Dewald v. State

• Decision Date: 19 January 2012
• Docket Number: No. 20A03-1010-CR-541,20A03-1010-CR-541
• Parties: BART A. DEWALD, Appellant-Defendant, v. STATE OF INDIANA, Appellee-Plaintiff.
• Court: Indiana Appellate Court

BART A. DEWALD, Appellant-Defendant,

v.STATE OF INDIANA, Appellee-Plaintiff.

No. 20A03-1010-CR-541

COURT OF APPEALS OF INDIANA

January 19, 2012

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT:

KENNETH R. MARTIN

Goshen, Indiana

ATTORNEYS FOR APPELLEE:

GREGORY F. ZOELLER

Attorney General of Indiana

ANN L. GOODWIN

Deputy Attorney General

Indianapolis, Indiana

APPEAL FROM THE ELKHART SUPERIOR COURT

The Honorable Evan S. Roberts, Judge

Cause Nos. 20D01-0804-FB-8 and 20D01-0804-FC-32

MEMORANDUM DECISION - NOT FOR PUBLICATION

KIRSCH, Judge Following a jury trial, Bart A. Dewald was convicted of two counts of conspiracy to commit aggravated battery,¹ each as a Class B felony, criminal confinement² as a Class C felony, intimidation³ as a Class C felony, pointing a firearm⁴ as a Class D felony, and criminal recklessness⁵ as a Class A misdemeanor; he received an aggregate sentence of thirty-eight years. Dewald appeals, raising six issues, which we restate as:

I. Whether Dewald's two convictions for conspiracy to commit aggravated battery are supported by sufficient evidence of two separate agreements;

II. Whether the trial court erred by admitting certain audio recordings into evidence;

III. Whether Dewald was unfairly prejudiced by testimony that he had been sentenced in a prior matter;

IV. Whether the charge of pointing a firearm had been dismissed and should not have been prosecuted;

V. Whether sufficient evidence was presented to support the convictions of criminal confinement, intimidation, pointing a firearm, and criminal recklessness; and

VI. Whether Dewald's sentence is inappropriate in light of the nature of the offenses and the character of the offender.

We affirm in part, reverse in part, and remand with instructions.

FACTS AND PROCEDURAL HISTORY

At all times relevant to this appeal, Dewald was a bail bondsman in Elkhart, Indiana. In 2008, he was convicted of two counts of Class D felony criminal confinement in Elkhart Superior Court 3, with the Honorable George W. Biddlecome presiding. Generally, the facts alleged and proven were that Dewald, while acting as a bail bondsman and fugitive recovery agent, illegally detained two women in June 2006. Elkhart County Deputy Prosecutor Peter Britton prosecuted the criminal confinement case against Dewald, who was ultimately found guilty and convicted ("Dewald I"). This court affirmed the criminal confinement convictions by published opinion. Dewald v. State, 898 N.E.2d 488 (Ind. Ct. App. 2008), trans. denied (2009).

In October 2007, prior to sentencing in Dewald I, Dewald was involved in an encounter with competing bail bondsman Randy Abel ("Abel"). Specifically, on October 25, 2007, Abel was in the lobby of the Elkhart County Jail, located in Goshen, Indiana, doing bond business, and Dewald came through the door, walked up behind Abel, who turned around and was startled to see Dewald standing within a foot of his face and staring at him. According to Abel, Correctional Officer Lane Gaby was present in the lobby, noticed the situation, and instructed Dewald to "get away" from Abel. Tr. at 1416.

Abel left the jail in Goshen and drove on U.S. 33, a four-lane road, to an appointment with his attorney in Elkhart. Dewald's car, bearing a front license plate that said "Dewald," approached Abel's vehicle at a high rate of speed and, at times, was one to two feet from Abel's rear bumper. Abel saw Dewald driving the car and observed him waving a handgun "left to right, right to left, left to right." Id. at 1431. At one point, Dewald drove his vehiclealong the side of Abel's car, which was in the passing lane, and began to veer into Abel's lane. To avoid a collision with traffic, Abel was forced to brake with such force that his file folders on the passenger seat landed on the floor. Id. at 1440.

Nearing Elkhart, U.S. 33 narrowed to two lanes, and Dewald positioned his vehicle in front of Abel's. After passing through a green traffic light, Dewald abruptly stopped his car, although no one was in front of him, forcing Abel to stop his vehicle. Dewald exited his vehicle and began approaching Abel's, which was surrounded by Dewald's car in front of him, another car behind him, oncoming traffic to one side, and a curb and some sort of barriers on the other side. Before reaching Abel's car, Dewald turned around, returned to his car, and drove away.

When Abel reached his attorney's office, he parked his vehicle, and Dewald pulled along the side of Abel's car and waved the gun for up to ten seconds, and then drove away. After Abel met with his attorney, he notified authorities of Dewald's conduct. When Abel went to the jail the next day to file a report with police, he encountered Dewald, who was heard saying to Abel, "Fat man, watch your back." Id. at 1131. Correctional Officer Gaby, also in the lobby, heard Dewald loudly call Abel an "asshole" as Abel walked through the lobby. Id. at 1157.

On January 18, 2008, the State charged Dewald with criminal confinement of Abel, intimidation, pointing a firearm, and criminal recklessness for his conduct on October 25, 2007. Deputy Prosecutor Britton filed the charges, which were brought in Elkhart Superior Court 3, under cause number 20D03-0801-FC-4 ("FC-4"). Dewald was taken into custody on January 24, 2008, but posted bond on January 29, 2008 and was released.

On March 6, 2008, Dewald contacted his long-time acquaintance Kevin Bronson ("Bronson"),⁶ an acclaimed martial arts expert who was known to perform physical harm for money, to discuss "some people that were causing him problems in his life." Id. at 969. Later that day, Dewald met with Bronson and Tony DeLaughter ("DeLaughter"), known as "the Reaper;" Bronson included DeLaughter in the meeting because Bronson was no longer personally performing contracts for physical harm. Id. at 969, 985. To meet the men, Dewald drove to Warsaw, Indiana and parked in a vacant lot near a Lowe's hardware store; DeLaughter was driving his Avalanche, in which Bronson was a passenger, and they picked up Dewald and drove elsewhere. Neither Bronson nor Dewald knew it, but DeLaughter recorded the meeting. As DeLaughter drove, Dewald advised that he wanted to have Abel severely beaten. Dewald explained that Abel was his top competitor, and Abel had made allegations against Dewald that caused Dewald to lose his bail bondsman license. Dewald wanted Abel's teeth knocked out and wanted his injuries to require hospitalization; Dewald hoped to be able to walk into Abel's hospital room, smile, and spit on him. Dewald suggested that they might consider inflicting the injuries upon Abel on March 20, 2008, because Dewald would be at sentencing on Dewald I, thereby giving him an alibi, or, alternatively, Abel could be beaten when leaving the jail after doing bond work because Abel would be unarmed at that time. Dewald presented a "dossier" on Abel, including a picture, home address, work location, routines, and a specific description of Abel's vehicle. Id. at987. For the requested work, Bronson quoted Dewald a price of between five and ten thousand dollars. Dewald placed an envelope of one thousand dollars cash on the console of the vehicle as "down payment." Id. at 989, 1085. Bronson told Dewald that they would work out the payment situation, and then he instructed DeLaughter to take Dewald back to the parking lot where they had picked him up.

At that point, Dewald stated there was another person to discuss, indicating that he wanted the same treatment for Deputy Prosecutor Britton. As he did with Abel, Dewald provided a dossier on Britton including his home address, where he attended church, and a description of his car. Dewald did not suggest a specific time or date to beat Britton. Bronson and DeLaughter did not request any further payment of money, beyond the original stated price of between five and ten thousand dollars. After dropping off Dewald, DeLaughter advised Bronson that he had recorded the meeting, and thereafter DeLaughter reported the matter to the Elkhart County Prosecutor's Office.

Several days later, on March 10, 2008, through coordination with the prosecutor's office, Bronson called Dewald in a recorded telephone call to advise him that DeLaughter would be handling the physical aspect of the job and therefore DeLaughter would be calling Dewald later to arrange a meeting to discuss the details. Later that day, DeLaughter telephoned Dewald, again recording the conversation, and he arranged to meet Dewald that afternoon in Elkhart County near a Taco Bell at a specified time. Pursuant to their arrangement, Dewald joined DeLaughter in DeLaughter's car, which was equipped with recording devices, and the two discussed what exactly Dewald wanted done to Abel and to Britton. Dewald confirmed that he desired Abel's injuries to require hospitalization. Dewaldshared that he was so "pissed" at Abel that he would be inclined to "blow his f*cking head off" with a shotgun, but due to repercussions of that, he did not want them to actually go that far. Id. at 1262. Dewald described the desired harm to Britton to be "an old-fashioned ass kicking." Id. at 1263. After this meeting with DeLaughter, police arrested Dewald.

The State charged Dewald on March 13, 2008, with two counts of Class B felony conspiracy to commit aggravated battery. The case was originally assigned to Elkhart Superior Court 3, but in April 2008, the two-count conspiracy case and previously-charged FC-4 were transferred from Elkhart Superior Court 3 to Elkhart Superior Court 1, where they would eventually be tried together.

Prior to trial, in February 2009, Dewald filed a verified motion for psychiatric examination, to determine his competency to stand trial. One doctor found Dewald competent to stand trial, and the other concluded that...