Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of Feb 28 2014, 9:01 am
establishing the defense of res judicata,
collateral estoppel, or the law of the
case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JILL M. ACKLIN GREGORY F. ZOELLER
Acklin Law Office, LLC Attorney General of Indiana
Westfield, Indiana
CHANDRA K. HEIN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
JOSHUA BASEY, )
)
Appellant-Defendant, )
)
vs. ) No. 48A05-1303-CR-138
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MADISON CIRCUIT COURT
The Honorable David A. Happe, Judge
Cause No. 48C04-1208-FB-1603
February 28, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
BARTEAU, Senior Judge
STATEMENT OF THE CASE
Joshua Basey appeals his convictions of attempted aggravated battery, a Class B
felony, Ind. Code §§ 35-41-5-1 (1977), 35-42-2-1.5 (1997); and criminal confinement
resulting in bodily injury, a Class C felony, Ind. Code § 35-42-3-3(b) (2006). We affirm.
ISSUES
Basey raises three issues, which we consolidate and restate as:
I. Whether the evidence is sufficient to sustain his convictions.
II. Whether the court abused its discretion in ordering Basey to pay a public
defender fee and court costs.
FACTS AND PROCEDURAL HISTORY
On August 23, 2012, Officer Nick Oldham of the Elwood Police Department was
on patrol and saw a white sedan disregard a stop sign. Oldham activated his lights and
siren to signal the sedan to pull over. Instead of stopping, the driver of the sedan, who
was later identified as Basey, tried to get away, and a chase ensued. Oldham requested
assistance, and several other officers from various law enforcement agencies joined in the
pursuit.
During the chase, Basey’s speed exceeded 100 miles per hour. Officers twice put
down spike strips ahead of Basey in attempts to puncture his tires and bring him to a stop.
The first time he encountered a spike strip, he drove around it and continued fleeing. The
second time, Basey lost control as he returned to the road and struck a utility pole while
still going at a high rate of speed. The impact knocked down the pole and damaged the
sedan, but Basey kept going until he slid into a grassy area and the sedan stopped.
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Sergeant Steve Puente of the Alexandria Police Department (“APD”) had joined
the chase and was the lead pursuit vehicle when Basey stopped. Puente exited his vehicle
and approached the sedan. He drew his handgun. Puente saw two people in the car,
Basey and a female passenger later identified as Basey’s wife, Jocelyn Bowyer. Bowyer
was “screaming.” Tr. p. 387. The sedan was still running and the tires were spinning,
throwing up dirt and gravel as Basey attempted to gain traction. Puente made eye contact
with Basey and ordered him to turn off the engine. Instead of complying, Basey turned
the steering wheel toward Puente. The sedan moved in Puente’s direction, so he sought
cover by moving back toward his car. Basey drove the sedan within five feet of Puente.
Puente fired ten shots at the sedan’s tires as he sought cover, puncturing both tires on the
passenger side.
Despite the damage caused by colliding with the utility pole and losing two tires,
Basey returned to the road and continued fleeing from the officers. He was traveling
around fifty miles per hour at that point. One of the pursuing officers, Michael
Montgomery of the APD, used his car’s public address system to order Basey to stop. In
response, Basey stuck his left hand out of the window and extended his middle finger at
Montgomery.
Basey drove into Anderson, Indiana, where traffic was heavier and other drivers
had to pull off the road to avoid being struck. Indiana State Police Trooper David
Preston passed the other pursuing officers and moved up next to Basey. Preston made
eye contact with Basey, who swerved his sedan toward Preston before spinning around
and turning down a side road. Next, Basey’s sedan struck a cement culvert and finally
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stopped. Basey jumped out of the vehicle, climbed over a fence, and ran into a wooded
area near a golf course. Officers searched for him on foot, and he surrendered on the golf
course one to two hours later.
Meanwhile, Oldham and other officers approached the sedan. Bowyer was still in
the vehicle. She appeared to the officers to be “very . . . scared,” “frantic, panicky . . .
very shaken,” and “crying and upset.” Id. at 310, 371, 399. Bowyer told Puente, “I asked
him to stop.” Id. at 400.
After Basey was arrested, he was taken to a police station, where Oldham
questioned him. Basey said during questioning that Bowyer told him several times to
stop.
Later in the day, Basey called Bowyer from jail, and the State recorded the
conversation. During the conversation, Basey said, “Oh my god, I forgot, I forgot you
were in the car. Are you okay?” State’s Ex. 8. Bowyer responded, “The only thing
that’s really messed up is my knee . . . .” Id.
The State charged Basey with attempted aggravated battery, criminal confinement
resulting in bodily injury, resisting law enforcement as a Class D felony, and resisting
law enforcement as a Class A misdemeanor. Bowyer did not testify at trial. The jury
found Basey guilty as charged. The trial court merged the misdemeanor resisting count
into the felony resisting count and sentenced Basey to an aggregate term of eighteen
years, with three years suspended to probation. The court further ordered Basey to pay a
public defender fee of $500 and court costs of $166. This appeal followed.
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DISCUSSION AND DECISION
I. SUFFICIENCY OF THE EVIDENCE 1
When reviewing a challenge to the sufficiency of the evidence underlying a
conviction, we neither reweigh the evidence nor assess the credibility of witnesses.
Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012). The evidence and all reasonable
inferences drawn from it are viewed in a light most favorable to the verdict. Id. We
affirm if there is substantial evidence of probative value supporting each element of the
crime from which a reasonable trier of fact could have found the defendant guilty beyond
a reasonable doubt. Id.
A. ATTEMPTED AGGRAVATED BATTERY
In order to obtain a conviction for attempted aggravated battery, the State was
required to prove beyond a reasonable doubt that Basey: (1) engaged in conduct that
constituted a substantial step toward (2) knowingly or intentionally (3) inflicting injury
on a person (4) that created a substantial risk of death. Ind. Code §§ 35-41-5-1, 35-42-2-
1.5. Intent and knowledge may be inferred from the circumstances and facts of each
case. Scott v. State, 867 N.E.2d 690, 695 (Ind. Ct. App. 2007), trans. denied.
Basey asserts the State failed to prove that he knowingly or intentionally tried to
hit Puente with his car. Puente testified that when the sedan stopped for the first time, he
made eye contact with Basey and ordered him to turn off the engine. Instead of
complying, Basey turned the steering wheel and drove the car directly at Puente. Oldham
1
Basey does not challenge the sufficiency of the evidence supporting his conviction for resisting law
enforcement.
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saw the sedan’s wheels turn toward Puente, and the sedan “move[d] in [Puente’s]
direction fairly quick” as Puente ran for cover. Tr. p. 239. Both Oldham and Puente
were certain Basey was going to run over Puente unless he moved out of the way.
According to Oldham, the sedan passed “within feet” of Puente, id. at 240, and Puente
said it passed within five feet of him. This is ample circumstantial evidence from which
a jury could reasonably conclude that Basey knowingly or intentionally tried to strike
Puente with the sedan, an act which could have resulted in his death.
Basey testified that he did not intend to hit Puente, but rather was trying to get
back on the road to continue fleeing. This argument is a request to reweigh the evidence.
We must respect the jury’s exclusive province to weigh conflicting evidence. Rawson v.
State, 865 N.E.2d 1049, 1054 (Ind. Ct. App. 2007), trans. denied.
B. CRIMINAL CONFINEMENT RESULTING IN BODILY INJURY
In order to obtain a conviction for criminal confinement resulting in bodily injury,
the State was required to prove beyond a reasonable doubt that Basey: (1) knowingly or
intentionally (2) confined a person (3) without the other person’s consent (4) resulting in
bodily injury to someone other than Basey. Ind. Code § 35-42-3-3(b). Bodily injury is
defined as any impairment of physical condition, including physical pain. Ind. Code §
35-31.5-2-29 (2012).
Basey argues the State failed to prove that he confined Bowyer and that she was
injured as a result of being confined. When Basey’s sedan stopped for the first time and
Puente approached it, he saw that Bowyer was screaming. After Basey abandoned the
sedan at the end of the chase, several officers observed that Bowyer was scared, frantic,
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crying, and upset. Bowyer told Puente that she had asked Basey to stop. Furthermore,
Basey admitted to Oldham during post-arrest questioning that Bowyer had asked him
several times to stop. This is sufficient evidence from which the jury could have
reasonably concluded that Basey kept Bowyer in the car against her will.
Later on the day of the chase, Basey called Bowyer from jail. During their
discussion, Basey remembered that she was in the car during the chase and asked if she
was okay. She responded, “The only thing that’s really messed up is my knee . . . .”
State’s Ex. 8. The jury could reasonably infer from this conversation that Bowyer injured
her knee while she was confined in the car and thus sustained bodily injury as required by
the statute. We affirm Basey’s conviction for criminal confinement resulting in bodily
injury.
II. PUBLIC DEFENDER FEE AND COURT COSTS
Basey claims the trial court should not have ordered him to pay a $500 public
defender fee and court costs of $166 without inquiring into his ability to pay. A trial
court’s imposition of fees and costs is reviewable for an abuse of discretion. Mathis v.
State, 776 N.E.2d 1283, 1288 (Ind. Ct. App. 2002), trans. denied. If the court imposes
fees and costs within the statutory limits, there is no abuse of discretion. Kimbrough v.
State, 911 N.E.2d 621, 636 (Ind. Ct. App. 2009).
Two statutes are relevant to our inquiry. The first, Indiana Code section 33-40-3-6
(2004), provides in relevant part:
(a) If at any stage of a prosecution for a felony or a misdemeanor the court
makes a finding of ability to pay the costs of representation under section 7
of this chapter, the court shall require payment by the person or the
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person’s parent, if the person is a child alleged to be a delinquent child, of
the following costs in addition to other costs assessed against the person:
(1) Reasonable attorney’s fees if an attorney has been appointed for
the person by the court.
(2) Costs incurred by the county as a result of court appointed legal
services rendered to the person.
(b) The clerk of the court shall deposit costs collected under this section
into the supplemental public defender services fund established under
section 1 of this chapter.
The second statute, Indiana Code section 33-37-2-3 (2007), provides, in relevant part,
(a) Except as provided in subsection (b), when the court imposes costs, it
shall conduct a hearing to determine whether the convicted person is
indigent. If the person is not indigent, the court shall order the person to
pay:
(1) the entire amount of the costs at the time sentence is pronounced;
(2) the entire amount of the costs at some later date; or
(3) specified parts of the costs at designated intervals.
(b) A court may impose costs and suspend payment of all or part of the
costs until the convicted person has completed all or part of the sentence. If
the court suspends payment of the costs, the court shall conduct a hearing at
the time the costs are due to determine whether the convicted person is
indigent.
***
(e) If, after a hearing under subsection (a) or (b), the court determines that a
convicted person is able to pay part of the costs of representation, the court
shall order the person to pay an amount of not more than the cost of the
defense services rendered on behalf of the person. The clerk shall deposit
the amount paid by a convicted person under this subsection in the county’s
supplemental public defender services fund established under IC 33-40-3-1.
In this case, the trial court did not identify the statutory basis for imposing a public
defender fee and court costs. In addition, during the sentencing hearing the court did not
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inquire into Basey’s ability to pay. However, the court’s sentencing order directs that
Basey’s public defender fee, court costs, and other costs are “to be paid by defendant in
equal monthly installments unless specified otherwise; must be paid in full 30 days
before probation ends.” Appellant’s App. p. 65. Furthermore, the trial court stated in the
probation order that Basey was obligated to pay the fee and costs.
We thus conclude that the court imposed the public defender fee and court costs
upon Basey as conditions of probation. Basey will not begin serving probation until after
completing the executed portion of his sentence. He therefore is not required to pay the
fee or costs at this time. Under Indiana Code section 33-37-2-3(b), if the trial court
suspends payment of costs, the court is not required to inquire into a defendant’s ability
to pay until the costs are due. As a result, the trial court did not abuse its discretion by
not inquiring into Basey’s ability to pay the public defender fee or court costs during
sentencing. See Rich v. State, 890 N.E.2d 44, 48 (Ind. Ct. App. 2008) (no abuse of
discretion for failing to consider at sentencing whether Rich could pay a public defender
fee where payment of the fee was a condition of probation that took effect after Rich
served the executed portion of his sentence), trans. denied.
CONCLUSION
For the reasons stated above, we affirm the judgment of the trial court.
Affirmed.
FRIEDLANDER, J., and CRONE, J., concur.
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