ILNews

Court: amended charges not allowed

Jennifer Nelson
January 1, 2008
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The Indiana Court of Appeals reinstated one conviction and reversed two others for a man charged with resisting law enforcement, auto theft, and battery.

At issue in Donyea Fowler v. State of Indiana, No. 71A05-0704-CR-200, is whether the trial court properly reversed Fowler's conviction of resisting law enforcement. Fowler also appealed his convictions of auto theft and battery, arguing the charges were added after the time allowed by Indiana statutes.

Police officers from several departments showed up to the home where Fowler lived with his mother in South Bend. Police spoke first with Fowler's mother and told them they were there to arrest Fowler on a felony warrant. When Fowler entered the room and provided a false name to police, Fowler's mother told him to go into a bedroom and ignore the police officers.

Fowler ran into a back bedroom and tried to leave through a window, but a police officer was waiting outside. Fowler jumped back into the room and slammed the window down on the police officer's arm.

Fowler escaped through another bedroom window, stole a vehicle, and was later arrested for resisting law enforcement as a Class D felony. The trial court never set an omnibus date at the initial hearing in May 2005.

The state filed a motion nearly a year later to amend the original charging information to include battery and auto theft, both Class D felonies. Fowler objected, but the trial court amended the charging information and set an omnibus date for Nov. 16, 2006, more than a year after he was originally arrested for resisting law enforcement.

A jury convicted Fowler on all three counts, but the trial court granted Fowler's motion for judgment on the evidence and reversed his conviction for resisting law enforcement.

The appellate court reversed Fowler's convictions of auto theft and battery, finding the amended charges were not filed within the timeframe required by Indiana statute. Omnibus dates must be set by the judicial officer at the initial hearing between 45 and 75 days after the initial hearing. Indiana Code at the time of Fowler's arrest stated that amended matters of substance may be added up to 30 days before the omnibus date.

Fowler's omnibus date should have been held sometime between early July and mid-August 2005, according to Indiana statute, and amended charges had to be filed 30 days prior to that. Since the trial court erred in permitting the amendments, Fowler's convictions for auto theft and battery are reversed, Judge Carr Darden wrote.

The state appealed the trial court's reversal of Fowler's conviction of resisting law enforcement. The trial court stated it granted the motion because no evidence was presented to demonstrate the officers ordered Fowler to stop, however, the appellate court found sufficient evidence to uphold the conviction. To be charged with resisting law enforcement, a person has to "knowingly or intentionally flee from a law enforcement officer after the officer has ... identified himself or herself and ordered the person to stop," but that order does not have to be an audible order of stop, wrote Judge Darden.

The order to stop can be given through visual indicators, which happened in this case. The law enforcement officers were easily identified as such and were there to arrest Fowler. After he went into the back bedroom, several officers ordered him to come back. In addition, once Fowler tried to leave through the bedroom window, he slammed the window down on a police officer's arm to get away.

Because of this evidence, the appellate court determined the lower court had erred in granting Fowler's motion for judgment on the evidence, and his conviction of resisting law enforcement is reinstated.
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  1. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  2. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  3. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

  4. I am the mother of the child in this case. My silence on the matter was due to the fact that I filed, both in Illinois and Indiana, child support cases. I even filed supporting documentation with the Indiana family law court. Not sure whether this information was provided to the court of appeals or not. Wish the case was done before moving to Indiana, because no matter what, there is NO WAY the state of Illinois would have allowed an appeal on a child support case!

  5. "No one is safe when the Legislature is in session."

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