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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 establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT: THOMAS G. GODFREY Anderson, Indiana

ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General of Indiana SCOTT L. BARNHART Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
DAVID MICHAEL JONES, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 48A02-0611-CR-999

APPEAL FROM THE MADISON SUPERIOR COURT The Honorable Dennis D. Carroll, Judge Cause Nos. 48D01-0506-FC-175 and 48D01-0508-FD-239

November 8, 2007

MEMORANDUM DECISION - NOT FOR PUBLICATION

NAJAM, Judge

STATEMENT OF THE CASE David Michael Jones appeals his convictions for Criminal Confinement, as a Class B felony; Intimidation, as a Class D felony; Battery, as a Class B misdemeanor; and his adjudication as an habitual offender following a jury trial. He presents the following dispositive issues for our review: 1. Whether the trial court erred when it permitted the State to amend the criminal confinement charge after the omnibus date. Whether the trial court erred when it permitted the State to amend the intimidation charge after the omnibus date. Whether the State presented sufficient evidence to support his criminal confinement and intimidation convictions. Whether the trial court abused its discretion when it refused to tender Jones' final instruction on the element of serious bodily injury. Whether the trial court abused its discretion when it precluded proffered medical evidence. Whether the trial court erred when it reduced his battery conviction from a Class C felony. Whether the trial court abused its discretion when it permitted evidence of his prior bad acts. Whether the trial court erred when it instructed the jury regarding the element of removal to support the confinement conviction. Whether his sentence is inappropriate in light of the nature of the offenses and his character.

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We affirm. FACTS AND PROCEDURAL HISTORY On June 13, 2005, Jones was living with Connie Scott in Anderson. When an argument ensued on that date, Scott asked Jones to leave the residence. Jones refused,
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and he physically assaulted Scott while they were in the garage. Jones choked Scott and caused her to lose consciousness. When Scott woke up, she was inside the house. Jones was still there, and she told him that she needed to go to the hospital. But he told her, "[Y]ou ain't going nowhere." Transcript at 166. Jones also stated, "[Y]ou seen how fast that happened, . . . I can do it again and not leave a track and no one will ever see you again." Id. Eventually, Scott got in her car and drove away. Scott was calling the police to report the incident when Jones pulled up behind her in his car. She told him that she had called the police, and he drove away. Approximately two months later, on August 17, 2005, several people, including Jones, were at Scott's house. At some point, Scott asked Jones to leave, but he refused. Jones then asked Scott to go to a store to get him some medication, and she refused. Jones became angry and told Scott that he would not leave until she got him the medication. Jones then said, "[D]on't think that I won't kill you and your cousin." Id. at 172. Jones was "violent and cussing and screaming" at Scott. Id. Scott left and called the police, who subsequently arrested Jones. In Cause No. 48D01-0506-FC-175 ("FC-175"), regarding the incidents on June 13, the State charged Jones with battery. And in Cause No. 48D01-0508-FD-239 ("FD239"), regarding the incidents on August 17, the State charged him with intimidation and being an habitual offender. On October 27, 2005, nine days after the omnibus date, the State moved to amend the information in FC-175 to add a charge of criminal confinement, as a Class B felony, and an habitual offender allegation. The trial court granted the amendment without first
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holding a hearing. On January 10, 2006, the State moved to amend the intimidation charge in FD-239 to add the language "or engage in conduct against her will." 1 The trial court permitted the amendment. On June 12, 2006, the trial court consolidated the two cases for purposes of trial. Jones moved to dismiss the amended intimidation charge. The trial court denied that motion. On the first day of trial, on September 6, the State moved to amend the

information regarding the criminal confinement charge. The original information alleged in relevant part that Jones' confinement of Scott resulted in her unconsciousness. As amended, the charge alleged that the confinement resulted in Scott's unconsciousness "and/or extreme pain." Appellant's App. at 108. The trial court permitted the

amendment over Jones' objection. On September 8, the State moved the trial court to admit a tape recording of a 911 call that led to Jones' 2003 conviction for residential entry. Scott was also the victim of that crime. The State sought admission of that evidence "to show the relationship

between the parties and motive." Id. at 379. The trial court allowed the evidence over Jones' objection. The jury found Jones guilty of criminal confinement, as a Class B felony; battery, as a Class C felony; intimidation, as a Class D felony; and found him to be an habitual offender. The trial court sentenced Jones to twenty years for the Class B felony

conviction (criminal confinement), enhanced by twenty-five years on the habitual offender adjudication; eight years for the Class C felony conviction (battery); and three
The original information alleged that Jones placed Scott in fear of retaliation for a prior lawful act. As amended, the information alleged that Jones either placed Scott in fear of retaliation for a prior lawful act or forced her to engage in conduct against her will.
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years for the Class D felony conviction (intimidation). The trial court ordered that the sentences would run concurrently, for an aggregate sentence of forty-five years. But on November 9, the trial court, sua sponte, issued an order reducing the battery conviction to a Class B misdemeanor and reducing the sentence on that count to six months. The aggregate sentence was unchanged. This appeal ensued. DISCUSSION AND DECISION Issue One: Amendment of Criminal Confinement Charge Jones first contends that the trial court erred when it permitted the State to amend the information regarding the criminal confinement charge twice after the omnibus date had passed. Our Supreme Court recently addressed the issue of the timeliness of

amendments to a charging information in Fajardo v. State, 859 N.E.2d 1201, 1203-07 (Ind. 2007): A charging information may be amended at various stages of a prosecution, depending on whether the amendment is to the form or to the substance of the original information. Such amendments are governed by Indiana Code

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