Kazie Sekou Cole v. State of Indiana (mem. dec.) ( 2017 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Jan 13 2017, 9:46 am
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Sean P. Hilgendorf Curtis T. Hill, Jr.
South Bend, Indiana Attorney General of Indiana
Eric P. Babbs
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Kazie Sekou Cole, January 13, 2017
Appellant-Defendant, Court of Appeals Case No.
71A03-1605-CR-1034
v. Appeal from the St. Joseph
Superior Court
State of Indiana, The Honorable Jane Woodward
Appellee-Plaintiff Miller, Judge
Trial Court Cause No.
71D01-1512-F3-66
Baker, Judge.
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[1] Kazie Sekou Cole appeals his conviction for Aggravated Battery,1 a Level 3
Felony, arguing that the evidence is insufficient to support the conviction.
Finding the evidence sufficient, we affirm.
Facts
[2] G.P. and Cole had been friends for about three years and romantically involved
for about three months in December 2015. On December 10, 2015, G.P. went
to Cole’s house. At some point, she left the house to go shopping; when she
returned, Cole met her at the door and demanded her cell phone. G.P. refused
to give him her phone, and he then shoved G.P. and told her to go into the back
bedroom. They began arguing because G.P. refused to give him her phone or
the correct password.
[3] While they argued, Cole began choking G.P. with his hands, eventually putting
his arm around her neck and choking her until she lost consciousness. When
G.P. regained consciousness, Cole still had his arm around her neck. He then
proceeded to hit G.P. “pretty good several times . . . in the side of the head.”
Tr. p. 93. Cole then choked G.P. again. She lost consciousness at least two
more times during the altercation.
[4] G.P. awoke on Sunday and retrieved her phone, which Cole had taken from
her, and texted her cousin, saying that Cole had beaten her up and she needed
1
Ind. Code § 35-42-2-1.5
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to go to the hospital. When G.P.’s family members arrived to take her to the
hospital, they observed that she had been badly beaten around her head and
seemed disoriented and confused.
[5] Dr. Adam Losch treated G.P. in the emergency room. He noticed that she had
bruising around the eyes and neck, swelling of the face and cheeks, bruising
behind the ear, a ruptured eardrum, and two broken teeth. X-rays revealed that
G.P. had a broken rib, and a C.T. scan revealed that G.P. had suffered from a
subdural hemorrhage—internal bleeding between the brain and the skull.
Because of her severe injuries, G.P. was admitted to the hospital and stayed for
three days.
[6] On December 18, 2015, the State charged Cole with Level 3 felony rape, Level
3 felony aggravated battery, and Level 6 felony criminal confinement. Cole’s
jury trial began on March 9, 2016. At trial, Dr. Losch testified that “[a]nytime
there’s bleeding within the skull[,] that can produce basically death . . . . It can
lead to death, because anytime there’s bleeding within the skull it’s an enclosed
space, and so that can result in basically massive brain damage.” Tr. p. 150.
Dr. Losch also testified that if G.P.’s injuries had been left untreated, they could
have been life-threatening. Id. at 169. Another physician who treated G.P.
testified that increased pressure on the brain due to bleeding could cause death.
Id. at 245.
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[7] On March 11, 2016, the jury found Cole guilty of aggravated battery and not
guilty of the remaining charges. On April 8, 2016, the trial court sentenced
Cole to twelve years imprisonment. Cole now appeals.
Discussion and Decision
[8] Cole’s sole argument on appeal is that the evidence is insufficient to support the
conviction. When reviewing a claim of insufficient evidence, we will consider
only the evidence and reasonable inferences that support the conviction. Gray
v. State, 957 N.E.2d 171, 174 (Ind. 2011). We will affirm if, based on the
evidence and inferences, a reasonable jury could have found the defendant
guilty beyond a reasonable doubt. Bailey v. State, 907 N.E.2d 1003, 1005 (Ind.
2009).
[9] To convict Cole of Level 3 felony aggravated battery, the State was required to
prove beyond a reasonable doubt that he knowingly or intentionally inflicted
injury on G.P., which created a substantial risk of death to G.P. I.C. § 35-42-2-
1.5. Cole argues that the evidence did not establish that the injuries created a
substantial risk of death. In reviewing a claim concerning whether a victim’s
injuries created a substantial risk of death, we “look to the observable facts
including the nature and location of the injury, and the treatment provided.”
Oeth v. State, 775 N.E.2d 696, 702 (Ind. Ct. App. 2002). Medical expert
testimony is not required to prove that a victim’s injuries created a substantial
risk of death. Wilcher v. State, 771 N.E.2d 113, 117 (Ind. Ct. App. 2002).
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[10] In this case, the observable facts in evidence reveal that Cole repeatedly and
violently struck and choked G.P. She lost consciousness at least three times
and had multiple bruises, swelling, a broken rib, a ruptured eardrum, and two
broken teeth. She appeared disoriented and confused, and felt dizzy and
nauseated. Medical testimony established that G.P. sustained a subdural
hemorrhage, or bleeding between her skull and her brain. Because of her
injuries, G.P. had to stay in the hospital for three days so that doctors could
monitor her brain’s condition. Two of G.P.’s treating physicians testified that
subdural hemorrhages can cause death; each of those doctors also testified that
if G.P. had not received medical treatment, her injuries could have been life-
threatening. Tr. Vol. I p. 169, Vol. II p. 247.
[11] Cole argues, essentially, that because G.P. did not suffer from any external
bleeding, did not have to have surgery, and received medical treatment
preventing her injuries from becoming life-threatening, the evidence does not
support a conclusion that her injuries created a substantial risk of death. We
disagree. Taking the latter argument first, we certainly do not require a battery
victim to refrain from seeking medical treatment, causing an actual, imminent
risk of death, to prove a substantial risk of death. And as for the first two
arguments, these amount to requests that we reweigh the evidence, which we
may not do. Whether a risk of death is substantial enough to meet the statutory
definition is largely a matter of degree “and therefore a question reserved for the
factfinder.” Cf. Young v. State, 725 N.E.2d 78, 82 (Ind. 2000) (explaining that
whether a bodily injury is “serious” “has been held to be a matter of degree and
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therefore a question reserved for the factfinder”). There is ample evidence in the
record supporting the jury’s conclusion that G.P.’s injuries caused a
substantial risk of death. See Beanblossom v. State, 530 N.E.2d 741, 742-43 (Ind.
1988) (holding that a blow to the back of victim’s head, causing victim to fall to
his knees and leaving victim in a semiconscious state, was sufficient to prove an
injury that created a substantial risk of death). In other words, the evidence is
sufficient.
[12] The judgment of the trial court is affirmed.
Mathias, J., and Pyle, J., concur.
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