting in moderate bodily injury. The convictions were merged due to double jeopardy concerns.

At trial, Clemons never objected to the jury instructions, which did not include a definition of “serious bodily injury.” As a result, Clemons was forced on appeal to prove fundamental error by the trial court in not instructing the jury on the definition.

Judges Robert Altice and L. Mark Bailey upheld Clemons’ conviction of the Level 6 felony, finding that while an instruction on the definition of serious bodily injury would have been “desirable,” it is common sense that the metal rod used in the attack is capable of causing death, so it is logical that the weapon is also capable of causing serious bodily injury, Altice wrote.

“Thus, even in the absence of an instruction on the statutory definition of that phrase, the jury was able to determine based on its collective common sense and everyday experiences that the metal rod Clemons used to batter Willoughby was readily capable of causing serious bodily injury,” he wrote.

But Judge John Baker dissented, believing the definition was necessary, citing Kimbrough v. State, 911 N.E.2d 621, 634 (Ind. Ct. App. 2009). He also noted that the jury received the definition of “moderate bodily injury,” a new statutory category recently created by the Legislature.

“Had Willoughby’s injuries clearly constituted serious bodily injury, I would affirm, because a weapon that actually causes serious bodily injury is necessarily capable of causing such injury,” he wrote. “But I cannot say that it is a given that a jury would have found swelling, pain, and a wrist fracture to constitute serious, as opposed to moderate, bodily injury.”

The judges all did agree that a probation condition imposed on Clemons must be clarified. The court prohibited her from associating with people of bad character or reputation or with people likely to influence her to commit a crime, which is impermissibly vague, because it did not provide any context or clarity.  The COA noted that this condition and similar ones are commonly used throughout the state and encouraged all trial courts to ensure probation conditions are appropriately specific.

The court remanded with instructions to the Shelby Superior Court clarify the probation condition in Vicki Jo Clemons v. State of Indiana, 73A01-1703-CR-405.

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