                                                                           Oct 25 2013, 5:46 am

FOR PUBLICATION



ATTORNEY FOR APPELLANT:                      ATTORNEYS FOR APPELLEE:

STEVEN KNECHT                                GREGORY F. ZOELLER
Vonderheide & Knecht, P.C.                   Attorney General of Indiana
Lafayette, Indiana
                                             MICHAEL GENE WORDEN
                                             Deputy Attorney General
                                             Indianapolis, Indiana




                             IN THE
                   COURT OF APPEALS OF INDIANA

JASON LEE SOWERS,                            )
                                             )
      Appellant-Defendant,                   )
                                             )
             vs.                             )       No. 08A02-1208-CR-640
                                             )
STATE OF INDIANA,                            )
                                             )
      Appellee-Plaintiff.                    )


                    APPEAL FROM THE CARROLL CIRCUIT COURT
                         The Honorable Donald E. Currie, Judge
                             Cause No. 08C01-1108-FC-16



                                  October 25, 2013


                   OPINION ON REHEARING - FOR PUBLICATION


BROWN, Judge
       Jason Lee Sowers petitions for rehearing following our published opinion in

Sowers v. State, 988 N.E.2d 360 (Ind. Ct. App. 2013), in which we held that the

communication between the bailiff and the foreperson resulted in fundamental error and

reversed Sowers’s convictions for criminal recklessness as a class D felony, resisting law

enforcement as a class D felony, and his adjudication as an habitual offender, and

remanded for proceedings. On rehearing, Sowers raises one issue, which we revise and

restate as whether this court should address an insufficient evidence claim. For the

following reasons, we grant Sowers’s petition for rehearing.

       Sowers argues on rehearing that he raised a claim of insufficient evidence of

sanity on appeal, the State responded, and the claim was addressed in Sowers’s reply

brief, but this court did not address the insufficient evidence of sanity claim. Sowers

contends that this court should address his “insufficient of evidence of sanity claim to

ensure that the double jeopardy clause of the federal constitution will not be violated by

retrial.” Petition for Rehearing at 2. Sowers also argues that “[w]hen considering the

totality of the circumstances including the undisputed evidence that Sowers was in the

midst of a severe psychotic episode that resulted in his emergency detention in a mental

facility immediately after the alleged crimes concluded, his demeanor, along with the fact

that he could see the police, are not evidence of sanity.” Id. at 3.

       Initially, we observe that Sowers raised two issues in his statement of issues. One

issue related to the communication between the bailiff and the jury foreperson. The other

issue was “[w]hether the jury erroneously rejected [his] insanity defense on the charges

of Criminal Recklessness and Resisting Law Enforcement while finding him not

responsible by reason of insanity on the charge of Battery by Means of a Deadly Weapon
                                            2
that was a part of the same criminal episode.” Appellant’s Brief at 1. In his dissent in

this case, Judge Bradford stated that “Sowers’s claim should instead be framed as

whether the evidence was sufficient to sustain the jury’s determination that Sowers was

able to appreciate the wrongfulness of his conduct.” 988 N.E.2d at 372. While Sowers

did not phrase the issue as one of sufficiency of evidence, we will address his arguments

to the extent that he raised the issue in his appellant’s brief and petition for rehearing and

to the extent that we must determine whether the evidence was sufficient to permit retrial.

See Hernandez v. State, 785 N.E.2d 294, 301 (Ind. Ct. App. 2003) (reversing the

defendant’s convictions in light of the erroneous admission of evidence, holding that

double jeopardy forbids a retrial if the reviewing court concludes that the evidence is

legally insufficient to support the conviction, and addressing whether the evidence of the

charges was sufficient to permit retrial), trans. denied.

       In his dissent, Judge Bradford addressed the sufficiency of evidence, stated that it

was for the jury to weigh the evidence including the reports submitted by Drs. Little and

Rogers as well as Detective Blackwell’s testimony, and concluded that the evidence was

sufficient to support the jury’s determination regarding Sowers’s mental state.           988

N.E.2d at 372-373. We adopt Judge Bradford’s analysis on this issue and conclude that

the evidence is sufficient to permit retrial.

       For the foregoing reasons, we grant Sowers’s petition for rehearing and remand

for proceedings consistent with this opinion.

BRADFORD, J., concurs.

RILEY, J., would deny petition for rehearing.


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