FILED Jul 09 2020, 8:32 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Daniel J. Vanderpool Curtis T. Hill, Jr. Vanderpool Law Firm Attorney General of Indiana Warsaw, Indiana Megan M. Smith Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Jamie R. Webb, July 9, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-2424 v. Appeal from the Wabash Circuit State of Indiana, Court
Appellee-Plaintiff The Honorable Robert R. McCallen III Trial Court Cause No. 85C01-1903-F4-347
May, Judge.
Court of Appeals of Indiana | Opinion 19A-CR-2424 | July 9, 2020 Page 1 of 17 [1] Jamie R. Webb challenges her conviction of and twenty-year sentence for Level
4 felony burglary. 1 Webb argues that the trial court abused its discretion by
declining to admit an affidavit containing Webb’s hearsay statement to the
arresting officer and that her sentence is inappropriate given the nature of her
offense and her character. We affirm.
Facts and Procedural History [2] In December 2017, Candace Coe and Samuel Velacquez took over ownership
and operation of Dreama’s Restaurant in Wabash, Indiana. Velacquez’s duties
included managing the back-kitchen area and serving as the cook, while Coe
took charge of the wait staff and handled payroll. Webb and her mother, Freda
Patton, were both employees at Dreama’s from November 2016 to February
2019.
[3] In addition to running the restaurant together, Coe and Velacquez were
romantically involved and shared a rented residence. In late December 2018,
the two ended their relationship and Velacquez moved to Ohio. Velacquez
took with him his personal belongings, which included only some clothing.
The household items and electronics he and Coe acquired during their
relationship belonged to Coe. Coe was left as the sole operator of the
restaurant.
1 Ind. Code § 35-43-2-1(1).
Court of Appeals of Indiana | Opinion 19A-CR-2424 | July 9, 2020 Page 2 of 17 [4] A month later, Coe’s restaurant venture took a turn for the worse, and finally
on February 19, 2019, Coe was forced to permanently shut down Dreama’s due
to an inability to pay her employees. The next day, Coe told Patton that Coe
could not afford to pay her or Webb approximately one month’s worth of back
wages. Based on Coe’s recommendation, Webb filed a “labor claim” for
“payment of wages” which totaled $3,885.75. (Tr. Vol. II at 131.)
[5] On the night of February 24, 2019, Webb and Patton recruited seventy-year-old
Eugene Grimm to take them from Webb’s apartment to Coe’s residence in
Grimm’s truck. Grimm testified he was not initially aware why Webb and
Patton wanted to go to Coe’s house that night, and he testified he had provided
Webb and Patton transportation on other occasions because they did not own a
car. After Grimm dropped Webb and Patton off at Coe’s house, he sat in his
truck and observed the pair examining the backdoor, entering, and then
carrying out furniture, TV’s, and other household items, which they placed in
the back of Grimm’s truck. Grimm noted the pair did not make any effort to
conceal themselves or their actions. From there Grimm drove Webb and
Patton back to Webb’s apartment, where Webb and Patton unloaded the items
and placed them inside Webb’s apartment.
[6] During this time, Coe was away from her home visiting her sister in
Kendallville, Indiana. On February 26, 2019, Coe was informed by one of her
friends that Webb and Patton had taken some items from her house. She
immediately returned to file a police complaint with Officer Drew Bender, and
on February 27, 2019, police officers obtained a search warrant for Webb’s
Court of Appeals of Indiana | Opinion 19A-CR-2424 | July 9, 2020 Page 3 of 17 apartment. No one answered when officers arrived at Webb’s apartment, so
they kicked down the front door. An investigation of the residence revealed
numerous items that belonged to Coe: two televisions, a DVD player, fifty
DVDs, pictures, a jewelry box, a heater, a PlayStation 4, a mirror, some
shelves, and a microwave. Some of the electronics were plugged into the wall
for use when officers arrived.
[7] On March 8, 2019, the State charged Webb with Level 5 felony burglary, 2 Level
4 felony burglary, and Class A misdemeanor theft. 3 On March 21, 2019, the
State additionally alleged Webb was a habitual offender. 4 During trial on
August 21, 2019, Webb asserted her right not to testify but attempted to enter
into evidence an affidavit from Officer Bender containing statements she had
made to him during the search of her apartment. In that affidavit, Officer
Bender noted Webb had indicated she had authorization from Velacquez to
enter into Coe’s home and take certain property as compensation for her lost
wages.
[8] As part of her offer to prove, Webb argued she satisfied Evidence Rule
(804)(a)’s unavailability criteria by “exercising her constitutional right not to
testify against herself.” (Id. at 162.) The State, however, disagreed by asserting
that unavailability is afforded only toward privileges such as “attorney-client
2 Ind. Code § 35-43-2-1. 3 Ind. Code § 35-43-4-2(a). 4 Ind. Code § 35-50-2-8.
Court of Appeals of Indiana | Opinion 19A-CR-2424 | July 9, 2020 Page 4 of 17 privilege, doctor-patient privilege, pastor-parishioner privilege” and not from
“exercising your Fifth Amendment right.” (Id. at 163.) Webb further
explained that she was entitled to present her statement from the affidavit
regarding consent under the hearsay exception for statements against interest as
set forth in Evidence Rule 804(b)(3) because the statement was inculpatory and
exculpatory – she admitted she “was there, but [she] had permission.” (Id.)
The court decided that, because the statement was not entirely against Webb’s
interest and because she would not be available for cross-examination,
admission of the statement was not permissible under Evidence Rule 804(b)(3).
[9] Webb additionally requested an instruction about the defense of consent. The
trial court indicated it would not issue the instruction because Webb had not
presented admissible evidence of consent, but the court allowed Webb to argue
why the instruction should be included. The trial court ultimately did not allow
Webb to call Officer Bender to testify about her statement during the search,
and it did not provide the jury an instruction on the defense of consent, as the
inadmissible hearsay statements offered by Webb were the only documented
evidence toward that defense.
[10] A jury found Webb guilty of Level 4 felony burglary and Class A misdemeanor
theft. After a bifurcated hearing, the jury also determined Webb was a habitual
offender. Following a sentencing hearing on September 16, 2019, the trial court
convicted Webb of only Level 4 felony burglary, based on double jeopardy
concerns. It imposed a ten-year sentence for Level 4 felony burglary and added
Court of Appeals of Indiana | Opinion 19A-CR-2424 | July 9, 2020 Page 5 of 17 a ten-year enhancement because Webb was a habitual offender, resulting in an
aggregate twenty-year sentence with two years suspended to probation.
Discussion and Decision 1. Admission of Evidence [11] The trial court’s ruling on the admission or exclusion of evidence is reviewed
for an abuse of discretion. Cherry v. State, 57 N.E.3d 867, 875 (Ind. Ct. App.
2016), trans. denied. An abuse of discretion occurs if the trial court
misinterpreted the law or if its decision was clearly against the logic and effect
of the facts and circumstances before it. Pavlovich v. State, 6 N.E.3d 969, 975
(Ind. Ct. App. 2014), trans. denied. When presented with an out-of-court
statement offered to corroborate the truth of the matter asserted, the trial court
must first examine the statement for hearsay, which is generally inadmissible,
and then evaluate whether an exception permits its admission. Camm v. State,
908 N.E.2d 215, 226 (Ind. 2009).
[12] Hearsay is a statement that: (1) is not made by the declarant while testifying at
the trial or hearing; and (2) is offered in evidence to prove the truth of the
matter asserted. Ind. Evid. Rule 801(c). Unless hearsay falls into one of a
number of delineated exceptions, it is inadmissible at trial. Evid. Rule 802.
Webb argues the evidence she wished to have admitted was admissible under
Indiana Evidence Rule 804, which provides in relevant part that hearsay is
admissible if: (1) the declarant is unavailable as a witness, Evid. Rule 804(a);
Court of Appeals of Indiana | Opinion 19A-CR-2424 | July 9, 2020 Page 6 of 17 and (2) the statement was made against the declarant’s interest. Evid. Rule
804(b)(3).
[13] At issue is the statement found in an affidavit by Officer Bender wherein he
averred Webb told him that she had permission to take the items in exchange
for her lost wages. Webb argues the affidavit containing her hearsay is
admissible pursuant to Evidence Rule 804 because: (1) she was unavailable to
testify as a witness on her behalf; and (2) the statement she made to Officer
Bender was a statement against her interest. We address each part of the
exception separately.
A. Whether Webb was Unavailable as a Witness
[14] Indiana Evidence Rule 804(a) outlines five classifications of unavailable
witnesses:
(a) Criteria for Being Unavailable. A declarant is considered to be unavailable as a witness if the declarant:
(1) is exempted from testifying about the subject matter of the declarant’s statement because the court rules that a privilege applies;
(2) refuses to testify about the subject matter despite a court order to do so;
(3) testifies to not remembering the subject matter;
Court of Appeals of Indiana | Opinion 19A-CR-2424 | July 9, 2020 Page 7 of 17 (4) cannot be present or testify at the trial or hearing because of death or a then-existing infirmity, physical illness, or mental illness; or
(5) is absent from the trial or hearing and the statement’s proponent has not been able, by process or other reasonable means, to procure:
(A) the declarant’s attendance, in the case of a hearsay exception under Rule 804(b)(1) or (5); or
(B) the declarant’s attendance or testimony, in the case of a hearsay exception under rule 804(b)(2), (3), or (4).
But this subdivision (a) does not apply if the statement’s proponent procured or wrongfully caused the declarant’s unavailability as a witness in order to prevent the declarant from attending or testifying.
[15] The State argues Webb cannot both claim unavailability to introduce a
statement she made to officers and, at the same time, exercise her right against
self-incrimination to avoid being cross-examined about the statement.
However, despite the State’s objection, Webb’s declaration of her Fifth
Amendment constitutional right against self-incrimination is a valid and
protected privilege that does meet the criteria for unavailability. See Camm, 908
N.E.2d at 233 (a witness’ unavailability at defendant’s second trial was
grounded in his Fifth Amendment privilege against self-incrimination); and see
Kellems v. State, 651 N.E.2d 326, 328 (Ind. Ct. App. 1995) (depositions from two
witnesses who were declared unavailable after invoking their Fifth Amendment
Court of Appeals of Indiana | Opinion 19A-CR-2424 | July 9, 2020 Page 8 of 17 privilege against self-incrimination were admissible as evidence under the
hearsay exception rule).
B. Whether Webb’s Statement was Against Her Interest
[16] Evidence Rule 804(b) outlines several exceptions to the rule against hearsay
that are available if the declarant is unavailable to testify as a witness. The
exception on which Webb relies provides:
Statement Against Interest. A statement that a reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant’s proprietary or pecuniary interest or had so great a tendency to invalidate the declarant’s claim against someone else or to expose the declarant to civil or criminal liability.
Evid. Rule 804(b)(3). Statements against interest are admissible because they
tend to expose the declarant to criminal liability, and thus a reasonable person
in the declarant’s position would not have made the statements if she did not
believe them to be true. Tolliver v. State, 922 N.E.2d 1272, 1280 (Ind. Ct. App.
2010).
[17] Webb argues the trial court abused its discretion when it did not admit Officer
Bender’s affidavit statement, which provided:
Webb told me that she had just filed claim against Coe for $3,889.75 for back wages. Webb told me that she used to work for Coe at Dreama’s Restaurant in Wabash. Webb told me that the items weren’t stolen, but that they were given to her as lost wages. Webb told me that [Velacquez] gave her permission to go into the house to retrieve the items. Webb could not tell me
Court of Appeals of Indiana | Opinion 19A-CR-2424 | July 9, 2020 Page 9 of 17 where the house was, but told me that it was [Coe] and [Velacquez]’s house and that she had been there before. Webb told me they went into the backdoor of Coe’s house, which was unlocked. Webb told me they didn’t break in.
(App. Vo1. II at 22.) Other than her attempt to have Officer Bender’s affidavit
admitted, Webb presented no additional evidence at trial to support her
assertion that she had permission to take the items from Coe’s house.
[18] A statement against interest must be incriminating on its face to be admissible
under the hearsay exception. Jervis v. State, 679 N.E.2d 875, 878 (Ind. 1997).
Further, it is not enough that a statement “merely arouse some suspicion as to
culpability in the factual context of the case.” Id. If taken at its word, Webb’s
statement is more exculpatory than inculpatory because it provides a complete
defense for her actions. Thus, at most, Webb was able to demonstrate only that
her statement is both exculpatory and inculpatory in nature, which is
insufficient to merit the application of Evidence Rule 804(b)(3). See State ex rel.
Langdon Hosp., Inc. v. Indem. Co., 211 N.E.2d 322, 38 Ind. App. 492, 494 (1965)
(“to be admissible the statement against interest should be inconsistent with the
defense, or it should tend to establish or disprove a material fact”).
[19] We agree with the State that “Webb is attempting to have her cake and eat it
too,” (Br. of Appellee at 10), because her supposed statement against interest
balances farther towards purely exculpatory rather than evenly exculpatory and
inculpatory, and because she wishes to introduce an unsubstantiated hearsay
claim without allowing the State a fair opportunity to cross-examine her about
Court of Appeals of Indiana | Opinion 19A-CR-2424 | July 9, 2020 Page 10 of 17 her claim of consent. Thus, we hold the trial court did not abuse its discretion
when it denied Webb’s request to admit Officer Bender’s affidavit containing
Webb’s claim of consent. See Tolliver v. State, 922 N.E.2d 1272, 1281 (Ind. Ct.
App. 2010) (hearsay statements were not considered as statements against
interest when they were not “incriminating on their face and [did] not implicate
[defendant] in a crime”), trans. denied.
2. Inappropriateness of Sentence [20] We will reverse a sentence as inappropriate only if we determine Webb’s
sentence is inappropriate in light of the nature of the offense committed and
Webb’s character. See Ind. Appellate Rule 7(B) (allowing appellate review of
sentences based on defendant’s character and nature of the offense). The nature
of offense portion of the analysis compares the defendant’s actions with the
required showing to sustain a conviction under the charged offense, Cardwell v.
State, 895 N.E.2d 1219, 1224 (Ind. 2008), while the character of the offender
portion of the analysis permits a broader consideration of a defendant’s
character. Douglas v. State, 878 N.E.2d 873, 881 (Ind. Ct. App. 2007).
[21] Ultimately, our determination of appropriateness “turns on our sense of the
culpability of the defendant, the severity of the crime, the damage done to
others, and myriad other factors that come to light in a given case.” Cardwell,
895 N.E.2d at 1224. The task at hand is not to evaluate whether another
sentence is more appropriate, but rather whether the sentence imposed is
inappropriate. Barker v. State, 994 N.E.2d 306, 315 (Ind. Ct. App. 2013), trans.
Court of Appeals of Indiana | Opinion 19A-CR-2424 | July 9, 2020 Page 11 of 17 denied. The defendant ultimately bears the burden of demonstrating the
inappropriateness of the sentence. Patterson v. State, 909 N.E.2d 1058, 1063
(Ind. Ct. App. 2009).
[22] When considering the nature of the offense, the advisory sentence is the starting
point to determine the appropriateness of a sentence. Johnson v. State, 986
N.E.2d 852, 856 (Ind. Ct. App. 2013). The minimum sentence for a Level 4
felony burglary is two years and the maximum sentence is twelve years, with a
six-year advisory sentence. Ind. Code § 35-50-2-5.5. Additionally, a person
found to be a habitual offender may receive a sentence enhancement between
six and twenty years. Ind. Code § 35-50-2-8. In all, Webb could have received
a maximum thirty-two-year sentence, but she was sentenced only to twenty
years, with two of those years suspended to probation.
[23] Webb argues she committed the offense in an attempt to right a seeming
injustice because Coe did not pay her for her work. However, the items Webb
stole indicate her motivation was geared more toward exacting revenge than to
correcting an injustice. This is exemplified through a cursory appraisal of the
items she took from Coe’s home, under the guise of a need to pay her monthly
rent. Although Webb did take electronics that could have significant monetary
value, such as two televisions, a PlayStation 4, and a microwave, she also took
items of personal, sentimental value that would have inconsequential monetary
value, such as pictures, a mirror, some shelves, and a small jewelry box. In
addition, the search of Webb’s apartment revealed that the televisions,
PlayStation 4, and microwave were actually in use, which suggests Webb did
Court of Appeals of Indiana | Opinion 19A-CR-2424 | July 9, 2020 Page 12 of 17 not intend to sell Coe’s property to pay her rent. Most telling is that Webb had
an appropriate legal remedy that she could have pursued to recover her lost
wages, and she in fact did file a claim for unpaid wages. Webb’s actions
demonstrate not a desperate need for immediate payment, but rather a
continuing bitterness toward Coe. As Webb’s actions were clearly retaliatory in
nature, we do not see her sentence as inappropriate.
[24] When considering the character of the offender, one relevant fact is the
defendant’s criminal history. Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct.
App. 2007). The pre-sentence investigation report (PSI) elucidated Webb’s long
criminal history, which began with three counts of theft as a juvenile, for which
she received probation. As an adult, between 1996 and the present day, Webb
was convicted of four felonies and five misdemeanors, including neglect of a
dependent resulting in serious bodily injury, battery, forgery, assisting a
criminal, receiving stolen property, illegal possession of alcohol, and two counts
of possession of marijuana. At the time of sentencing, Webb had four
additional criminal charges pending against her, which include Class A
misdemeanor driving while suspended, 5 Class A misdemeanor knowingly
driving while suspended with a prior conviction within ten years, 6 Class C
5 Ind. Code § 9-24-19-2(1)(2). 6 Ind. Code § 9-24-19-2.
Court of Appeals of Indiana | Opinion 19A-CR-2424 | July 9, 2020 Page 13 of 17 misdemeanor possession of paraphernalia, 7 and Level 6 felony neglect of a
dependent. 8
[25] Although the extent to which a defendant’s criminal history may be used to
judge the appropriateness of a sentence “varies based on the gravity, nature,
and number of prior offenses in relation to the current offense,” having
committed multiple crimes is a “poor reflection on the defendant’s character,
[as] it may reveal that he or she has not been deterred even after having been
subjected to the police authority of the State.” Cotto v. State, 829 N.E.2d 520,
526 (Ind. 2005). Webb’s failure to be deterred is further demonstrated by the
fact that the State has filed four separate petitions to revoke probation and her
probations were terminated unsuccessfully on three occasions. Webb’s prior
convictions for theft and forgery, in conjunction with three unsuccessful
attempts at probation, do not suggest Webb will amend her behavior following
the criminal conduct in this current case. See Sainvil v. State, 51 N.E.3d 337, 344
(Ind. Ct. App. 2016) (defendant’s sentence was not inappropriate given his poor
character, the similarity of his prior convictions to the present offense, and his
two failed attempts to maintain satisfactory probation). Further, we concur
with the trial court’s assessment that Webb had “absolutely no remorse
whatsoever, despite the evidence of guilt being overwhelming,” (Tr. Vol. II at
211), which also speaks poorly of her character. See Davis v. State, 892 N.E.2d
156, 165 (Ind. Ct. App. 2008) (defendant’s eight-year sentence for a Class C
7 Ind. Code § 35-48-4-8.3(b)(1). 8 Ind. Code § 35-46-1-4.
Court of Appeals of Indiana | Opinion 19A-CR-2424 | July 9, 2020 Page 14 of 17 felony was not found to be inappropriate given that her crimes were of
“dishonesty and moral turpitude” and the defendant demonstrated a complete
lack of remorse).
[26] Webb attempts to analogize the facts in her case with those in Frye v. State, 837
N.E.2d 1012 (Ind. 2005), and Hollin v. State, 877 N.E.2d 462 (Ind. 2007), to
justify a reduction of her sentence. In Frye, the defendant was convicted of
felony burglary, felony theft, and misdemeanor false informing, and his
sentence was enhanced based on his habitual offender status. Frye, 837 N.E.2d
at 1012. Our Indiana Supreme Court reduced Frye’s sentence from forty years
to twenty-five years based on the remoteness of Frye’s previous violent offenses
and the fact that his current offenses were non-violent and alcohol related. Id.
at 1014.
[27] In Hollin, the eighteen-year-old defendant was charged with Class B felony
conspiracy to commit burglary and adjudicated a habitual offender after a jury
trial. The trial court found his criminal history an aggravating factor and
considered his young age as a mitigating factor. Following review, his sentence
was reduced from forty years to twenty years by our Indiana Supreme Court.
877 N.E.2d at 463. The Court explained that Hollin received the maximum
penalty of twenty years for his Class B felony conviction, even though the
advisory sentence for the offense was ten years. Given that Hollin’s crime was
non-violent, he was unarmed, no one was home at the time of the burglary, and
his prior crimes were related to auto theft, the Court determined the nature of
his current offense merited reduction of his sentence. Id. at 465.
Court of Appeals of Indiana | Opinion 19A-CR-2424 | July 9, 2020 Page 15 of 17 [28] The facts in Frye and Hollin are distinguishable from the case before us. Webb
had a Level 6 felony charge pending against her at the time of her sentencing, as
well as pending charges involving unlawful driving activity and possession of
drug paraphernalia. Finally, both Frye and Hollin initially received
significantly lengthier sentences than Webb, such that even following appellate
reduction, both of their sentences remained longer than Webb’s sentence.
[29] Webb’s continued inclination toward criminal behavior, as exemplified by her
inability to successfully finish her probation on three occasions and her current
pending criminal charges, does not shed a positive light on her character or
demonstrate a willingness to change her behavior. Further, the deliberate and
personal nature of Webb’s offense demonstrates retaliation towards Coe, rather
than an action committed out of serious financial necessity. Under these
circumstances, we see nothing inappropriate about her twenty-year sentence.
See Bayes v. State, 466 N.E.2d 447, 449-450 (Ind. 1984) (defendant’s sentence
was not inappropriate given the vengeful and premeditated nature of the offense
and the defendant’s criminal history which included five instances of
probation).
Conclusion [30] Although Webb could be classified as an unavailable witness by invoking her
Fifth Amendment privilege, the hearsay statement she wished to have admitted
was not against her interest and thus was not admissible under Evidence Rule
804. Thus, the trial court did not abuse its discretion when it excluded that
Court of Appeals of Indiana | Opinion 19A-CR-2424 | July 9, 2020 Page 16 of 17 evidence. Webb’s sentence is not inappropriate given the vengeful nature of her
offense and her continuing propensity toward criminal behavior. Accordingly,
we affirm the judgment of the trial court.
[31] Affirmed.
Robb, J., and Vaidik, J., concur.
Court of Appeals of Indiana | Opinion 19A-CR-2424 | July 9, 2020 Page 17 of 17