Laura A. Myers, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

Case Summary

[1] Following a jury trial, Laura Myers was convicted of domestic battery resulting in moderate bodily injury, a Level 6 felony. Myers appeals and claims that: (1) insufficient evidence supports her conviction; and (2) the trial court erred by denying Myers’ pre-sentencing motions to set aside the jury's verdict. We disagree and affirm.

Issues

[2] Myers presents four issues, which we consolidate and restate as the following two:

I. Whether the State presented sufficient evidence to support a finding of moderate bodily injury, which was required to convict Myers of domestic battery as a Level 6 felony.

II. Whether the trial court erred by denying Myers’ motions to set aside the verdict, which were based on: (a) allegations that the victim advocate coached the victim while the victim testified; and (b) claims that jurors were improperly influenced by signs outside the courthouse.

Facts

[3] In September 2022, then fifteen-year-old M.M. was living with her adoptive mother, Myers, in LaGrange County. On the morning of September 14, 2022, M.M. was getting ready for school and put on a long-sleeved t-shirt. Myers thought it was too warm to wear a long-sleeved shirt and began to yell at M.M. Myers was also angry because M.M. had forgotten to put away a cup after feeding the dogs. Myers angrily called M.M. “useless” and ordered the child to the bathroom for a spanking. Tr. Vol. II p. 131.

[4] In the bathroom, Myers ordered M.M. to pull down her pants and bend over the bathtub. M.M. complied, and Myers repeatedly struck M.M. on her buttocks and legs with a pink dog leash with a metal clasp. To no avail, M.M. asked Myers to stop. The whipping hurt so badly that M.M.’s knees buckled, and she began to cry. When the whipping was over, Myers ordered M.M. to pull her pants back up. After the whipping, Myers found makeup in M.M.’s backpack, which Myers had forbidden M.M. to use. Myers then drove M.M. to M.M.’s aunt's home to wait for the school bus. On the drive to the aunt's home, Myers was still angry and continued to yell at and berate M.M.

[5] Once on the school bus, M.M. had trouble sitting due to the pain caused by the whipping. This caused one of M.M.’s friends to ask about her behavior, but M.M. was too embarrassed to tell her friend what had happened. At school, M.M. was called to the counselor's office. M.M. told the counselor about the whipping she had received, and the counselor took photos of M.M.’s injuries. The counselor summoned the school nurse, who described the injuries at trial as:

bruising, not quite, like lacerations, redness. [D]efinitely hit by something is the best word I can think of. [T]hat was definitely new that weren't old, you know, the fresh bruise mark of the your [sic] bluish, purplish, reddened areas.

Tr. Vol. II p. 75.¹ The nurse also testified that the injuries were consistent with M.M. having been struck with a metal belt buckle. The nurse gave M.M. ice and Tylenol for the pain, and the counselor reported the injuries to the Department of Child Services (“DCS”).

[6] DCS family case manager Zachary Wonderly (“FCM Wonderly”) spoke with M.M. at the school. FCM Wonderly also went to Myers’ home and spoke with Myers. At first, Myers claimed that M.M. was injured when she became caught in a dog leash. Eventually, however, Myers admitted that she had whipped M.M. with a dog leash. DCS ultimately removed M.M. from Myers’ home.

[7] On September 29, 2022, the State charged Myers with domestic battery resulting in moderate bodily injury, a Level 6 felony. A jury trial was held in April 2024. M.M. testified, and photos of her injuries were admitted into evidence. Myers testified on her own behalf and claimed that she spanked M.M. with a belt only three times after finding makeup and stolen art supplies in M.M.’s backpack. Myers also claimed that M.M. pushed her and spat at her. Myers claimed that she did not hit M.M. with a metal clasp and denied making M.M. pull her pants down.

[8] When the State called M.M. for rebuttal testimony, the trial court held a sidebar conference and stated:

THE COURT: I forgot to mention to you [that] your victim advocate should not be sitting at [the prosecutor's] table.

[Deputy Prosecutor]: Oh, I didn't know that.

THE COURT: And she was doing some things she shouldn't, so --

[Deputy Prosecutor]: Okay, I'll tell her. I'm sorry.

Tr. Vol. II p. 179. M.M. then testified in rebuttal that she neither spat at nor pushed Myers. The jury found Myers guilty as charged.

[9] Five days after the trial, on April 30, 2024, Myers filed a motion to set aside the jury's verdict. In her motion, Myers claimed that Myers and others (who were not named in the motion) saw the victim advocate coach M.M. during M.M.’s testimony using hand signals and head movements. Myers’ motion was accompanied by an affidavit from Myers attesting to the allegations. The State responded by claiming that Myers’ allegations were not newly discovered evidence and did not constitute prosecutorial misconduct.

[10] Before the trial court could rule on this motion, Myers filed a second motion to set aside the verdict. Attached to this motion was an affidavit from an attorney in a firm with Myers’ counsel. This affidavit asserted that, during the trial, there were over 400 pinwheels on the courthouse lawn and signs that stated, “PREVENT CHILD ABUSE Every Kid Matters.” Appellant's App. Vol. II p. 227. Similar signs were on other facilities in the town, including the hospital, health department, a medical office, and a building housing the Bureau of Motor Vehicles branch and DCS office. The affidavit also asserted that there were messages written in chalk on the sidewalk near the courthouse stating, “Your Voice Has POWER,” “you are worth it,” “your voice matters,” “We Believe You,” and “YOU ARE NOT ALONE.” Id. The State responded to this motion and argued that these matters could have been raised at trial, that the jury was instructed to ignore outside influences, and that the sidewalk chalk messages were not made until after the jury's deliberations.

[11] The trial court heard arguments on the motions to set aside at the beginning of the sentencing hearing. Myers declined to submit evidence aside from the affidavits. The trial court noted that its comments about the victim advocate were based on the court's policy that only attorneys and parties to the action are permitted to sit at the counsels’ tables; the court also noted that, by referring to the advocate doing “some things she shouldn't,” Tr. Vol. II p. 179, it meant the action of the advocate “smiling pretty regularly at the jurors.” Id. at 219. The trial court found that the issues raised in both motions could have been presented at trial and denied the motions to set aside. The trial court then sentenced Myers to one year in jail with all but sixty days suspended to probation. Myers now appeals.

Discussion and Decision

I. Sufficiency of the Evidence

[12] Myers claims that the State presented insufficient evidence to support her conviction for domestic battery resulting in moderate bodily injury. “Claims of insufficient evidence ‘warrant a deferential standard, in which we neither reweigh the evidence nor judge witness credibility.’ ” Stubbers v. State, 190 N.E.3d 424, 429 (Ind. Ct. App. 2022) (quoting Powell v. State, 151 N.E.3d 256, 262 (Ind. 2020)), trans. denied. On appeal, “[w]e consider only the evidence supporting the judgment and any reasonable inferences drawn from that evidence.” Id. (citing Powell, 151 N.E.3d at 262). “ ‘We will affirm a conviction if there is substantial evidence of probative value that would lead a reasonable trier of fact to conclude that the defendant was guilty beyond a reasonable doubt,’ ” and we will affirm a conviction “ ‘unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt.’ ” Id. (quoting Powell, 151 N.E.3d at 262). It is not necessary that the evidence overcome every reasonable hypothesis of innocence; instead, the evidence is sufficient if an inference may reasonably be drawn from it to support the verdict. Id. (citing Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007)).

[13] To convict Myers of domestic battery resulting in moderate bodily injury, the State had to prove that Myers: (1) touched a family or household member; (2) in a rude, insolent, or angry manner; and (3) this resulted in moderate bodily injury to a family or household member. Ind. Code § 35-42-2-1.3(a)(1), (b)(3). “An individual is a ‘family or household member’ of another person if the individual ․ is related by blood or adoption to the other person[.]” Ind. Code § 35-31.5-2-128(a)(4). And “moderate bodily injury” means “any impairment of physical condition that includes substantial pain.” Ind. Code § 35-31.5-2-204.5.

[14] On appeal, Myers does not deny that she whipped M.M or that M.M. is a family or household member. Instead, she argues only that the evidence does not support a finding that the whipping resulted in moderate bodily injury. Myers argues at some length that the definitions of “bodily injury,” “moderate bodily injury,” and “serious bodily injury” are vague and overlap to a significant degree such that it is difficult for the trier of fact to distinguish between these levels of bodily injury. This requires us to look at the statutory definitions of these terms.

[15] “ ‘Bodily injury’ means any impairment of physical condition, including physical pain.” Ind. Code § 35-31.5-2-29 (emphasis added). “ ‘Moderate bodily injury’ means any impairment of physical condition that includes substantial pain.” Ind. Code § 35-31.5-2-204.5 (emphasis added). And “[s]erious bodily injury” means “bodily injury that creates a substantial risk of death or that causes: (1) serious permanent disfigurement; (2) unconsciousness; (3) extreme pain; (4) permanent or protracted loss or impairment of the function of a bodily member or organ; or (5) loss of a fetus.” Ind. Code § 35-31.5-2-292 (emphasis added). Thus, the only distinction between bodily injury and moderate bodily injury is the degree of pain—bodily injury is the impairment of physical condition, including “physical pain,” but moderate bodily injury is the impairment of physical condition that includes “substantial pain.” And serious bodily injury is defined to include, among other conditions, “extreme pain.”

[16] The defendant in Smith v. State, 167 N.E.3d 378 (Ind. Ct. App. 2021), made an argument similar to Myers’ argument here. There, the defendant argued that “moderate bodily injury is a subjective term and is dependent upon how the alleged victim would describe her pain level, but leaves the jury to interpret the difference in pain levels.” Id. at 381 (citation omitted). In addressing this argument, we noted:

To show bodily injury the Indiana Supreme Court has explained that no particular level of pain is required to rise to the level of impairment of physical condition; rather, physical pain is an impairment of physical condition. Bailey v. State, 979 N.E.2d 133, 138 (Ind. 2012). Thus, “any degree of physical pain may constitute a bodily injury․” Id. at 142. Serious bodily injury is “reserved for [ ] extreme conduct” while “any degree of physical pain may constitute a bodily injury․” Id. at 140, 142. See also Toney v. State, 961 N.E.2d 57, 60 (Ind. Ct. App. 2012) (describing the threshold for showing serious bodily injury as “rather high”). Our Supreme Court has also acknowledged that “there is no bright-line test to distinguish between pain and extreme pain—between bodily injury and serious bodily injury.” Bailey, 979 N.E.2d at 142, n.17 (citations omitted).

As to moderate bodily injury, neither party directs us to a case in which we have directly addressed the sufficiency of the evidence required to prove moderate bodily injury for purposes of a charge of Level 6 felony battery, and our own research uncovered none. While not dispositive of the sufficiency of the evidence issue in this case, in Garner v. State, we affirmed the trial court's determination on a charge of battery resulting in moderate bodily injury that a jury instruction on the lesser-included offense of battery with bodily injury was not merited where the victim's injuries would have justified an instruction on serious bodily injury. 59 N.E.3d 355, 358-59 (Ind. Ct. App. 2016)․

* * * * *

With respect to a victim's pain tolerance in a prosecution for domestic battery, our Supreme Court has repeated the “longstanding rule of both criminal and tort law” that “a defendant takes his victim as he finds [her].” Bailey, 979 N.E.2d at 142 (citations omitted). We have also explained that evaluating a degree of pain is a concept that jurors can understand. See Vaillancourt v. State, 695 N.E.2d 606, 608, 610 (Ind. Ct. App. 1998) (holding that the term “extreme pain” in the statutory definition of serious bodily injury is one that jurors of “average intelligence” can understand), trans. denied. Indeed, we entrust to the jury the task of applying its “experiences in life” and “common sense” as it “takes into account all of the facts and circumstances” in a given case. McAlpin v. State, 80 N.E.3d 157, 163 (Ind. 2017) (internal quotations and brackets omitted).

Smith, 167 N.E.3d at 382-83 (emphasis added, brackets in original). Thus, “[w]hile there may be no bright line to differentiate levels of pain,” we trust in the common sense of our juries to be able to distinguish the various levels of pain. Id. at 383.

[17] Here, the State presented sufficient evidence to permit the jury to make this distinction and reach a reasonable determination that Myers’ battery resulted in substantial pain rather than merely physical pain. The State presented evidence that Myers repeatedly whipped M.M. with a dog leash with a metal latch, striking the child repeatedly on the buttocks and leg. This left injuries on M.M. that were clearly visible in the photos taken at the school and admitted at trial. M.M. testified that the whipping was painful—so painful that her knees buckled, she cried, and she had trouble sitting on the bus.

[18] From this evidence, the jury could reasonably conclude that M.M.’s injuries resulted in more than mere physical pain and instead rose to the level of substantial pain and thus amounted to moderate bodily injury. See Smith, 167 N.E.3d at 383 (holding that evidence was sufficient to support conviction for battery resulting in moderate bodily injury where victim described her pain as “an eight or nine out of ten,” she saw stars during the attack, suffered from headaches for a week after the attack, and could not move her neck without pain).

[19] Myers also argues that the State insinuated at trial that M.M.’s emotional or psychological pain could constitute moderate bodily injury and that the jury's verdict could have been based on such emotional pain. We disagree. To be sure, the State did ask M.M. if she had any lasting effects from the whipping “emotionally or mentally.” Tr. Vol. II p. 159. When M.M. gave an affirmative response to this question, the prosecutor asked, “Can you describe your emotional and mental ․ effects after this has happened?” Id. M.M. responded, “For a while, I thought I was, like, I -- I thought I was worthless. I thought I was, I think really, like no one really cared. And I ․ would get anxiety really bad[.]” Id. Myers made no objection to this line of questioning.

[20] As noted by the State, however, during closing argument, the prosecutor argued that it was M.M.’s physical injuries and pain that constituted moderate bodily injury:

And [the battery] resulted in moderate bodily injury. And that definition could include substantial pain. Well, we heard [M.M.], she was the one who experienced some pain. She said it hurt. And I'm – it was sub-, substantial. She couldn't hardly sit. We also saw those injuries as well. The bru-, bruises, the welts, the cuts. I contest that is all moderate bodily injury.

Id. at 188.

[21] Moreover, the trial court's instruction on the definition of moderate bodily injury tracked the statutory language that requires substantial physical pain. Appellant's App. Vol. II p. 156. We presume that juries faithfully follow the trial court's instructions. Weisheit v. State, 109 N.E.3d 978, 989 (Ind. 2018); Pritcher v. State, 208 N.E.3d 656, 665 (Ind. Ct. App. 2023). Accordingly, we cannot say the jury was misled to believe that the emotional or psychological pain M.M. experienced as a result of the whipping was sufficient to establish the moderate-bodily-injury element.

II. Motions to Set Aside the Jury's Verdict

[22] Myers also argues that the trial court improperly denied her motions to set aside the jury's verdict, which were based on claims of newly discovered evidence. In Terrell v. State, 745 N.E.2d 219, 222 (Ind. 2001), our Supreme Court explained that “when a party wishes to raise an issue of newly discovered evidence while a case is still before the trial court (such as in this instance, after trial and before sentencing) the party may raise it by motion to the trial court.”² The trial court's ruling on a motion to set aside based on an allegation of newly discovered evidence is discretionary and is reviewed on appeal for an abuse of discretion. Dickens v. State, 997 N.E.2d 56, 60-61 (Ind. Ct. App. 2013) (citing Taylor v. State, 840 N.E.2d 324, 330 (Ind. 2006)).

[23] Our Supreme Court has explained that newly discovered evidence requires a new trial only when the defendant demonstrates that:

(1) the evidence has been discovered since the trial; (2) it is material and relevant; (3) it is not cumulative; (4) it is not merely impeaching; (5) it is not privileged or incompetent; (6) due diligence was used to discover it in time for trial; (7) the evidence is worthy of credit; (8) it can be produced upon a retrial of the case; and (9) it will probably produce a different result at retrial.

Taylor, 840 N.E.2d at 329-30 (citing Carter v. State, 738 N.E.2d 665, 671 (Ind. 2000)); accord Dickens, 997 N.E.2d at 61. On appeal, we analyze these criteria “ ‘with care, as the basis for newly discovered evidence should be received with great caution,’ ” and the alleged new evidence should be “ ‘carefully scrutinized.’ ” Dickens, 997 N.E.2d at 61 (citing Taylor, 840 N.E.2d at 330). The defendant bears the burden of showing that all nine requirements are met. See id.

[24] Myers’ first motion to set aside was based on the alleged coaching of the victim by the victim advocate. The trial court denied this motion, noting that its comments regarding the victim advocate were limited to the fact that she sat at the prosecutor's table, contrary to the court's policy, and that she smiled at the jurors. The trial court also noted that, even if the allegations regarding the victim advocate were true, this was something that could have been discovered during trial. Thus, it was not newly discovered evidence. We agree.

[25] We first note that the trial court did not have to credit Myers’ claims regarding the victim advocate's alleged behavior. In her first motion to set aside, Myers claimed that others in the courtroom also witnessed the victim advocate's behavior, but these others were unnamed. The only evidence Myers presented to support her claim was her own self-serving affidavit, which the trial court did not have to credit. In fact, in ruling on the motion to set aside, the trial court noted that it had merely observed the victim advocate sitting at the prosecutor's table and smiling at the jurors.

[26] Even if the trial court did credit Myers’ affidavit, however, Myers’ allegations regarding the victim advocate do not meet the first criterion for newly discovered evidence because the evidence—the alleged signs to the victim while testifying—was not discovered after the trial. It was instead discovered during trial. Myers claims to have seen the victim advocate coaching the victim on the stand during the trial. Yet Myers did not mention this to the trial court during the trial by objection or other means. Thus, the trial court did not abuse its discretion by concluding that Myers should have brought this issue up during trial and, therefore, it did not qualify as newly discovered evidence.

[27] Myers’ second motion to set aside was based on the pinwheels, signs, and sidewalk chalk messages advocating for victims of child abuse and domestic violence. In denying this motion, the trial court again noted that this issue could have been presented at trial. The trial court specifically noted that both the defendant and defense counsel walked into the courthouse every day of the trial and would have been well aware of the presence of the signage. It was only after the guilty verdict that Myers sought to raise an issue regarding the signs. Again, we agree with the trial court that any issue regarding the signs could have easily been presented during trial and is, accordingly, not newly discovered evidence.

[28] We also note that the jury was specifically instructed that its decision was not to be “influenced in any way by information, opinions, or publicity outside the courtroom.” Appellant's App. Vol. II p. 148. We presume the jury follows the trial court's instructions. Weisheit, 109 N.E.3d at 989; Pritcher 208 N.E.3d at 665. Under these circumstances, we cannot say that the trial court abused its discretion by denying Myers’ motions to set aside the jury's verdict.³

Conclusion

[29] The State presented sufficient evidence to establish that Myers’ whipping of M.M. with a dog leash resulted in moderate bodily injury by causing M.M. substantial physical pain. The trial court did not abuse its discretion by denying Myers’ motions to set aside the jury's verdict because the motions were not based on newly discovered evidence. Accordingly, we affirm the trial court's judgment.

[30] Affirmed.

FOOTNOTES

1.   We have removed verbal hesitation markers such as “uh” and “um” from the quotations to aid in readability.

2.   In contrast, if a party wishes to raise an issue of newly discovered evidence after sentencing, the party must bring a motion to correct error under Criminal Rule 5.3(A). See Terrell, 745 N.E.2d at 222 (citing former Criminal Rule 16, which corresponds to the current Criminal Rule 5.3).

3.   We also reject Myers’ claim that, even if the bases of her motions to set aside do not warrant relief individually, they do so cumulatively. Because all of her claims could have been brought during trial, they are not proper grounds for a motion to set aside either individually or cumulatively.

Tavitas, Judge.

Chief Judge Altice and Judge Brown concur. Altice, C.J., and Brown, J., concur.