Jamie R. Webb v. State of Indiana ( 2020 )


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  •                                                                                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