Kellett v. State
| Decision Date | 29 September 1999 |
| Docket Number | No. 84A04-9809-CR-440.,84A04-9809-CR-440. |
| Citation | 716 N.E.2d 975 |
| Parties | Lynn R. KELLETT, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Ross G. Thomas, Dillon Law Office, Indianapolis, Indiana, Attorney for Appellant.
Jeffrey A. Modisett, Attorney General of Indiana, J.T. Whitehead, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.
Lynn R. Kellett was found guilty by a jury of operating a vehicle while intoxicated resulting in serious bodily injury,1 a Class D felony. As part of her sentence, the trial court ordered Kellett to pay restitution to Cheryl Fischer in the amount of $140,750.46. Kellett now appeals her conviction and the order of restitution. We affirm the conviction, but reverse the restitution order and remand to the trial court for re-determination of the amount of restitution.
Kellett raises the following restated issues for our review:
The facts most favorable to the judgment reveal that on July 20, 1996, Kellett struck Fischer with her car as she was walking along a country road. Kellett was intoxicated. As a result of the accident, Fischer sustained permanent physical and mental injuries.
Consequently, the State charged Kellett with operating a vehicle while intoxicated resulting in serious bodily injury. At trial, three photographs of Fischer in the intensive care unit of the hospital were admitted into evidence by the State over Kellett's objection.
A jury found Kellett guilty as charged. At the sentencing hearing, Brenda Fischer, the mother of the victim, testified that her daughter had incurred $140,750.46 in unreimbursed medical expenses. Moreover, a ledger created by Brenda Fischer was admitted into evidence showing the amount of paid and outstanding medical expenses. Brenda Fischer was not cross-examined by Kellett's trial counsel. Furthermore, Kellett's counsel did not object to the admission of the ledger into evidence.
The trial court sentenced Kellett to the Indiana Department of Correction for eighteen months, all but two days suspended. Kellett was placed on eighteen months formal probation and ordered to serve 180 days on home detention. In addition, the trial court ordered Kellett to pay restitution to Fischer in the amount of $140,750.46.
Kellett contends that the trial court erred in admitting into evidence three photographs of Fischer in the intensive care unit of the hospital. Specifically, she argues that the photographs were highly prejudicial. In addition, Kellett argues that the photographs were unnecessary in view of her offer to stipulate that Fischer suffered serious bodily injury as a result of the accident. We disagree with both of Kellett's contentions.
Photographs depicting the victim's injuries or demonstrating a witness's testimony are generally relevant, and therefore admissible. Allen v. State, 686 N.E.2d 760, 776 (Ind.1997). See also Ind. Evidence Rules 401 and 402. However, "[o]therwise relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice or needless presentation of cumulative evidence." Evid. R. 403. Moreover, a claim of error in the admission or exclusion of evidence will not prevail on appeal "unless a substantial right of the party is affected." Evid. R. 103(a). We review the trial court's ruling for abuse of discretion. Ealy v. State, 685 N.E.2d 1047, 1049-50 (Ind.1997).
Kellett contends that the probative value of the photographs is substantially outweighed by the prejudicial effect on the jury.
The State in a criminal trial carries the burden of proving every element of the crime charged beyond a reasonable doubt. In order to satisfy its evidentiary burden under Indiana Code section 9-30-5-4, the State had to prove that Kellett's actions resulted in "serious bodily injury" to another person. See Mehidal v. State, 623 N.E.2d 428, 435 (Ind.Ct.App.1993)
.
The State introduced the photographs in order to prove that Fischer had suffered severe injuries. The three photographs depict Fischer in the intensive care unit of the hospital at different stages of medical treatment. One photograph was a view of Fischer with a probe inserted in her head that measured swelling of the brain. Another photograph shows Fischer in a special bed that rotated in order to dissipate the liquid in her lungs. It also shows her wearing special shoes which were to increase her future chances of walking again. The last photograph shows Fischer with several IV's attached to her body.
Photographs are admissible as evidence when a witness would be permitted to describe what they depict and the photograph is an accurate representation of what it purports to represent. McNary v. State, 460 N.E.2d 145, 148 (Ind.1984). Brenda Fischer, Amy Hinkle, and Dr. Zody testified that the photographs accurately reflected Fischer's injuries. Thus, the photographs were clearly relevant in aiding the jury in assessing the extent of Fischer's injuries.
Relevant evidence may nonetheless be excluded if its probative value is substantially outweighed by the danger of unfair prejudice to the jury. Evid. R. 403. We are unconvinced that the admission of the photographs depicting the serious injury resulting from Kellett's actions heightened the reaction felt by jurors regarding this case. The three photographs were neither gruesome nor revolting. They merely depicted Fischer in the hospital receiving medical treatment. Courts of this state have upheld the admission of much more graphic photographs. See Byers v. State, 709 N.E.2d 1024, 1028 (Ind.1999)
(); Harrison v. State, 699 N.E.2d 645, 648 ( Ind.1998) (); Gant v. State, 694 N.E.2d 1125, 1129 (Ind.1998) ().
Furthermore, the photographs illustrate the testimony of witnesses that Fischer suffered severe injuries. The Indiana Supreme Court has stated that "even gory and revolting photographs may be admissible as long as they are relevant to some material issue or show scenes that a witness could describe orally." Amburgey v. State, 696 N.E.2d 44, 45 (Ind.1998).
Because any potential for prejudice does not outweigh the photograph's probative value, the trial court did not abuse its discretion by admitting the photographs into evidence.
Kellett also contends that the photographs should have been excluded because she offered to stipulate that Fischer suffered "serious bodily injury" as a result of the accident. The State refused to stipulate on that issue. R. 639.
A defendant's objection pursuant to Rule 403 of the Indiana Rules of Evidence and his offer to concede a point generally cannot prevail over the government's choice to offer evidence showing guilt and all the circumstances surrounding the offense. Sams v. State, 688 N.E.2d 1323, 1325 (Ind.Ct.App.1997). See Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997)
(). Moreover, one party's willingness to enter into a stipulation has no significance unless the other party is also willing to enter the stipulation. Brown v. State, 448 N.E.2d 10, 16 (Ind.1983).
Because the State was entitled to prove its case by evidence of its own choice, and because a criminal defendant may not unilaterally stipulate her way out of the full evidentiary force of the case to be presented against her, the trial court did not abuse its discretion in admitting the photographs over Kellett's objection and offer to stipulate to the facts proven by the photographs.
Kellett contends that the restitution order was improper because it was not based on Fischer's actual costs incurred before the date of sentencing. Specifically, she argues that the ledger contains mathematical errors and duplicate charges. We agree.
An order of restitution is within the trial court's discretion and will be reversed only upon finding an abuse of discretion. Vanness v. State, 605 N.E.2d 777, 783 (Ind.Ct.App.1992), trans. denied. Under an abuse of discretion standard, we will affirm the trial court's decision if there is any evidence supporting the decision. Gleason v. Bush, 689 N.E.2d 480, 484 (Ind. Ct.App.1997).
Kellett contends that the restitution order is invalid because it is not based on actual costs incurred by Fischer before the date of sentencing. Specifically, she states that the ledger upon which the amount of the restitution order is based contains mathematical errors and duplicate medical charges.
The trial court has the authority to order a defendant convicted of a felony to make restitution. Ind.Code § 35-50-5-3(a).2 Courts utilize restitution to impress upon a criminal defendant the magnitude of the loss he has caused and his responsibility to make good the loss as completely as possible. Kotsopoulos v. State, 654 N.E.2d 44, 46 (Ind.Ct.App.1995), trans. denied. Moreover, an order of restitution is as much a part of a criminal sentence as a fine or other penalty. Id.
A restitution order shall be based upon a consideration of "medical and hospital costs incurred by the victim (before the date of sentencing) as a result of the crime." Ind.Code § 35-50-5-3(a)(2). Only actual costs incurred by...
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