                                                                 FILED
                                                           Mar 29 2017, 10:31 am

                                                                 CLERK
                                                             Indiana Supreme Court
                                                                Court of Appeals
                                                                  and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Kristin A. Mulholland                                     Curtis T. Hill, Jr.
Crown Point, Indiana                                      Attorney General of Indiana
                                                          George P. Sherman
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Dominique Brianna Bowman,                                 March 29, 2017
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          45A04-1609-CR-2056
        v.                                                Appeal from the Lake Superior
                                                          Court
State of Indiana,                                         The Honorable Samuel L. Cappas,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause No.
                                                          45G04-1508-F3-39



Riley, Judge.




Court of Appeals of Indiana | Opinion 45A04-1609-CR-2056 | March 29, 2017               Page 1 of 11
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, Dominique Brianna Bowman (Bowman), appeals her

      conviction for Count I, aggravated battery, a Level 3 felony, Ind. Code § 35-42-

      2-1.5(2); and Count II, battery resulting in serious bodily harm, a Level 5

      felony, I.C. § 35-42-2-1(b)(1);-(f)(1).


[2]   We affirm.


                                                     ISSUE
[3]   Bowman raises one issue on appeal, which we restate as follows: Whether the

      trial court properly permitted the victim to remove her prosthetic in the

      presence of the jury.


                      FACTS AND PROCEDURAL HISTORY
[4]   During the early evening of July 23, 2015, Crystal Washington (Washington),

      together with her sister, Angela Washington (Angela), and their friends, Melvin

      Quinn (Quinn) and Janice Allen (Allen), were relaxing in the shade of a tree at

      Allen’s house in Gary, Indiana. In the course of the evening, Angela’s son and

      daughter, Bowman, stopped by. After Bowman exited the vehicle, Angela

      asked Bowman why she had been smoking marijuana in Angela’s house.

      Bowman replied, “I don’t give a fuck. Auntie Crystal acts like this is her house

      anyway.” (Transcript pp. 92, 31-32). Washington “got out of the chair, [and]

      walked around to the car because [Bowman] was being disrespectful to [her]

      and [her] sister.” (Tr. p. 58). Washington and Bowman began “tussling and

      wrestling.” (Tr. p. 32). Angela, Allen, and Quinn broke up the fight.
      Court of Appeals of Indiana | Opinion 45A04-1609-CR-2056 | March 29, 2017   Page 2 of 11
[5]   After the altercation was broken up, Washington walked back toward Allen’s

      residence while Bowman went to the car and grabbed “some kind of object,”

      that appeared to have been made of iron. (Tr. p. 34). Bowman struck

      Washington in the eye with the item. Washington started bleeding profusely

      and fell to the ground. Quinn took off his shirt and used it in an attempt to stop

      the bleeding. When Washington reached the hospital, the doctors determined

      that her left eye had ruptured and needed to be removed.


[6]   On August 25, 2015, the State filed an Information, charging Bowman with

      Count I, aggravated battery, a Level 3 felony, and Count II, battery resulting in

      serious bodily injury, a Level 5 felony. On April 4 and 5, 2016, the trial court

      conducted a jury trial. During the proceedings, the trial court admitted,

      without objection, a photograph of Washington’s injury upon her initial

      hospitalization. The State subsequently requested permission for Washington

      to remove her prosthetic eye in the presence of the jury to demonstrate “the

      injury that was suffered[.]” (Tr. p. 38). Bowman objected and the trial court

      conducted a bench conference, during which the following colloquy occurred:

              [TRIAL COURT]: You know what I think I should do, after
              thinking about this and listening to this, excuse the jury and look
              and see how it appears to me before I allow her to do that in front
              of them.


              [STATE]: I personally think – I mean, it’s a charge of aggravated
              battery. And I think that the mere fact of removing [an] eye has
              value, not value to be prejudicial, but value to show how serious
              this injury is. It’s just not a punch in the eye. And the jury


      Court of Appeals of Indiana | Opinion 45A04-1609-CR-2056 | March 29, 2017   Page 3 of 11
        deserved to see what happened, what actually happened to her as
        the victim. I think it’s important.


        [BOWMAN]: It’s prejudicial to show that. And the State has –
        pulling the emotional strings of the jury. And they have
        photographs to show that. To show the actual impact with the
        eye being out of the head. So they are basically doing that.


        [STATE]: That means you can never demonstrate an injury?


        [TRIAL COURT]: No, it doesn’t mean that. The scars are not
        as likely to inflame a jury as to remove an eye. It is something
        that’s unusual and has the possibility of – I mean, the more I
        think about it, of if it’s – it could be gut wrenching reaction. So
        what I think I am going to do is dismiss for five or ten minutes. I
        am going to have her do it in here to see if it’s – the effect it has
        on me. And then I will consider letting them see it. But I think
        your arguments [State] make sense to me. But it is an unusual
        circumstance the more I think about it. So I am going to have
        them go into the jury room for just five minutes. We will have
        her do the demonstration and we will bring them back out.


(Tr. pp. 38-40). Accordingly, the jury was excused and the trial court

proceeded with the demonstration outside the presence of the jury. After

Washington removed the prosthetic, the following exchange took place:

        [TRIAL COURT]: Okay. It appears to me the procedure is – I
        don’t know how to say this in the correct way. But it’s not, and
        again my apologies. The way she removed her eye was almost
        like – I feel bad saying this, but it’s kind of like she removed a
        contact, just for purposes of the record, although a little bit more
        effort. And obviously it’s more severe. And I don’t mean to
        minimize the injury. But the way she did it, to me does not look
        like it would inflame the jury. In other words, if she took a

Court of Appeals of Indiana | Opinion 45A04-1609-CR-2056 | March 29, 2017      Page 4 of 11
        protracted amount of time removing it, if there were, you know,
        screaming and yelling associated with it, whatever, then I could
        see that being a problem. But clearly it has an emotional impact
        on her. But I think she handled it in a proper way. And I am
        going to allow the jury to see the demonstration.


        [BOWMAN]: I will continue my objection.


        [TRIAL COURT]: It’s noted.


        [BOWMAN]: After seeing the removal of the eye, which I think
        was bad enough, combined that with her reaction, which is
        normal, I think that her emotional state is normal. However, I
        think the combination of that, the jurors seeing that, it only has
        one impact, only has one result. And that is impact of inflaming
        their emotions regarding the injury.


        [TRIAL COURT]: Well, you know, any other victim of a crime,
        someone paralyzed from a gunshot or having lost a limb has
        some – the same – I don’t want to say the same. But has
        attendant, you know, emotions connected with describing their
        injuries. And this woman’s wasn’t any different. She should be
        allowed to testify to it. So I note your objection. I am going to
        overrule it. In other words, many people come through the
        courtroom with a variety of severe injuries to varying degrees.
        And this is substantial, but – you understand what I am saying? I
        mean, there are – not minimizing her injury, but there are people
        from their own perspective who could say they have lost a leg,
        lost an arm. They are quadriplegics. And again the photos of
        that I don’t think are necessarily any less inflammatory than
        what we have witnessed today. I will allow it.


(Tr. pp. 41-43). At the close of the evidence, the jury found Bowman guilty as

charged.

Court of Appeals of Indiana | Opinion 45A04-1609-CR-2056 | March 29, 2017   Page 5 of 11
[7]    On August 4, 2016, the trial court conducted a sentencing hearing. After

       hearing arguments, the trial court merged Count II into Count I and sentenced

       Bowman to nine years of imprisonment with five years executed and four years

       to be served in community corrections.


[8]    Bowman now appeals. Additional facts will be provided as necessary.


                               DISCUSSION AND DECISION
[9]    Bowman contends that she was unduly prejudiced when the trial court

       permitted Washington to remove her prosthetic eye in the presence of the jury

       to demonstrate the severity of her injury. Noting that the State had already

       admitted photographs showing Washington’s eye injury, Bowman maintains

       that the relevancy of a live demonstration was substantially outweighed by the

       prejudicial effect of the “gruesome” injury and inflamed “the passions of the

       jury” in violation of Indiana Evidence Rule 403. (Appellant’s Br. p. 7).


[10]   The trial court has inherent discretionary power over the admission of evidence,

       and its decisions are reviewed only for an abuse of that discretion. Myers v.

       State, 887 N.E.2d 170, 185 (Ind. Ct. App. 2008), reh’g denied, trans. denied.

       Accordingly, we will reverse the trial court’s decision only when it is clearly

       against the facts and circumstances before the court. Duvall v. State, 978 N.E.2d

       417, 422 (Ind. Ct. App. 2012), trans. denied. Even if the trial court abused its

       discretion in admitting evidence, the judgment will be undisturbed if the

       decision to admit evidence is harmless error. Id. “Harmless error occurs ‘when

       the conviction is supported by such substantial independent evidence of guilt as

       Court of Appeals of Indiana | Opinion 45A04-1609-CR-2056 | March 29, 2017   Page 6 of 11
       to satisfy the reviewing court that there is no substantial likelihood that the

       questioned evidence contributed to the conviction.’” Id. (quoting Lafayette v.

       State, 917 N.E. 2d 660, 666 (Ind. 2009)).


[11]   By applying Indiana Evidence Rule 403, “[t]he court may exclude relevant

       evidence if its probative value is substantially outweighed by a danger of . . .

       unfair prejudice[.]” Ind. Evid. R. 403. “‘Unfair prejudice’ addresses the way in

       which the jury is expected to respond to the evidence; it looks to the capacity of

       the evidence to persuade by illegitimate means, or the tendency of the evidence

       ‘to suggest decision on an improper basis. . .’” Ingram v. State, 715 N.E.2d 405,

       407 (Ind. 1999) (quoting 12 ROBERT LOWELL MILLER, INDIANA PRACTICE §

       403.102 AT 284 (1995)). However, we recognize all relevant evidence is

       necessarily prejudicial in a criminal prosecution. Wages v. State, 863 N.E.2d

       408, 412 (Ind. Ct. App. 2007), reh’g denied, trans. denied. Therefore, the danger

       of unfair prejudicial impact arises from the potential for a jury to substantially

       overestimate the value of the evidence, or its potential to arouse or inflame the

       passions or sympathies of the jury. Id.


[12]   To convict Bowman of a Level 3 felony aggravated battery, the State was

       required to prove that Bowman had inflicted an injury on Washington “that

       caused protracted loss or impairment of the function of a bodily member or

       organ.” I.C. § 35-42-2-1.5(2). To support its argument that the best evidence of

       the protracted loss was established through the live removal of the prosthetic,

       the State focuses our attention on Crain v. State, 736 N.E.2d 1223 (Ind. 2000).



       Court of Appeals of Indiana | Opinion 45A04-1609-CR-2056 | March 29, 2017   Page 7 of 11
[13]   In Crain, the trial court permitted the State to introduce the deceased victim’s

       skull into evidence as a visual aid to supplement its expert witness testimony.

       Crain, 736 N.E.2d at 1233. During the State’s case-in-chief, the jury members

       were given the opportunity to come forward and examine the skull, which was

       presented in three pieces on a table in front of the jury box. Id. On appeal, the

       defendant argued that any relevance from this evidence was substantially

       outweighed by its prejudicial value. Id. at 1234. “At first blush,” our supreme

       court found “it a bit unsettling that the trial court would allow the prosecution

       to use the actual skull of the victim to supplement its expert testimony. In our

       view, other conventional alternatives—such as high resolution photographs,

       video, and charts—could no doubt have been used to assist the State’s expert

       witnesses in ‘demonstrat[ing] various healing stages of the injuries, colorations

       of the bone, and staining in the skull.’” Id. Nevertheless, observing that the

       trial court had carefully balanced the probative value against the skull’s

       prejudicial effect, the supreme court found that “the skull was neither

       particularly gruesome nor ominous as it lay in three separate pieces, appearing

       as if it was found on an archeological dig.” Id. Reiterating its concern that “the

       State could have just as easily supplemented its witness testimony with other

       conventional exhibits,” the court nonetheless affirmed the trial court’s

       evidentiary decision. Id.


[14]   Although the removal of a prosthetic eye in the presence of the jury is an issue

       of first impression for Indiana, other jurisdictions have addressed this situation

       under the particular circumstances of personal injury cases. In Burnett v. Caho,


       Court of Appeals of Indiana | Opinion 45A04-1609-CR-2056 | March 29, 2017    Page 8 of 11
       285 N.E.2d 619, 622 (Ill. Ct. App. 1972), reh’g denied, a farm employee

       instituted an action to recover damages for his injury which resulted when,

       while cutting a roll of steel-woven wire, the son of the farm’s manager failed to

       hold the wire in position, causing it to snap up and destroy the employee’s right

       eye. While photographs of the scene of the injury were being identified, the

       trial court allowed the plaintiff to remove his artificial eye in the presence of the

       jury. Id. at 623-24. On appeal, the court affirmed the admission of evidence,

       noting “[i]t is common practice to display personal injuries to the jury even

       though there is no controversy as to the existence, nature and extent thereof.”

       Id. at 624. Likewise, in Shell Petroleum Corp. v. Perrin, 64 P.2d 309, 314 (Okla.

       1936), reh’g denied, the supreme court allowed the removal of a prosthetic eye in

       the presence of the jury by the four-year-old victim of a car accident.

       Analogizing the situation to “instances where dead members, such as

       amputated legs, were exhibited to the jury,” the supreme court found that “this

       was a form of wound, and wounds are ordinarily permitted to be shown the

       jury.” Id. See also Bowerman v. Columbia Gorge Motor Coach System, Inc., 284 P.

       579 (Or. 1930) (“[W]ith due regard of decency,” it was permitted for the

       plaintiff to remove her glass eye in the presence of the jury.); Davis v. Christmas,

       248 S.W. 126 (Tex. Ct. App. 1923) (Because the victim could have removed his

       artificial eye prior to taking the witness stand, it was permissible for him to do

       so while on the stand.), reh’g denied.


[15]   In this case, the prosthetic eye was relevant and probative given the State’s

       burden to prove a protracted injury. While the State had already introduced


       Court of Appeals of Indiana | Opinion 45A04-1609-CR-2056 | March 29, 2017   Page 9 of 11
       into evidence, without objection by Bowman, a photograph taken on the date of

       the incident which clearly showed Washington’s eye injury and Bowman did

       not dispute that Washington had lost an eye due to the fight, the State was

       required to establish a “protracted loss or impairment of the function of a bodily

       member or organ., not merely an injury on the day of the incident. See I.C. §

       35-42-2-1.5(2) (emphasis added). Even though, a “conventional alternative”

       was already in front of the jury, the State still needed the live demonstration to

       carry its burden of proof. See Crain, 736 N.E.2d at 1234. As in Crain, the trial

       court carefully balanced the probative value against the prosthetic’s prejudicial

       effect by requesting an initial demonstration outside the presence of the jury

       prior to admitting and publishing this evidence. See id. Accordingly, we

       conclude that the trial properly admitted the relevant and probative evidence of

       Washington’s actual physical injury and no unfair prejudice occurred.


[16]   Assuming arguendo, the trial had abused its discretion in admitting the live

       demonstration, which it did not, this would still have amounted to harmless

       error. In an attempt to allege that there is a substantial likelihood that the

       questioned evidence contributed to the conviction, Bowman contends that “it

       likely affected the jury’s impression of” Bowman’s self-defense claim.

       (Appellant’s Br. p. 9). Pointing to Washington’s admission that she was the

       initial aggressor, Bowman claims that she was merely defending herself from

       Washington’s attack. We disagree. While a person is justified in using

       reasonable force for protection, “a person is not justified in using force if the

       person has entered into combat with another person or is the initial aggressor


       Court of Appeals of Indiana | Opinion 45A04-1609-CR-2056 | March 29, 2017   Page 10 of 11
       unless the person withdraws from the encounter and communicates to the other

       person the intent to do so and the other person nevertheless continues or

       threatens to continue unlawful action.” I.C. § 35-41-3-2(g)(3). Evidence

       presented at trial reveals that the State rebutted Bowman’s self-defense claim.

       After the initial altercation between Bowman and Washington was broken up

       by the bystanders, Washington took “two to three steps” towards Allen’s

       residence. (Tr. p. 47). Despite the fight being over and Washington retreating,

       Bowman reached into the car, grabbed “some kind of object,” and hit

       Washington in the eye. (Tr. p. 34). Therefore, Bowman did not have a valid

       self-defense claim and she failed to establish that the removal of the prosthetic

       contributed to the guilty verdict.


                                              CONCLUSION
[17]   Based on the foregoing, we conclude that the trial court properly admitted and

       allowed publication of the actual physical injury.


[18]   Affirmed.


[19]   Crone, J. and Altice, J. concur




       Court of Appeals of Indiana | Opinion 45A04-1609-CR-2056 | March 29, 2017   Page 11 of 11
