Myers v. State

• Decision Date: 18 April 2012
• Docket Number: No. 09A02-1105-CR-598,09A02-1105-CR-598
• Parties: JASON MYERS, Appellant-Defendant, v. STATE OF INDIANA, Appellee-Plaintiff.
• Court: Indiana Appellate Court

JASON MYERS, Appellant-Defendant, v. STATE OF INDIANA, Appellee-Plaintiff.

No. 09A02-1105-CR-598

COURT OF APPEALS OF INDIANA

April 18, 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:

MICHAEL B. TROEMEL

Lafayette, Indiana

ATTORNEYS FOR APPELLEE:

GREGORY F. ZOELLER

Attorney General of Indiana

KATHERINE MODISETT COOPER

Deputy Attorney General

Indianapolis, Indiana

APPEAL FROM THE CASS SUPERIOR COURT

The Honorable Richard A. Maughmer, Judge

Cause No. 09D02-1007-FB-22

MEMORANDUM DECISION - NOT FOR PUBLICATION

KIRSCH, Judge Following a jury trial, Jason Myers appeals his convictions for battery resulting in serious bodily injury,¹ a Class C felony, and aggravated battery,² a Class B felony. He raises four issues that we restate as:

I. Whether the trial court erred by denying Myers's motion alleging prosecutorial vindictiveness;

II. Whether the trial court erred when it permitted the State to amend its charging information for aggravated battery;

III. Whether the trial court abused its discretion when it excluded the testimony of Myers's proffered expert witness Brandon Sieg; and

IV. Whether the State presented sufficient evidence to rebut Myers's claim of self-defense.

We affirm.

FACTS AND PROCEDURAL HISTORY

On the evening of August 22, 2009, Myers was at the US 24 Speedway ("the Raceway") in Cass County, Indiana. Terry Wilson ("Wilson") also was at the Raceway, but not with Myers. Myers and Wilson shared the mutual interest of car racing and knew each other from having regularly seen each other at racing events for a number of years. Both men had sons who were involved in racing mini-midget cars. That night, Wilson's son, Trent, was participating in a race, in which Myers was also participating. At some point in the race, Trent was in second place, and Myers was the "lap car," at or near the back of the group of drivers. Tr. at 70. Myers's vehicle came into contact with the rear of Trent's vehicle,causing him to spin into the infield, and Trent was eliminated from the race. When the race concluded, Wilson left the stands, where he had been watching the race, in order to find and confront Myers about his driving. Wilson was angry and was yelling as he approached Myers. Somewhere along the way, Wilson's seventeen-year-old son, N.W., and his friend, W.L., saw Wilson walk past, and they followed him.

Wilson found Myers in a common area and confronted him, yelling and cursing at Myers about his driving in the race that caused Trent to spin out and be eliminated. Wilson either pushed or attempted to push Myers. Myers turned to walk away, and Wilson raised his arm toward Myers, who then grabbed Wilson's arm and forcefully threw him to the ground. Wilson got to his hands and knees, and Myers kicked Wilson in the head, on the side of the face, so that Wilson flipped over backward. Myers walked away. Wilson's son, N.W., and his friend, who had witnessed the altercation from approximately sixty or seventy feet away, came to assist Wilson and helped him back to his trailer, where Wilson discovered he had "a mouth full of teeth and blood." Id. at 75. A man who had observed the fight went to the track's owner to make him aware that "a pretty big incident" had occurred. Id. at 137. Wilson's wife transported him to the hospital. As a result of the incident with Myers, Wilson suffered injuries, including three or four broken teeth, three cracked ribs, a crushed cheekbone that required placement of a plate in Wilson's face, and an eye socket injury, which eventually required multiple surgeries to keep the eye correctly placed in its socket.

In September 2009, the State charged Myers with one count of Class A misdemeanor battery; however, in February 2010, the State dismissed the misdemeanor charge and re-filedthe charge as a Class C felony battery resulting in serious bodily injury. Thereafter, in July 2010, the State filed an additional count of Class B felony aggravated battery. In August 2010, Myers filed a motion to dismiss Count II, aggravated battery; the trial court did not grant the motion to dismiss, but rather ordered the State to amend Count II to provide more specificity as to the injured "bodily member or organ." Appellant's App. at 21. In response, the State filed in September 2010 an amended information that included one count of Class C felony battery resulting in serious bodily injury and four separate counts of Class B felony aggravated battery (one each for: broken facial bone, nasal and sinus damage, protracted visual impairment, and broken tooth).

On January 25, 2011, the first day of the scheduled jury trial, Myers filed a motion to dismiss counts III, IV, and V on double jeopardy grounds. Myers also filed a Notice of Defense of Prosecutorial Vindictiveness and requested a continuance of trial. The State did not object to a continuance, and trial was rescheduled to April 2011. On March 11, 2011, the State amended its five-count information, changing the cited statute for the four aggravated battery counts from Indiana Code section 35-42-2-1.5(1), which alleges "serious permanent impairment" to subsection 1.5(2), which alleges "protracted loss or impairment of the function of a bodily member or organ."

The trial court conducted a hearing on March 14, 2011 and denied Myers's motion to dismiss and Myers's claim of prosecutorial vindictiveness. The trial court also ordered that the State condense the four aggravated battery charges (Counts II, III, IV and V) into one count of aggravated battery. Accordingly, on March 15, the State amended its charges toallege one count of Class C felony battery and one count of Class B felony aggravated battery.³

Myers consistently maintained that he acted in self-defense that night. During his case-in-chief, Myers sought to present the testimony of a martial arts expert, Brandon Sieg ("Sieg"), concerning the reasonableness of the force used by Myers in response to Wilson. The court conducted a hearing out of the jury's presence during which Myers made an offer of proof, having Sieg testify. The trial court determined that, although Sieg qualified as an expert witness under Indiana Evidence Rule 702, Sieg did not personally witness the altercation and his testimony would not assist the trier of fact, concluding that a juror could reach the same conclusion without the expert's testimony. Tr. at 340. The trial court excluded Sieg's proposed testimony.

Following the jury trial, Myers was found guilty of both counts. The trial court merged the Class C felony battery conviction with the Class B felony aggravated battery conviction, and it imposed an executed sentence of six years to be served on in-home detention. Myers now appeals.⁴

DISCUSSION AND DECISION

I. Prosecutorial Vindictiveness

A few months prior to trial, Myers filed a Notice of Defense of Prosecutorial Vindictiveness, in which he outlined his intention to present evidence to the jury to support his claim the State had engaged in vindictiveness. In particular, Myers intended to show the jury that the State "escalated the Defendant's jeopardy" on several occasions, namely when it dismissed the misdemeanor charge and re-filed it as a Class C felony battery, and thereafter added the Class B felony aggravated battery charge, which was then extended to four separate aggravated battery counts and eventually returned to one aggravated battery count. Appellant's App. at 30. The trial court conducted a hearing and denied Myers's motion to the extent it requested permission to present such evidence to the jury. On appeal, Myers claims the various amendments and re-filings "of increasing seriousness" were not because of new evidence, but rather were because Myers had maintained his innocence. Appellant's Br. at 13. He asserts that the trial court erred when it ruled against his intent to pursue a claim of prosecutorial vindictiveness. We, however, find no error.

The Due Process clauses of Article I, section 12, of the Indiana Constitution and the Fourteenth Amendment to the United States Constitution prohibit prosecutorial vindictiveness. Owens v. State, 822 N.E.2d 1075, 1077 (Ind. Ct. App. 2005). Prosecutorial vindictiveness is a due process concept, allowing a defendant to attempt to establish that the State's charging decision was motivated by a desire to punish a defendant after the defendant did what the law allowed him to do. United States v. Goodwin, 457 U.S. 368, 384 (1982).

Here, the State dismissed and re-filed charges prior to trial. There is no presumption of prosecutorial vindictiveness where additional charges are filed prior to trial. Danks v.State, 733 N.E.2d 474, 483 (Ind. Ct. App. 2000), trans. denied. As our Supreme Court has said:

[A] prosecutor should remain free before trial to exercise the broad discretion entrusted to him to determine the extent of the societal interest in the prosecution. An initial decision should not freeze future conduct . . . . [T]he initial charges filed by a prosecutor may not reflect the extent to which an individual is legitimately subject to prosecution.

Penley v. State, 506 N.E.2d 806, 811 (Ind. 1987) (quoting Goodwin, 457 U.S. at 382). Once an information has been dismissed by the State, it may re-file an information against the defendant, subject to certain conditions. Ind. Code § 35-34-1-13; Davenport v. State, 689 N.E.2d 1226, 1229 (Ind. 1997), clarified on reh'g, 696 N.E.2d 870 (Ind. 1998). The State may not re-file if doing so will prejudice the substantial rights of the defendant. Id.; see also Johnson v. State, 740 N.E.2d 118, 121 (Ind. 2001) (State may not circumvent adverse court order or prejudice defendant's substantial rights).

Here, Myers argues that "[t]he State's constant addition, subtraction and amendment of the various charges against [Myers] prejudiced his...