Hollowell v. State

Decision Date25 March 1999
Docket NumberNo. 49A04-9802-CR-103,49A04-9802-CR-103
Citation707 N.E.2d 1014
PartiesJames HOLLOWELL, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
CourtIndiana Appellate Court
OPINION

BROOK, Judge

Case Summary

Appellant-defendant James Hollowell ("Hollowell") appeals from his conviction for battery as a Class C felony.

Facts and Procedural History

The facts most favorable to the judgment reveal that on April 27, 1997, James Clark ("Clark") went to a party at Marjorie Lilley's ("Lilley") house located at 25 South Tuxedo Avenue, Indianapolis, Indiana. The following day, Clark realized that he had lost his red pager and called people who were at the party to ask if they had found it. On two separate occasions, Clark asked Hollowell, who was at the party, if he knew the whereabouts of his pager. Hollowell denied having any knowledge about Clark's pager.

On May 3, 1997, Clark decided to call his pager using his brother's telephone number followed by "69," which is a street code for a female caller. Fifteen minutes later, the telephone rang and Clark answered the phone. Clark recognized the caller's voice as Hollowell's, and Hollowell identified himself as the person who had been paged. Clark said, "Man, I thought you didn't have my pager--you didn't know anybody that had my pager. Man, I be getting my pager and when I see you, I'm going to hit you in your mouth." About twenty minutes later, Clark drove to Lilley's house to retrieve his pager from Hollowell. Roy Murphy ("Murphy") and Shawn Ingram ("Ingram") accompanied Clark to Lilley's home.

After speaking with Clark, Hollowell became agitated and started pacing around the house. When Lilley inquired about what was going on, Hollowell responded, "[I'm] tired of being punked by everybody. [I'm] tired of being punked out by [Clark]. I'll be ready for [Clark], if he's going to punch me in the mouth." Hollowell changed out of his work clothes, put on a dark sweatshirt, and clutched a white-handled pocketknife in his hand. Hollowell then went outside and started pacing up and down beside Lilley's house.

When Clark arrived at the house, Hollowell was standing on the porch. Clark got out of his car and stood behind the driver's side door. Murphy also got out of the car and went to talk to Lilley's daughter, who was on the porch, while Ingram remained in the car listening to the radio. Hollowell approached Clark and handed him his pager. Clark then punched Hollowell in the mouth and Hollowell jumped back. Hollowell then grabbed Clark, and the two started wrestling. As they wrestled, Clark felt a puncture on the left side of his torso.

Clark attempted to retreat but Hollowell swung at him with his knife again; however, Clark was able to block his arm. Clark then yelled, "I've been stabbed," and tried to run away from Hollowell. As Clark was running away, Hollowell stabbed Clark in the buttocks. Hollowell then chased Clark down the street, yelling, "I'm still going to get you," and swinging his white-handled knife. Clark ran into a Walgreen's Drug Store and asked someone to call an ambulance. While being treated by the paramedics, Clark told Officer Lisa Weilhamer of the Indianapolis Police Department that Hollowell had stabbed him and that Hollowell lived at 25 South Tuxedo Avenue.

Murphy was not aware of the stabbing but did see Hollowell chasing Clark down the street and decided to investigate. When Murphy caught up with Hollowell, he saw the white-handled knife in his hand and heard Hollowell say that it was not over yet because he was still going to get Clark. Although Murphy was able to calm Hollowell down, he was unsuccessful in taking the knife away from him.

Laverne Murphy ("Laverne"), a next door neighbor, went over to Lilley's house to watch her children. When Hollowell returned to the house, Lilley and Laverne both saw him place the white-handled knife into a black nylon gym bag. Hollowell then changed back into his work uniform and placed the black sweatshirt into the nylon bag. The police later arrived at Lilley's house and arrested Hollowell. The police recovered the white-handled knife from his black duffel bag.

Clark was hospitalized for five days at Wishard hospital. Clark had received a 4 centimeter stab wound that required emergency surgery. During the surgery, the doctors discovered minor internal bleeding, a small laceration on his kidney, and some blood-tinged urine. The stab wound was sealed with staples, and he was placed on a liquid diet for three days.

On May 5, 1997, the State charged Hollowell by information with one count of battery as a Class C felony. On July 7, 1997, the State also alleged by information that Hollowell was a habitual offender. On January 5, 1998, Hollowell's jury trial commenced. Hollowell asserted a self-defense theory. During trial, the State offered into evidence Clark's medical records from Wishard Hospital. A juror commented that the medical records indicated that Clark was admitted into the hospital on April 3, 1997, not May 3, 1997. The trial court informed the jury that the April 3 date was a typographical error.

At the conclusion of the State's case-in-chief and outside the presence of the jury, Hollowell moved for a directed verdict, arguing that the State had failed to prove all the essential elements of battery and had failed to present any evidence to disprove Hollowell's self-defense theory. The trial court denied Hollowell's motion, finding that the State had met its burden of proof. The trial court then proceeded with a discussion of the final instructions. After Hollowell reviewed the trial court's proposed instructions, he interposed an objection to the battery instruction. Hollowell argued that the instruction should specifically state that under the battery statute, the State must establish that Hollowell had committed battery by means of a deadly weapon and caused serious bodily injury. When the trial court requested to see the suggested instruction, Hollowell admitted that he did not have a written instruction prepared to present to the trial court. The trial court then refused to give Hollowell's orally tendered instruction.

When the jury was returned to the courtroom, Hollowell rested his case without presenting any evidence. The State then began to make its final argument. During the final argument, the prosecutor discussed the elements of battery as a Class C felony and discussed the injury that Clark had sustained as a result of being stabbed. Hollowell objected to the State's presentation of the evidence, arguing that the State was obligated to prove both the use of a deadly weapon and serious bodily injury. The trial court overruled his objection.

After the jury retired to deliberate, Hollowell moved for a mistrial. Hollowell asserted that the State had misstated its burden of proof and had misrepresented the law on self-defense. The trial court took the matter under advisement and later in the proceedings denied Hollowell's motion for a mistrial.

On January 6, 1998, the jury returned a guilty verdict against Hollowell for the battery charge. After the jury was removed from the courtroom, Hollowell requested a judgment notwithstanding the verdict, arguing that the State had failed to establish all the essential elements of battery; had failed to negate Hollowell's self-defense claim; and had misrepresented its burden of proof and the law of self-defense. The trial court denied Hollowell's motion and proceeded to the habitual offender enhancement phase. In a separate proceeding, the trial court adjudicated Hollowell to be a habitual offender.

On February 4, 1998, the trial court sentenced Hollowell to a term of twelve years' imprisonment: eight years for the Class C felony battery, plus four years' enhancement for the habitual offender conviction.

Issues

Hollowell presents four issues that are dispositive of our review:

(1) whether the trial court erred by denying Hollowell's motion for a directed verdict at the conclusion of the State's evidence;

(2) whether Hollowell was prejudiced by the manner in which the trial court commented upon exhibits admitted into evidence;

(3) whether the trial court abused its discretion by refusing Hollowell's orally tendered instruction on battery; and

(4) whether the trial court abused its discretion by denying Hollowell's motion for a mistrial based upon alleged instances of prosecutorial misconduct during final argument.

Discussion and Decision
I. Motion for Directed Verdict

Hollowell argues that the trial court erred by denying his motion for a directed verdict at the conclusion of the State's case-in-chief. The State need only present a prima facie case in order to avoid an adverse directed verdict. 1 Wilcox v. State, 664 N.E.2d 379, 382 (Ind.Ct.App.1996). A motion for a directed verdict is properly granted only where there is a total absence of evidence on an essential element of the crime or the evidence is without conflict and susceptible to only one inference in favor of the defendant's innocence. Guy v. State, 678 N.E.2d 1130, 1134 (Ind.Ct.App.1997); Ind. Trial Rule 50(A). If the evidence is sufficient to sustain a conviction on appeal, then the trial court's denial of a motion for a directed verdict cannot be in error. Guy, 678 N.E.2d at 1134.

When reviewing the sufficiency of the evidence, this Court neither reweighs the evidence nor determines the credibility of the witnesses. Id. Rather, we will consider only the evidence most favorable to the verdict, together with all reasonable inferences to be drawn therefrom. Id. The conviction will be affirmed if substantial evidence of probative value exists from which a trier of fact could find the defendant guilty beyond a reasonable doubt. Id.

A. Elements for Battery as a Class...

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