Dоminique Brianna BOWMAN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
45A04-1609-CR-2056
Court of Appeals of Indiana.
Filed March 29, 2017
ATTORNEYS FOR APPELLEE: Curtis T. Hill, Jr., Attorney General of Indiana, George P. Sherman, Deputy Attorney General, In-dianapolis, Indiana
Riley, Judge.
STATEMENT OF THE CASE
Appellant-Defendant, Dominique Bri-anna Bowman (Bowman), appeals her con-viction fоr Count I, aggravated battery, a Level 3 felony, Ind. Code § 35-42-2-1.5(2); and Count II, battery resulting in serious bodily harm, a Level 5 felony, I.C. § 35-42-2-1(b)(1);-(f)(1).
We affirm.
ISSUE
Bowman raises one issue on appeal, which we restate as follows: Whether the trial court properly permitted the victim to remove her prosthetic in the presеnce of the jury.
FACTS AND PROCEDURAL HISTORY
During the early evening of July 23, 2015, Crystal Washington (Washington), together with her sister, Angela Washing-ton (Angela), and their friends, Melvin Quinn (Quinn) and Janice Allen (Allen), were relaxing in the shade of a tree at Allen’s house in Gary, Indiana. In the course of the evening, Angela’s son and daughter, Bowman, stopped by. After Bowmаn exited the vehicle, Angela asked Bowman why she had been smoking mari-juana in Angela’s house. Bowman replied, “I don’t give a fuck. Auntie Crystal acts like this is her house anyway.” (Transcript pp. 92, 31-32). Washington “got out of the chair, [and] walked around to the car be-cause [Bowman] was being disrespectful to [her] and [her] sister.” (Tr. p. 58). Wash-ington and Bowman began “tussling and wrestling.” (Tr. p. 32). Angela, Allen, and Quinn broke up the fight.
After the altercation was broken up, Washington walked back toward Allen’s residence while Bowman went to the car and grabbed “some kind of object,” that appeared to have beеn made of iron. (Tr. p. 34). Bowman struck Washington in the eye with the item. Washington started bleeding profusely and fell to the ground. Quinn took off his shirt and used it in an attempt to stop the bleeding. When Wash-ington reached the hospital, the doctors determined that her left eye had ruptured and needed to be removed.
On August 25, 2015, the State filed an Information, charging Bowman with Count I, aggravated battery, a Level 3 felony, and Count II, battery resulting in serious bodily injury, a Level 5 felony. On April 4 and 5, 2016, the trial court conduct-ed a jury trial. During the proceedings, the
[TRIAL COURT]: You know what I think I should do, after thinking about this and listening to this, excuse the jury and look and see how it appears to me before I allow her to do that in front of them.
[STATE]: I personally think—I mean, it’s a charge of aggravated battery. And I think that the mere fact оf removing [an] eye has value, not value to be preju-dicial, but value to show how serious this injury is. It’s just not a punch in the eye. And the jury deserved to see what hap-pened, what actually happened to her as the victim. I think it’s important.
[BOWMAN]: It’s prejudicial to show that. And the State has—pulling the emotional strings of the jury. And they have photographs to show that. To show the actual impact with the eye being out of the head. So they are basically doing that.
[STATE]: That means you can never demonstrate an injury?
[TRIAL COURT]: No, it doesn’t mean that. The scars are not as likely to in-flame a jury as to remove an eye. It is something that’s unusual and has the possibility оf—I mean, the more I think about it, of if it’s—it could be gut wrenching reaction. So what I think I am going to do is dismiss for five or ten minutes. I am going to have her do it in here to see if it’s—the effect it has on me. And then I will consider letting them see it. But I think your arguments [State] make sense to me. But it is an unusual circumstance the more I think about it. So I am going to have them go into the jury room for just five minutes. We will have her do the demonstration and we will bring them back out.
(Tr. pp. 38-40). Accordingly, the jury was excused and the trial court proceeded with the demonstration outside the presence of the jury. After Washington removed the prosthetic, the following exchange took place:
[TRIAL COURT]: Okay. It appears to me the procedure is—I don’t know how to say this in the correct way. But it’s not, and again my apologies. The way she removed her eye was almost like—I feel bad saying this, but it’s kind of like she removed a contact, just for purposes of the record, although a little bit more effort. And obviously it’s more severe. And I don’t mean to minimize the injury. But the way she did it, to me does not look like it would inflame the jury. In other words, if she took a protracted amount of time removing it, if there were, you know, screaming and yelling associated with it, whatever, then I could see that being a problem. But clearly it has an emotional impact on her. But I think she handled it in a proper way. And I am going to allow the jury to see the demonstration.
[BOWMAN]: I will continue my objec-tion.
[TRIAL COURT]: It’s noted.
[BOWMAN]: After seeing the removal of the eye, which I think was bad enough, combined that with her reаc-tion, which is normal, I think that her emotional state is normal. However, I think the combination of that, the jurors seeing that, it only has one impact, only has one result. And that is impact of inflaming their emotions regarding the injury.
(Tr. pp. 41-43). At the close of the evi-dence, the jury found Bowman guilty as charged.
On August 4, 2016, the trial court conducted a sentencing hearing. After hearing arguments, the trial court merged Count II into Count I and sentеnced Bow-man to nine years of imprisonment with five years executed and four years to be served in community corrections.
Bowman now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
Bowman contends that she was unduly prejudiced when the trial court permitted Washington to remove her pros-thetic eye in the presence of the jury to demonstrate the severity of her injury. Noting that the State had already admit-ted photographs showing Washington’s eye injury, Bowman maintains that the rele-vancy of a live demonstration was substan-tially outweighed by the prejudicial effect of the “gruesome” injury and inflamed “the passions of the jury” in violation of Indiana Evidence Rule 403. (Appellant’s Br. p. 7).
The trial court has inherent discretionary power over the admission of evidence, and its decisions are reviewed only for an abuse of that discretion. Myers v. State, 887 N.E.2d 170, 185 (Ind. Ct. App. 2008), reh’g denied, trans. denied. Aсcord-ingly, we will reverse the trial court’s deci-sion only when it is clearly against the facts and circumstances before the court. Duvall v. State, 978 N.E.2d 417, 422 (Ind. Ct. App. 2012), trans. denied. Even if the trial court abused its discretion in admit-ting evidence, the judgment will be undis-turbed if the decision to admit evidence is harmless error. Id. “Harmless error occurs ‘when the conviction is supported by such substantial independent evidence of guilt as to satisfy the reviewing court that there is no substantial likelihood that the ques-tioned evidence contributed to the convic-tion.’” Id. (quoting Lafayette v. State, 917 N.E.2d 660, 666 (Ind. 2009)).
By applying Indiana Evi-dence Rule 403, “[t]he court may exclude relevant evidence if its probative value is substantially outweighed by a danger of ... unfair prejudice[.]”
To convict Bowman of a Level 3 felony aggravated battery, the State was required to prove that Bowmаn had inflict-ed injury on Washington “that caused protracted loss or impairment of the func-tion of a bodily member or organ.”
In Crain, the trial court permitted the State to introduce the deceased vic-tim’s skull into evidence as a visual aid to supplement its expert witness testimony. Crain, 736 N.E.2d at 1233. During the State’s case-in-chief, the jury members were given the opportunity to come for-ward and examine the skull, which was presented in three pieces on a table in front of the jury box. Id. On appeal, the defendant argued that any relevance from this evidence was substantially outweighed by its prejudicial value. Id. at 1234. “At first blush,” our supreme court found “it a bit unsettling that the trial court would allow the prosecution tо use the actual skull of the victim to supplement its expert testimony. In our view, other conventional alternatives—such as high resolution pho-tographs, video, and charts—could no doubt have been used to assist the State’s expert witnesses in ‘demonstrat[ing] vari-ous healing stages of the injuries, colora-tions of the bone, and staining in the skull.’” Id. Nevertheless, observing that the trial court had carefully balanced the probative value against the skull’s prejudi-cial effect, the supreme court found that “the skull was neither particularly grue-some nor ominous as it lay in three sepa-rate pieces, appearing as if it was found on an archeological dig.” Id. Reiterating its concern that “the State could have just as easily supplemented its witness testimony with other conventional exhibits,” the court nonetheless affirmed the trial court’s evi-dentiary decision. Id.
Althоugh the removal of a prosthet-ic eye in the presence of the jury is an issue of first impression for Indiana, other jurisdictions have addressed this situation under the particular circumstances of per-sonal injury cases. In Burnett v. Caho, 7 Ill.App.3d 266, 285 N.E.2d 619, 622 (1972), reh’g denied, a farm employee instituted an action to recover dаmages for his injury which resulted when, while cutting a roll of steel-woven wire, the son of the farm’s manager failed to hold the wire in position, causing it to snap up and destroy the employee’s right eye. While photographs of the scene of the injury were being iden-tified, the trial court allowed thе plaintiff to remove his artificial eye in the presence of the jury. Id. at 623-24. On appeal, the court affirmed the admission of evidence, noting “[i]t is common practice to display personal injuries to the jury even though there is no controversy as to the existence, nature and extent thereof.” Id. at 624. Likewise, in Shell Petroleum Corp. v. Perrin, 179 Okla. 142, 64 P.2d 309, 314 (Okla. 1936), reh’g denied, the supreme court al-lowed the removal of a prosthetic eye in the presence of the jury by the four-year-old victim of a car accident. Analogizing the situation to “instances where dead members, such as amputated legs, were exhibited to the jury,” the supreme court found that “this was a form of wound, and wounds are ordinarily permitted to be shown the jury.” Id. See also Bowerman v. Columbia Gorge Motor Coach System, Inc., 132 Or. 106, 284 P. 579 (Or. 1930) (“[W]ith due regard of decency,” it was permitted for the plaintiff to remove her
In this case, the prosthetic eye was relevant and probative given the State’s burden to prove a protracted injury. While the State had already introduced into evi-dence, without objection by Bowman, a photograph taken on the date of thе inci-dent which clearly showed Washington’s eye injury and Bowman did not dispute that Washington had lost an eye due to the fight, the State was required to establish a “protracted loss or impairment of the func-tion of a bodily member or organ., not merely an injury on the day of the inci-dent. See
Assuming arguendo, the trial had abused its discretion in admitting the live demonstration, which it did not, this would still have amounted to harmless er-ror. In an attempt to allege that there is a substantial likelihood that the questioned evidence contributed to the conviction, Bowman contends that “it likely affected the jury’s imрression of” Bowman’s self-defense claim. (Appellant’s Br. p. 9). Point-ing to Washington’s admission that she was the initial aggressor, Bowman claims that she was merely defending herself from Washington’s attack. We disagree. While a person is justified in using reason-able force for protection, “a person is not justified in using force if the person has entered into combat with another person or is the initial aggressor unless the per-son withdraws from the encounter and communicates to the other person the in-tent to do so and the other person never-theless continues or threatens to continue unlawful action.”
CONCLUSION
Based on the foregoing, we conclude that the trial court properly admitted and allowed publication of the actual physical injury.
Affirmed.
Crone, J. and Altice, J. concur.