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

• Court: Indiana Court of Appeals
• Decided: August 31, 2020
• Docket: 20A-CR-877
• Status: Published

Opinion

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.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-877 | August 31, 2020 Page 1 of 9 [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.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-877 | August 31, 2020 Page 2 of 9 [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,

Court of Appeals of Indiana | Memorandum Decision 20A-CR-877 | August 31, 2020 Page 3 of 9 106 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

Court of Appeals of Indiana | Memorandum Decision 20A-CR-877 | August 31, 2020 Page 4 of 9 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

Court of Appeals of Indiana | Memorandum Decision 20A-CR-877 | August 31, 2020 Page 5 of 9 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

Court of Appeals of Indiana | Memorandum Decision 20A-CR-877 | August 31, 2020 Page 6 of 9 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.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-877 | August 31, 2020 Page 7 of 9 • 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

Court of Appeals of Indiana | Memorandum Decision 20A-CR-877 | August 31, 2020 Page 8 of 9 [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.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-877 | August 31, 2020 Page 9 of 9