Rowe v. State
| Decision Date | 31 May 2007 |
| Docket Number | No. 75A05-0607-CR-384.,75A05-0607-CR-384. |
| Citation | 867 N.E.2d 262 |
| Parties | Bobbie J. ROWE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
June E. Bules, Plymouth, IN, Attorney for Appellant.
Steve Carter, Attorney General of Indiana, Michael Gene Worden, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Bobbie Rowe appeals her convictions for two counts of Operating a Vehicle with a Controlled Substance or its Metabolite in a Person's Blood Causing Death of Another Person, as Class B felonies, and Obstruction of Justice, as a Class D felony, following a jury trial. Rowe presents the following issues for our review:
1. Whether the omission in the information of an element of two of the charged offenses constitutes fundamental error.
2. Whether Indiana Code Section 9-30-5-5(b)(2) violates Article I, Section 23 of the Indiana Constitution.
3. Whether the State presented sufficient evidence to support her two Class B felony convictions.
4. Whether her sentence is inappropriate in light of the nature of the offenses and her character.
We affirm.
On January 23, 2005, Rowe drove an ATV towing a sled in which three children were riding: Rowe's daughter, Charity Minix, and two minor girls, C.C. and J.C. Rowe initially drove the children around her backyard, but then she drove out onto an adjacent roadway to travel to a friend's house. Rowe knew it was illegal to operate an ATV on the roadway. It was dark outside, so Rowe illuminated the headlight on the ATV.
When Rowe saw an approaching vehicle, she slowed the ATV and came to a stop near the edge of the roadway. That action caused the sled to move into the path of the approaching vehicle, which was being operated by Lester Hensley. Hensley did not see the sled in time to avoid striking it. As a result of the collision, C.C. and J.C. died instantly, and Charity was treated for serious bodily injuries.
Police officers and emergency medical personnel arrived at the scene, and Starke County Deputy Sheriff Brett Hansen told Rowe that she could ride in the ambulance to the hospital with her daughter. Deputy Hansen also told Rowe that she would have to submit to blood and urine tests at the hospital, and Rowe agreed. But Rowe did not ride in the ambulance to the hospital. Instead, she drove the ATV from the accident scene to her house and telephoned her sister, Patricia Minix, to ask her to give her a urine sample. Rowe did not want to give her own urine sample because she had smoked marijuana within a "couple" of days of the accident. Transcript at 215. Minix agreed, and Rowe got Minix's urine sample before driving herself to the hospital.
Rowe also telephoned her friend Christina Roush, a laboratory technician at Starke Memorial Hospital who was not working that evening. Roush met Rowe at the hospital and arranged to take Rowe's urine and blood samples. Rowe had returned Minix's urine sample to her, and Minix had poured that sample down a bathroom sink. Ultimately, however, Roush collected a new urine sample from Minix to submit as Rowe's urine, but Rowe submitted her own blood for the blood test. The results of the blood test showed the presence of carboxy-THC, a metabolite of marijuana, in Rowe's blood. The significance of that result is that Rowe had ingested or was exposed to marijuana at some time during the previous week.
The State charged Rowe with two counts of operating a vehicle with a controlled substance or its metabolite in a person's blood causing death of another person, as Class B felonies; two counts of reckless homicide, as Class C felonies; and obstruction of justice, as a Class D felony. A jury found Rowe guilty as charged. The trial court entered judgment on the first two counts and the obstruction of justice count and sentenced Rowe to a total term of twenty-one and one-half years, with six years suspended to probation. This appeal ensued.
Rowe first contends that the State "failed to allege[,] charge[, and prove] an essential element of the offense of being at least twenty-one years of age and operating a vehicle with a schedule I or II controlled substance in a person's blood causing death of another person [as a Class B felony]." Brief of Appellant at 5-6. Indiana Code Section 9-30-5-5(b) provides in relevant part:
A person at least twenty-one (21) years of age who causes the death of another person when operating a motor vehicle * * *
(2) with a controlled substance listed in schedule I or II of IC 35-48-2 or its metabolite in the person's blood; commits a Class B felony.
There is no minimum age requirement for the Class C felony version of the offense.
Here, the charging information states in relevant part as follows:
On or about the 23rd day of January, 2005, on County Road 250 W. in Starke County, State of Indiana, Bobbie J. Rowe did operate a motor vehicle with a Schedule I controlled substance or its metabolite in her blood, to-wit: Carboxy Tetrahydrocannabinol (THC), and in so doing caused the death of another person, to-wit: [C.C.].
The second charge, regarding the death of J.C., included the same language. Thus, Rowe is correct that the information did not include the age element of the offenses.
But Rowe did not raise these errors to the trial court, and they are waived. In an effort to avoid waiver, Rowe contends that the omissions constitute fundamental error. The fundamental error doctrine is extremely narrow. Sandifur v. State, 815 N.E.2d 1042, 1046 (Ind.Ct.App.2004), trans. denied. To qualify as fundamental error, an error must be so prejudicial to the rights of the defendant as to make a fair trial impossible. Id. Further, the error must constitute a blatant violation of basic principles, the harm, or potential for harm must be substantial, and the resulting error must deny the defendant fundamental due process. Id.
The purpose of an information is to apprise the accused of the nature of the accusation made so that preparations for mounting a defense can be made. Wine v. State, 637 N.E.2d 1369, 1375 (Ind.Ct.App. 1994), trans. denied. Here, Rowe cannot show that she was unduly prejudiced by the omission of the age requirement from the charging information. Rowe does not assert, for example, how her trial strategy might have been different if the age requirement had been included in the information. See, e.g., State v. Noil, 807 So.2d 295, 313 (La.App. 5 Cir.2001) (). And Rowe certainly does not deny that she was over the required age at the time of the offenses.
Further, Jury Instruction No. 8 included the following:
On the date in question, there were statutes in the State of Indiana reading as follows:
A person who operates a vehicle with a controlled substance or metabolite listed in Schedule I of I.C. 35-48-2 or its metabolite in the person's blood and at the time of the operation of the vehicle Defendant was twenty-one (21) or more years of age and Defendant's operation of the vehicle caused the death of [C.C.].
Appellant's App. at 23 (emphasis added). Thus, the jury was informed of the age requirement for the Class B felony offense.
Finally, Rowe maintains that there was no evidence presented at trial showing her age. But one exhibit introduced at trial, a medical record, lists her birth date as December 5, 1962. And Rowe's daughter, Charity, testified that she was nineteen years old at the time of the offenses. By implication, then, Rowe was at least more than twenty-one years old at that time, having given birth to Charity nineteen years earlier. Finally, the jury got to observe Rowe when she testified at trial and could reasonably infer that Rowe was over the age of twenty-one. Under these circumstances, we hold that Rowe's age was supported by sufficient evidence. See Noil, 807 So.2d at 313 ().
In sum, Rowe has not demonstrated that she was denied a fair trial by the omission of the age requirement from the information. Had she raised the issue to the trial court, the matter could have been easily resolved in time for trial. Rowe has not shown fundamental error.
Rowe next contends that Indiana Code Section 9-30-5-5(b)(2) violates Article I, Section 23 of the Indiana Constitution. In particular, she maintains that "the increased punishment for persons operating a vehicle with a schedule I or II controlled substance in their blood who are at least twenty-one years old is not reasonably related to any inherent characteristics which distinguish them from [a] person under twenty-one[.]" Brief of Appellant at 15. We cannot agree.
Initially, the State points out that Rowe asserts this issue for the first time on appeal. Generally, a challenge to the constitutionality of a criminal statute must be raised by a motion to dismiss prior to trial, and the failure to do so waives the issue on appeal. Adams v. State, 804 N.E.2d 1169, 1172 (Ind.Ct.App.2004). Here, Rowe did not file a motion to dismiss on this issue, and she did not object to the constitutionality of the statute at trial. As such, the issue is waived. See id.
Waiver notwithstanding, we address the merits of Rowe's claim. Article I, Section 23 of the Indiana Constitution states: "[t]he General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms, shall not equally belong to all citizens." In Collins v. Day, 644 N.E.2d 72, 80 (Ind.1994), our supreme court held that:
Article I, Section 23 of the Indiana Constitution imposes two requirements upon statutes that...
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