Mark Lynn Rushing v. State of Indiana (mem. dec.) ( 2017 )

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.
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[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).
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• “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
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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.
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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.
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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
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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
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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
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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
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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.
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[21] The judgment of the trial court is affirmed.
Bailey, J., and Altice, J., concur.
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