MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Oct 13 2017, 9:59 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Christopher J. Petersen Curtis T. Hill, Jr. Elkhart, Indiana Attorney General of Indiana
Jesse R. Drum Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Phillip David Lee Witte, October 13, 2017 Appellant-Defendant, Court of Appeals Case No. 20A03-1701-CR-162 v. Appeal from the Elkhart Superior Court State of Indiana, The Honorable Evan Roberts, Appellee-Plaintiff Judge Trial Court Cause No. 20D01-1601-F3-3
Altice, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 20A03-1701-CR-162 | October 13, 2017 Page 1 of 7 [1] Following a bench trial, Phillip David Lee Witte was convicted of Level 3
felony criminal confinement, Level 6 felony intimidation, and Class B
misdemeanor false informing. On appeal, Witte challenges the admission of
evidence on hearsay grounds and argues that the State was improperly
permitted to ask leading questions of the victim.
[2] We affirm.
Facts & Procedural History
[3] On the night of October 11, 2015, Kevin Tenner was “strung out” on drugs and
began to accuse his girlfriend, Heather Morales, of being a police informant.
Tenner believed the police were following them as they walked home.
Transcript Vol. 2 at 43. When they arrived back at Tenner’s residence, where he
lived with Witte, Tenner continued to call Morales a snitch and made her
remove her shirt and pants to prove that she was not wired.
[4] Witte and his girlfriend were also at the residence. Witte’s girlfriend went
upstairs, while Witte stayed with Tenner and Morales. Tenner threw things at
Morales, including a chain that cut her leg. Tenner and Witte eventually forced
Morales into a wooden chair, and Witte put tape around her ankles and taped
them to the chair. The tape ran out, so Morales’s arms remained free. While
Witte was binding her legs, Tenner went to the neighborhood 7-Eleven and left
Witte to guard Morales.
Court of Appeals of Indiana | Memorandum Decision 20A03-1701-CR-162 | October 13, 2017 Page 2 of 7 [5] Upon Tenner’s return, he continued to call Morales a snitch. He then started
hitting her with a broom stick all over her body. Tenner also kicked her in the
ribs, legs, arms, and head after she fell over in the chair. At some point, Witte
and Tenner picked Morales up in the chair and moved her to another location
in the house, where the beating continued. Thereafter, Morales was thrown to
the ground in the chair, and she hit her head.
[6] During the assault, Morales overheard Witte and Tenner talking about killing
her. Witte had handed a knife to Tenner near the beginning, but the knife was
never used. Before Witte went upstairs to bed, he threatened Morales that he
would kill her if she got out of the chair. Id. at 158. Tenner stayed downstairs
with Morales and eventually fell asleep on the couch. While the men slept,
Morales was able to free her feet. She then quickly put on a shirt and ran from
the home to the 7-Eleven for help. It was daylight when Morales finally
escaped.
[7] Officer Carlton Conway of the Elkhart City Police Department spoke briefly
with Morales at the hospital that day and then went to the reported location of
the attack. A man answered the door, and Officer Conway explained the
reason for his visit. The man identified himself as Steven Thompson, but he
was, in fact, Witte. Tenner was present and also gave a false name to the
officer. While Officer Conway waited to speak with the homeowner, who was
not yet on the scene, the men present were permitted to leave.
Court of Appeals of Indiana | Memorandum Decision 20A03-1701-CR-162 | October 13, 2017 Page 3 of 7 [8] On February 1, 2016, the State charged Witte with five counts: Count I, Level 3
felony criminal confinement; Count II, Level 5 felony battery resulting in
serious bodily injury; Count III, Level 5 felony criminal confinement; Count
IV, Level 6 felony intimidation; and Count V, Class B misdemeanor false
informing. Witte waived his right to a jury trial, and the cause was tried before
the bench on October 11 and 12, 2016. The trial court found him guilty as
charged and, thereafter, entered judgments of conviction on Counts I, IV, and
V. Witte received an aggregate sentence of nineteen years, with fourteen years
executed and five years suspended to probation. He now appeals.
Discussion & Decision
[9] Before reaching the merits, we are compelled to address the inadequacy of
Witte’s counsel’s briefing. We note only the most glaring deficiencies, though
there are more. The brief wholly omits two required sections – the Statement of
Case and the Summary of Argument. See Ind. Appellate Rule 46(A)(5) and (7).
And the Statement of Facts section contains no facts relevant to the issues
presented, as required by App. R. 46(A)(6). In this section, counsel only favors
us with a list of the charges filed against Witte and then an inaccurate statement
that Witte was found guilty of just the first three counts. Finally, the two-page
Argument section is woefully lacking.
[10] An appellant’s brief must be prepared so that this court, considering the brief
alone and independently from the record, can intelligently consider each issue
presented. See Ramsey v. Review Bd. of Ind. Dep’t of Workforce Dev., 789 N.E.2d
Court of Appeals of Indiana | Memorandum Decision 20A03-1701-CR-162 | October 13, 2017 Page 4 of 7 486, 488 (Ind. Ct. App. 2003). Witte’s counsel has not done so here and, as a
result of his flagrant violations of our appellate rules, has risked the dismissal of
his client’s appeal. See Galvan v. State, 877 N.E.2d 213 (Ind. Ct. App. 2007).
We exercise our discretion, however, and reach the merits – to the extent
possible – of the issues presented. Before filing another appellate brief, we
direct counsel to thoroughly review Indiana’s Rules of Appellate Procedure, as
continued violations could result in disciplinary action. See In re Clifton, 961
N.E.2d 18 (Ind. 2011).
[11] On appeal, Witte argues that the trial court abused its discretion in two regards.
He claims that hearsay evidence was improperly admitted during Morales’s
testimony and that the State was permitted to ask leading questions of Morales.
We will address each in turn.
[12] With respect to the hearsay issue, Witte directs us to four pages of the transcript
without quoting any particular part. He then generally complains that Morales
was permitted to testify that Tenner threatened to kill her on the night in
question. The State contends that this issue was not preserved below. This
point is well-taken. Regardless, admission of the challenged testimony, even if
improper, was harmless. See Ind. Trial Rule 61 (reversal not warranted where
error does not affect the substantial rights of the parties). See also Hayden v.
State, 19 N.E.3d 831, 840 (Ind. Ct. App.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Oct 13 2017, 9:59 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Christopher J. Petersen Curtis T. Hill, Jr. Elkhart, Indiana Attorney General of Indiana
Jesse R. Drum Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Phillip David Lee Witte, October 13, 2017 Appellant-Defendant, Court of Appeals Case No. 20A03-1701-CR-162 v. Appeal from the Elkhart Superior Court State of Indiana, The Honorable Evan Roberts, Appellee-Plaintiff Judge Trial Court Cause No. 20D01-1601-F3-3
Altice, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 20A03-1701-CR-162 | October 13, 2017 Page 1 of 7 [1] Following a bench trial, Phillip David Lee Witte was convicted of Level 3
felony criminal confinement, Level 6 felony intimidation, and Class B
misdemeanor false informing. On appeal, Witte challenges the admission of
evidence on hearsay grounds and argues that the State was improperly
permitted to ask leading questions of the victim.
[2] We affirm.
Facts & Procedural History
[3] On the night of October 11, 2015, Kevin Tenner was “strung out” on drugs and
began to accuse his girlfriend, Heather Morales, of being a police informant.
Tenner believed the police were following them as they walked home.
Transcript Vol. 2 at 43. When they arrived back at Tenner’s residence, where he
lived with Witte, Tenner continued to call Morales a snitch and made her
remove her shirt and pants to prove that she was not wired.
[4] Witte and his girlfriend were also at the residence. Witte’s girlfriend went
upstairs, while Witte stayed with Tenner and Morales. Tenner threw things at
Morales, including a chain that cut her leg. Tenner and Witte eventually forced
Morales into a wooden chair, and Witte put tape around her ankles and taped
them to the chair. The tape ran out, so Morales’s arms remained free. While
Witte was binding her legs, Tenner went to the neighborhood 7-Eleven and left
Witte to guard Morales.
Court of Appeals of Indiana | Memorandum Decision 20A03-1701-CR-162 | October 13, 2017 Page 2 of 7 [5] Upon Tenner’s return, he continued to call Morales a snitch. He then started
hitting her with a broom stick all over her body. Tenner also kicked her in the
ribs, legs, arms, and head after she fell over in the chair. At some point, Witte
and Tenner picked Morales up in the chair and moved her to another location
in the house, where the beating continued. Thereafter, Morales was thrown to
the ground in the chair, and she hit her head.
[6] During the assault, Morales overheard Witte and Tenner talking about killing
her. Witte had handed a knife to Tenner near the beginning, but the knife was
never used. Before Witte went upstairs to bed, he threatened Morales that he
would kill her if she got out of the chair. Id. at 158. Tenner stayed downstairs
with Morales and eventually fell asleep on the couch. While the men slept,
Morales was able to free her feet. She then quickly put on a shirt and ran from
the home to the 7-Eleven for help. It was daylight when Morales finally
escaped.
[7] Officer Carlton Conway of the Elkhart City Police Department spoke briefly
with Morales at the hospital that day and then went to the reported location of
the attack. A man answered the door, and Officer Conway explained the
reason for his visit. The man identified himself as Steven Thompson, but he
was, in fact, Witte. Tenner was present and also gave a false name to the
officer. While Officer Conway waited to speak with the homeowner, who was
not yet on the scene, the men present were permitted to leave.
Court of Appeals of Indiana | Memorandum Decision 20A03-1701-CR-162 | October 13, 2017 Page 3 of 7 [8] On February 1, 2016, the State charged Witte with five counts: Count I, Level 3
felony criminal confinement; Count II, Level 5 felony battery resulting in
serious bodily injury; Count III, Level 5 felony criminal confinement; Count
IV, Level 6 felony intimidation; and Count V, Class B misdemeanor false
informing. Witte waived his right to a jury trial, and the cause was tried before
the bench on October 11 and 12, 2016. The trial court found him guilty as
charged and, thereafter, entered judgments of conviction on Counts I, IV, and
V. Witte received an aggregate sentence of nineteen years, with fourteen years
executed and five years suspended to probation. He now appeals.
Discussion & Decision
[9] Before reaching the merits, we are compelled to address the inadequacy of
Witte’s counsel’s briefing. We note only the most glaring deficiencies, though
there are more. The brief wholly omits two required sections – the Statement of
Case and the Summary of Argument. See Ind. Appellate Rule 46(A)(5) and (7).
And the Statement of Facts section contains no facts relevant to the issues
presented, as required by App. R. 46(A)(6). In this section, counsel only favors
us with a list of the charges filed against Witte and then an inaccurate statement
that Witte was found guilty of just the first three counts. Finally, the two-page
Argument section is woefully lacking.
[10] An appellant’s brief must be prepared so that this court, considering the brief
alone and independently from the record, can intelligently consider each issue
presented. See Ramsey v. Review Bd. of Ind. Dep’t of Workforce Dev., 789 N.E.2d
Court of Appeals of Indiana | Memorandum Decision 20A03-1701-CR-162 | October 13, 2017 Page 4 of 7 486, 488 (Ind. Ct. App. 2003). Witte’s counsel has not done so here and, as a
result of his flagrant violations of our appellate rules, has risked the dismissal of
his client’s appeal. See Galvan v. State, 877 N.E.2d 213 (Ind. Ct. App. 2007).
We exercise our discretion, however, and reach the merits – to the extent
possible – of the issues presented. Before filing another appellate brief, we
direct counsel to thoroughly review Indiana’s Rules of Appellate Procedure, as
continued violations could result in disciplinary action. See In re Clifton, 961
N.E.2d 18 (Ind. 2011).
[11] On appeal, Witte argues that the trial court abused its discretion in two regards.
He claims that hearsay evidence was improperly admitted during Morales’s
testimony and that the State was permitted to ask leading questions of Morales.
We will address each in turn.
[12] With respect to the hearsay issue, Witte directs us to four pages of the transcript
without quoting any particular part. He then generally complains that Morales
was permitted to testify that Tenner threatened to kill her on the night in
question. The State contends that this issue was not preserved below. This
point is well-taken. Regardless, admission of the challenged testimony, even if
improper, was harmless. See Ind. Trial Rule 61 (reversal not warranted where
error does not affect the substantial rights of the parties). See also Hayden v.
State, 19 N.E.3d 831, 840 (Ind. Ct. App. 2014) (appellant must establish
prejudice resulting from erroneous hearsay ruling to obtain reversal), trans.
denied. Witte does not – nor could he in light of Ind. Evidence Rule
801(d)(2)(A) (statement by a party opponent) – challenge Morales’s testimony
Court of Appeals of Indiana | Memorandum Decision 20A03-1701-CR-162 | October 13, 2017 Page 5 of 7 that Witte himself threatened to kill her. We fail to see how Witte was
prejudiced by the admission of evidence that his cohort, who was violently
beating Morales, also threatened to kill her.
[13] Finally, Witte contends that the trial court abused its discretion by allowing,
over his objection, the State to ask leading questions of Morales on direct
examination. Witte directs us to one page of the transcript and does not
otherwise indicate the information obtained through the use of leading
questions by the State.
[14] While leading questions generally should not be used on direct examination,
Ind. Evidence Rule 611(c) permits leading questions when they are “necessary
to develop the witness’s testimony.” “The use of leading questions on direct
examination generally rests within the trial court’s discretion.” Williams v.
State, 733 N.E.2d 919, 922 (Ind. 2000). The trial court so exercised its
discretion during a brief portion of Morales’s testimony, and Witte has failed to
establish an abuse of that discretion.1 Moreover, he has not shown that the trial
court’s action in permitting such questioning, even if erroneous, was anything
but harmless. See id. at 925 (“we decline to reverse because the trial court’s
action in permitting these leading questions, even if erroneous, was not
1 Contrary to Witte’s apparent assertion on appeal, leading questions on direct examination are not limited to use on hostile witnesses. See generally id.
Court of Appeals of Indiana | Memorandum Decision 20A03-1701-CR-162 | October 13, 2017 Page 6 of 7 inconsistent with substantial justice and did not affect the substantial rights of
the defendant”).
[15] Judgment affirmed.
Baker, J. and Bailey, J., concur.
Court of Appeals of Indiana | Memorandum Decision 20A03-1701-CR-162 | October 13, 2017 Page 7 of 7