Zachary L. Lewis v. State of Indiana (mem. dec.) ( 2018 )


Menu:
  • MEMORANDUM DECISION
    Pursuant to Ind. Appellate Rule 65(D),
    this Memorandum Decision shall not be
    FILED
    regarded as precedent or cited before any                      Mar 07 2018, 10:33 am
    court except for the purpose of establishing                        CLERK
    Indiana Supreme Court
    the defense of res judicata, collateral                            Court of Appeals
    and Tax Court
    estoppel, or the law of the case.
    ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
    Jeremy K. Nix                                            Curtis T. Hill, Jr.
    Huntington, Indiana                                      Attorney General of Indiana
    Ian McLean
    Supervising Deputy Attorney
    General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    Zachary L. Lewis,                                        March 7, 2018
    Appellant-Defendant,                                     Court of Appeals Case No.
    35A02-1709-CR-2130
    v.                                               Appeal from the Huntington
    Circuit Court
    State of Indiana,                                        The Honorable Thomas M. Hakes,
    Appellee-Plaintiff.                                      Judge
    Trial Court Cause No.
    35C01-1701-F5-7
    Barnes, Judge.
    Court of Appeals of Indiana | Memorandum Decision 35A02-1709-CR-2130 | March 7, 2018    Page 1 of 15
    Case Summary
    [1]   Zachary Lee Lewis appeals his conviction and sentence for Level 5 felony
    battery on a pregnant woman and for being an habitual offender.1 We affirm.
    Issues
    [2]   Lewis raises the following issues on appeal:
    I.        whether the trial court abused its discretion by admitting
    Facebook messages purportedly sent by Lewis without
    proper foundation; and
    II.       whether his sentence is inappropriate.
    Facts
    [3]   In January 2017, Lewis and his then-girlfriend, J.W., lived in Huntington.
    J.W. was nearing her ninth month of pregnancy.2 The pair planned to raise
    J.W.’s child together. Shortly after midnight on January 18, 2017, Lewis and
    J.W. argued. J.W. ended the relationship and asked Lewis to leave her family’s
    home, where they resided.
    1
    The pre-sentence investigation report states Appellant’s legal name as “Zachery Lee Lewis,” with “Zachary
    Lee Lewis” listed among his aliases.
    2
    Trial testimony revealed that Lewis was aware of J.W.’s pregnancy. He told the police that “the baby’s not
    his, but he treats it as [if] it is his.” Tr. Vol. II p. 235. J.W.’s mother later testified that J.W. had a high-risk
    pregnancy.
    Court of Appeals of Indiana | Memorandum Decision 35A02-1709-CR-2130 | March 7, 2018                    Page 2 of 15
    [4]   Around midnight the following day, Lewis telephoned J.W. from the St.
    Joseph’s Burn Center in Fort Wayne. He claimed that he was stabbed and that
    his truck, keys, and money were stolen. He asked J.W. for a ride to
    Huntington. In the early morning hours of January 19, 2017, J.W. borrowed
    her mother’s car and drove to Fort Wayne to pick Lewis up. As J.W. drove
    Lewis back to Huntington, he gave a rambling account of the events leading up
    to his telephone call. J.W. demanded to see proof that he was injured. Seeing
    none, she reiterated that she was done with their relationship.
    [5]   Lewis then hit J.W. in the face and abdomen multiple times with an open hand
    and with his fist. When J.W. tried to pull over, Lewis grabbed the steering
    wheel and forced the vehicle back onto the road, veering toward an oncoming
    semi-truck. J.W. eventually stopped the vehicle and asked why Lewis was
    hitting her. Lewis said, “B****, keep going or I’m gonna do worse.” Tr. Vol.
    II p. 73. Lewis continued to hit J.W., despite her pleas that he was hurting her
    and might harm her baby. J.W. begged Lewis to leave the vehicle, but he
    refused. J.W. managed to exit the vehicle, ran across the street amid traffic,
    and tried to flag down passing motorists. Lewis chased J.W., grabbed her, and
    dragged her back across the median toward the vehicle. She dropped to the
    ground in an effort to pull away and curled into a fetal position in a roadside
    ditch. While she was on the ground, Lewis beat her face and abdomen multiple
    times. J.W. screamed, “Please stop, you’re gonna hurt the baby, I can’t feel
    her,” and “you’re gonna kill her, you’re gonna kill the baby, please just stop[.]”
    Court of Appeals of Indiana | Memorandum Decision 35A02-1709-CR-2130 | March 7, 2018   Page 3 of 15
    Id. at 75. Lewis finally stopped hitting J.W. when she screamed, “[Y]ou’re
    hitting the baby! I can’t feel the baby!” Id.
    [6]   Lewis apologized and asked J.W. to hug him. He urged her to get back into the
    vehicle, to drive them home and to keep the attack a secret. Instead, J.W. ran
    to a nearby house for help. When no one answered, she ran behind the house.
    Lewis drove up to the house, and leaving the vehicle running, began to search
    for J.W. When an opportunity presented, J.W. ran to the vehicle and drove
    home. When she arrived at home, she was “bloody and . . . hysterical[.]” Id. at
    196. Her family called the police.
    [7]   Officer Landon Sell of the Huntington City Police Department was dispatched
    to J.W.’s family’s house. J.W. was “frightened, sobbing, [and] . . . very
    concerned about her unborn child.” Id. at 209. “She had wounds to her face[,]
    some dried blood [and] cuts that were actively bleeding.” Id. at 210. Officer
    Sell photographed her injuries.
    [8]   Later that day, at approximately 3:30 P.M., Lewis sent multiple messages to
    J.W. via Facebook Messenger. Lewis had two Facebook accounts and kept
    one of his passwords secret. Investigators photographed the following
    Facebook message exchange on J.W.’s cell phone:
    [Lewis]: I need clajdios [sic] number
    [J.W.]: He is locked up
    [Lewis]: Yo u want me to cpme [sic] over?
    Court of Appeals of Indiana | Memorandum Decision 35A02-1709-CR-2130 | March 7, 2018   Page 4 of 15
    [J.W.]: U can’t. [Lewis] u hurt me bad and they can’t keep the
    baby’s heartbeat it’s on n off. Dcs is involved
    [Lewis]: It’s me turkey
    [J.W.]: Why did you snap on me. Why did u hurt me n keep
    hitting me n hit my belly. Why
    [Lewis]: Sleeping with one of my brothh rs [sic]
    [J.W.]: I didn’t I swear to god I didn’t
    [Lewis]: Well im going to fort waybne [sic]
    [J.W.]: They r looking for [you].
    [Lewis]: Who?
    [J.W.]: Cops dcs parole.
    [Lewis]: Y?
    [J.W.]: BC [because] they took me to the hospital[.] They pulled
    me over. They dont [sic] know if imma lose the baby BC of u[.]
    Dcs was gonna take [child A.] BC of u
    [Lewis]: I dont [sic] remember what hapoened [sic]
    [J.W.]: U beat the hell out of me. U punched the hell out of my
    belly.
    [Lewis]: * * * No I didnt [sic]
    Court of Appeals of Indiana | Memorandum Decision 35A02-1709-CR-2130 | March 7, 2018   Page 5 of 15
    [J.W.]: Yea u did I have marks they took pictures there is blood
    all over moms car. My clothes everything
    [Lewis]: Stop your [sic] freaking me out
    [J.W.]: No u did [Lewis]. I kept begging u to stop and u ton [sic]
    the car n my keys n I ran from u. To a house n beat on there [sic]
    door. They called the cops.
    [Lewis]: I lost everything[.] I dont [sic] remember [sic] where I
    put anything
    [J.W.]: Idk [I don’t know] all I know is im in so much pain
    everyone hates me BC of u and all I did was try n help u get
    home. Im bout [sic] to lose my kids BC of u
    [Lewis]: What am i supposed to do
    [J.W.]: I told u stay off the drugs. If I dint [sic] get away u
    would of [sic] killed . . . [m]e
    [Lewis]: You have beaten me
    [J.W.]: I can’t talk to u. They will take my kids. And u started.
    Beating me for no reason. And no i haven’t. I tried. To get
    away from u.
    [Lewis]: And i would never do anyythinh [sic] to take you away
    from your family
    [J.W.]: U did last night dcs was gonna take [child A.] from me.
    N u damn near killed the baby from hitting me. U need to get
    help [Lewis] and I can’t do it. They r putting a protective order
    Court of Appeals of Indiana | Memorandum Decision 35A02-1709-CR-2130 | March 7, 2018   Page 6 of 15
    where u can’t see us or be around us nothing. Im sorry I gotta go
    please get help before u hurt someone else or hurt urself. Ur a
    damn good man n person when ur off of drugs. U need help we
    can’t talk im not losing my kids. Bye.
    Ex. 1-7.
    [9]   On January 19, 2017, the State charged Lewis with battery on a pregnant
    woman and criminal confinement, as Level 5 felonies, and with being an
    habitual offender. On July 25-27, 2017, he was tried by a jury. J.W. testified
    that Lewis communicated with her via Facebook Messenger before and after
    the attack; that she had helped Lewis to set up a Facebook account; that Lewis
    could log into his account from any cell phone or computer; and that she had
    no reason to doubt that the post-attack Facebook messages were authored by
    Lewis because the exchange included: (1) Lewis’ longtime inside joke with her
    mother; (2) his request for their mutual friend Claudio’s contact information;
    (3) references to the attack—including Lewis’ denial that he struck her; his
    claim that he did not recall the events; and his claim that he had lost his keys
    and truck; and (4) references to their troubled relationship, including Lewis’
    claims that J.W. had previously struck him and that she had sex with one of his
    brothers. The trial court admitted the Facebook messages into evidence over
    Lewis’ continuing objections. The State also introduced recordings of Lewis’
    jailhouse telephone calls to J.W., in which he professed his love, urged her to
    recant her statements to police, and to lie under oath at trial.
    Court of Appeals of Indiana | Memorandum Decision 35A02-1709-CR-2130 | March 7, 2018   Page 7 of 15
    [10]   Throughout his testimony, Lewis admitted on multiple occasions that he
    initiated and authored the Facebook messages to J.W. See Tr. Vol. III p. 95
    (“[Y]es, I contacted [J.W.] on Facebook, Instant Messenger.”); id. at 130-31,
    137, 153. He offered up an alternate interpretation for the conversation,
    maintaining that he was merely sending messages of “concern” and to see “if
    she needed something, needed help or something” after their breakup. Id. at 96,
    97. He testified that he never intentionally struck J.W. and that he initially
    misread J.W.’s messages as merely accusing him of hurting her “emotionally.”
    Id. at 97. He testified that he was “completely confused with all these text
    messages” and “tired of the lies” and “done with her drama” and “[h]er trying
    to push something off on me . . . that I didn’t do.” Id. at 106, 108. He testified
    that he was reluctant to cooperate with police because he did not want J.W. to
    be arrested for battering him.
    [11]   At the close of the evidence, the jury returned a guilty verdict on the battery
    offense and not guilty of criminal confinement. Lewis subsequently admitted to
    being an habitual offender. At his sentencing hearing on September 11, 2017,
    correctional officer Todd Spillman of the Huntington County Jail testified that,
    since Lewis’ incarceration, jail officials had to lock him down and segregate
    him for threats against correctional officers and for physical violence against a
    fellow inmate. The trial court imposed a five and one-half year sentence for the
    battery and enhanced that sentence by five years because Lewis was an habitual
    offender, for an aggregate sentence of ten and one-half years. The trial court
    found that Lewis’ significant criminal history—including numerous prior
    Court of Appeals of Indiana | Memorandum Decision 35A02-1709-CR-2130 | March 7, 2018   Page 8 of 15
    battery convictions—was an aggravating circumstance and found no mitigators.
    He now appeals.
    Analysis
    I.      Admission of Evidence
    [12]   Lewis argues that the trial court erred in admitting Facebook messages which
    he alleges were not properly authenticated and, therefore, lacked a proper
    foundation. “The trial court has discretionary power on the admission of
    evidence, and its decisions are reviewed only for an abuse of that discretion.”
    Lewis v. State, 
    34 N.E.3d 240
    , 247 (Ind. 2015). An abuse of discretion occurs
    when the decision is clearly against the logic and effect of the facts and
    circumstances. Nicholson v. State, 
    963 N.E.2d 1096
    , 1099 (Ind. 2012).
    [13]   “‘A claim of error in the exclusion or admission of evidence will not prevail on
    appeal unless the error affects the substantial rights of the moving party.’” 
    Id.
    (quoting McCarthy v. State, 
    749 N.E.2d 528
    , 536 (Ind. 2001)). Even if the trial
    court abused its discretion in admitting evidence, the judgment will be
    undisturbed if the decision to admit evidence is harmless. Bowman v. State, 
    73 N.E.3d 731
    , 734 (Ind. Ct. App. 2017), trans. denied. “Harmless error occurs
    ‘when the conviction is supported by such substantial independent evidence of
    guilt as to satisfy the reviewing court that there is no substantial likelihood that
    the questioned evidence contributed to the conviction.’” 
    Id.
     (quoting Lafayette v.
    State, 
    917 N.E.2d 660
    , 666 (Ind. 2009)).
    Court of Appeals of Indiana | Memorandum Decision 35A02-1709-CR-2130 | March 7, 2018   Page 9 of 15
    “To lay a foundation for the admission of evidence, the
    proponent of the evidence must show that it has been
    authenticated.” Indiana Rule of Evidence 901(a) provides that
    “[t]o satisfy the requirement of authenticating or identifying an
    item of evidence, the proponent must produce evidence sufficient
    to support a finding that the item is what the proponent claims it
    is.” Absolute proof of authenticity is not required. Rather, the
    proponent of the evidence must establish only a reasonable
    probability that the evidence is what it is claimed to be, and may
    use direct or circumstantial evidence to do so. Once this
    reasonable probability is shown, any inconclusiveness of the
    evidence’s connection with the events at issue goes to evidential
    weight, not admissibility.
    “Letters and words set down by electronic recording and other
    forms of data compilation are included within Rule 901(a).”
    Moreover, Evidence Rule 901(b) provides a non-exhaustive list of
    evidence that satisfies the authentication requirement. One
    example is where there is evidence describing a process or system
    and showing that it produces an accurate result. Evid. R.
    901(b)(9). Another example, provided in Evidence Rule
    901(b)(4), is where, taken together with all the circumstances, the
    evidence has distinctive characteristics in appearance, contents,
    or substance. Federal Rule of Evidence 901(b)(4) uses language
    identical to that of Indiana Rule of Evidence 901(b)(4). “We
    have previously acknowledged that federal courts have
    recognized Federal Rule of Evidence 901(B)(4) as one of the
    most frequently used means to authenticate electronic data,
    including text messages and emails.” Wilson [v. State], 
    30 N.E.3d 1264
    ,] 1268 [(Ind. Ct. App. 2015).].
    Richardson v. State, 
    79 N.E.3d 958
    , 962 (Ind. Ct. App. 2017) (internal citations
    and quotations omitted).
    Court of Appeals of Indiana | Memorandum Decision 35A02-1709-CR-2130 | March 7, 2018   Page 10 of 15
    [14]   In Wilson, during the defendant’s murder trial, the trial court allowed his
    Twitter posts referencing his gang affiliation and his possession of handguns
    comparable to the murder weapons to be admitted into evidence over his
    objection. In affirming the judgment, we rejected Wilson’s claim that the State
    had failed to provide sufficient foundation to authenticate the Twitter messages
    as being authored by him. We found that “witness testimony identifying the
    Twitter account as belonging to Wilson and the content of the account,
    including pictures and gang references[,]” were “more than sufficient to
    authenticate the Twitter posts as being authored by Wilson.” Wilson, 30
    N.E.3d at 1269.
    [15]   Here, J.W. testified that after the attack—as he had before—Lewis contacted
    her “[t]hrough Facebook Messenger.” Tr. Vol. II p. 85. J.W. testified that
    Lewis typically used Facebook Messenger on his cell phone and that she had
    “helped him set [his Facebook Messenger account] up.” Id. at 89. She testified
    further that, in his post-attack Facebook messages, Lewis asked her for Robert
    Claudio’s phone number; she explained that Claudio was “a very good friend of
    mine” and “he’s friends with [Lewis].” Id. at 91. She also testified that the
    messages included the phrase, “It’s me, turkey,” which was “what [Lewis] used
    to say to [her] mom when he would walk into the house.” Id. at 93. J.W. also
    testified that the messages referenced Lewis’ long-held suspicion that she had
    sex with one of his brothers. Elsewhere in the exchange, J.W. testified that she
    and Lewis exchanged messages in which she told Lewis that a no-contact order
    was in effect; expressed her fear that his attack might prompt DCS to take her
    Court of Appeals of Indiana | Memorandum Decision 35A02-1709-CR-2130 | March 7, 2018   Page 11 of 15
    children; and warned him to stay off drugs. J.W. testified that Lewis replied by
    denying that he had attacked her and alleging that she had previously initiated
    physical violence in their relationship. J.W. also testified that the sender stated,
    “I lost everything. I don’t remember where I put anything[,]” which recalled
    Lewis’ initial ruse that he needed a ride because he could not find his keys,
    truck, or money. Ex. 5. Lastly, J.W. testified that nothing about the Facebook
    exchange led her to believe that she was conversing with anyone but Lewis.
    [16]   Based on the foregoing, we conclude as in Wilson, that the State established a
    reasonable probability that the Facebook messages were what the State claimed
    them to be. See Richardson, 79 N.E.3d at 962. Specifically, witness testimony,
    including Lewis’ own admissions, and multiple instances of corroborative
    content were more than sufficient to authenticate the Facebook messages as
    being authored by Lewis. See Wilson, 30 N.E.3d at 1269. The trial court did
    not abuse its discretion in admitting the Facebook messages into evidence.
    Error, if any, from the admission of the messages into was harmless, given
    Lewis’ testimony that he authored them. See Bowman, 73 N.E.3d at 734.
    II.     Sentence
    [17]   Next, Lewis argues that his sentence is inappropriate. Indiana Appellate Rule
    7(B) provides that we may revise a sentence authorized by statute if, after due
    consideration of the trial court’s decision, we find that the sentence is
    inappropriate in light of the nature of the offenses and the character of the
    offender. When considering whether a sentence is inappropriate, we need not
    be “extremely” deferential to a trial court’s sentencing decision. Rutherford v.
    Court of Appeals of Indiana | Memorandum Decision 35A02-1709-CR-2130 | March 7, 2018   Page 12 of 15
    State, 
    866 N.E.2d 867
    , 873 (Ind. Ct. App. 2007). Still, we must give due
    consideration to that decision. 
    Id.
     We also understand and recognize the
    unique perspective a trial court brings to its sentencing decisions. 
    Id.
     Under
    this rule, the burden is on the defendant to persuade the appellate court that his
    or her sentence is inappropriate. Childress v. State, 
    848 N.E.2d 1073
    , 1080 (Ind.
    2006).
    [18]   The principal role of Rule 7(B) review “should be to attempt to leaven the
    outliers, and identify some guiding principles for trial courts and those charged
    with improvement of the sentencing statutes, but not to achieve a perceived
    ‘correct’ result in each case.” Cardwell v. State, 
    895 N.E.2d 1219
    , 1225 (Ind.
    2008). We “should focus on the forest—the aggregate sentence—rather than
    the trees—consecutive or concurrent, number of counts, or length of the
    sentence on any individual count.” 
    Id.
     When reviewing the appropriateness of
    a sentence under Rule 7(B), we may consider all aspects of the penal
    consequences imposed by the trial court in sentencing the defendant, including
    whether a portion of the sentence was suspended. Davidson v. State, 
    926 N.E.2d 1023
    , 1025 (Ind. 2010).
    [19]   Here, the trial court imposed a five and one-half year sentence for Lewis’ Level
    5 felony battery conviction and enhanced that sentence by five years because he
    was an habitual offender, for an aggregate sentence of ten and one-half years.
    The trial court ordered the entire sentence to be executed in the Department of
    Correction. Under Indiana Code Section 35-50-3-6, a person convicted of a
    Level 5 felony “shall be imprisoned for a fixed term of between one (1) and six
    Court of Appeals of Indiana | Memorandum Decision 35A02-1709-CR-2130 | March 7, 2018   Page 13 of 15
    (6) years, with the advisory sentence being three (3) years.” Indiana Code
    Section 35-50-2-8 provides that a court “shall sentence a person found to be a[n]
    habitual offender to an additional fixed term that is between: . . . two (2) years
    and six (6) years, for a person convicted of a Level 5 [felony].” In imposing a
    ten and one-half year sentence, the trial court stopped short of imposing the
    twelve-year maximum allowable sentence. Lewis argues that his sentence is
    inappropriate.
    [20]   Regarding the nature of the offense, after luring J.W. under false pretenses to
    come to his aid and knowing in the midst of a high-risk pregnancy, Lewis
    repeatedly struck her face and abdomen with his open hand and fist, injuring
    her. When J.W. tried to escape him, he chased her into traffic, dragged her
    back to her vehicle, and punched her face and abdomen as she lay on the
    ground in a fetal position. He struck her with such force that the steering
    wheel, console, and driver’s side window of her vehicle were spattered with
    blood. When she reached safety, she was bleeding from her nose, mouth, and
    from open cuts, her lip was split, and she feared that she had lost her baby.
    [21]   As for Lewis’ character, the record reveals that after he attacked J.W., he
    begged her to pretend that the incident never happened; denied any recollection
    of the events; accused her of being the aggressor; and placed multiple jailhouse
    calls to J.W., in which he professed his love, urged her to recant her statements
    to police, and to lie under oath at trial. Additionally, Lewis has a significant
    criminal history, including numerous battery convictions. Now thirty-two years
    of age, Lewis has been involved with the criminal justice system since he was
    Court of Appeals of Indiana | Memorandum Decision 35A02-1709-CR-2130 | March 7, 2018   Page 14 of 15
    approximately fourteen years old. The pre-sentence investigation report reveals
    that Lewis has misdemeanor and felony convictions for intimidation in 2011;
    three convictions for disorderly conduct in 2011, 2013 and 2016; and
    misdemeanor and felony convictions for battery in 2001, 2004, 2009 (two
    times), 2010, 2011, 2013, 2014, 2016, and 2017. His multiple contacts with the
    criminal justice system and court-ordered participation in treatment programs
    for aberrant behavior, anger issues, and substance abuse have not deterred him
    whatsoever, to the point that he escalated here to attacking a pregnant woman
    in public. Given the viciousness of Lewis’ attack on J.W., his extensive
    criminal history—including his propensity for physical violence—and his
    inability to correct his behavior, we cannot say that his sentence is
    inappropriate.
    Conclusion
    [22]   The trial court did not abuse its discretion by admitting Lewis’ Facebook
    messages, and we cannot say that his sentence is inappropriate. We affirm.
    [23]   Affirmed.
    Najam, J., and Mathias, J., concur.
    Court of Appeals of Indiana | Memorandum Decision 35A02-1709-CR-2130 | March 7, 2018   Page 15 of 15
    

Document Info

Docket Number: 35A02-1709-CR-2130

Filed Date: 3/7/2018

Precedential Status: Precedential

Modified Date: 3/7/2018