Appellate Court Says Paved Asphalt Can Be A ‘Deadly Weapon’

Appellate Court Says Paved Asphalt Can Be A ‘Deadly Weapon’

Olivia Covington for www.theindianalawyer.com

Determining that the paved surface of a parking lot can be considered a “deadly weapon” in the context of certain cases, the Indiana Court of Appeals on Friday affirmed a man’s conviction for felony battery.

In May 2016, Troy Burgh and his girlfriend, Gabrielle Adams, got into a fight in a CVS Pharmacy parking lot with Ashley Banghart. Burgh pulled Banghart to the ground, which was a paved asphalt surface, while Adams slammed Banghart’s head onto the surface six times.

Banghart suffered a concussion, and Burgh was charged with, in relevant part, Level 5 felony battery for having been committed with a deadly weapon — the pavement of the parking lot. Burgh was found guilty, and he appealed in Troy Burgh v. State of Indiana, 71A03-1611-CR-2669.

On appeal, Burgh argued the paved surface of a parking lot cannot satisfy the deadly weapon enhancement that elevates battery from a Class B misdemeanor to a Level 5 felony. Indiana Court of Appeals Judge Edward Najam wrote “deadly weapon” is defined in Indiana Code 35-42-2-1(g)(2) as material that, in the manner it is used, “is readily capable of causing serious bodily injury.”

Thus, determining whether an object is a deadly weapon depends on the nature of the object, how it is used and the surrounding circumstances, Najam said. In the facts of Burgh’s case, “the paved surface is comparable to the use of a rock or similar object with which to hit a victim,” he said.

“While we commonly think of a weapon as a moveable object, as this case illustrates a stationary object can also be used as a weapon,” Najam wrote for the unanimous panel. “A paved surface is ‘other material’ that is ‘readily capable of causing serious bodily injury’ depending on the manner in which the surface is actually used.”

Najam reached the same conclusion in a Friday memorandum decision in Adams’ case, Gabrielle R. Adams v. State of Indiana, 71A05-1611-CR-2659. Thus, both of their Level 5 felony battery convictions were affirmed.