Michael E. Zanussi v. State of Indiana

Dec 20 2013, 6:01 am
FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
LAWRENCE D. NEWMAN GREGORY F. ZOELLER
Newman & Newman, P.C. Attorney General of Indiana
Noblesville, Indiana
AARON J. SPOLARICH
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
MICHAEL E. ZANUSSI, )
)
Appellant-Defendant, )
)
vs. ) No. 29A05-1304-CR-173
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM HAMILTON SUPERIOR COURT
The Honorable William J. Hughes, Judge
Cause No. 29D03-1208-FD-8306
December 20, 2013
OPINION – FOR PUBLICATION
MAY, Judge
Michael E. Zanussi appeals his conviction of Class A misdemeanor criminal
recklessness.1 He presents three issues for our review:
1. Whether the trial court abused its discretion when it denied Zanussi’s motion
for continuance one day before his jury trial was to begin;
2. Whether the trial court committed fundamental error when it admitted letters
Zanussi wrote while in jail before trial; and
3. Whether the State presented sufficient evidence Zanussi committed Class A
misdemeanor criminal recklessness.
We affirm.
FACTS AND PROCEDURAL HISTORY
Zanussi and Danielle Effinger have a child together. On August 25, 2012, Zanussi
and their daughter picked up Effinger from her place of employment. The couple began to
argue about activity on Effinger’s Facebook page. The argument became heated, and
Effinger began to cry.
Effinger then indicated she needed to go the grocery store. Zanussi did not want to
take her to the store. He demanded she give him her tip money from the day, but Effinger
refused to give him the money. Zanussi began driving in the direction of the store and
reached to touch Effinger on the leg. Effinger moved her leg away and smacked Zanussi’s
arm away, and then he hit her in the head and “knocked [her head] into the side of the van
right where the seat belt hanger was.” (Tr. at 24.)
1
Ind. Code § 35-42-2-2(c)(1).
2
Effinger indicated she was going to leave the vehicle, and when Zanussi pulled up to a
stop sign, she unhooked her seatbelt, put her purse on her shoulder, and opened the door “just
far enough that it wasn’t latched anymore[.]” (Id.) Zanussi then “hit the gas and turned the
wheel as far as he could, as fast as he could to the left and the door flew open and [Effinger]
flew out of the car into the middle of the intersection and scraped [her] shoulder and [her]
ankle.” (Id. at 24-25.) Effinger suffered “road rash,” (id. at 25), and wounded her ankle.
She moved to the side of the road, and Zanussi stopped the vehicle to pick her up. They
returned home, and police arrived. The police spoke with Effinger, noted her injuries, and
arrested Zanussi.
The State charged Zanussi with Class D felony domestic battery,2 Class A
misdemeanor domestic battery,3 and Class A misdemeanor criminal recklessness. Zanussi
hired private counsel, who was permitted to withdraw on January 29, 2013. He retained
replacement counsel on March 14, just five days prior to his jury trial. On March 15,
Zanussi’s new counsel told the trial court he could be prepared for jury trial on March 19.
However, on March 18, counsel filed a motion to continue because he had to travel to
Chicago that day. The trial court denied the continuance.
The jury found Zanussi guilty of Class A misdemeanor criminal recklessness but not
guilty of the other charges. The trial court sentenced Zanussi to 330 days in jail.
2
Ind. Code § 35-42-2-1.3(b)(2).
3
Ind. Code § 35-42-2-1.3(a).
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DISCUSSION AND DECISION
1. Motion to Continue
When, as here, a party moves for a continuance not required by statute,4 we review the
court’s decision for abuse of discretion. Flake v. State, 767 N.E.2d 1004, 1008 (Ind. Ct. App.
2002). An abuse of discretion occurs when the ruling is against the logic and effect of facts
and circumstances before the court or the record demonstrates prejudice from denial of the
continuance. Id. Continuances to allow more time for preparation are generally disfavored
in criminal cases. Risner v. State, 604 N.E.2d 13, 14 (Ind. Ct. App. 1992), trans. denied.
“Such motions require a specific showing as to how the additional time would have aided
counsel.” Robinson v. State, 724 N.E.2d 628, 634 (Ind. Ct. App. 2000), trans. denied.
Zanussi’s counsel filed a motion to continue the day before Zanussi’s jury trial was to
commence. Counsel requested the continuance because:
Counsel was retained on Thursday 3/14/2013. Counsel confirmed at a status
hearing Friday 3/15/2013 that he could be ready. After meeting with
Defendant again this weekend and a conflict with the available time since
Friday including the need to attend a Chicago Immigration Court hearing in
person on Monday 3/18/2013 which could not be done telephonically, Counsel
needs a continuance.
(App. at 42.) The trial court denied the motion.
Zanussi argues he was prejudiced by the denial of a continuance because “a new piece
4
Neither party argues Zanussi’s motion for continuance was pursuant to statute.
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of evidence was made available by the State of Indiana the day prior to the jury trial and
Zanussi’s trial counsel had been unable to communicate with Zanussi until just minutes
before the trial began.” (Br. of Appellant at 16.) However, the motion makes no mention of
new evidence. Counsel requested and was granted time before the trial started to discuss the
new evidence with his client, which discussion counsel claimed would take only “about two
minutes.” (Tr. at 5.) As counsel said during an earlier hearing that he was prepared for trial,
there was no explanation in the motion how the continuance would aid in counsel’s
preparation, and counsel was granted time to discuss the new evidence with Zanussi, the trial
court did not abuse its discretion when it denied the continuance. See, e.g., Whitacre v. State,
274 Ind. 554, 557, 412 N.E.2d 1202, 1205 (1980) (no abuse of discretion when trial court
denied defendant’s motion to continue the day before trial).
2. Admission of Zanussi’s Letter from Jail
Zanussi argues the trial court committed fundamental error when it admitted into
evidence letters Zanussi wrote to Effinger while he was in jail and Effinger’s testimony that
the letters were sent from jail. Zanussi did not object to the admission of the letters or
Effinger’s testimony regarding their origin. The failure to object normally results in waiver
and precludes appellate review unless the admission created fundamental error. Konopasek
v. State, 946 N.E.2d 23, 27 (Ind. 2011). Fundamental error is an error “so prejudicial to the
rights of the defendant as to make a fair trial impossible.” Id. at n. 1.
Pursuant to Indiana Rules of Evidence 401, relevant evidence is evidence “having any
tendency to make the existence of any fact that is of consequence to the determination of the
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action more probable or less probable than it would be without the evidence.” Relevant
evidence “may be excluded if its probative value is substantially outweighed by the danger of
unfair prejudice . . .” Evid. R. 403. Zanussi argues the admission of the letters, coupled with
Effinger’s testimony that he sent them from jail, was more prejudicial than probative.
The State offered into evidence six letters Zanussi wrote to Effinger while Zanussi
was in jail awaiting trial.5 Effinger testified Zanussi wrote her the letters “from jail.” (Tr. at
32.) Zanussi did not object, though later, during a sidebar conference outside the presence of
the jury, Zanussi’s counsel stated,
I just want to double check something. Let me, let me – my client thought this
revealed that he was in custody. I don’t necessarily think so. I am more
concerned over here. He’s 100 percent sure he’s testifying so I don’t think it’s
an issue. And then here.
(Id. at 34.) In response, the State redacted the portions of the letter indicating Zanussi was in
jail when he wrote the letters. No additional testimony regarding the letters was offered.
The letters included information regarding the August 25 incident and included
Zanussi’s requests that Effinger not cooperate in his prosecution. In the letter dated
November 1, 2012, Zanussi told Effinger, “The State will drop the charges in April if you
stick to what you told the Prosecutor and what you wrote [to] the Judge.” (State’s Ex. 2R.)
In a letter dated November 9, Zanussi told Effinger, “I’m sorry that I have hurt you like I
have . . . . I know that I messed up.” (State’s Ex. 4R.)
In an undated letter, Zanussi told Effinger:
5
It is not clear from the record whether Zanussi was in jail based on the charges in the instant case.
6
I need you to work with me, I need you to not come to court on me, and I need
you to drop the no contact order. . . . My life is in your hands, if you don’t
come to court . . . [t]hey will drop all charges . . . . All you have to do is not
communicate with the Prosecutor and just not show.
(State’s Ex. 7R.) Zanussi then went on to detail how Effinger should proceed on his court
date:
Or if you are really scared and feel that you must show. Wait tell [sic] 4 or 5
pm tell [sic] after my court is over. Check in with the Prosecutor or the Court
Room Clerk. Tell them you couldn’t find a Baby Sitter, the car wouldn’t start,
you couldn’t find a place to park, you couldn’t find the Court Room, you slept
in because your alarm didn’t go off. You had to work, ect, [sic] ect. [sic].
Id. Finally, Zanussi offered Effinger “$500.00 up front and $500.00 when the charges are
dropped. They are not going to pay you nothing [sic] to put me away. Me [sic] and my
parents are willing to pay you to keep me out.” Id.Zanussi does not indicate specifically how the admission of the letters deprived him of
a fair trial. The letters, especially Exhibit 7R, are highly probative, as they include statements
indicating Zanussi was guilty and asking Effinger not to testify. Effinger’s mention that the
letters were sent from jail was fleeting, as it happened once, and the State agreed to redact
portions of the letters that indicated Zanussi was in jail. As the letters were not more
prejudicial than probative, their admission was not an abuse of discretion and did amount to
fundamental error. See, e.g., Suding v. State, 945 N.E.2d 731, 737 (Ind. Ct. App. 2011)
(admission of statement regarding “a prior allegation regarding a kid” was not fundamental
error because the statement was fleeting and did not clearly indicate Suding had been
convicted of any criminal offense), trans. denied.
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3. Sufficiency of the Evidence
When reviewing sufficiency of evidence to support a conviction, we consider only the
probative evidence and reasonable inferences supporting the decision. Drane v. State, 867
N.E.2d 144, 146 (Ind. 2007). It is the fact-finder’s role, and not ours, to assess witness
credibility and weigh the evidence to determine whether it is sufficient to support a
conviction. Id. To preserve this structure, when we are confronted with conflicting
evidence, we consider it most favorably to the verdict. Id. We affirm a conviction unless no
reasonable fact-finder could find the elements of the crime proven beyond a reasonable
doubt. Id. It is therefore not necessary that the evidence overcome every reasonable
hypothesis of innocence; rather, the evidence is sufficient if an inference reasonably may be
drawn from it to support the verdict. Id. at 147.
To prove Zanussi committed Class A misdemeanor criminal recklessness, the State
had to present evidence he knowingly performed an act with a vehicle that created a
substantial risk of bodily injury to another person. Ind. Code § 35-42-2-2(c)(1). A person
engages in conduct knowingly if “when he engages in the conduct, he is aware of a high
probability that he is doing so.” Ind. Code § 35-41-2-2(b).
Effinger testified she felt threatened by Zanussi while riding in their vehicle and
indicated she wanted to leave the vehicle. She testified when Zanussi pulled up to a stop
sign, she put her purse on her shoulder, and opened the door “just far enough that it wasn’t
latched anymore.” (Tr. at 24.) Zanussi then “hit the gas and turned the wheel as far as he
could, as fast as he could to the left and the door flew open and I flew out of the car into the
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middle of the intersection and scraped my shoulder and my ankle.” (Id. at 24-25.)
Zanussi argues he did not know that there existed a high probability his actions would
result in injury to Effinger because he did not know she was going to leave the vehicle, but
that is an invitation for us to reweigh the evidence, which we cannot do. See Drane, 867
N.E.2d at 146 (appellate court cannot reweigh evidence or judge credibility of witnesses).
Regardless whether he knew Effinger would leave the car, Zanussi had to know the manner
in which he turned that corner was unsafe and was likely to cause injury to Effinger. The
State presented sufficient evidence Zanussi committed Class A misdemeanor criminal
recklessness.
CONCLUSION
The trial court did not abuse its discretion when it denied Zanussi’s motion to continue
because Zanussi did not demonstrate the denial prejudiced him. Admission of letters Zanussi
wrote to Effinger was not fundamental error because Zanussi did not demonstrate their
admission denied him a fair trial. Finally, the State presented sufficient evidence Zanussi
committed Class A misdemeanor criminal recklessness. Accordingly, we affirm.
Affirmed.
BAILEY, J., and BRADFORD, J., concur.
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