Prologue. This Featured Article began as an appellate case note but grew beyond the applicable albeit unofficial parameters of a case note. The article presents candid, condign criticism of the COA’s pronouncement of an unlikely and hitherto unknown “deadly weapon” that is neither deadly nor a weapon in law or in fact.

On June 23, 2017 the COA reminded us why there is an Indiana Supreme Court: to correct the mistakes, mischief, nonsense, and absurdities that flow too often from the COA. The case is Burgh v. State, decided June 23, 2017 in the COA. It was May of 2016 when Troy Burgh and his girlfriend had a physical altercation with a second woman (“victim”) in the parking lot of a CVS pharmacy. Burgh pulled the victim to the asphalt surface of the parking lot while the girlfriend slammed the victim’s head onto that surface multiple times, causing the victim to suffer a concussion.

At the least a concussion (bruising of the brain) is a bodily injury for purposes of elevating battery from a Class “B” Misdemeanor to Class “A.” A serious bodily injury would then enhance the Class “A” misdemeanor to a Level 5 Felony. See the Battery statute at IC 35-42-2-1 and the definition of “serious bodily injury” at IC 35-31.5-2-292, including unconsciousness and extreme pain. Rather than rely on the serious injury to reach felony status, the prosecution charged a Level 5 Felony as a battery committed with a “deadly weapon.” See the prohibition at IC 35-42-2-1(a)(2) and the definition of “deadly weapon” at IC 35-31.5-5-86, to wit:

 IC 35-31.5-2-86

“Deadly weapon”

Sec. 86. (a) Except as provided in subsection (b), “deadly weapon” means the following:

(1) A loaded or unloaded firearm.

(2) A destructive device, weapon, device, taser (as defined in IC 35-47-8-3) or electronic stun weapon (as defined in IC 35-47-8-1), equipment, chemical substance or other material that in the manner it:

(A) is used;

(B) could ordinarily be used; or

(C) is intended to be used;

is readily capable of causing serious bodily injury.

(3) An animal (as defined in IC 35-46-3-3) that is:

(A) readily capable of causing serious bodily injury; and

(B) used in the commission or attempted commission of a crime.

(4) A biological disease, virus, or organism that is capable of causing serious bodily injury.

(b) The term does not include:

(1) a taser (as defined in IC 35-47-8-3);

(2) an electronic stun weapon (as defined in IC 35-47-8-1);

(3) a chemical designed to temporarily incapacitate a person; or

(4) another device designed to temporarily incapacitate a person;

if the device described in subdivisions (1) through (4) is used by a law enforcement officer who has been trained in the use of the device and who uses the device in accordance with the law enforcement officer’s training and while lawfully engaged in the execution of official duties.

Looking at the statutory definition of “deadly weapon,” it is not surprising to find that firearms are deadly weapons. The “catchall” portion of the definition is “other material…readily capable of causing serious bodily injury.” Some items, like scissors, may be a weapon one minute and not the next, depending on the intended use. Moreover, the “deadly” part of the definition does not require death, deadly intent, or even the slightest injury so long as the “other material” is “readily capable of causing serious bodily injury.”

In concluding that the asphalt parking lot surface was a “deadly weapon,” the COA was not above a deceptive citation to inapplicable precedent. The case cited is Majors v. State, 410 N.E.2d 1196, 1197 (Ind. 1980) wherein the SCOTSI held that a rock-like object (possibly a piece of asphalt paving) wielded in a threatening manner was a “deadly weapon” for purposes of robbery enhancement. In that case the object was actively wielded by the perpetrator, unlike the passive parking lot surface in Burgh v. State.

Beyond this error of commission the COA erred by way of the omission of at least two settled rules of statutory construction. The first such omitted rule is the general (civil or criminal) canon of construction known as ejusdem generis. When a list of words having specific and limited meaning is followed by words of more general meaning, those latter words will be construed as including only things like those designated in the preceding list. 609 Land, Inc. v. Metropolitan BZA of Marion County, 889 N.E.2d 305, 310 (Ind. 2008). This canon applied to the statutory definition of “deadly weapon” would require the construction that the “catchall” “other materials” prohibition be limited to items (like firearms or stun devices) that are active (opposed to passive) and that can be wielded by a man.

Apart from the omitted canon of ejusdem generis, the COA seems to have forgotten the fundamental rule of mandatory narrow construction of criminal statutes. See Meredith v. State, 906 N.E.2d 867, 872 (Ind. 2009). A benefit of narrow construction is the avoidance of unconstitutional vagueness, which occurs when criminal prohibitions are not clearly defined or when they invite arbitrary or discriminatory enforcement. Klein v. State, 689 N.E.2d 296, 299 (Ind. 1998).

In reading the statutory definition of “deadly weapon” one will not find reference to “asphalt parking lot surface.” So the question becomes whether an asphalt parking lot surface is included within a generalized category of the statute. Here that category is “other material…readily capable of causing serious bodily injury.” Whether an asphalt parking lot surface is within that generalized category is a matter of construction. When construction of a statutory definition becomes necessary due to generality or vagueness therein, we should consider both the totality of the statutory definition and the commonly understood meaning of the defined term. I consulted three dictionaries for the meaning of “weapon” and found in each source a reference to “instrument,” “device,” or “implement.” A “weapon” is commonly considered as something that may be wielded, operated, or triggered by a man. A weapon is active or reactive rather than passive and inert. Here is my analogy of the blacksmith’s shop. The hammer wielded with intent to harm is a weapon while the anvil is not, even when an innocent is caught between the hammer and the anvil.

To its credit, the COA conceded that “we commonly think of a weapon as a moveable object.” In holding to the contrary in Burgh v. State the COA was wrong, recklessly so. I assert it is reckless for the judiciary (in order to accommodate the prosecution) to declare an unbridled expansion of those things around us which carry criminal consequences previously unknown. The result in Burgh is unjust, not because Troy Burgh deserves a break1, but because it tends to erode the freedom from criminal prosecution (or the freedom against being overcharged) of everyone else. Here’s hoping for a grant of Transfer and for a clear SCOTSI holding that corrects the error and chastises the COA.


¹Whether or not the appealed felony stands, Mr. Burgh sustained a conviction for felony battery by strangulation and did not appeal.  In any event he is and will remain a convicted felon.


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