MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Apr 16 2019, 9:00 am
court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Leanna Weissmann Curtis T. Hill, Jr. Lawrenceburg, Indiana Attorney General
Matthew B. MacKenzie Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Timothy W. Bowman, April 16, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-1581 v. Appeal from the Ripley Circuit Court State of Indiana, The Honorable Ryan J. King, Appellee-Plaintiff Judge Trial Court Cause No. 69C01-1701-F1-5
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1581 | April 16, 2019 Page 1 of 16 Case Summary [1] What began as an incident of domestic violence ended several hours later after
Timothy W. Bowman fired shots at police officers positioned outside his home
and then shot himself in the chest. Bowman pled guilty to class A
misdemeanor domestic battery and invasion of privacy, and a jury found him
guilty of level 1 felony attempted murder and class A misdemeanor pointing a
firearm. He now appeals, claiming that the trial court erred in declining to
instruct the jury on criminal recklessness and challenging the sufficiency of the
evidence to support his attempted murder conviction. He also appeals his forty-
one-and-a-half-year aggregate sentence, claiming that it is inappropriate in light
of the nature of the offenses and his character. Finding that the trial court acted
within its discretion in declining the jury instruction and that the evidence is
sufficient, we affirm his attempted murder conviction. Finding that Bowman
has failed to meet his burden of demonstrating that his sentence is
inappropriate, we affirm that as well.
Facts and Procedural History [1] The facts most favorable to the jury’s verdict are as follows. Bowman punched
his wife (“Wife”) in the face for refusing to cosign on a business loan.
Bowman’s sixteen-year-old daughter (“Daughter”) witnessed the battery and
went outside to phone her older sister (“Sister”). On her way to Bowman’s
house, Sister phoned 911 and her brother, Bowman’s stepson (“Stepson”).
Stepson came to the house to confront Bowman about striking Wife. Once
inside, he heard Bowman load a magazine for a firearm, so he exited the house
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1581 | April 16, 2019 Page 2 of 16 to warn the other family members. Bowman chased him down and pointed a
firearm directly at his back. Wife, Daughter, and Sister screamed, and Stepson
ran into a nearby field and phoned police to let them know that Bowman was
armed. Bowman went back inside the home.
[2] Five law enforcement officers arrived at the scene, and family members
congregated outside the home. Bowman began making suicidal threats.
Corporal Steve Sullivan spoke with Bowman through an open window, and
Bowman threatened to “blow [him] away” if he came closer. Tr. Vol. 5 at 135.
Another officer, Sergeant Herbert Houseworth, was familiar to Bowman
because, three years earlier, he had been involved in investigating a fatal auto
accident involving Bowman’s older son. Bowman had remained angry over
the way police had handled the investigation, and when he saw Sergeant
Houseworth, his anger escalated and “turned to hate.” Tr. Vol. 2 at 188-89.
He had a high-powered rifle, and when he saw the sergeant out by a wood
chipper, he announced his desire to shoot Houseworth in the head. He also
stated that he could see Officer Steven Stepleton behind the wood chipper and
could shoot his legs from where he was standing. A roadblock was set up, and
the officers eventually repositioned themselves behind a white truck.
[3] Meanwhile, Bowman phoned his son (“Son”) at work, told him about the
standoff with police, and urged him to come to the house. Shortly before Son
arrived, Bowman told him over the phone that he was “about to go out of this
world.” Tr. Vol. 4 at 28-29. Son drove through the roadblock, and Sergeant
Houseworth and another officer ordered him out of his vehicle at gunpoint.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1581 | April 16, 2019 Page 3 of 16 Immediately thereafter, Bowman emerged from the house armed with a
handgun, shouting for Son. Trooper Travis Linville repeatedly ordered
Bowman to drop the weapon and show his hands. Instead, Bowman raised the
handgun, pointed it at Trooper Linville, and fired several shots, hitting the
white truck. The trooper saw a bright muzzle flash and returned fire. Officer
Stepleton also observed the bright flash and saw the barrel of Bowman’s
handgun pointed at him as he, Corporal Sullivan, and Trooper Linville hovered
around the white truck. Trooper Linville fired two shots at Bowman, who
retreated indoors and phoned a friend and his sister to tell them that he thought
he had killed an officer. He then fired one shot into his own chest. He was
treated for the self-inflicted wound at an area hospital.
[4] The State filed an information charging Bowman with domestic battery and
invasion of privacy, both as class A misdemeanors, and he pled guilty to both
charges. The State also charged him with level 1 felony attempted murder of
the officers, with an enhancement for using a deadly weapon, and level 6 felony
pointing a firearm at Stepson. A jury convicted him of level 1 felony attempted
murder, acquitted him of the enhancement, and convicted him of pointing a
firearm as a class A misdemeanor.
[5] At sentencing, the trial court found significant aggravating factors to include:
(1) Bowman’s shooting multiple shots at persons he knew to be law
enforcement officers; (2) Bowman’s committing his offenses in the presence of
Daughter, a minor, as well as Son, age nineteen; and (3) serious emotional
trauma suffered by Bowman’s family and two of the officers. The trial court
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1581 | April 16, 2019 Page 4 of 16 identified as slight mitigators Bowman’s criminal record and expressions of
remorse. The court sentenced Bowman to an aggregate term of forty-one and a
half years, comprising thirty-nine years for attempted murder, two nine-month
consecutive terms for the class A misdemeanor offenses to which he pled guilty,
and a consecutive one year of probation for class A misdemeanor pointing a
firearm. Bowman now appeals his attempted murder conviction and his
sentence. Additional facts will be provided as necessary.
Discussion and Decision
Section 1 – The trial court acted within its discretion in declining to give a jury instruction on criminal recklessness. [6] Bowman contends that the trial court erred in declining to instruct the jury on
criminal recklessness as a lesser included offense of attempted murder. Jury
instructions are intended “to inform the jury of the law applicable to the facts
without misleading the jury and to enable it to comprehend the case clearly and
arrive at a just, fair, and correct verdict.” Isom v. State, 31 N.E.3d 469, 484 (Ind.
2015) (citation and quotation marks omitted), cert. denied (2016). We review
jury instructions for an abuse of discretion. Id. When evaluating the trial
court’s refusal to give a party’s tendered jury instruction, we determine
“whether the tendered instructions correctly state the law, whether there is
evidence in the record to support giving the instruction, and whether the
substance of the proffered instruction is covered by other instructions.” Id. at
485.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1581 | April 16, 2019 Page 5 of 16 [7] In determining whether to instruct a jury on a lesser included offense, the trial
court must engage in a three-step analysis:
First, the trial court must consider whether the alleged lesser included offense is an inherently included offense to the principal charge. If it is not, then the trial court must decide whether the alleged lesser included offense is a factually included offense to the principal charge. Finally, if the alleged lesser included offense is either an inherently or factually included offense to the principal charge, then the trial court must determine if there is a serious evidentiary dispute regarding the element that distinguishes the lesser offense from the principal charge. If such a dispute is present and a jury could conclude that the lesser offense was committed but not the principal charge, then it is reversible error for the trial court to refuse to give the jury instructions on the lesser included offense.
Id. (citations omitted).
[8] Bowman concedes that criminal recklessness is not an inherently included
offense of attempted murder. See Ellis v. State, 736 N.E.2d 731, 734 (Ind. 2000)
(our supreme court has “consistently held that criminal recklessness is not an
inherently included offense of attempted murder.”). However, he asserts that
criminal recklessness is a factually included offense of attempted murder under
the facts of this case. To determine whether criminal recklessness is a factually
included offense of Bowman’s attempted murder charge, we examine the
language of the charging information. Id. With respect to the attempted
murder count, the charging information alleges, “Bowman knowingly or
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1581 | April 16, 2019 Page 6 of 16 intentionally[1] attempted to kill another human being. Bowman engaged in
conduct that constituted a substantial step toward the commission of murder; to
wit: fired multiple shots at [the named officers].” Appellant’s App. Vol. 2 at 60.
The charging information is devoid of any element of reckless behavior;
therefore, criminal recklessness was not factually included in the crime charged.
See Ellis, 736 N.E.2d at 735 (finding no error in trial court’s refusal to instruct
jury on criminal recklessness as factually included offense of attempted murder
where charging information did not include any element of reckless behavior).
[9] Moreover, during the standoff, Bowman made verbal threats to kill two of the
officers. He ultimately pointed his firearm directly at law enforcement officers
as they attempted to take cover behind a truck. There was no evidence that he
sprayed gunfire around the area. Rather, he threatened, pointed, and fired. 2
Thus, there was no serious evidentiary dispute on the issue of recklessness. As
neither the charging information nor the record supports criminal recklessness
as a factually lesser included offense of attempted murder, we find no abuse of
discretion in the trial court’s refusal to instruct the jury on criminal recklessness.
1 As discussed more fully below, to convict Bowman of attempted murder, the State was required to prove beyond a reasonable doubt that he “acted with specific intent to kill” the officers. Kadrovach v. State, 61 N.E.3d 1241, 1245 (Ind. Ct. App. 2016), trans. denied (2017). We note that final jury instructions 3 and 4 omit “knowingly” and read in terms of Bowman acting with specific intent to kill the named officers. Appellant’s App. Vol. 2 at 158. See also Spradlin v. State, 569 N.E.2d 948, 949 (Ind. 1991) (jury instruction on attempted murder must state that to find defendant guilty, jury must find that defendant specifically intended to kill victim). 2 Bowman now claims that he intended to hit the truck rather than the officers. This claim does not allege reckless conduct, but rather, intentional conduct.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1581 | April 16, 2019 Page 7 of 16 Section 2 – The evidence is sufficient to support Bowman’s attempted murder conviction. [10] Bowman also challenges the sufficiency of the evidence to support his
attempted murder conviction. When reviewing a challenge to the sufficiency of
evidence, we neither reweigh evidence nor judge witness credibility. Moore v.
State, 27 N.E.3d 749, 754 (Ind. 2015). Rather, we consider only the evidence
and reasonable inferences most favorable to the verdict and will affirm the
conviction unless no reasonable factfinder could find the elements of the crime
proven beyond a reasonable doubt. Id. Reversal is appropriate only when
reasonable persons would be unable to form inferences as to each material
element of the offense. McCray v. State, 850 N.E.2d 998, 1000 (Ind. Ct. App.
2006), trans. denied. The evidence need not “overcome every reasonable
hypothesis of innocence.” Dalton v. State, 56 N.E.3d 644, 647 (Ind. Ct. App.
2016) (quoting Drane v. State, 867 N.E.2d 144, 147 (Ind. 2007)), trans. denied.
[11] Bowman limits his sufficiency of evidence challenge to his conviction for
attempted murder. A person who knowingly or intentionally kills another
human being commits murder. Ind. Code § 35-42-1-1(1). “A person attempts
to commit a crime when, acting with the culpability required for commission of
the crime, the person engages in conduct that constitutes a substantial step
toward commission of the crime.” Ind. Code § 35-41-5-1(a). However, since
Spradlin v. State, 569 N.E.2d 948, 950 (Ind. 1991), “murder and attempted
murder are no longer subject to the same level of culpability.” Kadrovach v.
State, 61 N.E.3d 1241, 1245 (Ind. Ct. App. 2016), trans. denied (2017). To
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1581 | April 16, 2019 Page 8 of 16 convict a person of attempted murder, the State must “prove beyond a
reasonable doubt the defendant, with intent to kill the victim, engaged in conduct
which was a substantial step toward such killing.” Id. at 1243 (quoting Spradlin,
569 N.E.2d at 950). The intent to kill may be inferred from the deliberate use of
a deadly weapon in a manner likely to cause death or serious injury. Bethel v.
State, 730 N.E.2d 1242, 1245 (Ind. 1997). “And firing a gun in the direction of
an individual is substantial evidence from which a jury may infer intent to kill.”
Henley v. State, 881 N.E.2d 639, 653 (Ind. 2008). “Intent to kill may be further
established by a defendant’s use of a deadly weapon against the victim coupled
with an announced intention to kill.” Corbin v. State, 840 N.E.2d 424, 429 (Ind.
Ct. App. 2006).
[12] Bowman argues that the State failed to demonstrate a specific intent to kill the
officers. He relies on Henley, 881 N.E.2d at 652, in which the defendant, holed
up in a van after robbing two women and fleeing the scene, shot and killed a
police dog that entered the van. Our supreme court reversed Henley’s
conviction for the attempted murder of the human officer, who did not enter the
van but had the police dog on a fifteen-foot leash. Id. The Henley court
emphasized that there was no evidence that Henley was aware of the presence
of a police officer (or any other human) when he fired at the dog and that he
therefore lacked a specific intent to kill the human officer. Id.
[13] We find Henley distinguishable. Here, the police presence was ubiquitous. In
fact, Bowman claims that he had several opportunities to shoot the officers
during the protracted standoff and could have done so had that been his intent
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1581 | April 16, 2019 Page 9 of 16 but instead shot at the truck, thus demonstrating a lack of specific intent to kill
any of the officers. Appellant’s Br. at 21. Notwithstanding, in his police
interview, Bowman said that during the standoff, his negative feelings escalated
and “turned to hate” when he saw that Sergeant Houseworth was on the scene.
Tr. Vol. 2 at 188-89. Bowman had a handgun and a high-powered rifle. He
made a verbal threat to “blow [] away” Corporal Sullivan when they conversed
at the window. Tr. Vol. 5 at 135. He also threatened “to shoot [Sergeant
Houseworth] in the head.” Tr. Vol. 3 at 231-32; Tr. Vol. 5 at 136. He told
Corporal Sullivan that he could see Sergeant Houseworth behind the wood
chipper and could see Officer Stepleton’s legs and could shoot him from where
he was standing. Tr. Vol. 5 at 135-37. These threats prompted all five officers
to seek cover behind the white truck. Even then, Trooper Linville and Corporal
Sullivan each testified that they observed a muzzle flash when Bowman pointed
his weapon at them and fired shots. Tr. Vol. 4 at 233-35; Tr. Vol. 5 at 150-51,
154. After Bowman fired those shots, he phoned a friend and his sister, telling
them that he thought he had killed an officer. Tr. Vol. 5 at 105, 152.
[14] Sufficient evidence supports the jury’s conclusion that Bowman specifically
intended to kill the officers. Bowman’s arguments to the contrary are
invitations to reweigh evidence and reassess witness credibility, which we may
not do. Consequently, we affirm his attempted murder conviction.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1581 | April 16, 2019 Page 10 of 16 Section 3 – Bowman has failed to meet his burden of demonstrating that his sentence is inappropriate in light of the nature of his offenses and his character. [15] Bowman asks that we review and revise his sentence pursuant to Indiana
Appellate Rule 7(B), which states that we “may revise a sentence authorized by
statute if, after due consideration of the trial court’s decision, [this] Court finds
that the sentence is inappropriate in light of the nature of the offense and the
character of the offender.” When a defendant requests appellate review and
revision of his sentence, we have the power to affirm or reduce the sentence.
Akard v. State, 937 N.E.2d 811, 813 (Ind. 2010). In conducting our review, our
principal role is to leaven the outliers, focusing on the length of the aggregate
sentence and how it is to be served. Bess v. State, 58 N.E.3d 174, 175 (Ind.
2016); Foutch v. State, 53 N.E.3d 577, 580 (Ind. Ct. App. 2016). This allows for
consideration of all aspects of the penal consequences imposed by the trial court
in sentencing, i.e., whether it consists of executed time, probation, suspension,
home detention, or placement in community corrections, and whether the
sentences run concurrently or consecutively. Davidson v. State, 926 N.E.2d
1023, 1025 (Ind. 2010). We do “not look to see whether the defendant’s
sentence is appropriate or if another sentence might be more appropriate; rather,
the test is whether the sentence is ‘inappropriate.’” Foutch, 53 N.E.3d at 581
(quoting Barker v. State, 994 N.E.2d 306, 315 (Ind. Ct. App. 2013), trans. denied
(2014)). The defendant bears the burden of persuading this Court that his
sentence meets the inappropriateness standard. Bowman v. State, 51 N.E.3d
1174, 1181 (Ind. 2016).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1581 | April 16, 2019 Page 11 of 16 [16] In considering the nature of Bowman’s offenses, “the advisory sentence is the
starting point the Legislature has selected as an appropriate sentence.” Green v.
State, 65 N.E.3d 620, 637-38 (Ind. Ct. App. 2016), trans. denied (2017). When
determining the appropriateness of a sentence that deviates from an advisory
sentence, we consider whether there is anything more or less egregious about
the offense as committed by the defendant that “makes it different from the
typical offense accounted for by the legislature when it set the advisory
sentence.” Holloway v. State, 950 N.E.2d 803, 807 (Ind. Ct. App. 2011).
[17] Bowman’s forty-one-and-a-half-year aggregate sentence comprises thirty-nine
years for his level 1 felony conviction, nine months each for two of his class A
misdemeanor convictions, and a one-year term, suspended to probation, for the
remaining class A misdemeanor conviction. A level 1 felony carries a
sentencing range of twenty to forty years, with a thirty-year advisory term. Ind.
Code § 35-50-2-4(b). The maximum term for each of Bowman’s class A
misdemeanor convictions is one year. Ind. Code § 35-50-3-2.
[18] As we consider the nature of Bowman’s offenses, we cannot help but be
alarmed at how a misdemeanor domestic battery incident escalated to a
dangerous, protracted standoff with police. After Bowman struck Wife,
Daughter went outside and phoned Sister, who phoned 911 and Stepson.
When Stepson arrived at the house to confront Bowman about the battery,
Bowman loaded a firearm. Stepson left the house, only to be chased by
Bowman, who had his weapon pointed right at Stepson’s back. When police
arrived, Bowman barricaded himself inside the house. Hoping to assuage
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1581 | April 16, 2019 Page 12 of 16 Bowman’s anger, Corporal Sullivan attempted to communicate with him
through an open window, only to have Bowman threaten to blow him away.
Bowman expressed his disdain for Sergeant Houseworth and threatened to
shoot him in the head. He also stated his desire to shoot Officer Stepleton in
the legs. When Son arrived and drove through the roadblock, and officers
ordered him out of his vehicle, Bowman emerged from the house with a firearm
trained on the officers. Trooper Linville repeatedly ordered Bowman to drop
his weapon, but he did not. Instead, he fired shots at the officers. Two of those
officers described the flash of light and the barrel of Bowman’s weapon pointed
at them. But for Bowman’s shots hitting the white truck instead of the officers,
the carnage could have been significant.
[19] The impact of the standoff on the officers is reflected in the trial testimony of
Corporal Sullivan and Sergeant Houseworth, both of whom provided intense
and emotional descriptions of the incident. These two officers had been
recipients of Bowman’s death threats and struggled to describe the events of
what they originally thought would be a dispatch to a domestic battery.
Additionally, Trooper Linville suffered the trauma of believing that his shot had
hit Bowman in the chest and only later discovered that Bowman’s chest wound
was the result of a self-inflicted gunshot. Bowman’s family members were
present at the scene and testified concerning the trauma of that day and the fear
they now suffer as a result. In short, the nature of Bowman’s offenses does not
merit a shorter sentence.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1581 | April 16, 2019 Page 13 of 16 [20] Likewise, Bowman’s character does not militate toward a shorter sentence. We
conduct our review of his character by engaging in a broad consideration of his
qualities. Aslinger v. State, 2 N.E.3d 84, 95 (Ind. Ct. App. 2014), clarified on other
grounds on reh’g, 11 N.E.3d 571. “When considering the character of the
offender, one relevant fact is the defendant’s criminal history.” Garcia v. State,
47 N.E.3d 1249, 1251 (Ind. Ct. App. 2015), trans. denied (2016). Bowman
points out that his criminal history is relatively minor compared to that of other
offenders who typically become involved in standoffs with police. He has five
misdemeanor convictions for theft, all occurring thirty years ago. The trial
court acknowledged this but gave it only slight mitigating consideration when
juxtaposed with the egregious circumstances surrounding his current offenses.
[21] Similarly, the court acknowledged Bowman’s expressions of remorse but found
them to be wavering and thus entitled to little mitigating consideration. See
Phelps v. State, 969 N.E.2d 1009, 1020 (Ind. Ct. App. 2012) (Trial courts are
uniquely situated to observe defendant and can best determine whether remorse
is genuine), trans. denied. We agree with the trial court’s observations and find
Bowman’s hatred and disrespect for law enforcement officers, particularly those
involved in the investigation of his son’s fatal accident, to be the prevailing
theme of his life at this time. Bowman’s assertions of remorse must be
considered in conjunction with his attempts to deflect blame for his conduct,
which he now attributes to his grief over his son’s death three years before.
While we in no way wish to downplay the grief a parent suffers over the sudden
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1581 | April 16, 2019 Page 14 of 16 death of a child, Bowman’s relatives testified that he had rejected their
suggestions that he get help to address his depression.
[22] In this vein, we note that to whatever extent that Bowman’s criminal conduct
can be attributed to his grief over his dead son, we must also consider the extent
to which Bowman’s ensuing criminal conduct wrought devastation on his
remaining family members. Wife wrote a victim impact letter, which was read
in open court during sentencing, expressing the trauma suffered by her and the
children and asking the trial court to impose a sentence that shows “mercy on
our family to live a fear free life for as long as we can.” Tr. Vol. 7 at 17. She
explained that Bowman has exacerbated the family’s fear and angst by
continuing to contact them and their friends, both directly and indirectly,
through an open letter to the newspaper. Wife described Bowman’s statements
in the open letter as conveying the message that he wants to come back home
and pick up where he left off, that he believes that “everything still belongs to
him,” and that “when h[e] is released he will come and look us up and take
back what he still thinks is rightfully his.” Id. at 15. She indicated that
Daughter is afraid to be alone in the house and has lost friends whose parents
no longer allow them to come over. Wife also described Bowman’s “continual
letter writing to their friends” and stated that they have “all had to find new
friends.” Id. at 16. In short, Bowman’s family members suffer not only trauma
from the actual incident but also continued fear and upheaval due to Bowman’s
relentless attempts to communicate and manipulate the relationships amongst
them and their friends. None of this reflects well on his character.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1581 | April 16, 2019 Page 15 of 16 [23] In sum, Bowman indulged his anger and grief in a way that proved devastating
to everyone present during the standoff. He has failed to meet his burden of
demonstrating that his sentence is inappropriate in light of the nature of the
offenses and his character. Accordingly, we affirm his sentence.
[24] Affirmed.
Vaidik, C.J., and Mathias, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1581 | April 16, 2019 Page 16 of 16