Jason Lee Sowers v. State of Indiana , 2013 Ind. App. LEXIS 531 ( 2013 )

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.
3