Owens v. State

224 N.E.3d 984

Thomas OWENS, Appellant-Defendant,

v.STATE of Indiana, Appellee-Plaintiff

Court of Appeals Case No. 23A-CR-985

Court of Appeals of Indiana.

Filed December 11, 2023

Appeal from the Marion Superior Court, The Honorable Shatrese Flowers, Judge, The Honorable James Snyder, Magistrate, Trial Court Cause No. 49D28-2301-F5-1626

Attorney for Appellant: Talisha Griffin, Marion County Public Defender Agency, Indianapolis, Indiana

Attorneys for Appellee: Theodore E. Rokita, Attorney General, Jodi Kathryn Stein, Deputy Attorney General, Indianapolis, Indiana

Vaidik, Judge.

Case Summary

[1, 2] [1] Indiana Trial Rule 34 governs requests for production of documents and electronically stored information during discovery and responses to such requests. For a party to invoke Rule 34 as the basis for an alleged discovery, violation, that party must have first made a discovery request. In a criminal case, if the defendant made no discovery request to the State, the defendant cannot later challenge the admission of documents or electronically stored information on the ground that the State violated Rule 34 in its production of the materials.

[3] [2] Here, Thomas Owens was convicted of Level 5 felony battery by means of a deadly weapon after getting in a fight that was captured on a CVS surveillance camera. CVS provided the State with a disk containing the surveillance footage and a media-player application. During discovery, the State provided Owens with the footage but not the media player, which affected the speed at which Owens could view the footage. Owens argues this was a violation of Rule 34. But because Owens never made a request for production, he can’t invoke Rule 34 on appeal as the basis for his challenge to the State’s production of the footage. Owens raises several other issues, including whether the trial court properly instructed the jury, whether the State presented sufficient evidence of the victim’s identity and the use of a deadly weapon, and whether the trial court erred in denying his motion to supplement the record. We find these arguments without merit and affirm his conviction.

Facts arid Procedural History

[3] The evidence most favorable to the conviction is as follows. One night in January 2023, Owens’s wife was with Jacob Dugas in Dugas’s SUV at a CVS Pharmacy in Indianapolis. Owens went to the CVS and fought with Dugas in the parking lot. Surveillance footage provided to police by CVS showed that Owens ran from his car to the driver’s side of Dugas’s SUV holding a long, stick-like object. Dugas and Owens’s wife got out of the SUV, and after an interaction between Owens and Dugas behind the SUV, Owens and his wife walked away. As they were heading to Owens’s car, Dugas stepped in front of Owens, blocking his path. Owens swung the stick-like object at Dugas and struck him with it. Owens and his wife got into his car and left.

[4] Dugas called 911, and Indianapolis Metropolitan Police Department (IMPD) Detective Eric Parrish and Officer Jack Tindall, an evidence technician, responded to CVS. Officer Tindall took photos of Dugas, which showed a bleeding cut on his head and blood on his ear, neck, and cheek. Detective Parrish spoke with Dugas and others at the scene and determined Owens was a suspect.

[5] Later that night, Detective Parrish and IMPD Captain Christopher Boomershine found Owens at a gas station. When they asked Owens about the incident at CVS, he stated that Dugas attacked him with a stun gun, he never hit or touched Dugas, and Dugas was known to injure himself and blame it on other people. Captain Boomershine recorded the conversation on his body-worn camera.

[6] The State charged Owens with Level 5 felony battery by means of a deadly weapon, alleging he "did knowingly touch Jacob Dugas in a rude, insolent, or angry manner; said touching being committed with a deadly weapon, that is, a baseball bat[.]"¹ Appellant’s App. Vol. II p. 27. Owens’s counsel subpoenaed Dugas for a deposition on three dates, but Dugas failed to appear at any of the depositions. As a result, the trial court excluded Dugas as a witness and ordered the exclusion of "any and all testimony and/or other evidence referring or related to Jacob. Dugas." Id. at 95, This included Dugas’s 911 call.

[7] CVS provided police with a disk of the surveillance footage, which included the Click It Media Player application and a long list of application extensions. The disk also contained a file folder with the same footage broken into thirteen separate "M4V" video files. The State produced these thirteen M4V files to the defense "via eDiscovery[.]" Id. at 69. The State didn’t produce the Click It Media Player application or the associated files. Owens didn’t follow up with any discovery requests about the surveillance footage.²

[8] A jury trial was held in March 2023. The trial court’s preliminary instruction on the elements of the charge used the exact language from the charging information. Before the court read the preliminary instructions to the jury, the State moved to strike "baseball bat" from the elements instruction so that it just said, "committed with a deadly weapon" because the State was unsure if it could introduce evidence of a baseball bat without the 911 call from Dugas. Tr. p. 101. The court denied the motion but noted that the parties, could revisit the request for final instructions.

[9] The State offered into evidence the disk from CVS with the surveillance footage of the fight, which the trial court admitted as State’s Exhibit 1. The State moved to publish three specific video files from the disk to the jury, which the court categorized as State’s 1A, 1B, and 1C.³ When the State started playing 1A using Click It Media Player, defense counsel objected, and the following sidebar was held:

[DEFENSE COUNSEL]: This video is altered from what was discovered to us. The video we received was not slowed down to this degree. It’s not an original, what was disclosed to us.

* * * *

THE COURT: How am I supposed to know that? Do you have the original?

[DEFENSE COUNSEL]: Yes: I can play it for the Court if you’d like. But this is substantially slowed down. The original copy that we have is sped up.

THE COURT: … [H]ow do you slow this down?

[THE STATE]: I don’t know. This was original disc [sic] that we received and then we uploaded it into discovery and then sent it.

THE COURT: Okay. Okay. Well, at this point, State’s Exhibit 1 has been admitted.

[DEFENSE COUNSEL]: Judge, it’s my understanding the video that was discovered was -- did not have another player with it …. You had to use Windows Media Player.

* * * *

[DEFENSE COUNSEL]: And it’s playing at about one quarter of the speed that we were prepared for trial on, and so that’s the problem that we have.

Id. at 119. The court overruled the objection, and the State played the rest of 1A for the jury. Defense counsel renewed his objection to State’s 1B and 1C, which the court overruled, and the State also played 1B and 1C using Click It Media Player.

The CVS employee who provided the surveillance footage to police testified that Click It was the specific media player used by CVS.

[10] The State also presented the photos of Dugas from the crime scene (without identifying him by name), which the court admitted as State’s Exhibits 2-8 with no objection by the defense. Officer Tindall confirmed the exhibits were the photos he took of the alleged victim’s injury. He testified that the cut was consistent with an object striking a person and that a blunt object could cause a similar injury. Detective Parrish testified that the person in the photos was the person he saw when he responded to CVS.

[11] The court also admitted the recording of Owens’s conversation with Detective Parrish and Captain Boomershine as State’s Exhibit 9, with no objection by the defense. In the video, when Captain Boomershine asked Owens if he battered "him" with a baseball bat, Owens said he never had a baseball bat. Ex. 9 at 1:51. Captain Boomershine then asked Owens what he hit "him" with, and Owens said he "never hit Jacob." Id. at 1:58.

[12] After the State rested, Owens moved for judgment on the evidence pursuant to Indiana Trial Rule 50(A), which the court denied. During review of the final jury instructions, the State again asked the court to omit "baseball bat" from the elements instruction, arguing that "the evidence has shown that there could have been a deadly weapon used, but that could have been anything, not just a baseball bat, and therefore, it should be removed." Id. at 164-65. Defense counsel responded, in part, as follows:

[DEFENSE COUNSEL]: Judge, the charging instrument is a pretty important thing, the information. And so we believe that it should remain in there …. And Judge, we prepared a defense today based on the allegation that this is a baseball bat ….

THE COURT: You did? I thought it was self-defense?

[DEFENSE COUNSEL]: Well, that’s part of it.

THE COURT: Okay. [S]o your preparation involved arguing that it was something other than a baseball bat?

[DEFENSE COUNSEL]: … [T]he Defense believes that if the State cannot prove that it is a baseball bat, it speaks to the nature of the investigation and the quality of the investigation.

* * * *

[DEFENSE COUNSEL]: I think my concern too is … [t]he allegations are that he hit him with a baseball bat … so I believe that the State has to prove that in order for them to find him guilty.

Id. at 165-66. The court ultimately struck "baseball bat" from the instruction, which subsequently read "and the offense was committed with a deadly weapon against Jacob Dugas." Id. at 167, 186; Appellant’s App. Vol. II p. 133. Defense counsel noted for the record that "the appropriate remedy in this case for the State would have been to move to amend the information." Tr. p. 167.

[13] After jury instructions were finalized, the defense rested without presenting any evidence. Defense counsel’s closing argument centered on Owens’s claim of...