Mark Lynn Rushing v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: September 29, 2017
• Docket: 20A03-1703-CR-493
• 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 Sep 29 2017, 9:27 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 Nancy A. McCaslin Curtis T. Hill, Jr. McCaslin & McCaslin Attorney General of Indiana Elkhart, Indiana Ellen H. Meilaender Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Mark Lynn Rushing, September 29, 2017 Appellant-Defendant, Court of Appeals Case No. 20A03-1703-CR-493 v. Appeal from the Elkhart Superior Court State of Indiana, The Honorable Charles Carter Appellee-Plaintiff Wicks, Judge Trial Court Cause No. 20D05-1511-CM-1776

Baker, Judge.

Court of Appeals of Indiana | Memorandum Decision 20A03-1703-CR-493 | September 29, 2017 Page 1 of 11 [1] Mark Rushing was convicted of Class B Misdemeanor Harassment. 1 He

appeals, arguing that he was denied his right to compulsory process, that the

trial court erred in admitting certain evidence, that fundamental error occurred

when the trial court made a certain inquiry of the jury, and that there was

insufficient evidence. Finding no error, we affirm.

Facts [2] Rushing and C.G. met sometime in or around March 2014 and dated for two to

three months. During this time, Rushing pressured C.G. to have sex; C.G. told

Rushing that “it wasn’t right outside of marriage.” Tr. Vol. II p. 146. Rushing

ended the relationship sometime in June or July 2014. C.G. did not speak to

Rushing or ask him to text her after their relationship ended.

[3] Sometime between July and November 2014, Rushing began sending C.G. text

messages that “were not very pleasant.” Id. at 160. After C.G. blocked

Rushing’s number on her phone, she received multiple phone calls from him

from a different phone number, and he left her a voicemail message. C.G.’s

pastor advised her to unblock Rushing’s number so that evidence could be

collected. When C.G. did so in November 2014, her phone “started blowing

up” with text messages from Rushing that were “disturbing,” “vulgar,” and

“violent.” Id. at 148, 161. Rushing’s messages to C.G. included the following:

1 Ind. Code § 35-45-2-2(a)(2).

Court of Appeals of Indiana | Memorandum Decision 20A03-1703-CR-493 | September 29, 2017 Page 2 of 11 • “Don’t be scared come see me [C.G.]! I will let you suck my c*ck. You said you like c*ck. You said you want to be taken. But you would rather a guy stalk you. Makes you a wh*re. Now come learn to be a sl*t!” • “You ready to f*ck yet?” • “B*tch wake up!!! Let’s have sex!!!” • “Your a wh*re you will f*ck a complete stranger said you want to be taken. The guys you f*ck won’t even go out with you again. Now get over here and f*ck.” • “Full erection babe lets go.” • “Like I said let’s F*CK now! Where is my key? Who told you to throw it away? Who told you to stop talking to me? It’s time to f*ck.” • “You like stalked and rapped. That’s why you let it happen wh*re.”

State’s Exs. 1-13 (spelling and grammar original). C.G. did not respond to

Rushing’s text messages.

[4] On November 2, 2015, the State charged Rushing with Class B misdemeanor

harassment. Rushing’s first attorney withdrew from the case after he and

Rushing disagreed about how to proceed and what witnesses to call; in an April

13, 2016, pre-trial hearing, counsel stated that there “are some things I found

not appropriate to do.” Tr. Vol. II p. 41. Rushing was then appointed a public

defender. In a September 19, 2016, pre-trial hearing, Rushing’s new counsel

stated that he and Rushing were having difficulty developing a list of witnesses

because Rushing wanted his attorney to subpoena numerous witnesses, and “as

his attorney I’m not going to subpoena all these people just to get them in here

to a defense that I believe has no merit.”2 Id. at 66. The trial court explained to

2 Counsel explained this conflict during the September 19, 2016, pre-trial hearing. Although not discussed on appeal, the record shows that Rushing wanted approximately twenty people from his church to testify that at

Court of Appeals of Indiana | Memorandum Decision 20A03-1703-CR-493 | September 29, 2017 Page 3 of 11 Rushing that his public defender was to determine how to best represent

Rushing and that Rushing did not get to dictate to his counsel how the trial

would proceed. The trial court also explained that the witnesses Rushing

wanted to call did not necessarily relate to his charge but rather to mitigating

factors considered during sentencing.

[5] Rushing’s jury trial took place on October 27, 2016. At the start of the trial,

when the trial court asked the parties whether they had objections to the

proposed voir dire instructions, Rushing objected that he wanted to call

witnesses that his counsel was not going to call. The trial court told Rushing

that he would have to “confer with your counsel about other witnesses but their

testimony would have to be relevant” and that Rushing’s counsel considered

the witnesses “detrimental to your case.” Id. at 90, 92.

[6] Once trial began, the State moved to admit Rushing’s text messages to C.G.

into evidence. When the trial court asked whether there were any objections,

Rushing stated “I do,” while his counsel stated, “I have no objection.” Id. at

149. The trial court admitted the exhibits “without objection.” Id.

[7] During the lunch recess, Rushing became upset with his attorney and left the

courthouse. Following that recess but before the jury returned to the

least several of them suggested that Rushing stop taking his medication. Rushing knew that he would have problems if he stopped taking his medication. Defense counsel told Rushing that whether or not he took medication was not a defense to the charge of harassment.

Court of Appeals of Indiana | Memorandum Decision 20A03-1703-CR-493 | September 29, 2017 Page 4 of 11 courtroom, the State told the trial court that Rushing and his counsel got into

an argument that the jury might have heard. When the trial court asked

whether they needed to question the jury about it, Rushing’s counsel stated,

“Not on his behalf but he did get pretty heated.” Id. at 167. When the jury

returned to the courtroom, the trial court stated as follows:

Now one other thing I’m told that the defendant and his attorney were having some discussion in the courtroom over the lunch hour after you were sent out into recess. Did any of you hear any of that discussion? Okay. Just a second. I have some notes I’ve got to make.

Id. at 171.

[8] The jury found Rushing guilty as charged. On March 9, 2017, the trial court

imposed a sentence of 180 days, which was a sentence of time served. Rushing

now appeals.

Discussion and Decision [9] Rushing makes four arguments on appeal: (1) that he was denied his right to

compulsory process to call certain witnesses; (2) that the trial court erred by

admitting the State’s exhibits; (3) that fundamental error occurred following the

trial court’s inquiry to the jury about Rushing’s argument with his counsel; and

(4) that there was insufficient evidence to prove that Rushing intended to harass

C.G.

Court of Appeals of Indiana | Memorandum Decision 20A03-1703-CR-493 | September 29, 2017 Page 5 of 11 I. Compulsory Process [10] Rushing argues under the Sixth Amendment to the United States Constitution

and Article I, Section 13 of the Indiana Constitution that he was denied his

right to compulsory process to call certain witnesses to testify on his behalf.

[11] The Sixth Amendment to the United States Constitution provides that “In all

criminal prosecutions, the accused shall enjoy the right . . . to have compulsory

process for obtaining witnesses in his favor.” Article 1, Section 13 of the

Indiana Constitution provides that “In all criminal prosecutions, the accused

shall have the right to . . . have compulsory process for obtaining witnesses in

his favor.” We have stated that the Sixth Amendment guarantees a criminal

defendant the right to present witnesses on his behalf. Washington v. State, 840

N.E.2d 873, 880 (Ind. Ct. App. 2006). Although the right to present witnesses

is of critical importance, it is not absolute and must sometimes yield to other

legitimate interests in the criminal trial process. Id.

[12] Rushing wanted to call numerous witnesses who he believed “could clear his

name.” Appellant’s Br. p. 16. During his trial, Rushing stated that he had

witnesses his attorney refused to call. The trial court explained that Rushing

needed to confer with counsel, who considered the potential witnesses

“detrimental” to the case. Tr. Vol. II p. 92. The trial court further explained

that the witnesses’ testimony would have to be relevant to the case and that “I

have to agree with your counsel I’m not sure I understand what [the witnesses]

would have to do with anything.” Id. at 90. Although on appeal Rushing does

Court of Appeals of Indiana | Memorandum Decision 20A03-1703-CR-493 | September 29, 2017 Page 6 of 11 not provide any information about what his witnesses would have testified to or

how they would have helped clear his name, the record shows that Rushing

wanted them to testify to what defense counsel considered a meritless defense.

Further, Rushing’s attorney offered another strong strategic reason for not

calling the witnesses—the witnesses were not relevant to the issue of whether

Rushing harassed C.G. Counsel is free to make reasonable strategic decisions.

Carter v. State, 738 N.E.2d 665, 676 (Ind. 2000). It is reasonable for counsel to

refrain from calling witnesses whose testimony would not be relevant to the

charge being tried. Rushing’s argument is unavailing.

II. Admission of Evidence [13] Rushing also argues that the trial court erroneously admitted the text messages

into evidence. We will reverse a trial court’s ruling on the admissibility of

evidence only if the decision is clearly against the logic and effect of the facts

and circumstances and the error affects a party's substantial rights. E.g., Shelton

v. State, 26 N.E.3d 1038, 1042 (Ind. Ct. App. 2015).

[14] At trial, when the State moved to admit Rushing’s text messages to C.G. into

evidence, Rushing objected, but his counsel did not, and the trial court admitted

the exhibits without objection. Rushing contends that the trial court erred by

failing to provide Rushing with the opportunity to explain why he objected to

the admission of this evidence. But Rushing “consented to representation by

counsel, thus allocating to his counsel the power to make binding decisions of

trial strategy.” Driver v. State, 725 N.E.2d 465, 471 (Ind. Ct. App. 2000). The

Court of Appeals of Indiana | Memorandum Decision 20A03-1703-CR-493 | September 29, 2017 Page 7 of 11 trial court properly considered counsel’s lack of objection and admitted the

exhibits without objection. Moreover, on appeal, Rushing fails to offer even

one reason as to why he objected to the admission of this evidence or why it

was error for the trial court to admit it. The trial court did not err in admitting

this evidence.

C. The Argument [15] Rushing next argues that fundamental error occurred when the trial court did

not sufficiently inquire into whether the jury overheard Rushing’s argument

with his counsel.

[16] Because Rushing did not object to the trial court’s questioning of the jury, he

must establish fundamental error to prevail. The fundamental error doctrine is

an exception to the general rule that the failure to object at trial constitutes a

procedural default precluding consideration of an issue on appeal. Benson v.

State, 762 N.E.2d 748, 755 (Ind. 2002). Fundamental error is extremely narrow

and available only when the record reveals a clearly blatant violation of basic

and elementary principles, where the harm or potential for harm cannot be

denied, and which violation is so prejudicial to the rights of the defendant as to

make a fair trial impossible. Jewell v. State, 887 N.E.2d 939, 942 (Ind. 2008).

[17] The trial court asked the jury whether they had heard Rushing arguing with his

counsel during the lunch recess. Rushing contends that this inquiry constitutes

fundamental error because the record does not reflect whether the jurors

actually heard the argument and the jury members were not questioned

Court of Appeals of Indiana | Memorandum Decision 20A03-1703-CR-493 | September 29, 2017 Page 8 of 11 individually. When the trial court asked the jury about this matter, the trial

court stated: “Did any of you hear any of that discussion? Okay.” Tr. Vol. II

p. 171. Although the record does not explicitly show that the jury responded in

the negative to the trial court’s question, such response can be inferred from the

fact that the trial court said “Okay” and then moved on to closing arguments.

In other words, the record does not reflect that the jury overheard the argument

because the jury did not, in fact, overhear the argument. Thus, individual

questioning of the jurors about the matter was unnecessary. The trial court did

not commit error, let alone fundamental error, in its inquiry to the jury about

Rushing’s argument with his counsel.

D. Sufficiency of the Evidence [18] Finally, Rushing argues that there is insufficient evidence supporting his

conviction. When reviewing a claim of insufficient evidence, we will consider

only the evidence and reasonable inferences that support the conviction. Gray

v. State, 957 N.E.2d 171, 174 (Ind. 2011). We will affirm if, based on the

evidence and inferences, a reasonable jury could have found the defendant

guilty beyond a reasonable doubt. Bailey v. State, 907 N.E.2d 1003, 1005 (Ind.

2009).

[19] To convict Rushing of Class B misdemeanor harassment, the State was required

to prove beyond a reasonable doubt that Rushing, with the intent to harass,

annoy, or alarm another person but with no intent of legitimate communication

Court of Appeals of Indiana | Memorandum Decision 20A03-1703-CR-493 | September 29, 2017 Page 9 of 11 communicated with a person by telegraph, mail, or other form of written

communication. I.C. § 35-45-2-2(a)(2).

[20] Specifically, Rushing argues that the State failed to prove beyond a reasonable

doubt that Rushing intended to harass C.G. Several months after Rushing and

C.G.’s relationship had ended, Rushing began texting C.G. and continued to do

so despite receiving no response from her. When C.G. blocked Rushing’s

number on her phone, he began calling her from another phone number. When

C.G. unblocked him, Rushing repeatedly texted her, again without receiving

any reply. Although Rushing argues that, when he sent C.G. the text messages,

he did not know that they upset her or that she wanted them to stop, his

continued attempts to contact C.G. despite her lack of response suggests that he

was determined to contact her regardless of whether she was interested in

communicating with him. In addition, Rushing’s text messages to C.G. were

demeaning, offensive, and lewd—hardly the kind of communication that would

encourage a response. Because Rushing knew that C.G. did not want to engage

in sexual activity before marriage, he would have been aware that C.G. would

not welcome his sexual text messages. Under these circumstances, it is entirely

reasonable to infer that Rushing communicated with C.G. with the intent to

harass and annoy her. In other words, the evidence is sufficient to support his

conviction.

Court of Appeals of Indiana | Memorandum Decision 20A03-1703-CR-493 | September 29, 2017 Page 10 of 11 [21] The judgment of the trial court is affirmed.

Bailey, J., and Altice, J., concur.

Court of Appeals of Indiana | Memorandum Decision 20A03-1703-CR-493 | September 29, 2017 Page 11 of 11