. . . of domestic battery as a Class D felony, though guilty of the lesser included offense of battery as a Class B misdemeanor, was the jury’s verdict today in a case I defended. “Bodily injury” is a necessary element of the former, while the latter only requires knowingly touching another person in a “rude, insolent or angry” manner. “Bodily injury” is ambiguously defined in the Indiana statutes as “any impairment of physical condition, including physical pain.”
Closing argument was interesting. I emphasized to the jury that they are the judges of both the law and the facts, per their jury instructions. (The Indiana Constitution provides “In all criminal cases whatever, the jury shall have the right to determine the law and the facts.”) I also urged on the jury (without actually citing or quoting) the substance of the following interpretation of the statutory definition of “bodily injury” from Judge Crone’s concurrence in Lewis v. State, 898 N.E.2d (Ind.Ct.App. 2008):
I respectfully disagree, however, with the [lead opinion’s suggestion] that any degree of pain, no matter how slight, is sufficient to constitute an “impairment of physical condition” and therefore constitute “bodily injury” . . . . I believe that something more than the mere sensation of pain is required; to hold otherwise is to read “impairment” out of the statute.
That said, I believe that Engelking’s testimony that Lewis “punched” him in the face “pretty hard” and that “it didn’t feel good” is sufficient to establish that he suffered bodily injury. We expect jurors to draw upon their own personal knowledge and experience in deciding guilt or innocence. . . . Anyone who has been punched “pretty hard” in the face would readily agree that such an impact is sufficiently painful to allow an inference of impairment and therefore bodily injury.
My argument to the jury for this interpretation of the statute elicited an objection from the prosecutor on the grounds that it misstated the law (although neither the lead opinion in Lewis v. State nor prior case law actually contradicted Judge Crone’s interpretation of the statute, and I wasn’t telling the jury that the interpretation of the law I was urging on them was itself “the law.”) The judge didn’t sustain or overrule the objection, but instead admonished the jury that the court’s instructions were the jury’s best source for the law and allowed me to continue the argument.
At the end of the day, the jury apparently determined either that my client’s “battery” did not cause his fiance (to whom he is still engaged) any pain, or if it did cause her pain it was slight and did not rise to the level of a “bodily injury.”
The jury thereby exercised their common sense, and wholly deserved the thanks the judge gave them at the conclusion of their service.