Denial of jury instruction was correct, COA rules

The Indiana Court of Appeals said a trial court was right in denying a man’s jury instruction that would have applied mens rea to every element of aggravated battery, saying the severity of an injury is not an element of prohibited conduct, but a result of it.

Cory Lowden attended a Halloween party Oct. 26, 2013, at his friends’ home. He got into a heated argument with someone and punched them. His punch knocked the man unconscious and broke his jaw in two places. Later, the man’s jaw was infected and he needed a second surgery to recover.

Lowden was charged with aggravated battery under Indiana Code 35-42-2-1.5 which in part said, “A person who knowingly or intentionally inflicts injury on a person that creates a substantial risk of death or causes … protracted loss or impairment of the function of a bodily member or organ … commits aggravated battery, a Class B felony. “

During the trial, Lowden tendered a final jury instruction that would have required the state to prove he was “aware of a high probability that his conduct would lead to a serious bodily injury, including the protracted loss or impairment of the function of a bodily member or organ.” The trial court rejected the instruction on the definition of “knowingly” and gave an instruction of the elements of aggravated battery. The jury found Lowden guilty. He was sentenced to eight years, with two years suspended and one year probation.

Lowden appealed and argued the trial court erred when it rejected his jury instruction requiring the state to prove Lowden knew his conduct would lead to serious bodily injury. However, the COA disagreed, saying the severity of the injury was an aggravating factor, not an element of conduct, and that the state only needed to prove Lowden knowingly or intentionally inflicted injury upon his victim, not that he knew it would cause serious bodily injury.

Also Lowden argued the prosecution misled its witness during its examination of her at trial, which constituted prosecutorial misconduct. Lowden waived his right to appeal prosecutorial misconduct at trial but the court still reviewed it for fundamental error.

However, the COA said the line of questioning was not leading the witness. It was not implying that Lowden punched his victim from behind, but addressing how Lowden and the victim arrived at the location of the punch.

The case is Cory Lowden v State of Indiana, 49A02-1503-CR-170.