Michael J. Lusinger v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Aug 17 2020, 8:01 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jennifer G. Shircliff Curtis T. Hill, Jr.
Anderson, Indiana Attorney General of Indiana
Evan Matthew Comer
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Michael J. Lusinger, Jr., August 17, 2020
Appellant-Defendant, Court of Appeals Case No.
20A-CR-18
v. Appeal from the Brown Circuit
Court
State of Indiana, The Honorable Mary H. Wertz,
Appellee-Plaintiff Judge
Trial Court Cause No.
07C01-1711-F6-661
Baker, Senior Judge.
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[1] Michael Lusinger appeals his convictions for two counts of Level 6 Felony
Nonsupport of a Dependent Child.1 Lusinger argues that (1) there is
insufficient evidence establishing that Brown County was an appropriate venue;
and (2) the trial court erred by finding that Lusinger failed to overcome the
presumption that he knowingly, voluntarily, and intelligently waived his right
to be present at his jury trial when he failed to appear on the date his trial was
set to begin. Finding sufficient evidence of venue and no error with respect to
Lusinger’s waiver of his right to be present at trial, we affirm.
Facts
[2] Lusinger married Lori McGee in July 2007; the couple had two children
together. In July 2012, McGee filed for divorce in Brown County. As part of
their mediated settlement agreement, Lusinger was ordered to make monthly
child support payments of $800 through the Brown County Clerk’s Office
beginning in August 2013. For the nineteen-month period between October l6,
2015, and May 19, 2017, Lusinger failed to make any monthly child support
payments, accumulating an arrearage of over $15,000.
[3] On November 6, 2017, the State filed two charges of Level 6 felony nonsupport
of a dependent against Lusinger. Lusinger’s jury trial was ultimately scheduled
for July 31, 2019. At a final pretrial hearing on July 15, 2019, Lusinger failed to
appear. Lusinger’s attorney informed the trial court that Lusinger’s vehicle had
1
Ind. Code § 35-46-1-5(a).
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broken down while he was traveling from his home in Arkansas to the hearing
in Brown County. Counsel requested a continuance, the State objected, and the
trial court denied the continuance. At a July 29, 2019, hearing, counsel stated
that Lusinger would not be able to attend the trial; counsel also confirmed that
Lusinger was aware that trial was scheduled for July 31.
[4] Lusinger failed to appear at the July 31, 2019, trial. He was tried in absentia,
though the trial court noted that Lusinger would have an opportunity to address
the issue if he were convicted and taken into custody. During the trial, a Title
IV-D administrative assistant testified that Lusinger was required to pay $800
per month through the Brown County Clerk’s Office and that Lusinger failed to
make those payments between October 2015 and May 2017. At the close of the
trial, the jury found Lusinger guilty as charged and the trial court issued a bench
warrant.
[5] Lusinger traveled to Indiana and was arrested on November 18, 2019. Before
the start of his sentencing hearing on December 2, 2019, the trial court provided
Lusinger a chance to rebut the presumption that he knowingly and voluntarily
waived his right to be physically present at his jury trial. Lusinger testified that
he lived in Arkansas and lacked the financial means to travel to Indiana for his
jury trial. While he was en route to his July 15 pretrial conference, his vehicle
broke down and he used the money in his possession at the time to pay for a
tow truck to transport his vehicle back home; after that time, he did not have
enough money to travel to Indiana for the trial. Lusinger admitted that he did
not consider using the money to purchase a bus ticket. He also admitted that,
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while his mother (with whom he lived) owns a car, he never asked if he could
borrow her vehicle to travel to Indiana for his trial. Lusinger offered no
evidence of his assertions other than his testimony. The trial court found that
Lusinger failed to overcome the presumption of a waiver of his right to be
present at trial and proceeded to sentencing. The trial court sentenced Lusinger
to 545 days, with 180 days executed. Lusinger now appeals.
Discussion and Decision
I. Venue
[6] Venue is not an element of a criminal offense, meaning that the State is only
required to prove venue by a preponderance of the evidence rather than beyond
a reasonable doubt. Alkhalidi v. State, 753 N.E.2d 625, 628 (Ind. 2001). The
sufficiency of the evidence proving venue is reviewed like any other sufficiency
issue; therefore, in examining the evidence proving venue, we will neither
reweigh evidence nor assess witness credibility. Smith v. State, 835 N.E.2d
1072, 1074 (Ind. Ct. App. 2005).
[7] Indiana Code section 35-32-2-1(a) provides that “criminal actions shall be tried
in the county where the offense was committed, except as otherwise provided
by law.” When a criminal action is brought based on a defendant’s alleged
omission of an act, “venue of the offense is in the county where the act should
have been performed.” Eckstein v. State, 839 N.E.2d 232, 233 (Ind. Ct. App.
2005).
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[8] Lusinger’s nonsupport of a dependent charges were based on his knowing or
intentional failure to provide support to his dependent child. I.C. § 35-46-1-
5(a). Consequently, venue was proper in any county where the payments
should have been made. Lusinger also directs our attention to caselaw (based
on an outdated venue statute) provides that venue is proper in the county where
the child lives. Gilmour v. State, 230 Ind. 454, 457, 104 N.E.2d 127, 128 (1952).
[9] In this case, the following evidence supports Brown County as the venue for
this action:
• The mediated settlement agreement between Lusinger and McGee
provides that Lusinger’s monthly child support payments would be paid
through the Brown County Clerk’s Office.
• The Brown County IV-D administrative assistant testified at trial that
Lusinger was required to pay his child support obligation through the
Brown County Clerk.
• McGee testified that Lusinger was supposed to make his payments to the
Brown County Clerk.
• McGee testified that the children attended school in Brown County.
This evidence allows for a reasonable inference that Lusinger’s failure to pay
child support occurred in Brown County. In other words, the State proved
venue by a preponderance of the evidence. We find no error on this basis.
II. Waiver
[10] Criminal defendants have a right under the federal and state constitutions to be
present at all stages of their trials. Jackson v. State, 868 N.E.2d 494, 498 (Ind.
2007). Like most constitutional rights, however, the right to be present can be
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waived in non-capital cases. Lampkins v. State, 682 N.E.2d 1268, 1273 (Ind.
1997), modified on reh’g, 685 N.E.2d 698 (Ind. 1997).
[11] A defendant who waives his right to be physically present at trial must do so
knowingly and voluntarily. Jackson, 868 N.E.2d at 498. The “best evidence
that a defendant knowingly and voluntarily waived his or her right to be present
at trial is the ‘defendant’s presence in court on the day the matter is set for
trial.’” Lampkins, 682 N.E.2d at 1273 (quoting Fennell v. State, 492 N.E.2d 297,
299 (Ind. 1986)). Therefore, if a defendant fails to appear for trial and there is
evidence that he was aware of the scheduled trial date, the trial court may
presume that he has knowingly and voluntarily waived his right to be present
and may try him in absentia. Freeman v. State, 541 N.E.2d 533, 535 (Ind. 1989).
[12] Where the defendant fails to appear and is tried in absentia, the trial court must
give him an opportunity “to explain his absence and thereby rebut the initial
presumption of waiver.” Brown v. State, 839 N.E.2d 225, 227 (Ind. Ct. App.
2005) (internal quotation marks omitted). On appeal, we consider the entire
record to determine whether the defendant voluntarily, knowingly, and
intelligently waived his right to be present at trial. Soliz v. State, 832 N.E.2d
1022, 1029 (Ind. Ct. App. 2005).
[13] The issue here is not whether the trial court erred by trying Lusinger in
absentia. Both parties agree that Lusinger was aware of the trial date and failed
to appear on that date. The issue, instead, is whether the trial court erred by
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finding that Lusinger failed to present sufficient evidence to rebut the
presumption that his waiver was knowing, voluntary, and intelligent.
[14] A defendant is not entitled to a new trial merely because he asserts that
transportation issues prevented him from being present at his trial date. See id.
at 1029-30 (affirming conviction after defendant was tried in absentia despite his
claim that his failure to attend the second day of trial was because—among
other things—he was unable to start his car). Instead, what matters for the
purpose of determining the voluntariness of a defendant’s waiver is whether
“problems or emergency situations” arise that, “despite good faith efforts,
prevent a defendant’s timely arrival.” Brown, 839 N.E.2d at 231 (internal
quotation marks omitted).
[15] In this case, the record reveals that Lusinger’s vehicle broke down when he was
en route from Arkansas to Indiana for his final pretrial conference. At that
time, he still had two weeks to make alternative travel arrangements to attend
his jury trial. We acknowledge Lusinger’s claim that he is indigent, and
appreciate that a trip of this length is not necessarily a simple matter.2 But the
record reveals that he did not exhaust his options to travel to Indiana for the
trial. For example, he did not even ask his mother, with whom he lived,
2
Lusinger cites to Hawkins v. State, 982 N.E.2d 997 (Ind. 2013), in support of his argument that his indigency
and lack of transportation rendered his absence involuntary. Hawkins, however, concerned waiver of the
right to counsel and the trial court’s decision to try the defendant in absentia without legal representation.
That raises an entirely different set of issues and rules. In this case, while Lusinger himself did not appear, he
was represented by counsel at trial. Therefore, Hawkins is inapposite.
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whether he could borrow her vehicle to drive to Indiana for the trial. We also
note that Lusinger offered no evidence aside from his own self-serving
testimony to support his claims that he lacked transportation, had his vehicle
towed, and was trying to have the vehicle repaired. Moreover, he gave
conflicting testimony as to whether the vehicle was still in his possession and
did not testify about any specific steps he took to find alternative transportation.
[16] It is solely within the purview of the trial court to assess witness credibility. It is
evident that the trial court did not find Lusinger to be a compelling or believable
witness, and we decline to second-guess that assessment. Given this record, we
find that the trial court did not err by concluding that Lusinger failed to
overcome the presumption that he knowingly, voluntarily, and intelligently
waived his right to be present at his jury trial.
[17] The judgment of the trial court is affirmed.
Bailey, J., and Vaidik, J., concur.
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