Isaac J. Horne v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Aug 31 2020, 8:35 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Tyler D. Helmond Curtis T. Hill, Jr.
Voyles Vaiana Lukemeyer Attorney General of Indiana
Baldwin & Webb
Steven Hosler
Indianapolis, Indiana Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Isaac J. Horne, August 31, 2020
Appellant-Defendant, Court of Appeals Case No.
20A-CR-877
v. Appeal from the Vanderburgh
Superior Court
State of Indiana, The Honorable Robert J. Pigman,
Appellee-Plaintiff Judge
Trial Court Cause No.
82D03-2001-F5-30
Baker, Senior Judge.
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[1] Isaac Horne appeals his convictions for Level 6 Felony Domestic Battery
Resulting in Moderate Bodily Injury1 and Class A Misdemeanor Invasion of
Privacy.2 Horne argues that the trial court erroneously determined that his
constitutional right to confrontation was forfeited by his wrongful conduct.
Finding no error, we affirm.
Facts
[2] On December 29, 2019, Horne hit Amanda Davis in the face when she arrived
at his house to pick up their daughter. Davis later called 911. Evansville Police
Officer Korey Winn responded to the dispatch and found Davis holding an ice
pack to her face. After seeing the extent of Davis’s injuries, Officer Winn called
for medical assistance. Davis was admitted to the hospital and treated for
fractures of five bones surrounding her right eye; she remained in the hospital
for two days. Officer Winn arrested Horne, who denied that he had struck
Davis.
[3] On January 2, 2020, the State charged Horne with two counts of Level 5 felony
attempted obstruction of justice;3 three counts of Level 6 felony domestic
battery; and Class A misdemeanor invasion of privacy.4
1
Ind. Code § 35-42-2-1.3(b)(3).
2
Ind. Code § 35-46-1-15.1(a)(1).
3
The State later dismissed the obstruction of justice charges and added a charge of Level 5 felony domestic
battery resulting in serious bodily injury.
4
Davis had a no contact order in place on the day that Horne battered her.
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[4] Davis failed to appear at two scheduled depositions or at trial. On March 10,
2020, the State filed a motion for an evidentiary hearing on the issue of the
admissibility of Davis’s statements to police. According to the State, Horne
had forfeited his right to confront Davis through his wrongdoing; specifically,
he had violated the no contact order by making repeated calls to Davis from jail
and encouraging her not to cooperate with the prosecution. The trial court held
a hearing the next day at which approximately ninety minutes of phone calls
were admitted into evidence. On March 12, 2020, the trial court granted the
State’s motion, finding that Horne had forfeited his right to confront Davis by
his own wrongdoing and admitting Davis’s statements to police officers into
evidence.
[5] Horne’s jury trial took place on March 12, 2020. The jury found Horne guilty
of three counts of Level 6 felony domestic battery and Class A misdemeanor
invasion of privacy. At Horne’s April 2, 2020, virtual sentencing hearing, the
trial court merged two of the domestic battery convictions into the third. Horne
was sentenced to consecutive terms of two years for domestic battery and nine
months for invasion of privacy. Horne now appeals.
Discussion and Decision
[6] Horne’s argument is best framed as whether the trial court erred by admitting
the statements made by Davis to law enforcement into evidence. A trial court
has broad discretion in ruling on the admissibility of evidence, and we generally
afford latitude to the trial court in this decisionmaking process. Carr v. State,
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106 N.E.3d 546, 552 (Ind. Ct. App. 2018), trans. denied. But when the
defendant argues that a constitutional violation has resulted from the admission
of evidence, we apply a de novo standard of review. Id.
[7] Generally, the Sixth Amendment to the United States Constitution affords
criminal defendants the right to confront witnesses against him. This rule
“allows the admission of an absent witness’s testimonial out-of-court statement
only if the witness is unavailable and the defendant has had a prior opportunity
to cross-examine the witness.” Scott v. State, 139 N.E.3d 1148, 1153 (Ind. Ct.
App. 2020), trans. denied. One exception to this rule occurs, however, when the
defendant forfeits his right to confrontation. Specifically, if the defendant’s own
wrongdoing caused the declarant to be unavailable to testify at trial, then the
defendant has forfeited his right to confront that witness. Id. The State must
prove that the defendant forfeited his right to confrontation by a preponderance
of the evidence. Id. at 1154.
[8] First, Horne argues that the State’s motion seeking an evidentiary hearing on
forfeiture violated his procedural due process rights because it was insufficiently
specific and failed to provide requisite notice. The motion is entitled “motion
for evidentiary hearing on the issue of the admissability [sic] of police
statements based upon forfeiture by wrong doing [sic],” and the body of the
motion states as follows:
Comes now the State of Indiana . . . and files the State’s request
for an evidentiary hearing related to evidence of the Defendant’s
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efforts to make contact with the reported victim in violation of
the no contact order in this case.
This request is made pursuant [to] the United States Supreme
Court[’s] recognition in Crawford v. Washington (2004), 124 S. Ct.
1354[,] of the doctrine of forfeiture by wrong doing [sic] as it
relates to the 6th Amendment and statements made to law
enforcement as well as the Indiana Court of Appeals in Scott v.
State[.]
Appellant’s App. Vol. II p. 64.
[9] Initially, we note that Horne raised no due process objections to the trial court
based on the content of the State’s motion. Consequently, he has waived this
argument. Knapp v. State, 9 N.E.3d 1274, 1281 (Ind. 2014). Waiver
notwithstanding, we note that Horne did, in fact, receive the process to which
he was due—a contested, evidentiary hearing on these issues at which he was
present and represented by counsel. Horne’s attorney cross-examined the
State’s witnesses and presented vigorous argument on these issues.
Consequently, regardless of the content of the State’s motion (which, we note,
described the request and the reasons for the request, including citations to
multiple authorities), Horne’s due process rights were not violated.
[10] Next, Horne argues that the trial court erred by finding that the State proved by
a preponderance of the evidence that Horne’s wrongdoing caused Davis to be
unavailable to testify. Forfeiture by wrongdoing occurs where the defendant
engages in behavior that is intended to procure a victim’s absence and the
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behavior was so significant that the victim, in fact, failed to attend depositions
or trial. Scott, 139 N.E.3d at 1155; see also Ind. Evid. Rule 804(b)(5).
[11] We find Scott instructive. In that case, after Scott battered Maria Cook, his
pregnant girlfriend, she gave a recorded statement to law enforcement
identifying Scott as the person who had caused her injuries. Scott was arrested.
Following his arrest, he began contacting Cook from jail, repeatedly asking her
to change her story so that the case would be dismissed and urging her to tell
the authorities that she had overexaggerated the incident. She emailed the State
and the presiding judge, asking that the case be dismissed. Scott then began
telling Cook that if she did not attend the trial or the depositions (which he
would ask his attorney to schedule so that she could then fail to appear), then
the case would be dismissed. Thereafter, the trial court entered a no contact
order prohibiting Scott from having any contact with Cook. Ignoring the no
contact order, Scott continued to call her from jail, telling her to miss
depositions and fail to attend the trial. Cook failed to appear for three
scheduled depositions or trial. The trial court found that Scott had forfeited his
right to confront her by his own wrongdoing, admitting her initial statement to
law enforcement into evidence. 139 N.E.3d at 1151-53.
[12] This Court affirmed. We found that while Cook initially cooperated with law
enforcement, after Scott began pressuring her from jail, she asked that the case
be dismissed and stopped cooperating. He tried to minimize the nature of his
conduct, but we found that unpersuasive: “[t]he issue is not the severity of
Scott’s conduct; it is whether Scott engaged in conduct that was designed to
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procure Cook’s absence and whether that conduct was of such significance that
she has been ‘kept back’ from attending depositions or trial.” Id. at 1155. We
found that Scott’s conduct qualified:
the evidence shows that Scott’s ongoing harassment of Cook
through the litany of phone calls was a campaign designed to
prevent Cook from testifying against him. Scott continually and
repeatedly encouraging her not to attend depositions or trial
precludes Scott from reaping the benefits of his own wrongdoing
and to hold otherwise would undermine the integrity of the
judicial process.
Id. (emphasis original). Ultimately, we found that the State had proved by a
preponderance of the evidence that Scott’s conduct was designed, at least in
part, to keep her from testifying against him, thereby forfeiting his right to
confrontation.
[13] In this case, Davis, too, was initially cooperative with law enforcement. She
called 911 and cooperated with Officer Winn’s investigation at the scene of the
incident. After Horne was arrested, he began calling Davis (in violation of a no
contact order) and a mutual friend, Kristi Johnson. The calls began on January
23, 2020, and continued up to the date of his trial on March 12, 2020.
Additionally, at least two other inmates called Davis and Johnson on Horne’s
behalf. Some relevant examples from the ninety minutes of calls are as follows:
• On January 27, 2020, Horne instructed Davis to “let [them] know . . .
there is no contest[.]” State’s Ex. 1.
• On February 27, 2020, another inmate told Johnson that Horne wanted
her to “tell shorty not to show her pretty face[.]” Id.
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• Also on February 27, 2020, the same inmate called Davis, instructing her
to “get down there and get that non-prosecution order[.]” Id.
• On multiple occasions, Horne told Davis and Johnson that Davis should
not appear so that the charges would be dismissed. Horne also
repeatedly asked Davis to request that the State dismiss the case.
• On March 4, 2020, Horne told Davis that she would “lose” her child to
the Department of Child Services if Horne got convicted. Id.
In sum, the evidence demonstrates that Davis initially cooperated with law
enforcement. But after Horne began repeatedly calling her from jail (and
having other inmates call her and a friend on his behalf), asking that she try to
get the case dismissed, instructing her to fail to appear, and threatening her with
the loss of custody of her child, Davis stopped cooperating. She failed to
appear at scheduled depositions and did not attend the trial.
[14] As in Scott, it is apparent that Horne’s litany of phone calls was a campaign
designed to prevent Davis from testifying against him—all in violation of a no
contact order—and that his campaign succeeded. Horne should not be able to
reap the benefits of his own wrongdoing. Consequently, we find that the trial
court did not err by concluding that the State proved by a preponderance of the
evidence that Horne’s own wrongdoing caused Davis to be unavailable at trial.
In other words, Horne forfeited his right to confront Davis’s statements against
him and the trial court did not err by admitting those statements into evidence. 5
5
Horne raises two additional, brief arguments. First, he argues that we should reverse because the trial court
was unable (due to technical difficulties) to listen to two of the many phone calls submitted by the State.
Neither party argued that those two calls contained anything different from the other calls that the trial court
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[15] The judgment of the trial court is affirmed.
Bailey, J., and Vaidik, J., concur.
was able to listen to, nor did either party object to the trial court making a ruling without listening to those
two calls. Therefore, we decline to reverse on this basis.
Second, he argues that we should reverse because the trial court failed to make factual findings. There is no
rule requiring the trial court to make factual findings under these circumstances. Therefore, we decline to
reverse on this basis.
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