Michael Bowser v. State of Indiana

984 N.E.2d 236, 2013 Ind. App. LEXIS 123, 2013 WL 979426
CourtIndiana Court of Appeals
DecidedMarch 14, 2013
Docket71A03-1208-CR-361
StatusPublished
Cited by3 cases

This text of 984 N.E.2d 236 (Michael Bowser v. State of Indiana) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Michael Bowser v. State of Indiana, 984 N.E.2d 236, 2013 Ind. App. LEXIS 123, 2013 WL 979426 (Ind. Ct. App. 2013).

Opinion

OPINION

BARTEAU, Senior Judge.

STATEMENT OF THE CASE

Michael Bowser appeals his two convictions of battery by means of a deadly weapon, both Class C felonies. Ind. Code § 35-42-2-1 (2008). We affirm.

ISSUES

Bowser raises two issues, which we restate as:

I. Whether the trial court abused its discretion in denying his motion for severance.
II. Whether the evidence is sufficient to sustain his convictions.

FACTS AND PROCEDURAL HISTORY

Bowser and Jennifer Kaminski dated for several months. In March 2009, Kaminski ended her relationship with Bowser and began dating Andrew Bolinger. Bowser “was not happy” that Kaminski was seeing Bolinger. Tr. p. 130. On the evening of March 13, 2009, Kaminski met Bowser and told him to leave her alone. She then went to Bolinger’s house. Kaminski received several threatening texts from Bow-ser during her visit at Bolinger’s house.

When Kaminski left to drive home, Bol-inger and his friend, Anthony Badzinski, followed her in Badzinski’s car to make sure she arrived safely. Bolinger and Badzinski stopped following Kaminski when she was almost home. Shortly before arriving home, Kaminski saw Bow-ser’s car, so she called Bolinger and Bad-zinski.

Kaminski parked in the driveway of a business, and Bowser parked there too. He got out of his car, approached Kamin-ski’s car, and talked to Kaminski. Bowser was angry. Next, Bolinger and Badzinski pulled up, and Bolinger got out of Badzin-ski’s car. Bowser ran back to his car and drove away at a high rate of speed.

Bolinger returned to Badzinski’s car, and they began backing up to exit the driveway. However, Bolinger saw Bowser turn around down the road and head back in their direction at a high rate of speed, so Bolinger told Badzinski to stop backing up. Instead of driving past them, Bowser swerved out of his lane, drove across the oncoming lane, and struck the side of Bad-zinski’s car as it sat at the end of the driveway. Bowser did not slow down prior to striking Badzinski’s car and hit it squarely in the middle. Bolinger sustained a broken femur and head injuries from the collision. Badzinski was in a coma for a month, had a broken pelvis, and must wear a brace for the rest of his life.

The State charged Bowser with two counts of battery resulting in serious bodily injury, both Class C felonies; two counts of battery by means of a deadly weapon, both Class C felonies; two counts of criminal recklessness by means of a deadly weapon resulting in serious bodily injury, both Class C felonies; and two counts of criminal recklessness resulting in serious bodily injury, both Class D felonies. Prior to trial, Bowser filed a motion for severance, in which he stated that he should only be required to defend against “two counts of the indictment, a count for each alleged victim, the counts to be consistent with one theory of prosecution.” Appellant’s App. p. 19. The trial court denied Bowser’s motion after a hearing. At trial, the jury determined that Bowser was guilty as charged. The court, citing double jeopardy concerns, entered a judgment of conviction only as to the two ver- *239 diets for battery by a deadly weapon and sentenced him accordingly.

This appeal followed.

DISCUSSION AND DECISION

I. MOTION FOR SEVERANCE

Bowser claims that the trial court should have severed the battery charges from the criminal recklessness charges.

The statute that governs joinder of offenses provides, in relevant part:

Two (2) or more offenses may be joined in the same indictment or information, with each offense stated in a separate count, when the offenses:
(1) are of the same or similar character, even if not part of a single scheme or plan; or
(2) are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan.

Ind.Code § 35-34-l-9(a) (1981). Here, all eight of the charges against Bowser arose out of the same conduct, specifically, Bow-ser’s act of ramming Badzinski’s car with his own car. Thus, joinder of the charges did not violate Indiana Code section 35-34-1-9.

Pursuant to the statute that governs severance of offenses, “Whenever two (2) or more offenses have been joined for trial in the same indictment or information solely on the ground that they are of the same or similar character, the defendant shall have a right to a severance of the offenses.” Ind.Code § 35-34-l-ll(a) (1981). In this case, the eight charges were joined because they were based on the same conduct, not solely because they were of the same or similar character. Consequently, Bowser was not entitled to severance as a matter of right.

The General Assembly has determined that even when a defendant is not entitled to severance as a matter of right:

the court, upon motion of the defendant or the prosecutor, shall grant a severance of offenses whenever the court determines that severance is appropriate to promote a fair determination of the defendant’s guilt or innocence of each offense considering:
(1) the number of offenses charged;
(2) the complexity of the evidence to be offered; and
(3) whether the trier of fact will be able to distinguish the evidence and apply the law intelligently as to each offense.

Id. We review the trial court’s refusal to sever charges under these circumstances for an abuse of discretion. Craig v. State, 730 N.E.2d 1262, 1265 (Ind.2000).

Here, there were a number of charged offenses but the evidence was not complex, consisting of testimony from five witnesses and twenty-one exhibits, primarily photographs. One of the testifying police officers described in detail his techniques for accident reconstruction, but scientific or specialized evidence does not necessarily require severance. See Kahlenbeck v. State, 719 N.E.2d 1213, 1216 (Ind.1999) (determining that the trial court properly denied the defendant’s motion for severance because the evidence, which included a ballistics analysis, was not complex). Finally, it is reasonable to conclude that the jury was able to distinguish the evidence and apply the law intelligently because the charged offenses differed only in levels of mental culpability, whether a deadly weapon was used, and the level of harm inflicted upon the victims. See Ind.Code §§ 35-42-2-1; 35-42-2-2 (2006).

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984 N.E.2d 236, 2013 Ind. App. LEXIS 123, 2013 WL 979426, Counsel Stack Legal Research, https://law.counselstack.com/opinion/michael-bowser-v-state-of-indiana-indctapp-2013.