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A man convicted of felony battery never made a request of production for a media player that played surveillance footage of his attack, the Court of Appeals of Indiana ruled Monday in affirming the man’s underlying conviction.
According to court records, one night in January, Thomas Owens’ wife was with Jacob Dugas in Dugas’ SUV at a CVS Pharmacy in Indianapolis. Owens went to the CVS and fought with Dugas in the parking lot.
Surveillance footage showed that Owens ran from his car to the driver’s side of Dugas’ SUV holding a long, stick-like object. Dugas and Owens’ 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’ 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.
Dugas called 911, and an Indianapolis Metropolitan Police Department detective and evidence technician responded to CVS. The technician took photos of Dugas, which showed a bleeding cut on his head and blood on his ear, neck and cheek.
The detective spoke with Dugas and others at the scene and determined Owens was a suspect.
Later that night, IMPD officers found Owens at a gas station. When they asked Owens about the incident, 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.
The state charged Owens with Level 5 felony battery by means of a deadly weapon.
Owens’ counsel subpoenaed Dugas for a deposition on three dates, but Dugas failed to appear at any of the depositions.
As a result, the Marion Superior 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.”
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.”
The court ultimately struck “baseball bat” from the instruction, which subsequently read “and the offense was committed with a deadly weapon against Jacob Dugas.”
The jury found Owens guilty as charged.
Owens later moved the court to supplement the trial record with Defendant’s Exhibit A, three video files from the CVS surveillance footage that the state produced during discovery, pursuant to Indiana Appellate Rule 32. The trial court said it was denying Owens’ motion because Rule 32 did not apply but would admit the exhibit for purposes of appellate review.
Owens appealed.
During discovery, the state provided Owens with footage from a CVS surveillance camera but not the media player, which affected the speed at which Owens could view the footage.
Owens argued this was a violation of Indiana Trial Rule 34, which governs requests for production of documents and electronically stored information during discovery and responses to such requests.
He also raised 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.
The Court of Appeals found those arguments to be without merit and affirmed his conviction.
Judge Nancy Vaidik wrote the opinion for the appellate court.
Owens maintained there was insufficient evidence of the identity of the victim named in the charging information because the victim’s full name was never established at trial. He also contended the state failed to prove that the injured man in the evidence photos and the “Jacob” that Owens mentions in the bodycam video are “Jacob Dugas.”
According to Vaidik, although Dugas was never identified by his full name at trial, the state’s evidence and defense counsel’s reference to the victim as “Mr. Dugas” were sufficient for the jury to find that the victim referenced at trial was the “Jacob Dugas” named in the charging information.
The appellate court also rejected Owens’ claims that to prove the object he used in the battery was a deadly weapon, the state had to establish what the object was.
“… (T)here is no requirement in our statutes or case law that the State must prove exactly what object a defendant used to convict for battery by means of a deadly weapon. Instead, in determining whether an object constitutes a deadly weapon, the factfinder looks to its capacity to inflict serious bodily injury under the circumstances,” Vaidik wrote, citing Timm v. State, 644 N.E.2d 1235 (Ind. 1994).
Owens also argued the trial court erred in denying his motion to supplement the record with the CVS video files he received from the state during discovery.
Vaidik wrote that Owens’ motion to supplement the record amounted to an untimely offer of proof, and his counsel admitted as much at the hearing on the motion.
“And in any event, although the trial court denied Owens’s motion under Rule 32, it still admitted Defendant’s Exhibit A for purposes of appellate review, so the goal of the motion was satisfied. Owens doesn’t explain how denial of the motion caused him any harm or what difference it would have made if the court had granted it,” Vaidik wrote.
Judges Cale Bradford and Elaine Brown concurred.
The case is Thomas Owens v. State of Indiana, 23A-CR-985.
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