Watson v. State
| Decision Date | 17 October 2002 |
| Docket Number | No. 33A05-0201-CR-2.,33A05-0201-CR-2. |
| Citation | 776 N.E.2d 914 |
| Parties | Michael P. WATSON, Jr., Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Amy K. Noe, Arnold & Noe, LLP, Richmond, IN, Attorney for Appellant.
Steve Carter, Attorney General of Indiana, Robin Hodapp-Gillman, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Michael Watson, Jr., was convicted following a jury trial of criminal recklessness, a Class D felony. The trial court sentenced Watson to seven years in the Indiana Department of Correction, including an enhancement of the sentence for Watson's habitual offender status. Watson appeals his conviction and sentence. We affirm the conviction and seven-year sentence.
Watson raises six issues for our review which we consolidate and restate as follows:
1. Whether the trial court properly allowed the State to amend the charging information to include an habitual offender allegation after the omnibus date;
2. Whether the State presented sufficient evidence to support his conviction;
3. Whether the trial court properly denied Watson's motions to continue the trial and the sentencing hearing; and
4. Whether Watson's seven-year sentence is manifestly unreasonable.
Watson was driving his car on the evening of March 8, 2000. Also in the car were his fiancée, Stacey Bundy, and three children, including Stacey's five-year-old son, Gavin Bundy. While driving to Stacey's house, Watson missed his turn and ended up on State Road 103, a road with which he was unfamiliar. Watson entered a curve on State Road 103, lost control of the car and flipped off the side of the road. Watson was unable to remove Gavin from the car and he died of asphyxiation.
The State charged Watson with reckless homicide, a Class C felony. After the omnibus date, the State requested permission to file an habitual offender allegation against Watson. Over Watson's objection, the trial court allowed the State to amend the charging information.
Prior to trial, Watson sought to continue the trial pending the outcome of civil litigation also arising out of this incident. The trial court denied Watson's motion to continue.
Watson was found guilty by a jury of the lesser included offense of criminal recklessness, a Class D felony. Watson was also determined to be an habitual offender. The morning of the sentencing hearing, Watson moved to continue the hearing. The trial court denied his motion. The trial court sentenced Watson to a total of seven years for his criminal recklessness conviction and habitual offender enhancement.
Watson contends that the trial court erred by permitting the State to amend the charging information to add an habitual offender count. The time period during which the State may amend a charging information to add an habitual offender count is controlled by statute:
(e) An amendment of an indictment or information to include an habitual offender charge under IC XX-XX-X-X must be made not later than ten (10) days after the omnibus date. However, upon a showing of good cause, the court may permit the filing of an habitual offender charge at any time before the commencement of the trial.
Ind.Code § 35-34-1-5(e). In this case, the omnibus date was February 6, 2001. The State sought to add the habitual offender count on March 16, 2001, more than ten days after the omnibus date.
Additionally, we note that, by using the phrase "may permit" in Indiana Code section 35-34-1-5(e), the legislature has given the trial court discretion to allow or disallow a belated habitual offender enhancement upon a showing of good cause by the state. Mitchell v. State, 712 N.E.2d 1050, 1053 n. 3 (Ind.Ct.App.1999).
Watson states that the purpose of Indiana Code section 35-34-1-5(e) is to allow a defendant sufficient time to prepare a defense for the habitual offender charge. See Haymaker v. State, 667 N.E.2d 1113, 1114 (Ind.1996)
. We agree. However, at the hearing, Watson was unable to show how the addition of an habitual offender charge would impair preparation of his defense. The habitual offender allegation was added almost two months before trial, leaving Watson time to prepare a defense to the charge. In fact, Watson concedes in his brief that he had enough time to prepare his defense. He contends solely that the State knew or should have known that Watson could be charged as an habitual offender from the night of the incident.
However, whether Watson had time to prepare his defense is not the only issue before us with regard to the belated addition of the habitual offender charge. The propriety of the untimely addition is dependent upon the State's showing of good cause as required by the statute. Here, Watson contends that the State knew about his prior convictions. He states that he told police the night of the accident that he was on parole and that he had a police record. He contends that the police checked his record and, therefore, the State knew from the night of the accident that he had been convicted of two prior felonies. Tr. at 18-19. The State, however, contends that the officers knew only of the felony conviction for which Watson was on parole and therefore, the State did not consider adding an habitual offender charge to the information until the State was informed, through an anonymous telephone call, that Watson had another felony conviction.
The definition of an habitual offender is clearly defined by statute:
The state may seek to have a person sentenced as a habitual offender for any felony by alleging, on a page separate from the rest of the charging instrument, that the person has accumulated two (2) prior unrelated felony convictions.
Ind.Code § 35-50-2-8(a). Therefore, if the trial court found that the State knew of only one of Watson's prior felony convictions within the statutory time for amending the charging information, the trial court could have found good cause for the late amendment because the State had no reason to believe that Watson was an habitual offender.
The trial court held a hearing on the State's request to amend the charging information amendment on April 18, 2001. At that hearing, Watson testified that he told police the night of the incident that he was on parole. Tr. at 17-19. From this, Watson asserts that the officers knew of his entire record. We disagree. Merely telling police that he was on parole did not necessarily confer the information that Watson had been convicted of two prior felonies. Watson did not testify that the officers were aware of both of his felonies, merely that they were aware that Watson was on parole. At the hearing, the State responded that the officers were aware only of Watson's parole and the State was unaware of his additional felony charge until they received an anonymous phone tip. Id. at 30-31.
The trial court accepted the testimony of the State as to the amount of knowledge the officers had at the time of the arrest and found the State had good cause to request a belated habitual offender amendment. This is within the discretion of the trial court. Therefore, the trial court did not abuse its discretion when it found good cause to allow the State to amend its charging information to include an habitual offender charge.
Our standard of review for sufficiency claims is well settled. We will not reweigh the evidence or assess the credibility of witnesses. Smith v. State, 725 N.E.2d 160, 161 (Ind.Ct.App.2000). We consider only the evidence most favorable to the verdict, together with all reasonable inferences that can be drawn therefrom. Id. If a reasonable trier of fact could have found the defendant guilty based on the probative evidence and reasonable inferences drawn therefrom, then a conviction will be affirmed. Id.
To convict Watson of criminal recklessness, the State was required to prove that he recklessly inflicted serious bodily injury on another person. Ind.Code § 35-42-2-2(c). A person engages in conduct "recklessly" if he engages in the conduct in plain, conscious, and unjustifiable disregard of harm that might result and the disregard involves a substantial deviation from acceptable standards of conduct. Ind.Code § 35-41-2-2(c). The testimony of the State's expert witnesses Terry Neal and David Zedonis placed Watson's speed at the time of the incident at a minimum of seventy miles per hour, with Neal estimating it was eighty-two miles per hour. Tr. at 181, 271. Additionally, Watson's witness Carolyn Coffin, an engineer with the Indiana Department of Transportation, testified that there were warning signs in either direction before the curve with thirty mile per hour advisory speed plaques under the warning signs. Id. at 346-47. Considering Watson was driving at dusk on an unfamiliar road with three small children in the backseat, speeding at all could be considered reckless.
Watson relies on Wallace v. State, 558 N.E.2d 864 (Ind.Ct.App.1990), in which this court held a truck driver was not reckless when he failed to check his mirror and use his turn signal before changing lanes on the highway. However, in that case, the truck driver was unaware that a car was proceeding next to his truck and was forced off the highway because of his lane change. This court held that the driver could not be held reckless for a potential harm unknown to him. Id. at 866. We stated that, had the driver known of the car's presence next to his truck and still changed lanes, that behavior would constitute recklessness. Id.
Watson argues that, like the truck driver in Wallace, he was unaware of the potential risk. Therefore, as we held in Wallace that the truck driver's sole intention was to change lanes, he contends we should hold that his sole intention was to get home and,...
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