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 cas e.
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 AP PEALS 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 2 8, 2014 MEMORANDUM DECISION
- NOT FOR PUBLICATION BARTEAU , Senior Judge2 STATEMENT OF THE CASE Joshua Basey appeals his conviction s of attempted aggravated battery , a Class B felony, Ind. Code §§ 35

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- 1 (1977 ), 35

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- 1.5 (1997 ); and criminal confin ement resulting in bodily injury, a Class C felony, Ind. Code § 35

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- 3(b) (2006 )

. We affirm.
ISSUE S Basey raises three issue s , which we consolidate and restate as : I. W hether the evidence is sufficient to sustain his conviction s . 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 la ter 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. O fficers twice put do wn spike strips ahead of Basey in attempt s 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. T he 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 d own the pole and damaged the sedan, but Basey kept going until he slid into a grassy area and the sedan stop ped

.3 Sergeant Steve Puente of the Alexandria Police Department (“APD ”) had joined the chase and was the lead pursuit vehicle when Basey stop ped

. Puente exited hi s 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

w as “screaming.” Tr. p. 387. The sedan was still running and the tires were spinning, throwing up dirt and gravel as Basey attempt ed to gain traction. Pue nte made eye contact with Basey and ordered him to turn off the engine . Instead of complying, Basey turn ed 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 with in 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 avoi d being struck. Indian a 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 finally4 stop ped . 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, Old ham and other officers appr oached the sedan. Bowyer was still in the vehicle. She appeared to the officer s to be “ very . . . scared, ” “frantic, panicky . . . very shaken,” and “crying and upset. ” Id. at 310, 371, 399. Bowyer told Puente, “I asked him t o stop.” Id. at 400. After Basey was arrested, he was taken to a police s tation, where Oldham questioned him. Basey said during questioning that Bowyer told him several times to
st op . Later in the day, Basey called Bowyer from jail, and the State rec orded 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 fel ony, and r esisting law enfor cement as a Class A misdemeanor

. Bowyer did not testify at trial. The jury found Basey guilty as cha rged. 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.5 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 credibi lity 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 support ing 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 wa s requir ed 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

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- 1 , 35

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- 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
h it Puente with his car. Puente testified that when the sedan stopped for the first time , h e 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. O ldham

1 Basey does not challenge the sufficiency of the evidence supporting his conviction for resisting law enforcement.6 saw the sedan’s wheels turn toward Puente , and the sedan “move [d] in [P uente’s] direction fairly quick ” as Puente ran for cover. Tr. p. 239. Both Oldham a nd Puente were certain Basey was going to run over Pu ente unless he moved out of the way

. Acc ording to Oldham, t he 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 w hich

a jury could reasonably conclude that Basey knowingly or intentionally tried to str ike Puente with the sedan, an act which could have resulted in his death. Basey testified that he did not in tend to hit Puente, but rather was trying to get ba ck on the road to contin ue 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 confine ment 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

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- 3(b)

. Bodily injury is defined as any impairment of physical condition, including physical pain. Ind. Code §
35

- 31.5

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- 29 (2012 ). Basey argues the State failed to prove that he confined Bowyer and that she was injured as a result of being confined. W hen 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,7 crying, and u pset. 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 conclu ded that Basey kept Bowyer in the car against her will.
L ater 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 onl y thing that’s really messed up is m y knee . . . .”
State’s Ex. 8. The jury could reasonably infer from this conversation that Bowyer injured her knee while sh e was confined in the car and thus sustained bodily injury as required by the statute. We affi rm 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
defe nder fee and court costs of $166 without inquiring into hi s ability to pay. A tri al 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 i s 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

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- 6 (2004), provides in relevant part: (a) If at any stage of a prosecution for a felo ny 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 paym ent by the person or the8 person’ s parent, if the person is a child alleged to be a delinquent ch ild, 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 servic es 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

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- 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 perso n 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 o r 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

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. 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 not9 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 or der 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 e xecu ted port ion of his sentence. He therefore is not required to pay the fee or costs at this time. Under Indiana Code section 33

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- 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 th e 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 discr etion 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
F or the reasons stated above , we affirm the judgment of the trial court

. Affirmed

. FRIEDLANDER, J., and CRONE, J., concur.