author: MAY, Judge.

text:
    Verdyer CLARK, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 49A04-1202-CR-66.
    Court of Appeals of Indiana.
    Dec. 7, 2012.

      Timothy J. O’Connor, O’Connor & Auersch, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Karl M. Scharnberg, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

MAY, Judge.

Verdyer Clark was convicted of battery as a Class D felony pursuant to a statute that required the State to prove the battery caused injury to a person less than fourteen years old and was committed by a person at least eighteen years old. Clark argues the State did not prove its case because the only evidence it offered to prove he was over eighteen at the time of the crime was inadmissible hearsay. We reverse and remand so that the State may decide whether to retry Clark.

FACTS AND PROCEDURAL HISTORY

On March 9, 2012, Deanna Drain left her infant at home in Clark’s care while she went to retrieve another child from daycare. When she returned home, she noticed redness in the child’s eyes and took him to a hospital. The child’s face looked swollen and red near the temples.

A hospital staff member referred the matter to a social worker for investigation of possible child abuse, and the social worker and a police detective interviewed Drain. The detective learned there was an active arrest warrant for Clark from a traffic offense and went to Drain’s apartment at about 2:30 in the morning to speak with Clark. The detective arrested Clark on the outstanding warrant and took Clark to the police station, where he interrogated Clark for four hours.

The State charged Clark with battery as a Class D felony pursuant to Ind.Code § 35 — 42—2—1(a) (2) (B), which required the State to prove the battery resulted in bodily injury to a person less than fourteen years of age and was “committed by a person at least eighteen (18) years of age.” Id. As evidence of Clark’s age, the State offered two documents prepared by the social worker who had interviewed Drain, which documents the State included in an exhibit containing the child’s medical records. One document, “Preliminary Report of Alleged Child Abuse or Neglect,” lists Clark as “Other Person Responsible for Child(ren)” and shows his age as twenty-three. (Confidential Ex. Vol. at 31.) The other document, “Social Work ED Assessment Plan Final Report,” includes in its narrative the statement “Mother has a boyfriend of 9 months Verdyer Clark age 23.” (Id. at 45.) Clark was convicted after a bench trial.

DISCUSSION AND DECISION

Clark correctly argues the only evidence of one of the elements of the offense, his age, was inadmissible hearsay. On a challenge to the sufficiency of evidence to support a conviction, a reviewing court does not reweigh the evidence or judge the credibility of the witnesses. McHenry v. State, 820 N.E.2d 124, 126 (Ind.2005). We consider only the probative evidence and reasonable inferences supporting the conviction. Id. We must affirm if the probative evidence and reasonable inferences drawn from the evidence could have allowed a reasonable trier of fact to find the defendant guilty beyond a reasonable doubt. Id.

1. Waiver

The State argues Clark waived his hearsay argument for appeal because he did not object at trial on the same ground he now asserts on appeal and because he •withdrew his trial objection to the evidence he now challenges. Clark made an adequate hearsay objection, and it was not withdrawn.

When the State told the court it planned to offer into evidence the exhibit including the child’s medical records (“Exhibit Ten”), this discussion followed:

[Clark’s Counsel]: I have a preliminary question. Were these written by the doctor who will be testifying?
[State]: No.
[Clark’s Counsel]: I object.
[State]: I believe part of them are but they are certified medical records with proper certification. They’re certified business records.
[Clark’s Counsel]: I’d object under [Bullcoming v. New Mexico, 564 U.S. -, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011) ], about the sixth amendment right to confront, and cross examine the person who actually created these reports. [] This looks like this will be testimonial on hearsay, and used to prove the truth of the matter asserted.
The Court: You do realize the Indiana Supreme Court medical [sic] records do not fall under that case?
[Clark’s Counsel]: In that instance, we have no objection.
The Court: Alright. I will note your objection. I will overrule your objection to the medical records, as long as they are properly certified business records, [sic] will be admitted. I’ll need to see that before I can make that determination.
[State]: Yes.
The Court: State’s Exhibit 10 will be admitted, with the notes [sic] objection from the defense. I have overruled that objection. I feel these medical records falls [sic] in exception to the confrontation clause, as dictated by case law.

(Tr. at 46-7) (footnote added).

The State correctly notes a defendant may not argue one ground for objection at trial and then raise new grounds on appeal, Tuner v. State, 953 N.E.2d 1039, 1058 (Ind.2011), and it asserts Clark “now argues a different basis for his objection [presumably hearsay] than that which animated his first objection [presumably a confrontation clause violation].” (Br. of Appellee at 6.)

We agree with Clark that a “hearsay objection is certainly there, if inartful.” (Appellant’s Reply Br. at 2.) Immediately after the reference to Bullcoming, trial counsel said: “This looks like this will be testimonial on hearsay, and used to prove the truth of the matter asserted.” (Tr. at 46.) The State does not address the significance of this statement, or even acknowledge Clark’s counsel made it.

Not only did Clark’s counsel explicitly mention hearsay, there is a close relationship between hearsay and confrontation: “Crawford [v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004),] makes clear that in a criminal prosecution any hearsay permitted under the rules of evidence is also subject to the defendant’s right ‘to be confronted with the witnesses against him’ under the Sixth Amendment to the United States Constitution.” Hammon v. State, 829 N.E.2d 444, 449 (Ind.2005), rev’d and remanded on other grounds by Davis v. Washington, 547 U.S. 813, 824, 126 S.Ct. 2266, 165 L.Ed.2d 224(2006). The Confrontation Clause applies only to testimonial hearsay. Davis, 547 U.S. at 824, 126 S.Ct. 2266. Hearsay rules and the Confrontation Clause are “generally designed to protect similar values” and they “stem from the same roots.” White v. Illinois, 502 U.S. 346, 353, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992). Clark did not waive his hearsay argument.

The State next argues Clark withdrew the objection. When the trial court told Clark’s counsel: ‘You do realize the Indiana Supreme Court medical [sic] records do not fall under [Bullcoming ]” counsel replied: “In that instance, we have no objection.” (Tr. at 46.) But it is apparent the trial court did not consider the objection withdrawn, as it made a ruling:

Alright. I will note your objection. I will overrule your objection to the-medical records, as long as they are properly certified business records, [sic] will be admitted. I’ll need to see that before I can make that determination .... State’s Exhibit 10 will be admitted, with the notes [sic] objection from the defense. I have overruled that objection.

(Id.) (emphasis added). The State does not address the significance of, or even acknowledge, those statements by the trial court. Nor does it explain how or why an objection no longer before the trial court may be overruled.

Because Clark objected and the court explicitly ruled on the objection, we decline the State’s invitation to hold Clark has lost his opportunity to argue his case on appeal because his objection was withdrawn.

2. The Hearsay Exception

A trial court exercises broad discretion in ruling on the admissibility of evidence, and an appellate court should disturb its rulings only where it is shown that the court abused its discretion. Camm v. State, 908 N.E.2d 215, 225 (Ind.2009). In deciding whether to admit an out-of-court statement, a trial court must answer two preliminary questions: Is the statement hearsay, and, if so, does an exception apply? Id. at 226.

The evidence of Clark’s age is found in two documents prepared by a social worker and offered by the State at trial as part of the child’s medical records. One document, “Preliminary Report of Alleged Child Abuse or Neglect,” lists Clark as “Other Person Responsible for Child(ren)” and shows his age as twenty-three. (Confidential Ex. Vol. at 31.) The other document, “Social Work ED Assessment Plan Final Report,” includes in its narrative “Mother has a boyfriend of 9 months Ver-dyer Clark age 23.” (Id. at 45.) There is no indication where the social worker obtained her information about Clark’s age.

Those statements were inadmissible hearsay. The statements were hearsay, as they were made by the social worker, a person who did not testify at trial, and they were offered to prove the truth of the matter asserted, ie., Clark’s age. See, e.g., Patton v. State, 725 N.E.2d 462, 464 (Ind.Ct.App.2000) (“Ind. Evidence Rule 801(c) provides us with the definition of hearsay as an out-of-court statement offered in court to prove the truth of the matter asserted in the statement.”).

The State does not argue the statements were not hearsay, but argues the statements by the social worker were admissible under Evidence Rule 803(4):

The following are not excluded by the hearsay rule, even though the declarant is available as a witness ... (4) Statements for Purposes of Medical Diagnosis or Treatment. Statements made by persons who are seeking medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.

(Emphasis added.) As the social worker was not a person “seeking medical diagnosis or treatment,” this hearsay exception is, by its own terms, inapplicable. Nor does the underlying rationale for the exception support its application in the case before us. “The underlying rationale for this hearsay exception requires a two-step analysis for evaluating whether a statement is properly admitted pursuant to Evid. R. 803(4): 1) is the declarant motivated to provide truthful information in order to promote diagnosis and treatment; and 2) is the content of the statement such that an expert in the field would reasonably rely on it in rendering diagnosis or treatment.” McClain v. State, 675 N.E.2d 329, 331 (Ind.1996) (emphasis added).

The McClain Court further explained: “to satisfy the requirement of the declar-ant’s motivation, the declarant must subjectively believe that he was making the statemenVor the purpose of receiving medical diagnosis or treatment.” Id. (emphasis added). If in the case before us the social worker is the “declarant,” it is not apparent she could have been making the statement about Clark’s age “for the purpose of receiving medical diagnosis or treatment.”

The State asserts the doctor who opined on the cause of the child’s injuries “relied upon the information contained in the medical records to form her diagnosis,” (Br. of Appellee at 7), so the social worker’s statements were admissible under that rule. We have, under some circumstances, found the hearsay exception applicable to a statement by a social worker. But the rationale for so holding does not exist in this case, as in such decisions the “declar-ant” is a patient who is receiving treatment from a social worker. For example:

Hearsay is admitted under this exception because the reliability of the out-of-court statement is assured based upon the belief that a declarant’s self-interest in seeking medical treatment renders it unlikely the declarant will mislead the person that she wants to treat her. Nash v. State, 754 N.E.2d 1021, 1023 (Ind.Ct.App.2001) [trans. denied ]. If the declarant’s statements are made to advance a medical diagnosis or treatment, Evidence Rule 803(4) encompasses statements made to non-physicians, including clinical social workers. See In re Paternity of H.R.M., 864 N.E.2d 442, 446 (Ind.Ct.App.2007) (finding that the rule applied to statements made to a clinical social worker specializing in working with abused children). State v. Velasquez, 944 N.E.2d 34, 40 (Ind.Ct.App.2011), trans. granted, opinion vacated, 950 N.E.2d 1208 (Ind.2011), order vacated and trans. denied, 962 N.E.2d 637 (Ind.2012), trans. denied, 963 N.E.2d 1120 (Ind.2012).

In Velasquez, we noted that in order for statements to be admissible under Evidence Rule 803(4), they need not be in furtherance of diagnosis and treatment. Rather, the statements must be relied on either to render a diagnosis or provide treatment. Id. at 42. Nor is it required that the statement be made to the individual who ultimately will render a diagnosis or provide treatment. Id. It is necessary only that the statement is made to promote diagnosis or treatment. Id.

There, a clinical social worker specializing in sexual abuse and domestic violence testified a child molestation victim was referred to her for assessment and therapy. The purpose of the assessment was to determine “what the family’s needs are, and what kind of services they might want.” Id. We determined the testimony “clearly shows [the social worker’s] purpose was to provide treatment for [the victim and her family].” Id. Thus, any statements made by the victim on which the social worker or another therapist “would have reasonably relied to provide treatment, including therapy,” to the victim were admissible under Rule 803(4). Id.

We again addressed the necessary relevance of the statement to diagnosis or treatment in Morse v. Davis, 965 N.E.2d 148 (Ind.Ct.App.2012), where Davis sued Dr. Morse for failure to diagnose colon cancer. Dr. Morse argued the trial court should have admitted into evidence a statement in a medical history questionnaire that Davis submitted to a different doctor who treated him eight months after Dr. Morse provided treatment. Davis was asked to provide information about his mother’s medical history by checking any applicable boxes corresponding to different diseases, including “cancer.” Id. at 158. The questionnaire indicated Davis’s mother was “ALIVE & WELL,” and none of the other boxes pertaining to his mother’s medical history are checked, including the box labeled “cancer.” Id.

Dr. Morse wanted to introduce that exhibit into evidence to support his claim that Davis had not told him his mother had a history of colon cancer. Dr. Morse argued the exhibit was admissible under Rule 803(4). We determined the trial court properly excluded the exhibit:

Davis sought medical treatment from Dr. Willden on the date in question for sinusitis, so his mother’s medical history with respect to cancer, or lack thereof, was not “reasonably pertinent” to the diagnosis or treatment of Davis’ ailment. Indeed, Dr. Morse did not elicit testimony from Dr. Willden that he had relied on that information when he treated Davis on that date.

965 N.E.2d at 159 (citation omitted).

Nor was evidence of Clark’s age “reasonably pertinent” to the diagnosis or treatment of the infant victim. As information about Clark’s age had no apparent relevance to a diagnosis of the child’s injuries, the social worker’s statements were not admissible under the Rule 803(4) hearsay exception.

3. Sufficiency of Evidence

The State has an obligation to prove every element of a charged crime. See In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) (“the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged”); Thurman v. State, 793 N.E.2d 318, 321 (Ind.Ct.App.2003) (“It is black letter law that the Due Process Clause of the Fourteenth Amendment requires that a conviction be supported by proof beyond a reasonable doubt of every element necessary to constitute the crime charged”)- Where, as here, the General Assembly has chosen to include the age of the defendant as an element of a crime, the Due Process Clause of the Fourteenth Amendment requires the State to prove the defendant’s age beyond a reasonable doubt. Stewart v. State, 866 N.E.2d 858, 863 (Ind.Ct.App.2007).

Circumstantial testimonial evidence can be sufficient to prove age. Altmeyer v. State, 519 N.E.2d 138, 141 (Ind.1988). For example, Altmeyer argued the State did not prove that he was at least sixteen years old at the time of his alleged offense, but his testimony that he was married and had an eleven-year-old son at the time of the offense was sufficient to establish he was over sixteen. Id. In the case before us, the State has not directed us to any circumstantial evidence that would permit such an inference regarding Clark’s age.

As the only evidence the State offered to prove an element of Clark’s offense was inadmissible hearsay, we must reverse Clark’s conviction. Of course, this reversal does not prevent the State from retrying Clark. While a reversal for insufficient evidence bars retrial under the Double Jeopardy Clause, analyzing the evidence for these purposes includes consideration of the evidence improperly admitted. Lockhart v. Nelson, 488 U.S. 33, 41, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988). As the whole of the evidence admitted at trial plainly sufficed to prove Clark’s guilt of the charged offense, a second trial may be conducted. See, e.g., Carr v. State, 934 N.E.2d 1096, 1108 (Ind.2010).

Reversed and remanded.

BAKER, J., and SHEPARD, SR. J., concur.

      . Ind.Code § 35-42-2-l(a)(2)(B).

      . We remind counsel that a Statement of Facts in an appellate brief "shall describe the facts relevant to the issues presented for review." Ind. Appellate Rule 46 (emphasis added). The Statements of Facts both counsel offer describe in detail the circumstances of Clark’s offense and his arrest, but both are devoid of any facts relevant to the only issue Clark presents for our review.

      .We heard oral argument October 9, 2012, in the Randall T. Shepard courtroom in Evansville. We thank the Evansville Bar Association for its hospitality and commend counsel on the quality of their oral advocacy.

      . Before the trial court, the State argued the documents in the exhibit were "certified business records.” (Tr. at 46.) As explained below, the State appears to be making a different argument on appeal, i.e. that the statements by the social worker were admissible under Evidence Rule 803(4). It does not make a "certified business records” argument. We decline to hold Clark waived the arguments he now makes on appeal because he did not object below on certified business record grounds, an issue that is itself not before us on appeal.

      . The Bullcoming Court held the Confrontation Clause does not permit the prosecution
      to introduce a forensic laboratory report containing a testimonial certification— made for the purpose of proving a particular fact—through the in-court testimony of a scientist who did not sign the certification or perform or observe the test reported in the certification.... The accused’s right is to be confronted with the analyst who made the certification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist.
      564 U.S. at-, 131 S.Ct. at 2710.

      . We acknowledge much of the information the social worker relied on came from Mother, who did testify at trial. But the social worker’s narrative does not indicate the information about Clark’s age was obtained from Mother, nor does it indicate what other sources of information might have been available to the social worker. Thus we decline to address the State’s suggestion at oral argument that the social worker’s report was admissible because Mother gave information to the social worker in order to obtain proper diagnosis or treatment for her infant.

      . The State does not, in its brief, explicitly say who the "declarant” is. But it is apparent the only declarations at issue are the two statements by the social worker that Clark was twenty-three. The State does not argue someone else might have been the "declar-ant” for purposes of the medical records exception.
      The State argues the physician's testimony "makes clear that the information obtained by Lynn Young, the social worker, and also by Detective McAllister, was used to assist [the doctor] in coming to a diagnosis,” so the records were admissible under the hearsay exception. (Br. of Appellee at 6) (emphasis added). Neither party directs us to anything in the record that suggests the detective made a statement about Clark’s age. Nor does the State offer explanation why information about Clark's age might be relevant to a diagnosis of the child’s injuries.


source: Caselaw Access Project

author: MASSA, Justice.

license: Public Domain

text:
    Elmer J. BAILEY, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
    No. 49S02-1204-CR-234.
    Supreme Court of Indiana.
    Nov. 5, 2012.
    Opinion, 2012 WL 360735, vacated.
    Bernice A.N. Corley, Ruth A. Johnson, Indianapolis, IN, Attorneys for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Joseph Y. Ho, James B. Martin, Ellen H. Meilaender, Deputy Attorneys General, Indianapolis, IN, Attorneys for Appellee.
   MASSA, Justice.

When a husband shoves his wife and pokes her in the forehead repeatedly, causing her pain, is that pain alone sufficient evidence to prove the “bodily injury” element of the husband’s conviction for domestic battery? One panel of the Indiana Court of Appeals thought not, but we disagree.

Facts and Procedural History

In 2011, Elmer and Farrenquai Bailey had been married for eleven years and in a relationship for another nine years prior to that. On the evening of January 22, 2011, Elmer came home from work and began drinking with Farrenquai. Each consumed about three beers. Farrenquai testified that Elmer then began threatening her, calling her vulgar names, and “putting his hands on [her].” Tr. at 7. He poked her repeatedly in the forehead with his finger, hard enough to push her head back. Farrenquai testified that this contact caused her pain. She eventually called the police, and Elmer left.

The police arrived at the Baileys’ home, and while the officers were present, Elmer called Farrenquai on her phone three times. Each time, the police spoke to him. After the police left, Elmer returned to the house, shoving Farrenquai out of the way to get inside. She testified that this shove hurt as well. He became verbally abusive again, and Farrenquai called the police a second time.

The police returned to the Baileys’ home, instructed Elmer to leave, and directed Farrenquai to lock the door so that Elmer could not re-enter. Minutes after the police departed, Elmer returned, and Farrenquai unlocked the door because she feared Elmer would kick it down or break a window to get back in. Again, Elmer began verbally abusing Farrenquai and poking her in the head, causing her pain. When Farrenquai called the police a third time, they returned and again instructed Elmer to leave. Farrenquai then asked the officers, “How you going to keep letting him just leave. And he’ll come back. What’s going to have to happen? Somebody going to have to get hurt?” Tr. at 13. At that point, the officers arrested Elmer.

Elmer was charged with battery and domestic battery, both as class A misdemeanors. Both charges were enhanced to class D felonies because Elmer had previously been convicted of domestic battery against Farrenquai. At his bench trial, the only evidence put forth by the State in support of either charge was Farrenquai’s testimony. Elmer denied putting his hands on Farrenquai in any way and specifically denied poking her in the forehead and shoving her. The judge found Elmer guilty of domestic battery and sentenced him to two years in prison.

Elmer appealed, and the Court of Appeals reversed in an unpublished decision. Bailey v. State, No. 49A02-1106-CR-487, 2012 WL 360735, slip op. at 9 (Ind.Ct.App. Feb. 3, 2012). The court first held that, in order for Farrenquai to have suffered “bodily injury” sufficient to justify Elmer’s conviction, her pain “must be sufficient to rise to a level of ‘impairment of physical condition.’” Id. at 7 (quoting Ind.Code § 35-41-1-4 (2008) (recodified at § 35-31.5-2-29) (2012)). It then found that Farrenquai’s testimony was insufficient evidence of this requirement. Id. at 9.

Six days later, a different panel of the Court of Appeals presented a different view of what level of pain constitutes “bodily injury” under Indiana’s criminal provisions, this time in a published decision. Toney v. State, 961 N.E.2d 57, 59 (Ind.Ct.App.2012). Because “bodily injury” is a concept that arises in a number of ways throughout Indiana’s criminal code, we granted transfer in Bailey to clarify its meaning, thereby vacating the unpublished decision of the Court of Appeals. Bailey v. State, 967 N.E.2d 1033 (Ind.2012) (table); Ind. Appellate Rule 58(A).

Farrenquai’s Testimony Was Sufficient to Sustain Elmer’s Conviction.

Elmer first argues that the evidence is insufficient to support his conviction for domestic battery. When reviewing a challenge to the sufficiency of the evidence underlying a criminal conviction, we neither reweigh the evidence nor assess the credibility of witnesses. Wright v. State, 828 N.E.2d 904, 905-06 (Ind.2005). The evidence — even if conflicting — and all reasonable inferences drawn from it are viewed in a light most favorable to the conviction. Rohr v. State, 866 N.E.2d 242, 248 (Ind.2007). “[W]e affirm if there is substantial evidence of probative value supporting each element of the crime from which a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt.” Davis v. State, 813 N.E.2d 1176, 1178 (Ind.2004). A conviction can be sustained on only the uncorroborated testimony of a single witness, even when that witness is the victim. Ferrell v. State, 565 N.E.2d 1070,1072-73 (Ind.1991).

Indiana’s domestic battery statute provides that “[a] person who knowingly or intentionally touches an individual who ... is or was a spouse of the other person ... in a rude, insolent, or angry manner that results in bodily injury to the person ... commits domestic battery, a Class A misdemeanor.” Ind.Code § 35-42-2-1.3(a)(l). The offense is elevated to a class D felony if the accused has a prior domestic battery conviction. Ind.Code § 35-42-2-1.3(b)(l). A lesser-included offense for domestic battery is simple battery, a class B misdemeanor which has only the elements that the accused “knowingly or intentionally touches another person in a rude, insolent or angry manner.” Ind.Code § 35-42-2-1(a). There is no bodily injury requirement for simple battery. Bodily injury, in turn, is defined by statute as “any impairment of physical condition, including physical pain.” Ind.Code § 35-31.5-2-29.

Elmer specifically argues that there was insufficient evidence that Farrenquai suffered bodily injury as a result of the poking and shoving. Elmer acknowledges that Indiana courts have held that to find bodily injury, “it is enough that the evidence shows that a person experienced physical pain, even if no permanent or lingering injuries were sustained.” Appellant’s Br. at 9 (citing Mathis v. State, 859 N.E.2d 1275, 1281 (Ind.Ct.App.2007)). But he argues that when compared to the facts of other cases addressing bodily injury, Farrenquai’s testimony that it hurt when she was poked in the forehead and shoved was insufficient.

The State, by its turn, argues that “[t]he law does not require the pain Farrenquai suffered to be uncommon, excruciating, or extraordinary.” Appellee’s Br. at 5. Far-renquai’s testimony as to the pain she felt from Elmer’s' shoves and pokes is sufficient to sustain his conviction, the State says, because “the language of the statute is clear — pain is bodily injury.” Appellee’s Br. at 7.

Thus, though Elmer’s argument sounds as one claiming the evidence was insufficient to support the verdict, it has spurred a question of statutory interpretation with respect to Indiana Code § 35-41-1-4’s definition of bodily injury. Specifically, is pain alone — regardless of severity or duration — sufficient to constitute an impairment of physical condition, or must the pain first rise to some unstated level?

The unpublished opinion of the Court of Appeals created just such a threshold requirement by rejecting the premise that “any level of physical pain, no matter how slight and fleeting, constitutes bodily injury.” Bailey, slip op. at 5. Rather, it concluded that “for physical pain to constitute bodily injury for purposes of Indiana Code Section 35-41-1-4, the physical pain must be sufficient to rise to a level of ‘impairment of physical condition.’ ” Bailey, slip op. at 7. It did not dispute that Farrenquai suffered pain as a result of Elmer’s conduct, but compared Elmer’s conduct (and the resulting effects on Farrenquai) with the conduct of the defendants in other “bodily injury” cases and the resulting effects on those victims. After finding the defendants’ conduct in those other cases resulted in a comparatively higher degree of injury to their respective victims, the Court of Appeals weighed Farrenquai’s pain, measured it, and found it wanting.

We think this is the wrong approach. Nothing in our prior treatment of this statute implies such a hurdle, despite the facts of the particular cases. Rather, our prior treatment establishes a structure that mirrors statutes from other states and the Model Penal Code by creating a very low threshold for “bodily injury” while maintaining a much more rigorous standard for “serious bodily injury.”

A. Under Our Precedent, Any Physical Pain is Enough to Constitute Bodily Injury.

We begin just a few years after the bodily injury statute was enacted, with our decision in Rogers v. State, 272 Ind. 65, 396 N.E.2d 348 (1979). Rogers and several accomplices robbed a store in Evansville, Indiana. In the process, Rogers knocked a patron down and kicked him, causing bruises to the patron’s head and ribs. For this conduct, Rogers was charged with robbery resulting in bodily injury. The bodily injury enhancement upgraded the base robbery charge, a class C felony with a five-year sentence, to a class A felony with a thirty-year sentence. Rogers’s appeal challenged the bodily injury definition as being unconstitutionally vague. We rejected this challenge, saying

We can think of no phenomenon of more common experience and understanding than the concepts of “bodily injury” and “physical pain.” Likewise, we do not find the concept of “impairment of physical condition” to be so esoteric as to avoid a consensus of meaning among persons of common intelligence.

Id. at 70, 396 N.E.2d at 352 (emphasis added).

Next we decided Lewis v. State, 438 N.E.2d 289 (Ind.1982), a case involving the attempted rape of a woman on her way to work. Lewis lured the victim into his car, took her to his mobile home, and dragged her inside. Once there, he sexually assaulted her, including slapping and shoving her several times. A jury found him not guilty of attempted rape but guilty of the lesser-included offense of battery with bodily injury. The bodily injury enhancement elevated the offense to a class A misdemeanor.

Lewis appealed, arguing that there was no evidence of bodily injury. We affirmed, noting that the victim was dragged from the car, slapped, and shoved. This was enough, we said, for the jury to infer that the victim suffered physical pain because “[i]t is not necessary that some physical trauma to the body be shown. It is sufficient that the victim experienced physical pain by Defendant’s action.” Id. at 294 (emphasis added).

And in 1988 we decided Gebhart v. State, 525 N.E.2d 603 (Ind.1988), in which a charge of burglary was elevated to a class A felony because it resulted in bodily injury. Gebhart had been in the process of burglarizing a home when the homeowner and a friend entered; an altercation ensued, and the friend hit his head on a concrete porch. A jury found Gebhart guilty of the elevated burglary charge. On appeal, Gebhart argued that the evidence was insufficient to sustain a conviction on that charge because there was no bodily injury.

Again we affirmed, pointing out that though the victim did not need medical treatment, he did suffer a headache for several days and physical pain. This was sufficient to support the jury’s finding because “[mjedical treatment, bloodshed or visible wounds are not necessary to a finding of bodily injury. The degree of injury is a question of fact for the jury.” Id. at 604. “The statutory definition of bodily injury includes any injury causing physical pain.” Id. (emphasis added).

From this one can see that, despite our prior cases all seeming to have higher levels of injury to the victims, we have never said a particular level of pain is required in order to rise to the level of impairment of physical condition and thus satisfy the definition of bodily injury. Rather, we think the proper reading of Indiana’s statute, and those cases, is that physical pain is an impairment of physical condition.

B. Our Application Comports With That of Other States.

We find further support for our interpretation in a comparison of our statutes to the laws of other states. From this comparison, we find that states codifying a definition of bodily injury (or bodily harm, physical injury, or some similar phrase) fall primarily into two camps: those whose statutes make clear that any level of pain can constitute bodily injury, and those whose statutes are explicit in that pain must rise to a particular threshold before satisfying the definition of bodily injury. While Indiana’s statute falls somewhere in between, our application has clearly been in line with those states in the first camp.

1. Camp One: Any Pain Is “Bodily Injury”

The first camp consists of those states in which the statutory language clearly shows that pain alone (of any grade) can constitute a bodily injury distinct from physical impairment. See Alaska Stat. § 11.81.900(b)(46) (2010) (“ ‘physical injur/ means a physical pain or an impairment of physical condition”); Colo.Rev.Stat. § 18-l-901(3)(c) (2011) (“ ‘Bodily injury* means physical pain, illness, or any impairment of physical or mental condition.”); Conn. Gen.Stat. § 53A-3(3) (2007 & Supp.2012) (“‘Physical injury’ means impairment of physical condition or pain”); Haw.Rev. Stat. § 707-700 (1993) (“‘Bodily injur/ means physical pain, illness, or any impairment of physical condition.”); Me. Rev. Stat. tit. 17-A, § 2(5) (2006 & Supp. 2011) (“ ‘Bodily injury’ means physical pain, physical illness or any impairment of physical condition.”); Minn.Stat. § 609.02, subd. 7 (2009 & Supp. 2012) (“‘Bodily harm’ means physical pain or injury, illness, or any impairment of physical condition.”); Mont.Code Ann. § 45-2-101(5) (2011) (“‘Bodily injury’ means physical pain, illness, or an impairment of physical condition and includes mental illness or impairment.”); Neb.Rev.Stat. § 28-109(4) (2008) (“Bodily injury shall mean physical pain, illness, or any impairment of physical condition”); N.J. Stat. Ann. § 2C:ll-l(a) (2005) (“ ‘Bodily injury’ means physical pain, illness or any impairment of physical condition”); R.I. Gen. Laws § 12-29-3(b)(l)(iii) (2002) (“ ‘Bodily injury’ means physical pain, illness, or an impairment of physical condition”); Tenn.Code Ann. § 39-ll-106(a)(2) (2010 & Supp.2011) (“ ‘Bodily injury’ includes a cut, abrasion, bruise, burn or disfigurement, and physical pain or temporary illness or impairment of the function of a bodily member, organ, or mental facult/’); Texas Penal Code Ann. § 1.07(a)(8) (2011 & Supp.2012) (“‘Bodily injury’ means physical pain, illness, or any impairment of physical condition.”); Utah Code Ann. § 76-1-601(3) (2008) (“ ‘Bodily injury’ means physical pain, illness, or any impairment of physical condition.”); Vt. Stat. Ann. tit. 13, § 1021(1) (2009) (“ ‘Bodily injury1 means physical pain, illness or any impairment of physical condition.”); Wash. Rev.Code § 9A.04.110(4)(a) (2009 & Supp.2012) (“ ‘Bodily injury,’ ‘physical injury,’ or ‘bodily harm’ means physical pain or injury, illness, or an impairment of physical condition”); Wis. Stat. § 939.22(4) (2005 & Supp.2012) (“ ‘Bodily harm’ means physical pain or injury, illness, or any impairment of physical condition.”); Wyo. Stat. Ann. § 6-l-104(a)(i) (2011) (“ ‘Bodily injury” means physical pain, illness or any impairment of physical condition”).

The common-sense reading of these broadly phrased statutes is that physical pain is a stand-alone qualification for bodily injury — distinct from impairment of physical condition. Cf. State v. Johnson, 277 Minn. 230, 152 N.W.2d 768, 773 (1967) (“While there was no proof of permanent or serious injury, certainly the jury could find that the victim suffered physical pain, which is all the statute requires.”); State v. Melton, 239 Neb. 576, 477 N.W.2d 154, 156 (1991) (“Physical pain is a bodily injury as defined by Neb.Rev.Stat. § 28-109(4) (Reissue 1989).”); Morales v. State, 293 S.W.3d 901, 907 (Tex.Crim.App.2009) (“This ‘purposefully broad’ definition of ‘bodily injury” includes physical pain from ‘even relatively minor physical contacts so long as they constitute more than a mere offensive touching.’ ” (quoting Wawrykow v. State, 866 S.W.2d 87, 89 (Tex.App.1993))). Plainly, courts in those states think the same.

These states’ statutes also parallel language included in the Model Penal Code’s assault provision, which incorporates the common law crimes of both assault and battery into “a single integrated provision,” wherein grading of the offense is done only “according to the gravity of harm intended or caused and the dangerousness of the means used.” Model Penal Code § 211.1 cmt. 2 (1980). The provision identifies two categories of resulting harm: bodily injury and serious bodily injury. See Model Penal Code § 211.1(1), (2) (simple assault and aggravated assault).

Bodily injury is defined as “physical pain, illness, or any impairment of physical condition,” Model Penal Code § 210.0(2), and “includes more than the consequences of direct attack. It also covers pain, illness, or physical impairment caused indirectly....” Model Penal Code §211.1 cmt. 3. The minimum floor, as it were, is simply “the fact or prospect of physical injury.” Model Penal Code § 211.1 cmt. 2. “Mere offensive contact” and “wrongs based solely upon insult or emotional trauma” are excluded because they can be punished under other substantive provisions, and “[t]he principle thrust of Section 211.1 is to reach the infliction of physical injury.” Model Penal Code § 211.1 cmts. 2-3.

“[Sjerious bodily injury,” by contrast, is reserved for “[pjhysical harm of special gravity.” Model Penal Code § 211.1 cmt. 3. It encompasses bodily injury of such high degree that it “creates a substantial risk of death or ... causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.” Id. (quoting Model Penal Code § 210.0(3)). Accordingly, the Model Penal Code recommends only a misdemeanor for conduct resulting in bodily injury, but a felony for conduct resulting in serious bodily injury. “This differential is appropriate in light of the very broad coverage achieved under the lesser requirement and the extreme gravity of injury punished under the greater.” Id. (emphasis added).

As we see it, Indiana uses a similar two-tier grading structure for batteries that result in physical injury. The top tier is reserved for that extreme conduct falling within the statutory definition of serious bodily injury. See Ind.Code § 35-31.5-2-292 (2012) (“ ‘Serious 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.”) and Ind.Code § 35^2-2-l(a)(3) (class C felony when battery results in serious bodily injury); see also Ind.Code § 35-42-2-1.5 (2008) (aggravated battery requires proof that person “knowingly or intentionally inflicts injury” creating “a substantial risk of death or causing] (1) serious permanent disfigurement; (2) protracted loss or impairment of the function of a bodily member or organ; or (3) the loss of a fetus”).

Any other battery resulting in physical injury must fall into a lower tier that is necessarily much broader. Thus, while Indiana’s statutory text does not directly mirror the language of these states’ provisions or the Model Penal Code (and there is no apparent explanation for the particular language chosen by the General Assembly, nor for its variance), our interpretation creates a similar application.

2. Camp Two: Only “Substantial” Pain Is “Physical Injury”

Examination of the second camp of states — those in which physical pain can only constitute bodily injury if it crosses a given threshold of severity — reinforces our conclusion. In these statutory provisions, the required threshold is stated clearly and unequivocally by the elected bodies of those states. See, e.g., Ala.Code § 13A-1-2(12) (2005) (“Physical Injury. Impairment of physical condition or substantial pain.”); Ark.Code Ann. § 5-1-102(14) (2006 & Supp.2011) (“‘Physical injury’ means the: (A) Impairment of physical condition; (B) Infliction of substantial pain; or (C) Infliction of bruising, swelling, or a visible mark associated with a physical trauma”); Cal.Penal Code § 243(f)(5) (2008 & Supp.2012) (“‘Injury’ means any physical injury which requires professional medical treatment.”)-, Del-Code Ann. tit. 9, § 920(8) (2011) (‘“Physical injury’ shall mean impairment of physical condition or substantial pain.”); Ky.Rev.Stat. Ann. § 500.080(13) (2008) (“ ‘Physical injury1 means substantial physical pain or any impairment of physical condition”); Md. Code Ann., Crim. Law, § 3-203(c)(l) (2012) (“‘physical injur/ means any impairment of physical condition, excluding minor injuries.”)-, N.Y. Penal Law § 10.00(9) (2009) (“ ‘Physical injur/ means impairment of physical condition or substantial pain.”); Or.Rev.Stat. § 161.015(7) (2012) (“‘Physical injur/ means impairment of physical condition or substantial pain.”); W. Va.Code § 61-2-9a(f)(l) (2010) (“ ‘Bodily injur/ means substantial physical pain, illness or any impairment of physical condition”) (emphasis added in all). Such express language is absent from Indiana’s definition.

On that note, it is significant that the definition of bodily injury has been on the books in Indiana for more than thirty-five years. See Act of February 25, 1976, P.L. 148-1976, § 1, 1976 Ind. Acts 719. And though the General Assembly recodified the definition in 1983 (and despite our extensive treatment of it in the broad fashion we describe above), the definition itself has never been modified or substantively amended. Compare id., with Ind.Code § 35-41-1-4; see also Act of April 22, 1983, P.L. 311-1983, § 5, 1983 Ind. Acts 1886. Certainly, had the General Assembly disapproved of our approach and desired to create a threshold standard for physical pain, it could have done so. In the absence of such a change, we think it fair to infer a persuasive degree of legislative acquiescence with respect to our approach, cf. Ind. Bell Tel. Co. v. Ind. Util. Regulatory Comm’n, 715 N.E.2d 351, 358 (Ind.1999), though certainly the legislature may still opt to draw this very distinction in the future.

But for now, our decisions create a logical and definable mechanism with which to apply the fact of a victim’s pain in the context of criminal charges that turn on the existence and severity of bodily injury.

C. Bright Line Preferred

Our holding today settles a question of statutory interpretation about which reasonable minds can differ. We choose this approach, in part, because we believe the alternative — requiring physical pain to rise to a particular level of severity before it constitutes an impairment of physical condition — could bring uncertainty to our relatively straightforward statutory structure. Indeed, the holding below does not define the level of pain needed to support the enhancement; instead, it surveys other Indiana cases where the pain was more obviously severe and finds Farrenquai’s lacking in comparison. Bailey, slip op. at 8-9. We think engaging in a ease-by-case comparison to determine whether a victim’s pain is sufficiently significant creates unnecessary challenges not required by the statute.

First, it could unfairly discount the suffering of certain victims who may have a lower pain tolerance than others, which runs counter to the long-standing rule of both criminal and tort law that a defendant takes his victim as he finds him. See Defries v. State, 264 Ind. 233, 244—45, 342 N.E.2d 622, 630 (1976) (“On the other hand, if one throws a piece of chalk at the legendary victim with an eggshell skull, and the chalk strikes the victim and fractures his skull, the perpetrator would be guilty under our statute even though he did not intend to do great bodily harm.”); cf. Alexander v. Scheid, 726 N.E.2d 272, 284 (Ind.2000) (defendant liable for “aggravation or exacerbation of a current injury”). Though they may have a greater sensitivity to pain, these individuals are no less victims than someone who may be more tolerant.

Second, it excuses from punishment conduct that is covered under the language of the statute. Though we construe criminal statutes strictly against the State, “a statute should not be overly narrowed so as to exclude cases fairly covered by it and should be interpreted so as to give efficient operation to the expressed intent of the legislature.” State v. Bigbee, 260 Ind. 90, 93, 292 N.E.2d 609, 611 (1973). Following the Bailey panel’s approach could create a gap in which some batterers inflict pain— up to an undefined degree — and face only a B misdemeanor. We do not believe this was what the General Assembly intended.

Nor does our approach read “impairment of physical condition” out of the statutory definition or render it superfluous. See Bailey, slip op. at 6. Instead, if one reasonably considers an “ideal” physical condition as that of an uninjured, healthy, pain-free, and unencumbered person, then physical pain would necessarily impair that physical condition — maybe in only a small way, but the statute expressly says “any impairment of physical condition.” Ind. Code § 35-41-1-4 (emphasis added). It does not require that the impairment be significant or severe.

We do acknowledge that our approach— that a defendant commits a battery at his peril; that any degree of physical pain may constitute a bodily injury and thus enhance punishment — may raise the specter of witness coaching, whereby a victim is encouraged to say “it hurt” when, in actuality, it did not. Or that a victim may simply claim pain to enhance a charge against a defendant-a particular danger in the arena of domestic violence, where there often can only be two witnesses (the accused and the accuser), the disputes are emotionally charged and deeply personal, and trials can thus literally boil down to a heated “he said/she said.” But those are challenges of witness credibility, not statutory construction, and they are not new to criminal litigation. They are largely addressed through zealous advocacy and effective cross-examination.

Here, Farrenquai testified that she was shoved and repeatedly poked in the forehead and that each of these acts caused her pain. Her testimony was not uncon-troverted. For one thing, Elmer denied putting his hands on Farrenquai in any way, creating a clear conflict between two witnesses. Furthermore, Farrenquai also testified that she asked the responding officers (after the pushing and poking) if someone was going to have to get hurt before they arrested Elmer, creating a potential inference that she had not been hurt before that point. Finally, Farren-quai testified that both she and Elmer had been drinking that night, which might lead to the inference that neither witness had a full and clear memory of the events.

Weighing it all, Judge Rogers chose to believe Farrenquai’s testimony that Elmer both battered her and the battery caused her physical pain. As we said above, under review for sufficiency of the evidence we will not reweigh evidence — even if conflicting — and we will leave undisturbed a trier of fact’s assessment of witness credibility. Here, when viewing the evidence in the light most favorable to his conviction, there is substantial and sufficient evidence of probative value that Elmer shoved Far-renquai and poked her in the forehead several times, causing her pain.

Elmer’s Two-Year Sentence Was Appropriate.

Elmer also appeals the appropriateness of his two-year sentence. This court has the power to review and revise a criminal sentence when it is “inappropriate in light of the nature of the offense and the character of the offender.” Ind. Appellate Rule 7(B); see also Ind. Const, art. 7, § 4. On transfer, Elmer points out that his sentence might be served by mid-April 2012.

Regardless, Elmer battered Farrenquai while still on probation for a similar offense. He also has a lengthy criminal history that includes eleven prior adult convictions. His two-year sentence was thus appropriate.

Conclusion

We therefore affirm Elmer Bailey’s conviction and sentence.

DICKSON, C.J., RUCKER, and DAVID, JJ., concur.

      . Ind.Code §§ 35-42-2-l(a)(l)(A) (2008 & Supp.2011), -1.3(a)(1) (2008).

      . See Ind.Code §§ 35-42-2-l(a)(2)(D), -1.3(b)(1)(A). The State and Elmer stipulated to the existence of this prior conviction.

      . The judge found him not guilty of battery on double jeopardy grounds.

      .As we discuss later, the recodification made no substantive change to the statute, and so for the reader’s benefit we cite to the current version of the statute through the remainder of this opinion.

      . Because it found the evidence was insufficient to sustain Elmer's conviction, the Court of Appeals did not address the second issue of his appeal: the appropriateness of his sentence. Bailey, slip op. at 9 n. 6.

        . Toney’s burglary charge was enhanced to a class A felony because Toney grabbed a phone from the victim’s hand, causing pain. See Toney, 961 N.E.2d at 58. The Toney panel, in rejecting Toney’s challenge based on the sufficiency of the evidence, said that "[ujnfortu-nately for Toney, Indiana Code section 35-41-1-14 (2004) defines 'bodily injury’ as 'any impairment of physical condition, including physical pain.’ ” Id. at 59 (emphasis in original). Even though the victim suffered only "a fleeting or momentary pain,” the court said, "the statutory definition of bodily injury is clear and unambiguous. It contains no requirement that the pain be of any particular severity, nor does it require that the pain endure for any particular length of time. It must simply be physical pain.” Id. (emphasis in original).

      . We heard oral argument in this matter on June 19, 2012, in the Supreme Court courtroom. We commend and thank counsel for both parties for their excellent advocacy.

      . If bodily injury results, however, the offense is elevated to a class A misdemeanor just as it was in Elmer’s original charges. Ind.Code § 35-42-2-l(a)(l)(A). "Bodily injury” also exists as an aspect of a number of other criminal provisions. See, e.g., Ind.Code §§ 35-42-2-2 (2008) (element of criminal recklessness), -3-3 (2008) (enhancement to criminal confinement), -5-1 (2008) (enhancement to robbery), and Ind.Code §§ 35-43-1-1 (2008) (enhancement to arson and arson for hire), -2-1 (2008) (enhancement to burglary), -4-2 (Supp. 2011) (enhancement to theft), and Ind.Code §§ 35-44.1-3-1 (2012) (enhancement to resisting law enforcement), -3-4 (2012) (enhancement to escape), -4-7 (2012) (enhancement to misleading a firefighter), and Ind.Code § 35-46-1-4 (2008) (enhancement to neglect of a dependent).

      . Though Elmer denied committing any of those acts at trial, on appeal he appears to concede that the touching occurred: “the evidence presented does support the finding that Bailey touched Ms. Bailey in a ‘rude, insolent, or angry manner’ which would support the lesser included offense of battery as a Class B misdemeanor.” Appellant’s Br. at 10. Still, the existence of the bodily injury element is critical to his appeal because without it he could not be convicted of a class D felony under either the battery or domestic battery statutes. His sentence would be, at most, for a class B misdemeanor.

      . We also rejected a challenge that a sentence based on the enhancement was cruel and unusual punishment, in violation of the Eighth Amendment. Rogers, 272 Ind. at 69, 396 N.E.2d at 351.

      . Nor is our interpretation new. See Hanic v. State, 406 N.E.2d 335, 338 (Ind.Ct.App.1980) (“With the above statutory construction guidelines in mind, we emphasize that Ind. Code § 35-41-1-2, supra, defining bodily injury, uses the language 'any physical impairment.’ ... Within the same statute, it can reasonably be construed that the clause 'including physical pain’ modifies impairment. That is, bodily injury includes any physical impairment, and physical pain is considered a physical impairment under the statute." (second emphasis added)).

      . In Indiana, unlike many states, assault no longer exists as a separate statutory crime. Rather, it is conceptually subsumed under the general attempt statute as applied to an offense of battery. See generally Henderson v. State, 534 N.E.2d 1105, 1108 (Ind.1989) (discussing Criminal Law Study Commission’s commentary on redundancy of separate assault statute).

      . The MPC definition was, in fact, drawn from the statutory definition of bodily injury used by Wisconsin. See Model Penal Code § 211.1 cmt. 3 n. 58.

      . This same tiered structure can also be found in a number of the other statutory schemes we detailed in footnote 8, supra, that rely on bodily injury as an element or an enhancement.

      . And there is nothing in the language the General Assembly selected that is so singularly significant as to overcome our conclusion that we (ultimately) use the same approach as both the Model Penal Code and the states we cite above.
      We found only one state — North Dakota— that has a statutory definition of bodily injury phrased like our own. See N.D. Cent.Code § 12.1-01-04(4) (2012). And North Dakota's courts also interpret their statute to mean that physical pain, and nothing more, is sufficient to prove bodily injury-with no requirement that the pain rise to a particular grade or severity. See, e.g., State v. Morales, 673 N.W.2d 250, 256-57 (N.D.2004) (defendant guilty of simple assault on police officer, of which bodily injury is an element, when State showed defendant “willfully engaged in activity resulting in physical pain to one or more of the officers” by testimony that defendant threw coffee mug at officer, causing some undefined amount of pain); see also Simons v. State Dep't of Human Servs., 803 N.W.2d 587, 593 (N.D.2011) (reaffirming that Morales held physical pain alone satisfies definition of bodily injury).

      . Effective July 1, 2012, this provision was recodified again to Indiana Code § 35-31.5-2-29, but the definition remains the same. See Act of March 19, 2012, P.L. 114-2012, § 67, 2012 Ind. Acts 1766.

      . We acknowledge that there is no bright-line test to distinguish between pain and extreme pain — between bodily injury and serious bodily injury. Mendenhall v. State, 963 N.E.2d 553, 569 (Ind.Ct.App.2012), trans. denied (citing Davis v. State, 813 N.E.2d 1176, 1178 (Ind.2004)). Nevertheless, we agree with the Court of Appeals in Vaillancourt v. State, when it held that "the term ‘extreme pain’ is not one which persons of average intelligence cannot understand.” 695 N.E.2d 606, 610 (Ind.Ct.App.1998), trans. denied. And at least we can now provide one bright-line test for bodily injury: there either is physical pain or there is not.


author: BRENT E. DICKSON, Chief Justice.

text:
    Cory HEINZMAN, Appellant, v. STATE of Indiana, Appellee.
    No. 29S02-1212-CR-678.
    Supreme Court of Indiana.
    Nov. 14, 2012.
   PUBLISHED ORDER

BRENT E. DICKSON, Chief Justice.

Heinzman pleaded guilty to one count of sexual battery, a class D felony, in cause number 20D02-0805-FC-46. The Hamilton Superior Court imposed an executed term of three years, but the plea agreement called for a suspended sentence. Heinzman raised this as one issue on appeal, but the Court of Appeals considered the error to be harmless because this sentence was ordered to be served concurrently with a twenty-four year executed sentence in cause number 29D02-0511-FC-239. Heinzman v. State, 970 N.E.2d 214, 229 (Ind.Ct.App.2012). We agree with the first issue in Heinzman’s transfer petition that the case should have been remanded for resentencing consistent with the plea agreement.

Accordingly, transfer of jurisdiction is GRANTED. The case is remanded to the Hamilton Superior Court with instructions to impose sentence in cause number 20D02-0805-FC-46 consistent with the terms of the plea agreement. In all other respects, the decision of the Court of Appeals is summarily affirmed. See Appellate Rule 58(A)(2).

The Clerk is directed to send a copy of this order to the Hon. Margret G. Robb, Chief Judge, Indiana Court of Appeals; the Hon. Daniel Pfleging, Judge, Hamilton Superior Court No. 2; and to all counsel of record. The Clerk also is directed to post this order to the Court’s website, and Thomson Reuters is directed to publish this order in the bound volumes of this Court’s decisions.

All Justices concur.


author: DICKSON, Chief Justice.

text:
    Margaret KOSARKO, Appellant (Plaintiff), v. William A. PADULA, Administrator of the Estate of Daniel L. Herndobler, Deceased, Appellee (Defendant).
    No. 45S03-1206-CT-310.
    Supreme Court of Indiana.
    Dec. 12, 2012.
    Opinion, 960 N.E.2d 810, vacated.

      Adam J. Sedia, Rubino, Ruman, Cros-mer, Smith, Sersic & Polen, Dyer, IN, Attorney for Appellant.
    Frederick R. Hovde, Nicholas C. Deets, Hovde Dassow & Deets LLC, Indianapolis, IN, Attorneys for Amicus Curiae Indiana Trial Lawyers Association.
    Robert J. Konopa, Mark D. Kundmuel-ler, Tuesley Hall Konopa, LLP, South Bend, IN, Attorneys for Appellee.
    Robert F. Parker, Nancy Townsend, Burke Costanza & Carberry LLP, Merrill-ville, IN, Donald B. Kite, Gonzalez Saggio & Harlan LLP, Indianapolis, IN, Attorneys for Amicus Curiae Defense Trial Counsel of Indiana.
   DICKSON, Chief Justice.

The plaintiff in this case, Margaret Ko-sarko, challenges the trial court’s denial of her motion for prejudgment interest following a jury verdict awarding her monetary damages. We reverse and hold that the Tort Prejudgment Interest Statute abrogates and supplants the common law prejudgment interest rules in cases covered by the statute.

On February 17, 2007, Kosarko filed a complaint for damages against Daniel Herndobler for injuries she allegedly sustained in an automobile collision involving Herndobler. When Herndobler subsequently passed away, Kosarko amended her complaint, substituting William Padula in his capacity as administrator of Herndo-bler’s estate. On March 18, 2008, Kosarko offered to settle the lawsuit for $100,000, but no response was made by the defendant. The case was then tried before a jury, which, on March 24, 2010, found in favor of Kosarko and awarded her damages totaling $210,000. Kosarko then filed a motion asking the trial court to award her prejudgment interest in the amount of $79,627.40 pursuant to the Tort Prejudgment Interest Statute (“TPIS”), Ind.Code §§ 34-514f-l to -9, and attorneys’ fees. The trial court denied Kosarko’s motion for prejudgment interest because her damages were of an “ongoing and evolving nature” and thus “were not ascertainable within a time frame that justifies” an award of prejudgment interest. Appellant’s App’x at 11-12. The Court of Appeals reversed and held that the trial court had abused its discretion in denying prejudgment interest, concluding that Kosar-ko’s damages were sufficiently ascertainable. Kosarko v. Padula, 960 N.E.2d 810 (Ind.Ct.App.2011). We granted transfer.

As we discuss in our decision today in Inman v. State Farm Mut. Auto Ins. Co., we review a trial court’s denial of prejudgment interest under the TPIS for an abuse of discretion. 981 N.E.2d 1202, 1204 (Ind.2012). The trial court abuses its discretion when its decision is “clearly against the logic and effect of the facts and circumstances before the court or if the court has misinterpreted the law.” State v. Willits, 773 N.E.2d 808, 811 (Ind.2002).

The availability and computation of prejudgment interest in Indiana has evolved over the years. Under the common law “Roper standard,” announced in 1911, prejudgment interest can only be awarded by the trial court where the damages are “complete” and “ascertain[able] as of a particular time and in accordance with fixed rules of evidence and known standards of value.” N.Y., Chi. & St. Louis Ry. Co. v. Roper, 176 Ind. 497, 507, 96 N.E. 468, 472 (1911) (quoting Fell v. Union Pac. Ry. Co., 32 Utah 101, 88 P. 1003, 1007 (1907)); accord State Farm Fire & Cas. Ins. Co. v. Graham, 567 N.E.2d 1139, 1142 (Ind.1991) (affirming Roper)-, Travelers Indem. Co. v. Armstrong, 442 N.E.2d 349, 365-66 (Ind.1982) (affirming Roper). Such interest is not permitted where the damages are “incomplete” because the damages may be “continuing and may even reach beyond the time of trial.” Roper, 176 Ind. at 507, 96 N.E. at 472 (quoting Fell, 88 P. at 1006). Nor is such interest permitted where damages “are peculiarly within the province of the jury to assess at the time of the trial” because the damages are not readily determinable by the parties prior to the jury’s verdict. See id. Accordingly, prejudgment interest is not available in “personal injury cases, cases of death by wrongful act, libel, false imprisonment, and cases where there is no standard of market or other value by which to measure the damages,” nor in “cases where punitive damages may be assessed, nor to those where the amount of recovery is fixed by statute.” Id. at 510, 96 N.E. at 473.

The General Assembly first provided for prejudgment interest in 1974 with the enactment of Indiana Code Sections 24-4.6-1-101 to -103. This statute allows a prevailing party to collect prejudgment interest from the time of a demand until the time of judgment at a rate of 8% per annum, unless the parties agree to a different rate. Id. The statute has been interpreted to supplement the Roper standard by allowing prejudgment interest in civil actions only where damages are complete and ascertainable. Thor Electric, Inc. v. Oberle & Assocs., Inc., 741 N.E.2d 373, 380-81 (Ind.Ct.App.2000) (allowing 8% interest under Indiana Code Sections 24-4.6-1-102, -103 in a contract action where “the terms of the contract [made] the claim ascertainable”), trans. not sought, disapproved on other grounds by Inman, 981 N.E.2d at 1205; Blue Valley Turf Farms, Inc. v. Realestate Mktg. & Dev., Inc., 424 N.E.2d 1088, 1090-91 (Ind.Ct.App.1981) (stating that under the statute, damages must be “ascertain[able] as of a particular time in accordance with fixed rules of evidence and known standards of evaluation”), trans. not sought.

In 1988, the legislature enacted the TPIS, which sets forth certain conditions that must be satisfied in order for a plaintiff to be eligible to receive prejudgment interest in “any civil action arising out of tortious conduct.” Ind.Code § 34-51-4-1. The crux of the statute is contained in two provisions: the first, Section 34-51^4-6, requires the plaintiff to make a qualified written offer of settlement within one year of filing a claim in order to be eligible to receive prejudgment interest on any judgment arising from that claim; the second, Section 34-51^4-5, empowers the defendant to avoid prejudgment interest on any judgment award if the defendant makes a qualified offer of settlement within nine months of the time at which the claim is filed. If a plaintiff makes a qualified settlement offer and the defendant fails to do so, the statute then allows the trial court to award prejudgment interest, id. § 34-51-4-7, and grants the court the discretion to determine the time period for accrual, id. § 34-51-4-8, and the rate of interest, id. § 34-51-4-9.

On appeal, Kosarko contends that the trial court abused its discretion when it applied the common law Roper standard to deny her request for prejudgment interest. She and amicus curiae Indiana Trial Lawyers Association (“ITLA”) maintain that the TPIS completely abrogates the application of the common law prejudgment interest rules in cases covered by the TPIS, and that because this is such a case, the trial court may not properly deny prejudgment interest on grounds that damages were of an “ongoing and evolving nature” and therefore not readily ascertainable. They argue instead that the trial court may only look to the statutory conditions imposed by the TPIS when determining whether or not to award prejudgment interest. The defendant, Padula, and ami-cus curiae Defense Trial Counsel of Indiana (“DTCI”) wholly disagree and argue that the TPIS and the common law Roper standard are complementary legal rules designed to supplement one another such that the TPIS should be understood as establishing an additional set of disqualifying circumstances governing the availability of prejudgment interest in cases arising out of tortious conduct. We agree with Kosarko and hold that the TPIS abrogates and supplants the common law rules governing the availability of prejudgment interest in cases covered by the statute.

When resolving a conflict between the common law and a statute, we presume that the legislature did not intend to alter the common law unless the statute declares otherwise “in express terms or by unmistakable implication.” Indianapolis Power & Light Co. v. Brad Snodgrass, Inc., 578 N.E.2d 669, 673 (Ind.1991). Whether a statute abrogates the common law by “unmistakable implication” is a highly fact-intensive inquiry not specifically constrained to any uniform set of identifying characteristics. See, e.g., Caesars Riverboat Casino, LLC v. Kephart, 934 N.E.2d 1120, 1123-24 (Ind.2010) (holding that the statutes regulating riverboat gambling abrogated the common law by unmistakable implication because the “statutory scheme cover[s] the entire subject of riverboat gambling” and is “so incompatible [with the common law] that they cannot both occupy the same space”); Willits, 773 N.E.2d at 812-14 (holding that the statute governing the return of property seized during a search or arrest was not intended to allow monetary damages for damaged property because (1) the common law rule did not provide for, and the statute did not specifically reference, monetary damages; (2) by providing for the return of property without reference to monetary damages, the exclusion of monetary damages by the statute is implied; and (3) monetary damages caused by the tortious conduct of government actors was provided for in a separate statute); Forte v. Connerwood Healthcare, Inc., 745 N.E.2d 796, 800 (Ind.2001) (holding that the Child Wrongful Death Statute precluded any award of punitive damages available under the common law for the death of a child because the statute “contained an exclusive list of damages recoverable” which does not include punitive damages and thus by implication intended to exclude such damages); Hinshaw v. Bd. of Comm’rs of Jay Cnty., 611 N.E.2d 637, 640 (Ind.1993) (holding that the Tort Claims Act did not confer tort immunity on government actors where both a government actor and a non-governmental third party contribute to a loss because the “general pattern” of the statute indicates that the legislature only intended to grant immunity where the loss results entirely from the action of a nongovernmental third party); N. Ind. Pub. Serv. Co. v. Citizens Action Coal, of Ind., 548 N.E.2d 153, 159-61 (Ind.1989) (holding that the Public Service Commission Act did not abrogate the common law right to receive interest on monetary judgments for the return of utility fees owed to a ratepayer by a public utility because “there [was] nothing in [the] general regulatory scheme that is irreconcilable” with the common law right to interest, given that the statute was intended only to regulate “the way in which the utility operates, not the rights of consumers”). Where a statute abrogates the common law, it “must be strictly construed” so. that only those portions of the common law which the legislature specifically intended to address are modified. See Indianapolis Power & Light Co., 578 N.E.2d at 673.

The Court of Appeals has considered the interplay of the TPIS and the common law on several occasions and, with one exception, concluded that the statute abrogates the common law prejudgment interest rules in cases falling within its scope. Gregory & Appel Ins. Agency v. Phila. Indem. Ins. Co., 835 N.E.2d 1053, 1065 (Ind.Ct.App.2005) (holding that the TPIS “covers the entire subject of the conditions for awarding prejudgment interest in tort cases and was clearly designed as a substitute for the common law”), trans. denied; Simon Prop. Grp., L.P. v. Brandt Constr., Inc., 830 N.E.2d 981, 994 (Ind.Ct.App.2005) (“In our view, in passing this statute the legislature intended to preempt common law prejudgment interest in tort cases. To hold otherwise would be to render the statute and its requirements virtually meaningless — a party who failed to fulfill the statute’s requirements could merely turn to the common law for relief”), trans. denied; accord Hanson v. Valma M. Hanson Revocable Trust, 855 N.E.2d 655, 665 (Ind.Ct.App.2006), trans. not sought; Clary v. Lite Machs. Gorp., 850 N.E.2d 423, 442 (Ind.Ct.App.2006), trans. not sought; see also Loudermilk v. Jet Credit Union, No. 49A02-1006-PL-665, 2011 WL 5927428, ⅜2-⅜3 (Ind.Ct.App. Nov. 29, 2011) (holding that failure to comply with condition of TPIS was fatal to claim for prejudgment interest in action for conversion), trans. not sought; c.f. Van Winkle v. Nash, 761 N.E.2d 856, 860-61 (Ind.Ct.App.2002) (holding that award of prejudgment interest under TPIS does not require absence of disputed issues as required by common law prejudgment interest rules), trans. not sought.

The plain language of the TPIS makes no reference to the common law rules governing prejudgment interest, including the common law requirement that prejudgment interest can be awarded only where the damages are complete and ascertainable. But the comprehensive nature of the TPIS and the codification of two common law rules convince us that the legislature intended the statute to be the exclusive source governing the award of prejudgment interest in cases falling within its ambit. Not only does the statute establish preconditions for an award of prejudgment interest, Ind.Code §§ 34-51-4-5, -6, it also affirmatively authorizes the court to award prejudgment interest as part of a judgment, id. § 35-51-4-7, specifies the types of actions to which the statute applies and does not apply, id. §§ 34-51-4-1 to -4, and limits the time period and rate of any prejudgment interest awarded under the statute, id. §§ 34-51-4-8, -9. The statute spans the entire subject of prejudgment interest and is capable of being implemented without reference to the common law. Further, both Indiana Code Section 35-51-4-7 (authorizing the court to award prejudgment interest as part of a judgment) and Section 34-51-4-3 (exempting punitive damages from prejudgment interest) codify rules that already existed at common law for more than one hundred years. See Roper, 176 Ind. at 509-510, 96 N.E. at 473. Were the TPIS merely supplemental in nature, as the defendant and amicus curiae DTCI contend, then these provisions would be unnecessary since any matters not addressed by the statute would be subject to the common law rules. In light of the wide-ranging treatment of the subject matter, considered in conjunction with the fact that the TPIS expressly adopts only selected portions of the common law, we conclude that the TPIS unmistakably implies the legislature’s intent to substitute the statute for the common law with respect to cases falling within the scope of the TPIS.

As noted above, the trial court abuses its discretion when it “misinterpret[s] the law.” Willits, 773 N.E.2d at 811. A trial court has broad discretion under the TPIS to award or deny prejudgment interest. However, it must support its determination with findings consistent with the statute, not the abrogated common law standard. In light of our holding, we must conclude that the trial court abused its discretion in applying the common law prejudgment interest rule requiring the prevailing party’s damages to be complete and ascertainable. We therefore reverse the judgment and remand the case to the trial court for a prejudgment interest determination consistent with this opinion.

While we agree with the majority of the Court of Appeals that the trial court abused its discretion in denying Kosarko’s motion for prejudgment interest, Kosarko, 960 N.E.2d at 813, we depart with the Court of Appeals in our reasoning and in our remedy. On transfer, Padula asserts that the Court of Appeals erred when it remanded the case to the trial court for entry of an order awarding Kosarko the full amount of prejudgment interest she requested. Appellee’s Trans. Br. at 8. We agree. Because the trial court denied Kosarko’s motion for prejudgment interest on the prior common law grounds that her damages were of an ongoing and evolving nature and were not readily ascertainable within an appropriate time frame, it never reached the issue of whether Kosarko’s requested prejudgment interest was proper under the TPIS. We elect to remand this issue to the trial court for the exercise of its discretion under the TPIS. In exercising its discretion, the trial court should consider the objectives of the statute: to encourage settlement, to incentivize expeditious resolution of disputes, and to compensate the plaintiff for the lost time value of money arising from unreasonable delay. See Johnson v. Eldridge, 799 N.E.2d 29, 33 (Ind.Ct.App.2003) (citing Cahoon v. Cummings, 734 N.E.2d 535, 547 (Ind.2000)), trans. denied.

Conclusion

We hold that the Tort Prejudgment Interest Statute abrogates and supplants the common law prejudgment interest rules in cases covered by the statute and also hold that the plaintiffs motion for prejudgment interest should have been evaluated as provided in the statute, and not on abrogated common law. We remand the case to the trial court for reconsideration of the motion accordingly. On remand, the trial court has broad discretion to determine whether to award prejudgment interest, what interest rate to use, what time period to use, and whether to calculate interest on the full $210,000 awarded by the jury, or on the amount of $100,000, representing insurance liability coverage limits, that was deposited with the clerk and released to Kosarko. Appellant’s App’x at 2-3. The trial court’s discretion is restricted only by the limits expressly enacted by the legislature in the TPIS.

RUCKER, DAVID, MASSA, RUSH, JJ., concur.

      . Pub.L. No. 149-1988, § 5, 1988 Ind. Acts 1860.

      . The statute expressly excludes "claims against the patient’s compensation fund,” Ind.Code § 34-51-4-2, punitive damages claims, Ind.Code § 34-51-4-3, and claims against the state and political subdivisions, Ind.Code § 34-51-4-4, from its purview.

      . For a plaintiff's settlement offer to qualify under the TPIS, the offer must be filed "within one (1) year after a claim is filed in the court, or any longer period determined by the court to be necessary upon a showing of good cause,” be in writing, be made to the party or parties against whom the claim is filed, "provide for payment of the settlement offer within sixty (60) days after the offer is accepted,” and not exceed "one and one-third (1 1/3) of the amount of the judgment awarded.” Ind. Code § 34-51-4-6.

      . For a defendant’s settlement offer to qualify under the TPIS, the offer must be made by "one (1) or more of the parties against whom the claim is filed,” be filed "within nine (9) months after a claim is filed in the court, or any longer period determined by the court to be necessary upon a showing of good cause," be in writing, be made "to the party receiving a judgment,” provide for "payment within sixty (60) days after the offer is accepted,” and be "at least two-thirds (2/3) of the amount of the judgment award.” Ind.Code § 34-51-4-5.

      . The trial court relied on Wayne Twp. v. Lutheran Hosp. of Fort Wayne, Inc., 590 N.E.2d 1130 (Ind.Ct.App.1992), trans. denied, for the same proposition as is contained in Roper.

      . In Lumbermens Mut. Cas. Co. v. Combs, 873 N.E.2d 692, 724-25 (Ind.Ct.App.2007), trans. denied, the Court of Appeals reversed a trial court’s award of prejudgment interest for a bad faith breach of contract claim because the jury’s verdict was general and did not specify the elements of the plaintiff's damages and thus the court could not have determined if any portion of those damages were ascertainable in accordance with the Roper standard. Notably, the court in Lumbermens did not specifically consider the abrogation issue. The court only assumed that the common law Roper standard applied based on general statements about prejudgment interest contained in earlier cases. Id. To the extent that Lumbermens conflicts with our decision today, it is disapproved.

      . In Whited v. Whited, 859 N.E.2d 657 (Ind.2007), we applied both Section 34 — 51—4—8(b) of the TPIS and the common law prejudgment interest rules in reviewing the denial of prejudgment interest under Indiana Code Section 31-16-12-2, which permits "interest” on delinquent child support payments. 859 N.E.2d at 664-65. In that case, we did not consider whether the TPIS was intended to abrogate the common law prejudgment interest rules. To the extent that our holding in Whited differs from our conclusion in this case, it is disapproved.

      . The TPIS grants discretion to the "court,” which, as defined under Indiana Code Section 34-46-2-31, refers to "the court awarding a judgment,” or, as here, the trial court. See also Inman, 981 N.E.2d at 1208 n. 6.

      . $100,000 reflects the policy limit of the insurance policy held by Daniel L. Herndobler, against whose estate judgment was entered at trial. Appellant’s Br. at 2. In another case handed down today, we hold that prejudgment interest can be awarded in excess of an insured’s UIM policy because prejudgment interest is a "collateral litigation expense imposed at the discretion of the trial court as a penalty for the defendant’s failure to conduct litigation consistent with the legislatively ordained policy of expediency.” Inman, 981 N.E.2d at 1206. We extend that reasoning to situations involving a defendant's insurance policy, as here, but again reiterate that it is completely within the discretion of the trial court.


author: DAVID, Justice.

text:
    Hassan ALSHEIK, Appellant (Defendant below), v. Alice GUERRERO, Individually and as Administratrix of the Estate of I.A., Appellee (Plaintiff below).
    No. 45S04-1212-CT-675.
    Supreme Court of Indiana.
    Dec. 12, 2012.
    Opinion, 956 N.E.2d 1115, vacated in part.

      David J. Beach, Kirk D. Bagrowski, Hammond, IN, Attorneys for Appellant.
    Timothy S. Schafer, Merrillville, IN, Attorney for Appellee.
   DAVID, Justice.

In this companion case to Wisner v. Laney, Inman v. State Farm, and Kosarko v. Padula, all decided today, we discuss the issue of prejudgment interest, specifically the statutory requirements of Indiana Code section 34-51-4-6, and the discretionary nature of an award of prejudgment interest.

Facts and Procedural History

I.A. was referred to Dr. Hassan Alsheik for treatment of an undescended left testicle. On June 5, 2000, when I.A. was thirteen months old, he underwent surgery performed by Dr. Alsheik in Munster, Indiana. I.A.’s mother, Alice Guerrero, testified that following surgery, Dr. Al-sheik told her that “there was a little complication, but that everything was okay. Everything was fine.” I.A. was released from the hospital that afternoon.

The morning after surgery, I.A. had a fever. At 3:30 a.m. on the morning of June 7, 2000,1.A. woke up with a temperature and was fussy. I.A. woke up again at 6:30 a.m. and Guerrero fed him a bottle. At 7:45, Guerrero checked on I.A., noticed he was not moving, and noticed brown vomit around his face. I.A. was rushed to the hospital and pronounced dead at 8:16 a.m.

The following day, the Lake County Coroner’s pathologist conducted a gross inspection of the body and then performed an autopsy on I.A. Based on his gross inspection, the coroner found that

There is a recent surgical incision wound which is closed and intact over the left inguinal area; and there is an ecehymo-sis and mild edema related to postoperative changes.
There is eeehymosis related to postoperative changes over the scrotum which contains both testicles.
There is also a small wound with sutures over the left side of the bottom of the scrotum.

The cause of death was listed as “vascular collapse undetermined cause.”

In May 2002, Guerrero initiated a medical malpractice claim against Dr. Alsheik by filing her proposed complaint with the Indiana Department of Insurance. On November 30, 2005, the medical review panel unanimously concluded,

The evidence does not support the conclusion that [Dr. Alsheik] failed to meet the applicable standard of care as charged in the complaint regarding his surgery on the patient; however, there is a material issue of fact, not requiring expert opinion, hearing on liability for consideration by the court or jury as it related to the phone conversation between [Guerrero] and the office of [Dr. Alsheik] on September 6, 2000.

Guerrero hired pathologist James Bryant (Dr. Bryant) who performed a second autopsy on I.A.’s body in March 2003. During the autopsy, Dr. Bryant focused on the incision and surgical site of I.A.’s groin area. Dr. Bryant testified that I.A.’s cause of death was vascular collapse due to sepsis resulting from a kink of the left spermadic cord, and cut off blood supply to the left testicle and scrotum due to the rotation or obstruction of the left spermatic cord.

On February 8, 2006, Guerrero filed her complaint of medical malpractice against Dr. Alsheik and Community Hospital. A jury trial was conducted over two weeks in September and October 2010. The jury returned a verdict in favor of Guerrero in the amount of $1,165,000. After a brief hearing, the trial court denied Guerrero’s request for pre-judgment interest.

Dr. Alsheik raises three issues on appeal: (1) whether the trial court abused its discretion by admitting the evidence and results of a second autopsy performed by Guerrero’s medical expert without prior notification to Dr. Alsheik; (2) whether the trial court abused its discretion when it allowed Guerrero’s pathologist to testify as an expert witness; and (3) whether the trial court abused its discretion when it admitted the post-mortem photographs of the victim. On cross-appeal, Guerrero raises one issue, whether the trial court erred in denying Guerrero’s request for prejudgment interest. We hereby grant transfer. We summarily affirm the excellent analysis of the Court of Appeals regarding the second autopsy, expert witness testimony, and admission of photographs. We write today on pre-judgment interest.

Prejudgment Interest

On cross-appeal, Guerrero contends the trial court improperly denied her request for prejudgment interest. This case involves a similar analysis, and involves the same plaintiffs counsel, as another case we are deciding today, Wisner v. Laney.

Guerrero filed her lawsuit alleging medical malpractice on May 29, 2002, the same day she filed her claim, as required by law, with the Indiana Department of Insurance. On January 9, 2003, upon her own motion, the trial court dismissed her lawsuit without prejudice. Thereafter, on April 21, 2003, Guerrero’s counsel sent the following letter to Dr. Alsheik’s counsel:

As a follow-up to our telephone conversation, please be advised my client has authorized me to tender a settlement offer in the amount of the minimum structure of $250,000.00 with a present value of $187,001.00 which would qualify us to proceed into the Patients Compensation Fund pursuant to I.C. [§ ] 34-18-14^4. Would you kindly talk to Dr. Alsheik to obtain his consent and approval and in return, we will naturally agree to keep the terms of the settlement confidential so as not to cause any unnecessary embarrassment or inconvenience to your client.
You are hereby advised that said offer shall remain open for fifteen (15) days from the date of this letter and thereafter, will be withdrawn and not reinstated and we will proceed to a trial on the merits for the wrongful death of my client’s minor son. I will await your response.

On February 8, 2006, Guerrero filed a new lawsuit against Dr. Alsheik in the Lake Superior Court.

The letter referenced above and the letter sent by counsel in Wisner are similar. Both letters intended to invoke Indiana Code section 34-51-4-6. A prerequisite to the recovery of prejudgment

interest is a settlement letter. The purpose of the settlement letter is to afford the adverse party “notice of a claim and provide them with an opportunity to engage in meaningful settlement.” Wisner, — N.E.2d at —. Both settlement letters included time-limiting language. In the present case, a fifteen-day period of time to settle was given compared to Wis-ner where a thirty-day period of time to settle was given. As we write today in Wisner v. Laney, “the better practice for lawyers in the future would be to cite the statute in the settlement letter and make it very clear that the letter is intended to invoke the statute, including the sixty-day settlement window and the possibility of prejudgment interest.” — N.E.2d at —-—. Regardless, we find that this letter met the minimum threshold for time-limiting language as set forth in the statute. However, not only must the settlement letter contain the appropriate language, it must be timely sent.

In Wisner we determined that the particular letter was untimely for two reasons. First, it was sent two years and five months after the original claim was filed, in violation of Indiana Code section 34-51-4-6. — N.E.2d at -. Second, no subsequent settlement letter was sent after the dismissal of the first lawsuit and prior to the filing of the second lawsuit. Id. The critical difference in the two eases is the timing of the settlement letter. In Wisner, the settlement letter satisfied the statutory requirements for content, but was untimely sent. We hold in the present case the letter was timely sent. In May 2002, Guerrero filed a lawsuit. That lawsuit was dismissed in January 2003 on her own motion. In April 2003, the settlement letter was sent to Dr. Alsheik’s counsel. That settlement letter was sent prior to the February 2006 filing of the new complaint with the trial court. Consistent with our holding in Wisner and contrary to the circumstances of the settlement letter in Wisner, this settlement letter met all the requirements in Indiana Code section 34-51-4-6. The time frame comports with our decision today in Wisner.

In the present case, at the trial court level, prejudgment interest was denied on grounds that the settlement letter did not comply with the requirements of the statute. Since we hold that the settlement letter was in compliance with Indiana Code section 34-51-4-6, we remand the case to the trial court for consideration of prejudgment interest.

Our opinion today in Inman v. State Farm lays out the analysis to be used in considering whether to award prejudgment interest. The prejudgment interest statute permits the trial court to award prejudgment interest, but does not require an award of prejudgment interest. See Ind.Code § 34-51^4-7 (“court may award prejudgment interest as part of a judgment.”); Id. § 34-51-4-8 {“If the court awards prejudgment interest ....”) (emphasis added). We review a trial court’s ruling on a motion for prejudgment interest under the prejudgment interest statute for an abuse of discretion. Inman, — N.E.2d at —. The trial court abuses its discretion when its decision is “clearly against the logic and effect of the facts and circumstances before it.” Turner v. State, 953 N.E.2d 1039, 1045 (Ind.2011). The prejudgment interest statute grants the trial court “broad discretion to determine when an award of prejudgment interest is warranted.” Inman, — N.E.2d at-. In our opinion today in Inman, the trial court’s order denying Inman’s request for prejudgment interest was sufficient when it stated simply, “Request for interest denied.” Inman, — N.E.2d at —. However, the trial court abuses its discretion if it has “misinterpreted the law,” State v. Willits, 773 N.E.2d 808, 811 (Ind.2002), which it has done in the present case. As this court wrote in Kosarko v. Padula, 979 N.E.2d at 150, also decided today, “A trial court has broad discretion under the [prejudgment interest statute] to award or deny prejudgment interest. However, it must support its determination with findings consistent with the statute.”

Conclusion

We summarily affirm the Court of Appeals opinion relating to the second autopsy, the expert witness, and the admission of photographs. Its analysis was detailed and correct. We reverse the trial court’s decision to deny Guerrero prejudgment interest based upon a defective settlement letter. As we have held, Guerrero’s settlement letter did comply with Indiana Code section 34-51^4-6. However, the award of prejudgment interest is neither automatic nor required, and is left to the discretion of the trial court. We remand with instructions to the trial court to determine whether or not Guerrero should be entitled to prejudgment interest.

DICKSON, C.J, and RUCKER, MASSA, and RUSH, JJ., concur.

      . -N.E.2d-(Ind.2012)

      . 981 N.E.2d 1202 (Ind.2012)

      . 979 N.E.2d 144 (Ind.2012)

      . Community Hospital was dismissed with prejudice and is no longer a party to the case.

      . Laney’s counsel sent the following settlement letter:
      As a follow-up to our deposition of Dr. Wis-ner, it appears that there is liability against the clinic as well as Dr. Wisner for failure to properly diagnose Mrs. Laney’s condition and failing to properly treat her on Mach 9, 2001 resulting in a stroke three (3) days later and substantial and irreversible permanent impairment, specifically a stroke to the left side of her brain with resulting impairment to her right upper and lower extremities as well as impairment to her cognitive functions.
      The clinic, as well as Dr. Wisner, can each be held liable for $250,000.00 plus pre-judgment interest up to four (4) years according to statute and case law for a total amount of $660,000.00. Please be advised my client has authorized me to settle this matter for a structured settlement in the amount of $250,000.00 with a present value of $187,001.00 which is the minimum structured settlement permitted to allow my client to proceed to the Patients' Compensation Fund. I think it would be in the best interest of all parties to amicably resolve this matter without a trial on the merits since it is likely that Mrs. Laney would obtain a substantial verdict in light of her permanent injuries and the conspicuously missing medical records of the clinic regarding March 9, 2001 day in question.
      Would you kindly discuss this matter with your clients as well as their insurance carrier and advise me as to your position within the next thirty (30) days. If we are able to resolve this matter at this time, it will avoid any further inconvenience to Dr. Wisner and eliminate her necessity to travel from Baltimore, Maryland to Indiana for a trial on the merits and thereby avoid any further litigation expense. I will await your response.

        Wisner v. Laney,-N.E.2d at-.


author: BARNES, Judge.

text:
    Jon E. GARCIA, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 20A04-1202-CR-257.
    Court of Appeals of Indiana.
    Oct. 9, 2012.

      Peter D. Todd, Elkhart, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, George P. Sherman, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BARNES, Judge.

Case Summary

Jon Garcia appeals his conviction for Class C felony criminal recklessness. We affirm.

Issue

Garcia raises one issue, which we restate as whether the trial court properly denied his motion for a directed verdict.

Facts

Garcia and Eduardo Salazar were both members of the Vatos Locos gang until Salazar defected. On October 24, 2009, Salazar and his uncle were in a car driving in downtown Goshen. While they were stopped at an intersection, a vehicle drove up beside them. Garcia was in the passenger seat and feed multiple bullets into Salazar’s vehicle.

The State charged Garcia with Class C felony criminal recklessness and two counts of Class D felony criminal recklessness. After the presentation of evidence at Garcia’s jury trial, his counsel moved for a directed verdict on the Class C felony criminal recklessness charge. His counsel argued that the vehicle was not a “place where people are likely to gather” as required under the criminal recklessness statute. Tr. p. 390. The trial court denied Garcia’s motion for a directed verdict. The jury then found Garcia guilty as charged. The trial court entered judgment of conviction for Class C felony criminal recklessness and one count of Class D felony criminal recklessness. The trial court sentenced Garcia to an aggregate sentence of ten years with two years suspended to probation. Garcia now appeals.

Analysis

Garcia argues that the trial court erred when it denied his motion for directed verdict on the Class C felony criminal recklessness charge. Indiana Trial Rule 50(A) governs motions for directed verdict, which are also called motions for judgment on the evidence, and provides:

Where all or some of the issues in a case tried before a jury ... are not supported by sufficient evidence or a verdict thereon is clearly erroneous as contrary to the evidence because the evidence is insufficient to support it, the court shall withdraw such issues from the jury and enter judgment thereon or shall enter judgment thereon notwithstanding a verdict.

When a defendant moves for judgment on the evidence, the court is required to withdraw the issues from the jury if: (1) the record is devoid of evidence on one or more elements of the offense; or (2) the evidence presented is without conflict and subject to only one inference, which is favorable to the defendant. Ind. Trial Rule 50(A); Farris v. State, 753 N.E.2d 641, 647 (Ind.2001).

On appeal, we use the same standard of review as the trial court in determining the propriety of a judgment on the evidence. State v. Taylor, 863 N.E.2d 917, 919 (Ind.Ct.App.2007). “When the trial court considers entering judgment on the evidence, it must view the evidence in a light most favorable to the party against whom judgment on the evidence would be entered.” Id. A trial court may not invade the province of the jury by weighing the evidence presented or the credibility of witnesses. Id. A trial court is “ ‘not authorized under Trial Rule 50, in a criminal case, to consider whether the evidence presented could be viewed by a reasonable jury as constituting proof beyond a reasonable doubt.’ “ Id. (quoting State v. Goodrich, 504 N.E.2d 1023, 1024 (Ind.1987)). A defendant’s motion for judgment on the evidence should not be granted if the State presents a prima facie case. Id. at 920.

Indiana Code Section 35-42-2-2(b) provides that “[a] person who recklessly, knowingly, or intentionally performs ... an act that creates a substantial risk of bodily injury to another person ... commits criminal recklessness.” The offense is a Class C felony if “it is committed by shooting a firearm into an inhabited dwelling or other building or place where people are likely to gather.” I.C. § 35-42-2-2(c)(3)(A). The State alleged in the charging information that the “occupied motor vehicle” was a place where people were likely to gather. App. p. 102. On appeal, Garcia argues that a vehicle is not a “place” and that, even if it is a “place,” it is not a “place where people are likely to gather.”

The interpretation of a statute is a question of law reserved for the courts. Scalpelli v. State, 827 N.E.2d 1193, 1196 (Ind.Ct.App.2005), trans. denied. “A statute whose language is clear and unambiguous is not subject to judicial interpretation.” Id. “If, however, the statute is ambiguous, the court must determine the legislative intent and interpret the statute accordingly.” Id. “To determine legislative intent, we look to the plain language of the statute and attribute the common, ordinary meaning to terms found in everyday speech.” Id.

The statute at issue does not define a “place where people are likely to gather,” and our courts have not had the opportunity to address this issue. I.C. § 35-42-2-2. The word “place” has a broad definition, including “[a] bounded area; a portion of space,” “[a] building or an area set aside for a specified purpose,” and “[a] space in which one person, such as a passenger, can sit or stand.” Amemcan Heritage College DictionaRY 1043 (3rd ed.2000). Nothing in the common ordinary meaning of “place” would seem to exclude a vehicle as a “place.”

In support of his argument, Garcia notes that Indiana Code Section 35-48-4-13, which addresses the offenses of visiting or maintaining a common nuisance, refers to “a building, structure, vehicle, or other place.” Garcia argues that, based on that statutory language, the legislature does not intend to include a vehicle as a place. The State correctly notes that Indiana Code Section 35-48-4-13 “actually shows the opposite” because a “ ‘vehicle’ is listed along with ‘building,’ ‘structure,’ ‘or other place,' indicating that a vehicle is also a place.” Appellee’s Br. p. 6.

We conclude that a vehicle can be a “place” as contemplated by the criminal recklessness statute. Further, we have no difficulty holding that a vehicle can be a “place where people are likely to gather.” A vehicle, which can transport people, is clearly a location where people could congregate and gather. We conclude that, under Indiana Code Section 35A2-2-2, a vehicle can be unambiguously included as a “place where people are likely to gather.” As a result, the trial court properly denied Garcia’s motion for directed verdict.

Conclusion

The trial court properly denied Garcia’s motion for directed verdict. We affirm.

Affirmed.

VAIDIK, J., and MATHIAS, J., concur.

      . Garcia did not appear at the trial.