Terrance Bowens v. State of Indiana ( 2014 )

Dec 09 2014, 8:44 am
FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
FREDERICK VAIANA GREGORY F. ZOELLER
Voyles Zahn & Paul Attorney General of Indiana
Indianapolis, Indiana
CHANDRA K. HEIN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
TERRANCE BOWENS, )
)
Appellant-Defendant, )
)
vs. ) No. 49A04-1404-CR-151
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Steven R. Eichholtz, Judge
Cause No. 49G20-1308-FB-53447
December 9, 2014
OPINION - FOR PUBLICATION
CRONE, Judge
Case Summary
Terrance Bowens challenges the sufficiency of evidence to support his conviction for
class B felony unlawful possession of a firearm by a serious violent felon (“SVF”). Finding
the evidence sufficient, we affirm.
Facts and Procedural History
The facts most favorable to the verdict are as follows. On August 14, 2013, an
emergency medical crew was dispatched to an Indianapolis residence. When the crew
arrived, they observed Bowens bending over a walker and vomiting. The paramedic noticed
that Bowens’s coat was swinging from side to side, indicating that a heavy item was inside.
The crew approached Bowens, placed him on a stretcher, and loaded him into the ambulance.
Immediately thereafter, the emergency medical technician (“EMT”) asked Bowens if
he had any weapons. Bowens became defensive and asked why she wanted to know. She
explained that it was a routine question based on safety concerns. She asked him to remove
his coat, shoes, and pants so that she could take his vital signs and assess his condition. He
complied with respect to his shoes and pants but repeatedly refused to remove his coat. He
eventually took his arms out of the coat but shoved his hands into the left coat pocket. When
the EMT instructed him to completely remove his coat, he yelled and cursed, still refusing to
comply. The EMT moved away from the agitated Bowens, who eventually removed the coat
and placed it inside a biohazard bag with his other belongings. The EMT moved the bag
beyond Bowens’s reach.
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At the hospital, the emergency medical crew consulted with hospital security officers
concerning Bowens’s behavior in the ambulance. Pursuant to hospital policy, all patient
packages are subject to search, and no one except law enforcement is allowed to possess a
weapon on hospital grounds. The security officers went to Bowens’s room and informed him
that they would be taking his bag and running it through an x-ray scan to determine whether
it contained a weapon. One of the officers picked up the bag and gave it to the other, and
Bowens jumped off the bed and tried to push his way toward the bag. The officers
handcuffed him. The scan of Bowens’s bag revealed a firearm inside the coat pocket.
The State charged Bowens with class B felony unlawful possession of a firearm by an
SVF and class A misdemeanor marijuana possession. The marijuana possession charge was
dismissed before trial, and a jury subsequently convicted Bowens of unlawful possession of a
firearm by an SVF. He now appeals.
Discussion and Decision
Bowens challenges the sufficiency of the evidence to support his conviction for class
B felony unlawful possession of a firearm by an SVF. When reviewing a challenge to the
sufficiency of evidence, we neither reweigh evidence nor judge witness credibility. Drane v.
State, 867 N.E.2d 144, 146 (Ind. 2007). Rather, we consider only the evidence and
reasonable inferences most favorable to the verdict and will affirm the conviction “unless no
reasonable fact-finder could find the elements of the crime proven beyond a reasonable
doubt.” Id.3
Bowens was convicted pursuant to Indiana Code Section 35-47-4-5(c) (2006), which
states, “A serious violent felon who knowingly or intentionally possesses a firearm commits
unlawful possession of a firearm by a serious violent felon, a Class B felony.” Bowens does
not challenge the sufficiency of evidence supporting the elements of his knowing or
intentional possession of the firearm. Rather, he merely submits that the State failed to prove
beyond a reasonable doubt his status as an SVF.
Indiana Code Section 35-47-4-5(a)(1)(A) defines “serious violent felon” as “a person
who has been convicted of … committing a serious violent felony in … Indiana.” Subsection
(b)(4) defines “serious violent felony” to include battery as a class A, B, or C felony. The
charging information specifies that Bowens was convicted of class C felony battery in 1995.
Bowens does not dispute the prior battery conviction; he simply maintains that the State
failed to present evidence of that conviction to the jury.
Although Bowens appears to be correct at first glance, it is important to examine the
procedural context of the treatment of his prior class C felony battery conviction.
Immediately preceding Bowens’s trial, his counsel filed a motion to bifurcate the proceedings
so that Bowens would not be deprived of his right to a fair trial by the jury’s hearing the term
“serious violent felon” used to describe him. Because Bowens was being tried on only one
count and because his SVF status was an element of that offense, the trial court chose not to
bifurcate the proceedings but rather chose to remove all references to the SVF label during
trial in order to avoid prejudice. See Dugan v. State, 860 N.E.2d 1288, 1291-92 (Ind. Ct.
App. 2007) (affirming trial court’s decision not to bifurcate SVF proceedings where unlawful
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possession of firearm by SVF was the sole charge and where prejudice was avoided by
removing direct references to SVF and facts of underlying offense and rephrasing stipulation
regarding defendant’s SVF status to read “in violation of Ind. Code § 35-47-4-5”), trans.
denied. See also Spearman v. State, 744 N.E.2d 545, 547-49 (Ind. Ct. App. 2001)
(emphasizing that bifurcation is impossible and impractical in SVF proceedings involving
only one count and contrasting such with bifurcation in habitual offender cases), trans.
denied.
Here, as in Dugan, the trial court rephrased the preliminary and final instructions to
avoid specific references to Bowens’s SVF status. Likewise, the parties entered the
following stipulation, which the State read into evidence at the conclusion of its case-in-
chief:
First Stipulation: State of Indiana by its Deputy Prosecutor and Attorney Eric
Ping, by Defendant’s Counsel, Eric Krupp agree that [sic] stipulates to the
following: That the Defendant, Shawn Bowens, A/K/A Terrance Bowens is a
person barred from possessing a firearm under Indiana Code [Section] 35-47-
4-5.
Tr. at 89.
Essentially, Bowens now argues that because the stipulation did not use the term SVF,
it failed to establish his status as an SVF—an element of the offense. In other words, he
posits that “a person barred from possessing a firearm under Indiana Code Section 35-47-4-
5” is somehow different from an SVF. It is not. Indiana Code Section 35-47-4-5 concerns
only SVF status and offenses, and, as such, a person barred from possessing a firearm under
the statute must be an SVF. In short, Bowens stipulated to his SVF status and cannot now be
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heard to complain that the State failed to prove that status. He invited the language
substitution by raising his request for bifurcation on the basis of possible prejudice, he agreed
to the stipulation, and the State relied on the stipulation as an admission of the SVF element
of the offense, which therefore relieved the State of presenting other evidence.
Notwithstanding, the State also introduced without objection a booking report concerning the
predicate battery offense.
The evidence most favorable to the verdict is sufficient to support Bowens’s
conviction. Accordingly, we affirm.
Affirmed.
NAJAM, J., and BAILEY, J., concur.
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