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: ATTORNEYS FOR APPELLEE:

RICHARD L. LANGSTON GREGORY F. ZOELLER

Frankfort, Indiana Attorney General of Indiana

ERIC P. BABBS

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

JEFFREY BOWLES, )

)

Appellant-Defendant, )

)

vs. ) No. 12A02-1208-CR-654

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE CLINTON CIRCUIT COURT

The Honorable Linley E. Pearson, Judge 

Cause No. 12C01-0907-FD-142 

July 8, 2013

MEMORANDUM DECISION - NOT FOR PUBLICATION

PYLE, Judge
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STATEMENT OF THE CASE

Jeffrey Bowles (“Bowles”) appeals his conviction for Class D felony domestic 

battery.

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We affirm.

ISSUES

1. Whether the trial court abused its discretion in trying Bowles in absentia.

2. Whether the trial court committed fundamental error in instructing the jury 

regarding the elements of domestic battery.

3. Whether the evidence is sufficient to sustain Bowles’ conviction.

FACTS

On July 20, 2009, Officer Troy Bacon (“Officer Bacon”) with the Frankfort Police 

Department was dispatched to a fight occurring at the City Lagoons in Frankfort. When 

Officer Bacon arrived, he observed Melissa Harris (“Harris”) yelling at Bowles. Harris 

was visibly upset and had dirt and gravel on her arms and clothing. Harris told Officer 

Bacon that she, Bowles, and their teenaged children were at the City Lagoons fishing and 

swimming. Harris noticed that two of the teenagers were stumbling around and were 

hard to understand when they spoke. She accused Bowles of putting alcohol in their soft 

drinks. Bowles and Harris began to argue. Bowles pushed Harris, then grabbed her by 

the head and threw her on the ground. Harris flagged down Johnny Floyd, who 

 

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Ind. Code § 35-42-1.3(a).
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witnessed the incident, and asked him to call the police. Bowles was placed under arrest 

for domestic battery.

On July 22, 2009, the State charged Bowles with domestic battery, a Class D 

felony. After several continuances, a jury trial was scheduled for November 8, 2011. 

Bowles did not appear the morning of trial. Bowles’ attorney stated that he had 

previously informed Bowles of the date and time of the trial. Bowles’ attorney also 

called Bowles on the morning of trial and received no response. During the lunch break, 

Bowles called his attorney’s office, saying that he needed a continuance. Bowles never 

contacted the trial court or appeared for his trial. 

Before closing arguments, the trial court and the parties reviewed the final 

instructions. The trial court’s instruction on domestic battery defined the charge but 

omitted the element “is or was living as spouse” from the enumeration of what the State 

was required to prove. (App. 108). Neither party objected to the final instructions, and 

the jury convicted Bowles of domestic battery.

DECISION

Bowles claims the trial court erred in trying him in absentia and committed 

fundamental error by not instructing the jury on all elements of domestic battery. Bowles 

also argues that the State did not present sufficient evidence to sustain his conviction for 

domestic battery. We address each of Bowles’ claims separately.

1. Trial In Absentia

Bowles argues that the trial court erred in trying him in absentia. A defendant in a 

criminal proceeding has a right to be present at all stages of his trial. U.S. Const. amend. 
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VI; Ind. Const. art. I, § 13; Lampkins v. State, 682 N.E.2d 1268, 1273 (Ind. 1997). A 

defendant may waive this right and be tried in absentia if the trial court determines that 

the defendant knowingly and voluntarily waived his right to be present. Lampkins, 682 

N.E.2d at 1273. We will consider the entire record in determining whether a defendant 

made a voluntary, knowing, and intelligent waiver. Holtz v. State, 858 N.E.2d 1059 (Ind. 

Ct. App. 2006), trans. denied. “When a defendant fails to appear for trial and fails to 

notify the court or provide it with an explanation of its absence, the trial court may 

conclude that the defendant’s absence is knowing and voluntary and proceed with trial 

where there is evidence that the defendant knew of his scheduled trial date.” Id. at 1062. 

Here, Bowles attorney stated that Bowles knew when his trial would begin. 

Further, Bowles called his attorney’s office after the trial began, spoke to the attorney’s 

secretary, and stated that he needed a continuance. Bowles never contacted the court to 

explain why he needed a continuance. Explaining his absence at sentencing, Bowles 

stated the following: “My mother had asked me not to go because she figured that I was 

gonna go to jail and she needed me there to help take care of my sisters.” (Tr. 126). 

From the record, it is not unreasonable to infer that Bowles knew the date of his trial and 

should have known that his trial would not be delayed after contacting his attorney’s 

office. Yet, he still failed to appear. Therefore, the trial court did not err in trying 

Bowles in absentia.

2. Fundamental Error

Bowles further contends that the trial court committed fundamental error when it 

gave a final instruction that omitted the element requiring the State to prove the domestic 
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nature of Bowles’ relationship with Harris. We note that in arguing fundamental error 

from the outset, Bowles essentially concedes that he failed to object to the error when it 

occurred. Unless his challenge meets the standard for fundamental error, his argument is 

deemed waived. Lacy v. State, 438 N.E.2d 968 (Ind. 1982).

Appellate courts may, on rare occasions, resort to the fundamental error 

exception to address on direct appeal an otherwise procedurally defaulted 

claim. Fundamental error is extremely narrow and available only when the 

record reveals a clearly blatant violation of basic and elementary principles, 

where the harm or potential for harm cannot be denied, and which violation 

is so prejudicial to the rights of the defendant as to make a fair trial 

impossible.

Jewel v. State, 887 N.E.2d 939, 942 (Ind. 2008).

The trial court provided the following final instruction on domestic battery:

The crime of domestic battery is defined by statute as follows:

A person who knowingly or intentionally touches an individual who 

is or was a spouse of the other person; is or was living as if a spouse of the 

other person or has a child in common with the other person, in a rude, 

insolent, or angry manner that results in bodily injury to the person 

described, commits battery, a Class A misdemeanor. However, the offense 

is a Class D felony if the person who committed the offense committed the 

offense in the physical presence of a child less than sixteen (16) years of 

age, knowing that the child was present and might be able to see or hear the 

offense.

To convict the defendant [of], domestic battery, [sic] the State must 

have proved each of the following elements:

The defendant

1. knowingly or intentionally

2. touched Melissa Harris

3. in a rude, insolent, or angry manner,

4. resulting in bodily injury.

If the State failed to prove each of these elements beyond a 

reasonable doubt, you should find the defendant not guilty.
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If the State did prove each of these elements beyond a reasonable 

doubt, you should find the defendant guilty of domestic battery, a Class A 

misdemeanor.

If the State further proved beyond a reasonable doubt that the person 

who committed the offense committed the offense in the physical presence 

of a child less than sixteen (16) years of age, knowing that the child was 

present and might be able to see or hear the offense, you should find the 

defendant guilty of domestic battery, a Class D felony.

(App. 108). While the trial court’s final instruction does not contain language regarding 

Bowles’ relationship with Harris in the list of elements, the body of the court’s final 

instruction does completely define the crime of domestic battery. In addition, the trial 

court’s preliminary instructions included the omitted element. Our Supreme Court has 

held that the failure to give a final instruction on the elements of an offense is not 

fundamental error if the trial court provided those elements in a preliminary instruction, 

and the defendant failed to object. Lacy, 438 N.E.2d at 968. Hence, no fundamental 

error occurred. 

3. Sufficiency of the Evidence

Finally, Bowles argues that the State did not present sufficient evidence to sustain 

his conviction for domestic battery.

The standard of review for such a challenge is well settled. “[W]e neither reweigh 

evidence nor judge witness credibility.” Henley v. State, 881 N.E.2d 639, 652 (Ind. 

2008). “We consider only the evidence supporting the judgment and any reasonable 

inferences that can be drawn from such evidence.” Id. “We will affirm a conviction if 

there is substantial evidence of probative value such that a reasonable trier of fact could 

have concluded the defendant was guilty beyond a reasonable doubt.” Id.
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To convict Bowles of domestic battery as charged, the State had to prove that 

Bowles: (1) knowingly or intentionally; (2) touched Harris in a rude, insolent, or angry 

manner; (3) that resulted in bodily injury; (4) that Harris is or was living as Bowles’ 

spouse; and (5) Bowles committed the offense in front of a child less than sixteen (16) 

years of age knowing that the child was present and might be able to see or hear the 

battery taking place. I.C. § 35-42-2-1.3(a). 

Bowles claims that the State did not provide sufficient evidence that Harris is or 

was living as Bowles’ spouse. Specifically, Bowles argues that there was insufficient 

evidence to show that he and Harris were cohabitating or engaged in a romantic 

relationship. However, the Legislature has provided a non-exclusive list of factors to 

consider when deciding whether a person was living as the spouse of another for 

purposes of the domestic battery statute. 

In considering whether a person is or was living as a spouse of another 

individual for purposes of subsection (a)(2), the court shall review:

(1) the duration of the relationship;

(2) the frequency of contact;

(3) the financial interdependence;

(4) whether the two (2) individuals are raising children together;

(5) whether the two (2) individuals have engaged in tasks directed 

toward maintaining a common household; and

(6) other factors the court considers relevant.

I.C. § 35-42-2-1.3(c).
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Here, Harris testified at trial that she and Bowles lived together in a house for 

three (3) years, that she worked while he collected disability, and, as of the trial date, she 

and Bowles were apart for nine (9) months. At the time of the offense, and apparently at 

times during the pendency of the case, Bowles and Harris lived together and engaged in 

an ongoing relationship. Thus, the State presented sufficient evidence to sustain Bowles’ 

conviction for domestic battery.

Affirmed.

KIRSCH, J., and VAIDIK, J., concur.