Wood v. State

• Decision Date: 31 December 2013
• Docket Number: No. 53A05–1208–CR–423.,53A05–1208–CR–423.
• Citation: 999 N.E.2d 1054
• Parties: Winston K. WOOD, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

999 N.E.2d 1054

Winston K. WOOD, Appellant–Defendant
v.
STATE of Indiana, Appellee–Plaintiff.

No. 53A05–1208–CR–423.

Court of Appeals of Indiana.

Dec. 31, 2013.

999 N.E.2d 1056

Katharine C. Liell, Liell & McNeil Attorneys, Bloomington, IN, Stacy R. Uliana, Indianapolis, IN, Attorneys for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Ian McLean, Deputy Attorney General Indianapolis, IN, Attorneys for Appellee.

OPINION

MAY, Judge.

Winston K. Wood appeals his convictions of two counts of Class C felony leaving the scene of a boating accident resulting in the death of a person¹ and one count of Class D felony leaving the scene of a boating accident resulting in serious bodily injury to a person.² On appeal, Wood raises the following restated issues:

1. Whether the trial court should have granted Wood's motion for discharge under Indiana Criminal Rule 4(C) ;

2. Whether the State presented sufficient evidence that Wood did not comply with the duties required of a boater in an accident pursuant to Indiana Code section 14–15–4–1 ; and

3. Whether Wood's three convictions subjected him to double jeopardy because each conviction arose out of the same act of leaving the scene following a boating accident resulting in injury to or death of a person.

999 N.E.2d 1057

We affirm in part, reverse in part, and remand.

FACTS AND PROCEDURAL HISTORY³

On the evening of June 28, 2010, nineteen-year-old Wood was operating his father's Cobalt ski boat on Lake Monroe, near Bloomington, Indiana. Two of his friends, Matthew Holmberg and Michael Marietta, were taking turns wakeboarding. At the same time, James Collier was on his Ranger fishing boat with his wife, Susan, and their three grandsons, Gage, J.T., and Dillon. Wood and Collier were each driving their boats at about twenty miles per hour, and neither saw the other until the boats collided. The Department of Natural Resources determined the accident was “the result of inattention by both operators.” (Tr. at 709.).

Wood's boat went over the top of Collier's boat, damaging Collier's boat and rendering the engine inoperable. J.T. and Dillon were not injured and remained in the boat. Susan was killed and thrown from the boat. Gage was also killed, but his body remained in the boat. Collier suffered a severe cut to his leg and was thrown from the boat.

Holmberg had been wakeboarding behind Wood's boat but had let go of the tow rope, so he was not near the boats when they crashed. Marietta, who was acting as Holmberg's spotter, was thrown from the boat. No one on Wood's boat was physically injured in the crash.

The accident occurred near Harbor Pointe, a private condominium complex. Terry Bawel, who was on the deck of a condominium at Harbor Pointe, saw the boats collide. She testified the collision was so loud that it woke up her eighteen-year-old daughter, Erika. Erika ran out onto the deck while her mother told a neighbor, GiGi Stowe, to call 911. GiGi's call was the first of six received by various 911 operators.⁴

In the aftermath of the accident, Terry and Erika heard crying and shouting and saw debris in the water. Terry heard a voice saying “we have to save her, we have to save her.” (Id. at 441.) Wood dove into the water and swam toward Susan Collier, but she was a “mangled person” with a “torn up face,” and Wood “realized it was way beyond anything [he] could do.” (State's Ex. OOO at 29.) Wood quickly returned to his boat and joined his friends, who had already climbed back onto Wood's boat.

Wood then drove his boat at top speed to the Fourwinds Marina, which was about two-and-a-half miles away from the scene of the accident. When asked later, Wood said he thought his boat was sinking because there was water in his boat following the accident.⁵ During the trip to the Marina, Wood used Marietta's cell phone to call his father. When Wood could not get

999 N.E.2d 1058

through, he gave the cell phone to Marietta, who called 911 about six minutes after the accident. Marietta testified he believed it was his idea to call 911, and he could not remember any discussion with Wood about the 911 call. Marietta told the 911 operator he did not know whether anyone had been injured.

A recording of Marietta's 911 call was played for the jury. Loud voices, including Wood's, can be heard in the background. Marietta gave his name to the operator, then told the operator that “we just got hit by a boat,” “we started taking on water,” and “we're going back to the Fourwinds and the [other] boat, the boat is, the boat is stranded over by, by the dam.” (State's Ex. T (audio); State's Ex. W (transcript) at 3–4.) In his brief, Wood describes the 911 call as follows:

Marietta yells at least four times that their boat is taking on water. State's Ex. W p. 3–5. He tells the operator that there is still a family on the boat in the water, he was unsure whether they all are accounted for and that they were shouting. The operator instructs the boys to stay at the marina until “they come get you,” to which Marietta responds that Wood is pulling into the dock and that “we're tying up and we're going to go get help from the marina.” State's Ex. W, p. 5. The operator again instructs him to “stay at the Fourwinds when you get there,” “we have people on the way down there already.” State's Ex. W, p. 5. Wood's voice, as identified by Detective Goldman, can be heard in the background instructing Marietta to report “the other boat by the dam,” and Marietta responding by reassuring Wood that help was on the way for the other boat. State's Ex T (audio); State's Ex. 000, p. 42.

(Appellant's Br. at 3). Wood, Marietta, and Holmberg stayed at the Fourwinds Marina, as instructed by the 911 operator, and waited one-and-a-half hours for the authorities to arrive.

During the investigation, Officer Angela Goldman, the Indiana Conservation Officer on duty that night, learned that Wood jumped into the water after the collision and swam close to Susan. (Tr. at 587.) When Officer Goldman observed Susan's body, she saw Susan was “[n]early decapitated. The skull cap was completely removed from the head.” (Id. at 529.) Wood told police that he was horrified, panicked and “really freaked out,” and swam back to his boat “as fast as possible and called 911” believing “the most help we could do was to call professional help.” (State's Ex. OOO at 29, 32, 33.)

Collier testified that he yelled for help a couple of times, but received no response. Erika and Marietta each testified that they did not hear Collier call for help. Collier, whose leg was injured, swam to his boat, and learned that one of his grandsons was dead in the boat. Collier then swam over to his wife and determined that she too was dead and “there was nothing [he] could do to help her.” (Tr. at 362.) When Collier got onto his boat, he covered his grandson's body with one raincoat, and covered the surviving boys with another so “they couldn't see any more than they had to.” (Id. at 363.) He then yelled at Wood's boat, asking them to save his wife. (Id. at 364.) In his call to 911, Collier claimed that, prior to leaving the scene, Wood said “you've got to try to save her.” (State's Ex. V (audio); State's Ex. W (transcript) at 13.) At trial, Collier testified Wood said, “[Y]ou save her yourself.” (Tr. at 398.)

After Wood's boat left for the marina, Collier was able to pull his wife's body into the boat, and then using his trolling motor, Collier made it to the Harbor Pointe dock. It took Collier about five to ten minutes to

999 N.E.2d 1059

get to Harbor Pointe, where he borrowed a cell phone and called 911. The dispatcher with whom he spoke did not know Marietta had also called 911. An ambulance arrived while Collier was still on the phone and took him to the hospital. He was released later that night. Collier later had reconstructive surgery on his injured leg.

During Marietta's 911 call, the operator repeatedly told Marietta, “I need you to stay at the Fourwinds when you get there, okay? And stay at the Fourwinds when you get there.” (State's Ex. W at 5.) Because of the lack of communication between the 911 operators, most of the investigators, including the one who interviewed Wood after the accident, did not know Wood and his companions had called 911 or that they had waited at the marina for one-and-a-half hours.

About a month later, on August 3, 2010, the State charged Wood with Count I, leaving the scene of a boating accident resulting in Susan's death; Count II, leaving the scene of a boating accident resulting in Gage's death; and Count III, leaving the scene of a boating accident resulting in serious bodily injury to Collier.

Wood filed a motion to dismiss, arguing that Indiana Code section 14–15–4–1, which imposes a number of legal obligations on an operator of a boat involved in an accident or a collision resulting in injury to or death of a person or damage to a boat or other property, was unconstitutionally vague as applied to him. Specifically, he argued:

At the time [the State] filed

...