author: Vaidik, Chief Judge.

text:
    Corey BULLOCK, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff
    Court of Appeals Case No. 49A05-1706-CR-1247
    Court of Appeals of Indiana.
    FILED July 5, 2018
    Attorney for Appellant: Megan Shipley, Marion County Public Defender Agency, Indianapolis, Indiana
    Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, George P. Sherman, Deputy Attorney General, Indianapolis, Indiana
   Vaidik, Chief Judge.

Case Summary

[1] Corey Bullock was charged with three counts relating to the death of his girlfriend's infant daughter: murder, aggravated battery, and neglect of a dependent. The jury hung on the murder count but found him guilty on the other counts. Following the trial court's declaration of a mistrial on the murder count, the court allowed the State to retry Bullock on all three counts, and the court found him guilty of murder and neglect in a bench trial.

[2] Bullock now appeals, arguing that the trial court entered judgment of conviction after the first trial and the State was therefore barred from retrying him according to the statutory double-jeopardy principles discussed by the Indiana Supreme Court in Cleary v. State , 23 N.E.3d 664 (Ind. 2015). Although there are Chronological Case Summary (CCS) entries from the last day of the jury trial that include the word "Judgment," the court clarified shortly thereafter that it had not actually entered judgment of conviction. Because there was no judgment of conviction, the State was not barred from retrying Bullock on all three counts. We therefore affirm the trial court.

Facts and Procedural History

[3] In July 2014, Bullock moved in with Apryl Hammer and her infant daughter, Aiva McGee, in an Indianapolis apartment. Bullock, who was not the father of Aiva, cared for Aiva while Hammer worked. On September 30, Hammer went to work and left nine-month-old Aiva in Bullock's care. Shortly after Hammer left for work, Aiva stopped breathing. Bullock called his mother, who then called 911. Aiva, who was covered in bruises, was taken to Riley Hospital for Children and placed on life support. Testing revealed that Aiva had experienced a "significant and severe brain injury." Tr. Vol. III p. 89. She had subdural and subarachnoid hemorrhages on both sides of her head and retinal hemorrhages behind her left eye. Aiva also had a lacerated liver and rib fractures that were in the healing stages. Aiva was taken off life support and passed away on October 2. The cause of death was blunt-force injury of the head. The police interviewed Bullock, and he denied inflicting the injuries on Aiva. Rather, he claimed that Aiva "bang[ed] her head a lot" when she crawled and moved around. Id. at 163. Bullock also said he had never seen Hammer harm Aiva. Id. at 165.

[4] In December 2014, the State charged Bullock with three counts in connection with Aiva's death: Count I: murder, Count II: Level 3 felony aggravated battery, and Count III: Level 3 felony neglect of a dependent resulting in serious bodily injury. Bullock's jury trial was held from October 31 to November 2, 2016. After several hours of deliberations on November 2, the jury told the trial court that it could not reach a verdict on the murder count but that it had reached verdicts on the other counts. The jury found Bullock guilty on Counts II and III, and the trial court declared a mistrial as to Count I and set a "pretrial conference" to discuss how to proceed given the jury's verdicts. Supp. Tr. Vol. IV p. 3. Neither party asked the court to enter judgment of conviction on Counts II and III, and the trial court did not orally do so either. In fact, the court never used the word "judgment" or "conviction." Id. at 2-5. And as Bullock concedes on appeal, there is "[n]o written judgment ... in the record" entering judgment of conviction on Counts II and III. Appellant's Br. p. 17. The following entries, however, appear in the CCS:

11/02/2016 Judgment Entry on Jury Verdict Order Signed: 11/02/2016 11/02/2016 Hearing Journal Entry jury cannot reach decision as to count I 11/02/2016 Judgment (Judicial Officer: Eisgruber, Kurt) 2. 35-42-2-1.5/F3:Aggravated Battery Use when the assault posses a substantial risk of death. Finding of Guilty 3. 35-46-1-4(a)(1)/F3: Neglect of a Dependent Resulting in Serious Injury but resulting in serious bodi Finding of Guilty

Appellant's App. Vol. II p. 17.

[5] The pretrial conference was held the following week "to determine a direction" for the case. Supp. Tr. Vol. IV p. 9. The court reiterated that there were "guilty findings" (not "convictions") for "two of the three counts." Id. The trial court asked the State how it wanted to proceed, and the prosecutor responded, "Judge, we would like the murder count to be reset for trial [because] the State does intend to move forward with trial." Id. Defense counsel said she planned to file a motion to dismiss raising "double jeopardy." Id. The court set a trial date for a few months out and said it would hold a hearing on the double-jeopardy issue once both sides briefed the issue.

[6] Defense counsel then filed a motion to dismiss alleging that "[d]ouble jeopardy precludes retrial of the Defendant on Count I, Murder, due to the conviction of the lesser included offense of Count II, Aggravated Battery." Appellant's App. Vol. II p. 186 (emphasis added). The State filed a response arguing that there was no double-jeopardy violation in retrying Bullock because the trial court had not yet entered judgment of conviction. Id. at 199. Accordingly, the State argued that Cleary controlled this case. Id. at 202-03.

[7] In Cleary , the defendant was charged with, among other things, Count I: felony operating a motor vehicle with a BAC of at least 0.15 causing death, Count II: felony operating a motor vehicle while intoxicated causing death, Count III: misdemeanor operating a motor vehicle with a BAC of at least 0.15, Count IV: misdemeanor operating a motor vehicle while intoxicated in a manner that endangers a person, and Count V: misdemeanor operating a motor vehicle while intoxicated. The jury reached verdicts of guilty on Counts IV and V but deadlocked on Counts I-III. The defendant was retried on all counts, and the jury found him guilty on Counts I-V; the trial court entered judgment of conviction on Count I only. The defendant appealed, arguing that retrying him violated Indiana's statutory double-jeopardy protections, specifically, Indiana Code section 35-41-4-3. Section 35-41-4-3(a) provides that a prosecution is barred if (1) there was a former prosecution of the defendant "based on the same facts and for commission of the same offense" and (2) "the former prosecution resulted in an acquittal or a conviction of the defendant (A conviction of an included offense constitutes an acquittal of the greater offense, even if the conviction is subsequently set aside.)." (Emphases added). Our Supreme Court found no statutory double-jeopardy violation in Cleary because the trial court had not entered judgment of conviction on Counts IV and V: "It is unequivocal that if the trial court had entered a judgment of conviction for those lesser-included misdemeanors, [ Section] 35-41-4-3(a) would have barred the State from retrying Cleary on Counts I, II and III." 23 N.E.3d at 668. Our Supreme Court explained that a guilty verdict and a judgment of conviction are "two rather different things." Id. (quotation omitted). In other words, a guilty verdict is only a significant legal event "if a court later enters judgment on it." Id. Because the trial court had not entered judgment of conviction on the lesser-included offenses, our Supreme Court found that retrial was permissible.

[8] A hearing on Bullock's motion to dismiss was held in December 2016. At the hearing, the trial court asked defense counsel how she could "defeat Cleary ." Tr. Vol. II p. 87. Defense counsel responded that "even though judgment of conviction wasn't formally entered ," it had been for "all intents and purposes." Id. at 89 (emphasis added). Defense counsel argued that the November 2 CCS entries coupled with the fact that the trial court had file-stamped the signed jury-verdict forms for Counts II and III had "the effect of judgment of conviction." Id. In February 2017, the court entered an order denying Bullock's motion to dismiss. The court found, in part:

In Cleary , [the Indiana Supreme Court] distinguishes jury verdicts from convictions. Jury verdicts only gain ... legal significance when a judgment of conviction is entered by the Court. Here, the jury rendered a verdict on November 2, 2016. However, to date, despite the CCS entry on November 2, this Court has not entered judgment of conviction on the verdicts rendered.

Appellant's App. Vol. II p. 216 (emphasis added, citation omitted). The court explained why the entries appeared in the CCS in the first place:

On November 2, 2016, the following entry was made by Court One on Odyssey: "Judgment Entry on Jury Verdict." This entry was followed by a separate entry "Judgment" followed by the counts reflecting the guilty verdicts of the jury. This post trial entry had been standard operating procedure for Court One. Going forward, the second entry will be clarified to reflect the jury verdict only.
Regardless, without exception, this Court has set jury verdicts for sentencings at which time judgments of conviction are entered.

Id. at 214 n.1.

[9] Bullock then waived his right to a jury trial and was retried on all three counts in March 2017. The trial court found him guilty on Counts I and III but not guilty on Count II. The court sentenced Bullock to concurrent terms of fifty years (with the final four years to be served on community corrections) for Count I and 545 days for Count III, which the court reduced from a Level 3 to a Level 6 felony.

[10] Bullock now appeals.

Discussion and Decision

[11] Relying on the holding from Cleary that if a trial court enters judgment of conviction, retrial for the same offense is barred, Bullock argues that the trial court entered judgment of conviction for aggravated battery (which is the "same offense" as murder) and the State was therefore barred from retrying him.

[12] Bullock's argument, however, fails at the start because we find that the trial court did not enter judgment of conviction after the first trial. In support of his claim that judgment of conviction had been entered, Bullock relies on the November 2 CCS entries. Notably, the parties did not ask the trial court to enter judgment of conviction, the court did not orally do so, and there is no written judgment doing so (even though the CCS says that there is). The court then scheduled a "pretrial conference," which indicates that it was contemplating the possibility of a second trial. At the beginning of that conference, the court reiterated that there were "guilty findings" (not "convictions") for two of the counts and said that the parties were there to determine "a direction" for the case, which indicates that nothing formal or final had been done yet. Moreover, at the motion-to-dismiss hearing, defense counsel conceded that judgment of conviction hadn't been "formally entered." Tr. Vol. II p. 89. The court then clarified that it had not entered judgment of conviction, notwithstanding the November 2 CCS entries.

[13] Nevertheless, Bullock claims that because we have said the CCS is an official record of the trial court and the court speaks through its docket, see Caruthers v. State , 58 N.E.3d 207, 210 n.2 (Ind. Ct. App. 2016), we should "find the CCS accurately reflected what happened in the trial court," Appellant's Reply Br. p. 8. But even if we were to treat the November 2 CCS entries as an entry of judgment, the trial court made clear that it was a mistaken entry because it did not actually enter judgment of conviction, and Bullock cites no authority that would prevent the court from going back and fixing its mistake. See Ind. Trial Rule 60(A) ("Of its own initiative or on the motion of any party and after such notice, if any, as the court orders, clerical mistakes in judgments, orders, or other parts of the record and errors therein arising from oversight or omission may be corrected by the trial court at any time before the Notice of Completion of Clerk's Record is filed ...."). It is true that Cleary provides that had the trial court "entered a judgment of conviction" for the lesser-included offenses, the State would have been barred from retrying the defendant on the greater offenses. 23 N.E.3d at 668. However, the point our Supreme Court was making is that there can't be a retrial on the greater offenses when there is a judgment of conviction on the lesser-included offenses. The Court did not say that retrial is barred if judgment of conviction is erroneously entered but then quickly vacated. Therefore, even if it could be said that the November 2 CCS entries in this case amounted to an entry of judgment by the trial court on Counts II and III, the court promptly vacated that judgment, and the State was not barred from retrying Bullock on Counts I-III.

[14] Affirmed.

Pyle, J., and Barnes, Sr. J., concur.

      The charging information for Level 3 felony neglect of a dependent resulting in serious bodily injury alleges that Bullock placed Aiva in a situation that endangered her life or health (failed to obtain timely medical attention for her), which resulted in her death. Appellant's App. Vol. II pp. 39, 147. According to the neglect statute, the offense can be elevated to a Level 1 felony based on the death of a dependent less than fourteen years old but only if the defendant is at least eighteen years old. See Ind. Code § 35-46-1-4(a), (b)(3). Bullock was seventeen years old at the time of Aiva's death.
      Hammer, who was twenty-two years old at the time of Aiva's death, was charged with murder, Level 3 felony aggravated battery, and Level 1 felony neglect of a dependent resulting in death. She pled guilty to Level 1 felony neglect of a dependent and was sentenced to thirty years, with twenty years executed and ten years suspended. Ex. 74.

      The defendant also argued that there was a violation of Indiana's constitutional double-jeopardy protections. However, our Supreme Court had this to say about the defendant's constitutional argument: "To an extent, then, our conclusion that Indiana Code § 35-41-4-3(a) does not apply to Cleary's case necessarily sounds a death knell for this argument." Cleary , 23 N.E.3d at 673. Although Bullock makes both arguments here as well, he does not claim that Indiana constitutional double-jeopardy principles provide him with more protection than the statute.

      Bullock concedes that the implied-acquittal doctrine does not apply to this case because "the jury expressly stated it was unable to reach a verdict on Count I, murder." Appellant's Br. p. 28 n.6; see Cleary , 23 N.E.3d at 671-72 ("Indiana Code § 35-41-4-3(a)(1) codifies the implied acquittal doctrine, but nothing in the statute expands the doctrine to include circumstances where the jury affirmatively states that it has deadlocked on the greater offense. Accordingly, because the jury affirmatively deadlocked on the greater offenses at Cleary's first trial rather than remaining silent as to those counts, Section 35-41-4-3(a)'s implied acquittal provision is not implicated." (footnotes omitted) ).

      In light of this holding, we do not address Bullock's argument that aggravated battery and murder are the "same offense."


source: Caselaw Access Project

author: Baker, Judge.

license: Public Domain

text:
    In the MATTER OF: EQ.W., M.W., A.W., S.W., & Ez.W.,
    V.B. (Mother), Appellant-Respondent, v. Indiana Department of Child Services, Appellee-Petitioner
    Court of Appeals Case No. 18A-JC-555
    Court of Appeals of Indiana.
    Filed July 6, 2018 Rehearing Denied September 10, 2018
    Attorney for Appellant: Kyle K. Dugger, Monroe County Public, Defender's Office, Bloomington, Indiana
    Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Katherine A. Cornelius, Deputy Attorney General, Indianapolis, Indiana
   Baker, Judge.

[1] V.B. (Mother) appeals the trial court's order finding her five minor children to be children in need of services (CHINS). She argues that she was denied procedural due process and that the evidence is insufficient to support the CHINS adjudication. Although we have significant concerns about the way in which the Department of Child Services (DCS) litigated this case, we find that Mother has waived some of her arguments and that the others do not amount to due process violations. We also find the evidence sufficient. Therefore, we affirm.

Facts

[2] In June 2017, the children were removed from Mother's care and custody and DCS filed a petition alleging that the children were CHINS. DCS alleged that Mother was under the influence of drugs while parenting the children. A factfinding hearing began on September 12, 2017, at which time DCS was unable to provide testimony regarding Mother's drug screens because of an improper request for telephonic testimony. DCS requested a continuance, which was granted. The factfinding hearing continued on October 25, 2017. DCS presented no new evidence. The trial court denied and dismissed the CHINS petition for lack of sufficient evidence on November 7, 2017.

[3] On November 8, 2017, DCS filed a new petition alleging that the children are CHINS. The new petition was based on positive drug screens, the erratic behavior of the children's father at a child and family team meeting, and the parents' struggle to pay their utility bills. The factfinding hearing took place on December 19, 2017. At this hearing, DCS presented the following evidence supporting its petition:

• Two of the children testified about sometimes being hungry, suspecting that their parents were using drugs, having a dirty and cluttered home, and their parents' lacking attempts to homeschool them.
• The children's paternal grandmother (and relative placement) testified about general concerns regarding the children's lack of consistent and structured education, the uncleanliness of the parents' home, the parents' financial struggles, and the parents' past struggles with drug use.
• With respect to the children's education, the parents do not trust public schools and have ostensibly been homeschooling the children. But the homeschooling was inconsistent and ineffective. For example, when paternal grandmother enrolled the children in public school, the nine-year-old did not know the alphabet and was unable to write his name.
• The children's maternal grandmother testified about general concerns regarding the uncleanliness of the parents' home and the parents' financial struggles.
• The Family Case Manager (FCM) testified regarding concerns about the cleanliness of the home, the parents' financial struggles, and the lack of a consistent and structured education for the children.

DCS offered no evidence that parents had provided any positive drug screens. Following the presentation of the evidence, counsel for Mother raised the following argument:

These kids have been detained since, um, I think the end of June. The end of June the children were removed and the parents requested a contested fact-finding hearing. They didn't get it until September, um, where DCS put on evidence and then was allowed to continue it for another month until the end of October and they said that they were gonna bring more evidence because they hadn't put on enough. Um, they came back and didn't put on any new evidence and the Court dismissed the CHINS petition and DCS immediately refiled and said there was gonna be new evidence that would be presented that had come to light, um, in the time since they have [sic] lost their initial petition. And so parents requested another contested fact-finding and we came here today and are supposed to be hearing that new evidence of, um, what circumstances have changed since we were here in September and DCS failed to prove their case the first time. Um, I [don't] think we've heard any new information....

Tr. Vol. II p. 71-72.

[4] On January 3, 2018, the trial court issued an order finding the children to be CHINS. The CHINS finding is primarily based on the cluttered and unclean state of the home and the condition of the home environment in general; the lack of a consistent and structured educational program for the children; and the erratic behavior of the parents as observed by the children. Mother now appeals.

Discussion and Decision

I. Due Process

[5] Mother argues that her due process rights were violated because DCS was allowed to file a second CHINS petition based on substantially similar allegations that were found insufficient the first time.

[6] Parents are, indeed, afforded procedural due process protections in CHINS proceedings. E.g. , In re K.D. , 962 N.E.2d 1249, 1257 (Ind. 2012). When reviewing a procedural constitutional challenge, we must determine whether the process employed was fair. Ind. High Sch. Athletic Ass'n, Inc. v. Carlberg , 694 N.E.2d 222, 241 (Ind. 1997). Constitutional claims are waived when raised for the first time on appeal. E.g. , McBride v. Monroe Cty. Office of Family and Children , 798 N.E.2d 185, 194 (Ind. Ct. App. 2003).

A. Res Judicata

[7] Mother first argues that principles of res judicata should have barred the trial court from granting DCS's second CHINS petition. It is unclear whether Mother contends that the subsequent petition is barred by claim preclusion or issue preclusion. Claim preclusion applies where a final judgment acts as a complete bar to all subsequent action on the same issue or claim between the parties. M.G. v. V.P. , 74 N.E.3d 259, 264 (Ind. Ct. App. 2017). For claim preclusion to apply, four elements must be established: (1) the former judgment was rendered by a court of competent jurisdiction; (2) the former judgment was rendered on the merits; (3) the same issue was, or could have been, determined in the prior action; and (4) the first action was between the same parties. Id. Issue preclusion, on the other hand, bars litigation of the same facts or issues that were adjudicated in a former lawsuit, but applies only to the matters actually litigated and decided rather than to all matters that might have been decided. Freels v. Koches , 94 N.E.3d 339, 342 (Ind. Ct. App. 2018).

[8] In June 2017, DCS filed its first CHINS petition, which was based primarily on the parents' alleged drug use. At the September-October 2017 factfinding hearing, DCS failed to prove its case, so the trial court denied and dismissed its petition. The next day, DCS filed another CHINS petition. This petition offered different reasons for the CHINS status, and the second time, the trial court found that DCS had met its burden. But no evidence was offered in the second CHINS factfinding hearing that was not equally available in the first. In June through October 2017, the home was cluttered and unclean, the children's education was inconsistent and unstructured, and the parents' behavior was, at times, erratic. All of this evidence could have been presented at the first factfinding hearing, but for unknown reasons, it was not.

[9] Counsel for Mother, however, voiced these concerns only as an evidentiary argument at the close of the factfinding hearing. At no point did counsel move to dismiss the CHINS petition based on issues of res judicata. As such, we are compelled to find that this issue has been waived.

[10] While we are unable to grant relief to Mother on this argument, in no way do we intend to condone the way in which DCS litigated this case. If DCS had sufficient concern about these children to file the first CHINS petition, it should have gathered enough evidence to prove its case-the first time. Why it was able to gather this evidence the second time but not the first is not wholly clear, but we explicitly discourage DCS from adopting this process on a regular basis. We share Mother's concern that this process allows DCS "to take multiple bites at the apple by litigating piecemeal until a court of competent jurisdiction finally determine[s] that the facts presented [are] sufficient to carry [DCS's] burden." Reply Br. p. 8. That would, indeed, implicate very serious due process concerns. In this case, however, as Mother did not move to dismiss the petition based on res judicata, the issue is waived for appellate purposes.

B. New Filing and Removal

[11] Mother also argues that an improper process was employed with respect to the children's detention in relative care. Specifically, she contends that the children should have been returned to her care and custody when the first CHINS petition was denied and dismissed on November 7, 2017. Instead, the trial court continued their detention until the next day, when DCS filed a new CHINS petition and sought a new detention hearing.

[12] This situation is an example of why we are so very concerned about the process employed by DCS in this case. Having failed to prove the first CHINS petition, DCS filed a second CHINS petition the next day and left the children in relative care, arguing that it would have traumatized the children to return them home for one day. We do not disagree regarding the trauma to the children, but observe that if DCS had simply put in a better effort during the first CHINS case, this problem would not have arisen at all. That said, we do not find that this procedural irregularity, or the delay of one day, amounts to a sufficient reason to reverse the trial court's order in this case.

C. Educational Neglect

[13] Finally, Mother argues that she was denied due process because, although the second CHINS petition did not include specific facts alleging educational neglect, the children's education ended up being a primary point litigated during the factfinding hearing and then relied upon by the trial court in its final order. But Mother did not object to any of the evidence admitted at the hearing regarding educational neglect; she also cross-examined DCS's witnesses on the issue. Tr. Vol. II p. 21, 37-39. As such, she impliedly consented to the issue being incorporated into the CHINS proceeding. See In re V.C. , 867 N.E.2d 167, 168 (Ind. Ct. App. 2007) (holding that issues not set out in the pleadings may be tried by the express or implied consent of the parties, including situations in which the evidence at trial is such that a reasonably competent attorney would have recognized that the un-pleaded issue was being litigated). Under these circumstances, we decline to find a due process violation.

II. Sufficiency

[14] Mother also argues that the evidence is insufficient to support the trial court's order finding the children to be CHINS. Our Supreme Court has explained the nature of a CHINS proceeding and appellate review of a CHINS finding as follows:

A CHINS proceeding is a civil action; thus, "the State must prove by a preponderance of the evidence that a child is a CHINS as defined by the juvenile code." In re N.E., 919 N.E.2d 102, 105 (Ind. 2010). We neither reweigh the evidence nor judge the credibility of the witnesses. Egly v. Blackford County Dep't of Pub. Welfare, 592 N.E.2d 1232, 1235 (Ind. 1992). We consider only the evidence that supports the trial court's decision and reasonable inferences drawn therefrom. Id. We reverse only upon a showing that the decision of the trial court was clearly erroneous. Id.
There are three elements DCS must prove for a juvenile court to adjudicate a child a CHINS. DCS must first prove the child is under the age of eighteen; DCS must prove one of eleven different statutory circumstances exist that would make the child a CHINS; and finally, in all cases, DCS must prove the child needs care, treatment, or rehabilitation that he or she is not receiving and that he or she is unlikely to be provided or accepted without the coercive intervention of the court. In re N.E., 919 N.E.2d at 105.

K.D., 962 N.E.2d at 1253-54 (footnote omitted).

[15] Here, DCS alleged that the children were CHINS pursuant to Indiana Code section 31-34-1-1, which provides as follows:

A child is a child in need of services if before the child becomes eighteen (18) years of age:
(1) the child's physical or mental condition is seriously impaired or seriously endangered as a result of the inability, refusal, or neglect of the child's parent, guardian, or custodian to supply the child with necessary food, clothing, shelter, medical care, education, or supervision; and
(2) the child needs care, treatment, or rehabilitation that:
(A) the child is not receiving; and (B) is unlikely to be provided or accepted without the coercive intervention of the court.

Our Supreme Court has interpreted this provision to require "three basic elements: that the parent's actions or inactions have seriously endangered the child, that the child's needs are unmet, and (perhaps most critically) that those needs are unlikely to be met without State coercion." In re S.D., 2 N.E.3d 1283, 1287 (Ind. 2014).

[16] The primary reasons that the trial court found the children to be CHINS were their insufficient education and the condition of the home and home environment. Its findings on these issues are as follows:

22. The evidence shows that [E] and [M] have not attended any school for the past 5 years. [S] is 9 and has never attended school. The testimony of Paternal Grandmother is credible that she began to provide some education for the children when she noticed their deficits, including inability to read. The testimony of [M] and [E] is credible that the parents gave them "random stuff," but they didn't really have education in the home and [E] wanted to go to school but was not able to. Although some of these children are doing better than others academically, they all suffer from educational delays and need to catch up if possible. There is no evidence that either parent provided a program of instruction to any of the children that was comparable to the public school system or any evidence of any regular and consistent course of study needed for health and normal education. Deprivation of education for up to five years for some children constitutes negligence that seriously endangers their mental condition.
23. The condition of the housing and home environment also constitutes neglect and a serious endangerment to the children. The testimony of Maternal Grandmother, Paternal Grandmother and the oldest children is credible that the parent's home is packed with boxes, clothes, books, furniture, and stuff that some of the bedrooms cannot be entered and the children don't have access to their beds. Paternal Grandmother unearthed rat feces when she cleaned one of the rooms. Grandparents acknowledge the danger to the children from this housing with particular concern for the baby. Additionally, the environment of the home contributes to this finding of neglect. Allowing strangers to wander through the home at the expense of the privacy of the children prioritizing the needs of strangers over the children endangers the well-being of the children. Parent behaviors that their teenage children describe as "weird," "crazy," and "frightening" and that the children believe may be the result of the parents' drug use, including grunting, flipping tables, yelling, throwing things, and "destroying" the home, is seriously endangering to the mental condition of the children. Although the evidence did not show undernourishment, the "hunger" expressed by at least one of the children is a significant concern. The testimony of the older children of occasional hunger and their stated desire for 3 meals a day, might not support a finding of CHINS standing alone, but it is a factor of negligence when combined with the other evidence.

Appellant's App. Vol. II p. 60-63. These factual findings all find support in the evidence presented at the factfinding hearing. Mother points out that paternal grandmother is not an education expert and asks us to discount her testimony as a result, but this amounts to a request that we reweigh evidence and re-assess witness credibility, which we may not do.

[17] With respect to educational neglect, the record reveals that the parents do not trust the public school system. They have occasionally enrolled some of the children in school, but when the school recommended that the children receive various types of special assistance, the parents removed the children from school. The parents claimed to be homeschooling the children, but the record reveals that they did not do so in any consistent or structured manner. The nine-year-old did not know the alphabet or how to write his name. The two children who testified at the factfinding hearing had not been to school for five years and were far behind their grade level. Part of the reason Eq.W. did not want to return to his parents' home is because he was worried they would remove him from school again. We find that this evidence supports the trial court's conclusion that the parents failed to provide their children with a suitable education, endangering the children's mental condition as a result.

[18] Mother also argues that evidence related to the home and home environment all related to conditions in the past. Initially, we note that the home based case manager reported that in late September or October 2017-in the months leading up to the factfinding hearing-the home was unclean, with clothing filling the rooms such that people could not walk on the floor. Additionally, maternal grandmother testified that as of October, when conditions had improved slightly, the home was still so cluttered that multiple rooms, including two bedrooms and one bathroom, were unusable. Tr. Vol. II p. 51-52. Paternal grandmother and the children who testified also expressed concerns about the dirty state of the home. After October, the parents refused to allow anyone into their home. We find that this evidence supports (1) a conclusion that the parents' home is habitually so unclean and cluttered that it seriously endangered the children; and (2) a reasonable inference that the home was still in such a state at the time of the factfinding hearing.

[19] Mother correctly argues that financial insecurity cannot be the sole factor supporting a CHINS adjudication. But the trial court's findings regarding educational neglect and the condition of the home support the CHINS adjudication, even apart from any concerns about the family's financial situation.

[20] Finally, Mother contends that the evidence does not support a conclusion that the coercive intervention of the court is necessary to ensure the children are provided the care that they need. We disagree. While the parents voluntarily attended substance abuse treatment, they only allowed the home based case manager into their home once and stopped meeting with her once their utilities were turned back on. They refused to allow the FCM into their home. They attended one Child and Family Team Meeting, at which time the father became verbally aggressive, and then failed to attend the next one. Mother became angry when the two grandmothers tried to discuss their concerns about the children. Maternal grandmother found it to be a struggle to get Mother to create and follow a daily schedule to ameliorate some of the underlying issues; Mother would comply for a couple of days and then stop. Under these circumstances, we find that the evidence supports the trial court's conclusion that the coercive intervention of the court was necessary.

[21] In sum, while we disapprove of the way in which DCS litigated this case, we find that the evidence supports the trial court's conclusion that the children are CHINS.

[22] The judgment of the trial court is affirmed.

Kirsch, J., and Bradford, J., concur.

      Although the trial court dismissed the initial CHINS petition, the children were not released back to Mother's care and custody. Instead, they remained in relative care leading up to the filing of the second CHINS petition, when their placement in relative care was continued by the trial court.

      We also question why, when DCS and the people involved with this family have explicit and consistent concerns about the parents' drug use, DCS failed to offer any actual evidence of substance abuse at either factfinding hearing.

      Indiana Code section 31-34-12-5 allows evidence of prior acts or omissions in CHINS proceedings. Therefore, it is undeniable that the evidence offered at the second CHINS proceeding was properly admitted. But we strongly question whether there should have been additional, new evidence supporting the new CHINS petition-evidence that was not available during the first CHINS proceeding-to avoid res judicata problems.

      In addition to our concerns about the way in which the CHINS process was litigated, we are troubled by portions of DCS's appellate brief. Mother moved to strike multiple assertions made by DCS in its brief, including several statements of "fact" regarding parents' drug screens. As noted above, DCS did not even attempt to prove parents' substance abuse at the factfinding hearing. Moreover, the trial court actually excluded some of the evidence supporting these assertions from the first CHINS proceeding. It is at best, careless, and at worst, dishonest, for DCS to include these "facts" in its brief with no evidentiary support. We grant Mother's motion to strike by separate order and strongly suggest that DCS be more careful in future appellate endeavors.


text:
    Charles A. BENSON, Appellant-Plaintiff, v. NEWS-SENTINEL, Michael Christman, Sheryl Krieg, Cindy Larson, Lisa Esquivel Long, Appellees-Defendants
    Court of Appeals Case No. 02A03-1711-CT-2865
    Court of Appeals of Indiana.
    Filed July 12, 2018 Publication Ordered August 21, 2018
    Appellant Pro Se: Charles A. Benson, Bunker Hill, Indiana
    Attorneys for Appellee: Jan M. Carroll, Kara Kapke, Barnes & Thornburg LLP, Indianapolis, Indiana
   Baker, Judge.

[1] Charles Benson appeals the trial court's order dismissing his complaint against the Fort Wayne News-Sentinel newspaper, as well as its current and former reporters and editors (collectively, News-Sentinel), for defamation. Finding no error, we affirm.

[2] In January 2016, Benson was charged with attempted murder and related offenses after shooting a Fort Wayne police officer. In the months following that arrest, the News-Sentinel published multiple articles related to the criminal proceedings. In the articles, the newspaper often referenced Benson's lengthy criminal history, including a 2014 murder charge. In one February 2016 article, the News-Sentinel published a 2014 mugshot of Benson, noting in the caption to the photograph that Benson was a former murder suspect facing a new attempted murder charge. Benson was ultimately found guilty and found to be an habitual offender; he was sentenced to over sixty-two years in prison. See Benson v. State , 73 N.E.3d 198 (Ind. Ct. 2017) (affirming Benson's convictions in his direct appeal), trans. denied .

[3] On February 6, 2017, Benson filed a complaint against the News-Sentinel. The News-Sentinel filed an answer, motion to stay, and motion for judgment on the pleadings based on the Frivolous Prisoner Claim Statute. Benson also filed a separate lawsuit based on similar grounds against WANE-TV. On June 29, 2017, the trial court held a consolidated hearing and status conference in the two lawsuits. Benson appeared pro se by phone and did not object to the consolidation. On September 18, 2017, the trial court issued an order granting judgment in favor of the News-Sentinel. Benson now appeals.

[4] The General Assembly enacted the Frivolous Prisoner Claim Statute "to screen and prevent abusive and prolific offender litigation in Indiana." Smith v. Ind. Dep't of Corr. , 883 N.E.2d 802, 804 (Ind. 2008). The statute requires trial courts to screen complaints filed by offenders as soon as such complaints are received. , The trial court must determine whether the offender's claim is frivolous, is a claim upon which no relief may be granted, or is a claim that seeks monetary relief from a defendant who is immune. I.C. § 34-58-1-2. A claim is frivolous if, among other things, it lacks an arguable basis in law or fact. Id.

[5] Truth is a complete defense to defamation. E.g. , Melton v. Ousley , 925 N.E.2d 430, 437 (Ind. Ct. App. 2010) ; see also Journal-Gazette Co. v. Bandido's, Inc. , 712 N.E.2d 446, 457 (Ind. 1999) (holding that the plaintiff has the burden to prove falsity). In this case, the statements complained of by Benson regarding his criminal history, including a 2014 murder charge, are true. Indeed, Benson does not argue, nor did he plead, otherwise. See Bandido's , 712 N.E.2d at 456 (holding that to establish actual malice, which is a required element of defamation claims, plaintiff must show that statements were false or made with reckless disregard of whether they were false). He argues that the newspaper's use of a 2014 mugshot was inaccurate and/or misleading, but that does not mean that it was false. Benson concedes that it was a picture of him, it just happened to be a mugshot from two years earlier.

[6] Given that all the statements Benson highlights are true, and that the photograph was of Benson, we find that the News-Sentinel properly found refuge in the defense of truth. As a result, the trial court did not err by finding Benson's claims to be frivolous.

[7] The judgment of the trial court is affirmed.

Kirsch, J., and Bradford, J., concur.

Order

[1] Appellees, by counsel, filed a Motion to Publish Memorandum Opinion.

[2] Having reviewed the matter, the Court finds and orders as follows:

1. The Appellees' Motion to Publish Memorandum Opinion is granted.
2. This Court's opinion heretofore handed down in this cause on July 12, 2018, marked Memorandum Decision, is now ordered published.
3. The Clerk of this Court is directed to send copies of said opinion together with copies of this order to the West Publishing Company and to all other services to which published opinions are normally sent.

[3] Ordered 8/21/2018.

[4] Baker, Kirsch, Bradford, JJ., concur.

      Ind. Code § 34-58-1-1 et seq.

      A separate opinion related to Benson's lawsuit against WANE-TV is available at Benson v. WANE-TV 15 , No. 02A04-1711-CT-02866, 106 N.E.3d 1055, 2018 WL 3385008 (Ind. Ct. App. July 12, 2018).

      In this case, the trial court candidly acknowledged that it was "unaware of the need to conduct the review" of Benson's complaint upon receipt of the pleading. Appellees' App. Vol. II p. 10. The News-Sentinel brought the need for the review to the trial court's attention, at which time it complied. We see no reason that this delay should affect the outcome of this case.

      Benson argues that the trial court erred by holding a consolidated hearing in this case and the case involving WANE-TV. Initially, we note that under the Frivolous Prisoner Claim Statute, he is not entitled to a hearing at all. I.C. § 34-58-1-1 et seq. Furthermore, he did not object to the consolidation below; consequently, he has waived it. Finally, he does not explain how he was prejudiced by the consolidation. For all these reasons, this argument is unavailing.

      It has never been determined in Indiana whether publication of a photograph of a plaintiff can constitute defamation. We assume solely for argument's sake that it can, but leave the underlying question for another day and a different case.

      Benson also included claims related to the News-Sentinel's 2014 reporting on a prior murder charge, arguing that the newspaper defamed him by including information regarding his criminal history. The trial court found that these claims are time-barred. Even if they were not time-barred, all of the information reported by the News-Sentinel was true; therefore, Benson cannot establish defamation and the trial court properly entered judgment in favor of the newspaper on these claims.


author: Robb, Judge.

text:
    Robert CARR, III, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    Court of Appeals Case No. 18A-CR-286
    Court of Appeals of Indiana.
    Filed July 23, 2018
    Attorney for Appellant: Michael R. Fisher, Marion County Public Defender Agency, Indianapolis, Indiana
    Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, J.T. Whitehead, Deputy Attorney General, Indianapolis, Indiana
   Robb, Judge.

Case Summary and Issues

[1] Following a jury trial, Robert Carr was found guilty of criminal confinement while armed with a deadly weapon, a Level 3 felony; battery resulting in serious bodily injury, a Level 5 felony; and escape, a Level 6 felony, among other offenses. The trial court entered judgment of conviction for the confinement, battery, and escape offenses only and sentenced Carr to an aggregate sentence of fifteen years in the Indiana Department of Correction. On appeal, Carr argues that the admission of a prior statement made by the victim to a law enforcement official violated his Sixth Amendment confrontation rights. Carr also argues that the statement constituted inadmissible hearsay. We conclude that Carr forfeited his Sixth Amendment right to confrontation regarding the prior statement due to his own wrongdoing. In addition, we conclude that the statement was admissible under the hearsay exception to the Indiana Rules of Evidence permitting the admission of a prior statement where the defendant wrongfully caused the declarant's unavailability for trial. Thus, we affirm.

Facts and Procedural History

[2] On November 18, 2016, Haley Price and her housemate, S.G., held a party with friends at their home on South Dequincy Street in Indianapolis. Carr and S.G. had dated and had previously lived together. However, Carr had not been invited to S.G.'s home that evening.

[3] Carr, who was on house arrest and wore an ankle monitoring device, went to S.G.'s parents' home looking for S.G. When S.G.'s parents informed him that S.G. was not there, Carr went to Price's home. Price's grandmother let Carr in the home when he arrived during the party, and he proceeded to the basement where he found S.G. with the other party attendees. Carr was in the basement for two to three minutes before he asked S.G. to come outside to help him with something. S.G. left the basement with Carr.

[4] Approximately twenty minutes later, Dakota Burgess drove up to the home and saw S.G. lying on the ground in a puddle, unresponsive. Burgess saw someone he could not identify climb into a car and quickly drive away. At the same time that Burgess arrived, Price's grandmother looked out the front door and saw Carr, who was bent down, get up with something in his hand. Carr got into his car and drove away rapidly. There was no one else around apart from Burgess and Carr when Price's grandmother looked out the front door.

[5] Price called 9-1-1. During the 9-1-1 call, S.G. can be heard identifying "Robert" as the person who had stabbed her in the eye. Confidential Exhibits, Exhibit 3 at 2:59-3:19. When paramedics arrived, they found S.G. in critical condition. She was covered in blood, having sustained a stab wound to her left eye, a complex orbital fracture caused by a fist or a kick, and lacerations above her clavicle and on the posterior of her left thigh. S.G. was transported to the hospital for treatment. At the hospital, Detective Tobi Cobain took a statement from S.G. in which S.G. identified Carr as the person who held her in his vehicle while armed with a steak knife and stabbed her in her left eye with the same knife. Confidential Exs., Ex. 18 at 4-7. After interviewing Price, Burgess, and S.G., Detective Cobain concluded probable cause existed to arrest Carr.

[6] On November 28, 2016, the State charged Carr with a number of offenses, including criminal confinement while armed with a deadly weapon, a Level 3 felony; battery resulting in serious bodily injury, a Level 5 felony; and escape, a level 6 felony. On December 27, 2016, the trial court entered a no-contact order that prohibited Carr from having contact with S.G.:

in person, by telephone or letter, through an intermediary, or in any other way, directly or indirectly, except through an attorney of record ....
This provision shall also be effective even if the defendant has not been released from lawful detention.
* * *
This Order remains in effect until this case has been tried and the Defendant has been sentenced if found guilty.

Appellant's Appendix, Volume II at 75-77 (emphasis omitted). Carr's trial was set for September 11, 2017. In March of 2017, Carr began sending letters to S.G. in which he apologized to her. On April 28, 2017, Carr's second attorney, Robert Alden, deposed S.G. The deposition was recorded but not transcribed. After taking S.G.'s deposition, Alden informed Carr that S.G. was "on board" and mentioned plea negotiations. Transcript, Volume II at 149. Carr rejected the possibility of a guilty plea. Carr then filed a notice of intention to plead insanity and underwent a competency review.

[7] S.G. cooperated with the prosecutor through May of 2017 by staying in contact and participating in discovery. Between May 25, 2017, and May 30, 2017, Carr made a series of telephone calls from jail. On May 25, 2017, Carr discussed the fact that he had offered S.G. $20,000 if she needed help and stated, "I'm not giving up," when it appeared that she did not accept it. Confidential Exs., Ex. 101 at Call 2. On May 26, 2017, Carr stated in a telephone conversation,

I have to fill you in because she's gonna call you because I told her I was going to give her some of the money from my Auntie. She's gonna help me out for that cash bro ... She's gonna call you and you just gotta play along...She's gotta clear everything up. Once she does that I'm gonna be outta here. This is gonna get me outta jail. This is gonna clear everything up...I told her I got this $20,000 - but I don't have the whole thing...

Id. at Call 18 (emphasis in original). In a May 27, 2017, telephone call with S.G., she expressed her desire to see him go to trial and serve some time. Carr told S.G. to, "take the police out of this," and that, "If you do this for me - I'm gonna - like I said I got that 20 grand." Id. at Call 20. In a second call that day, Carr told S.G. that, "All it would take is you to say that you don't want this, that you want to keep it in the streets. That everything they say happen didn't happen." Id. at Call 21. In a third call that day, Carr directed S.G. to say that she really did not feel like he had kidnapped her and that she should contact his uncle for some money. S.G. replied that she would consider it. On May 28, 2017, Carr again spoke with S.G. and expressed his hope that she had been thinking about what they had discussed. The next day, Carr told S.G. that his parents will help her financially but that they wanted to be sure that they could trust her to be loyal to Carr. S.G. told Carr that she would wait until after the trial to write him, and Carr replied that "they're trying not to go to trial." Id. at Call 38. On May 30, 2017, S.G. told Carr that the first thing she wanted to do when he was out of jail is "make love." Id. at Call 43.

[8] On June 17, 2017, Carr's uncle left a message for S.G. on her father's cell phone that Carr had wanted him to contact her. Confidential Exs., Ex. 103 at :26-:27. Carr's uncle communicated to S.G. that Carr offered to allow her the use of Carr's vehicle, Carr would ask his mother to give her a couple hundred dollars, and that Carr said that she could stay at his father's home. Id. at :33-:51. S.G.'s father believed that S.G. ceased cooperating with the prosecutor after receiving this voicemail. Between June 26, 2017, and September 13, 2017, Carr placed 384 calls to S.G., forty-six of which were completed. Carr continued to speak to S.G. about changing her story and about not going forward to trial.

[9] At the beginning of August, after Carr was found to be competent to stand trial and plea negotiations had lapsed, the parties began final preparations for trial. The prosecutor requested that defense attorney Alden turn over S.G.'s April 28 deposition. Alden did not immediately tender the deposition to the State, believing that he had an ethical conflict which prevented him from doing so. While Alden was aware that a State motion to compel production of the deposition was at least pending with the trial court, Alden met with Carr's family and explained that, if S.G. did not appear for trial, her deposition could be used against Carr at trial. Carr's father asked to take the deposition home so that he could listen to it with family members. Alden provided the audio recorder which held the only copy of the deposition to Carr's father.

[10] From September 4, 2017, to September 9, 2017, Carr, his father, and his mother had several telephone conversations about the deposition that was then in the family's possession. Confidential Exs., Ex. 105. These calls from jail were recorded. After talking about the upcoming trial, Carr's father expressed his hope that "people keep their word." Id. , Call 2 at 9:28. The next day, Carr spoke with his mother about his view that the case was "cut and dry" if S.G. did not come to court. Id. , Call 3 at 7:35-8:20. Carr wanted his lawyer, Alden, to tell them if the deposition could be used to convict him if S.G. did not come to trial. Id. , Call 3 at 10:24-10:30. He expressed his opinion that the prosecutor had no other evidence against him if S.G. did not testify. Id. , Call 3 at 11:30-11:35.

[11] On September 5, 2017, Carr's father told Carr that he had listened to the audiotape of S.G.'s deposition and had given it to "Aunt Pat" who had taken the audio recording with her to Chicago. Id. , Call 5 at 2:34-2:55. Carr's father speculated that the prosecutor might be angry because the audio recording might not be available for trial. Id. , Call 5 at 3:13-3:22. Carr's father planned to consult with a friend to determine how the deposition could be used and "find out before we give it back to [Alden]." Id. , Call 5 at 9:04-9:06. They discussed the fact that the prosecutor had to have either a live witness, a deposition, or both to convict Carr. Id. , Call 5 at 13:00-13:10. During a second call that day, Carr's father told Carr that the family would not return the deposition to Alden and that, "if they want depositions and all that, they can pay for it their damn selves," to which Carr responded, "Right." Id. , Call 6 at 9:15-9:19. When Carr's family returned the audio recorder with S.G.'s deposition to Alden, the deposition had been erased. Depositions of other clients of Alden's were on the audio recording device, but only S.G.'s deposition was missing. It was not possible to accidentally erase recordings on Alden's recording device.

[12] S.G. did not appear for a bail review hearing on September 7, 2017. Carr's September 11, 2017, trial date was continued due to his counsel withdrawing from the case. Carr's jury trial was reset for January 2 and 3, 2018. On November 14, 2017, the State personally served S.G. with a subpoena to appear for Carr's jury trial on January 3, 2018. Exhibits, Ex. 100. The State served S.G. with the subpoena when she was at a meeting at the Hamilton County Prosecutor's office about another case because she had not responded to the prosecutor's attempts to contact her regarding the instant case.

[13] Carr's jury trial commenced on January 2, 2018. S.G. did not appear to testify on January 3, 2017, the day for which she had been subpoenaed. The State moved to admit S.G.'s hospital statement to Detective Cobain, arguing that it was admissible due to Carr having procured S.G.'s absence from trial through wrongdoing. The trial court held a hearing outside of the presence of the jury during which it heard evidence from Detective Cobain, a deputy prosecutor involved in another case involving Carr, S.G.'s father, and former defense counsel Alden. Alden verified that the content of S.G.'s deposition and her statement to Detective Cobain was essentially the same.

[14] The State represented that it had been attempting to locate S.G. for the month and a half preceding trial by placing multiple telephone calls to the number where Carr had successfully reached S.G. during the summer, which was also the last telephone number S.G.'s parents had for her. S.G. did not return the State's telephone calls. The State had remained in contact with S.G.'s parents, but they had no contact with S.G. either. After the first day of trial recessed, Detective Cobain attempted unsuccessfully to locate S.G. at her last known address in order to serve her with a second trial subpoena for January 3, 2018. Detective Cobain also went to an apartment complex where S.G. had previously lived but was unable to locate S.G. there either. The trial court enumerated several rationales for admitting S.G.'s statement to Detective Cobain into evidence, including that S.G. was unavailable to testify and that Carr had contributed to the wrongdoing that led to her being unavailable. In her statement, S.G. identified Carr as the person who had held her in his car while holding a knife and who had stabbed her in her left eye with the knife. The jury found Carr guilty of criminal confinement with a deadly weapon and battery resulting in serious bodily injury, among other offenses. Carr now appeals his convictions.

Discussion and Decision

[15] On appeal, Carr argues that the admission of S.G.'s statement violated his Sixth Amendment confrontation rights and that the trial court abused its discretion when it admitted S.G.'s statement pursuant to a hearsay exception. The analysis of confrontation clause violations and exceptions to the hearsay rule are separate inquiries. See Holmes v. State , 671 N.E.2d 841, 859 (Ind. 1996) (noting that the confrontation rights guaranteed by our federal constitution and exceptions to the hearsay rule are analyzed separately), abrogated on other grounds by Wilkes v. State , 917 N.E.2d 675 (Ind. 2009). We address these issues in turn.

I. Sixth Amendment Confrontation Rights

A. Standard of Review

[16] Carr first argues that the admission of S.G.'s statement to Detective Carr violated his Sixth Amendment confrontation rights. In general, a trial court has broad discretion in ruling on the admissibility of evidence, and we disturb a trial court's evidentiary rulings only upon an abuse of that discretion. Speers v. State , 999 N.E.2d 850, 852 (Ind. 2013), cert. denied , --- U.S. ----, 134 S.Ct. 2299, 189 L.Ed.2d 183 (2014). However, when a defendant contends that a constitutional violation has resulted from the admission of evidence, the standard of review is de novo. Id.

B. Right to Confrontation of Witnesses

[17] The Sixth Amendment's Confrontation Clause provides in relevant part, "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." U.S. Const. amend. VI. This right precludes the admission of any out-of-court statement that is testimonial in nature if the declarant is not unavailable and the defendant has not had the opportunity to cross-examine the declarant. See Crawford v. Washington , 541 U.S. 36, 59, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). However, a defendant may forfeit his right to confrontation where his own wrongdoing caused the declarant to be unavailable to testify at trial. Id. at 62, 124 S.Ct. 1354 (relying on Reynolds v. United States , 98 U.S. 145, 158-59, 25 L.Ed. 244 (1878) ). The forfeiture by wrongdoing doctrine protects the integrity of the judicial process. See Davis v. Washington , 547 U.S. 813, 833, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006) (noting that "when defendants seek to undermine the judicial process by procuring or coercing silence from witnesses and victims, the Sixth Amendment does not require courts to acquiesce"). In order for a defendant to have forfeited his confrontation rights by wrongdoing, the defendant must have had in mind the particular purpose of making the witness unavailable. Giles v. California , 554 U.S. 353, 367, 128 S.Ct. 2678, 171 L.Ed.2d 488 (2008). The Supreme Court has not spoken directly on the burden of proof for showing forfeiture by wrongdoing. However, it has noted that federal courts applying Federal Rule of Evidence 804(b)(6), which codified the doctrine, have applied a preponderance of the evidence standard. See Davis , 547 U.S. at 833, 126 S.Ct. 2266.

[18] Here, we need not decide whether S.G.'s statement was testimonial or whether she was unavailable for Confrontation Clause purposes because, regardless of those issues, Carr had no prior opportunity to cross-examine her on the statement that was actually admitted at trial. The State argues that Carr's right to confront S.G. was satisfied when defense counsel deposed her under oath on April 28, 2017. Brief of Appellant at 19. However, in order to satisfy the requirement of cross-examination, a defendant must have had the opportunity to cross-examine the declarant on the statement that was actually admitted at trial. See Howard v. State , 853 N.E.2d 461, 469 (Ind. 2006) (recognizing, post- Crawford , the validity of the rule that the Confrontation Clause is satisfied if the defendant had the opportunity to confront the witness when the testimony was originally given.)

[19] Nevertheless, we conclude that Carr forfeited his right to confront S.G. on her statement to Detective Cobain because his own wrongdoing procured S.G.'s absence from trial. The State showed that Carr began contacting S.G. in violation of the trial court's no-contact order as early as March of 2017. S.G. continued to cooperate with the prosecutor by staying in contact and by participating in discovery. After Alden deposed S.G. in April of 2017, Carr knew that S.G. was still cooperating with the prosecution, but he informed Alden that he had decided to reject any plea agreement offered by the State. Thus, Carr sought an alternate resolution to his case.

[20] In May of 2017, Carr offered S.G. $20,000 and later stated on the telephone that "She's gonna help me out for that cash bro..." Confidential Exs., Ex. 101 at Call 18. Although S.G. initially expressed her desire that Carr serve executed time for the offenses, after repeated calls from Carr about financial assistance and changing her story, S.G. was considering Carr's offers. Carr eventually told S.G. that he was trying not to go to trial. S.G. apparently softened her stance toward Carr, as she offered to have sexual relations with him. Around this time, S.G. ceased cooperating with the prosecutor.

[21] In addition, on June 17, 2017, Carr's uncle left a voicemail message for S.G. on Carr's behalf offering her the use of a car, cash, and a place to stay. S.G.'s father felt that this message caused S.G. to refrain from cooperating with the prosecutor. Between June 26 and September 13, 2017, a period that encompassed Carr's first trial setting, Carr telephoned S.G. on 384 occasions and spoke to her forty-six times about either changing her story or not participating in the trial. Carr's discussions with his father and mother concerning the erasure of S.G.'s deposition showed that a plan was afoot to prevent Carr's conviction which was contingent on S.G. not appearing for trial. Although we do not impute the erasure of the deposition to Carr, these discussions were probative of Carr's intent when he was contacting S.G. so intensely in violation of the no-contact order. In November of 2017, S.G. was still out of contact such that the prosecutor was forced to serve her with a trial subpoena at the Hamilton County Prosecutor's office. We conclude that the preponderance of the evidence showed that Carr's offers to S.G. of money, a car, and a place to stay were part of an intensive campaign on his part to convince S.G. not to appear at his trial and that the evidence supports a reasonable inference that this campaign was the reason why S.G. did not appear.

[22] On appeal, Carr argues that certain calls made by him only discussed a second case involving S.G., and he suggests that S.G. chose not to testify against him because she was in love with him. Br. of Appellant at 16-17. We find Carr's arguments unpersuasive because at the time the calls at issue were placed, both cases were pending, and there was ample evidence in the record that Carr desired that S.G. not testify in this case. Carr's argument finding fault with the trial court's evidentiary ruling, see id. at 18-19, ignores the fact that we have conducted a de novo review of the evidence in this case and reached our conclusion independently from the trial court's reasoning. Speers , 999 N.E.2d at 856. Because Carr forfeited his right to confront S.G. on her statement by his own wrongdoing, his Sixth Amendment rights were not violated by the admission of her prior statement at trial.

II. Hearsay Exception

[23] Carr also argues that the trial court abused its discretion when it admitted S.G.'s statement because the State did not establish an adequate evidentiary foundation for its admission as an exception to the hearsay rules. We will reverse a trial court's ruling on hearsay only upon an abuse of discretion. Ikemire v. State , 852 N.E.2d 640, 644 (Ind. Ct. App. 2006), trans. denied . We will affirm the trial court's evidentiary ruling on any basis supported by the record. Id.

[24] S.G.'s prior statement constituted hearsay. She did not testify at trial, and it was offered into evidence without any limiting instruction and so was offered to prove the truth of the matters it contained. See Ind. Evidence Rule 801(c). Hearsay is not admissible unless the Rules of Evidence or other law provides otherwise. Evid. R. 802.

[25] Evidence Rule 804 provides the following exception:

(b) Hearsay Exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness.
...
(5) A statement offered against a party that has engaged in or encouraged wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness for the purpose of preventing the declarant from attending or testifying.

A declarant is considered to be unavailable as a witness if the declarant is absent from trial and the proponent of the statement has been unable to procure the declarant's attendance at trial by process or other reasonable means. Evid. R. 804(a)(5)(A). In applying Evidence Rule 804(b)(5), we have looked to Federal Evidence Rule 804(b)(6), after which our rule was patterned, and at caselaw construing that rule for guidance and have concluded that the State must only show that the defendant was motivated at least partially by a desire to silence the witness with his wrongdoing. See White v. State , 978 N.E.2d 475, 479-80 (Ind. Ct. App. 2012), trans. denied . The State was required to establish the exception by a preponderance of the evidence. Id. at 480.

[26] Here, contrary to Carr's assertion on appeal that S.G. never received a subpoena, see Br. of Appellant at 12, S.G. was personally served with a trial subpoena at the Hamilton County Prosecutor's office on November 14, 2017, which required her presence at trial on January 3, 2018. In addition, the State had been attempting to reach S.G. by telephone for the month preceding Carr's trial to no avail, and on January 2, 2018, it attempted to serve S.G. with an additional trial subpoena for January 3, 2018, by searching for her at her last known address and at a previous address. We conclude that the trial court did not abuse its discretion when it found that S.G. was unavailable for trial. Evid. R. 804(a)(5)(A).

[27] We also conclude that the evidence that supported our finding that Carr forfeited his confrontation rights established the foundation for the admission of S.G.'s statement under Rule 804(b)(5). Before Carr contacted S.G. in violation of the trial court's no-contact order and offered her money, a car, and place to stay, she cooperated with the prosecutor. After these wrongful contacts, she did not. Carr had rejected a plea agreement in this case, and he told S.G. that he was trying not to go to trial. The sheer number of calls Carr placed to S.G. in the short period between June 26 and September 13, 2017, a time period which encompassed his first trial setting on September 11, 2017, coupled with the fact that when he did speak to S.G., he repeatedly talked to her about not going forward to trial is strong, probative evidence of Carr's wrongdoing as well as his intent, at least in part, to prevent S.G. from appearing at trial. After these contacts by Carr, S.G. did not respond to any efforts by the prosecutor to contact her, and the prosecutor was forced to serve her with a subpoena when she was at another prosecutor's office on another case.

[28] We agree with Carr that there is no evidence that he explicitly urged S.G. to absent herself from trial. Br. of Appellant at 17. However, even though Carr employed the carrot rather than the stick in his efforts, the circumstantial evidence presented by the State supported a reasonable conclusion that S.G. did not appear on January 3, 2018, because of Carr's efforts. Furthermore, Carr's arguments pertaining to the trial court's rationales for admitting the statement are unavailing, see id. at 17-19, as we may sustain the trial court's ruling on any basis supported by the record. Ikemire , 852 N.E.2d at 644. Finally, contrary to Carr's assertions on appeal, see Br. of Appellant at 18, given the ample evidence of Carr's own, active efforts to keep S.G. from trial, it is not necessary for us to impute to him his family's wrongdoing in erasing the only existing copy of S.G.'s deposition. The State showed by a preponderance of the evidence that S.G. was unavailable as a witness and that Carr engaged in wrongdoing that was intended to, and did, procure S.G.'s unavailability to prevent her from testifying at trial. The trial court did not abuse its discretion when it admitted S.G.'s prior statement.

Conclusion

[29] Given that Carr forfeited his confrontation right as to S.G.'s prior statement and in light of our conclusion that the trial court did not abuse its discretion when it admitted the statement under an exception to the hearsay rules, we affirm Carr's convictions.

[30] Affirmed.

Najam, J., and Altice, J., concur.

      Carr does not appeal his conviction for escape.

      The audio recordings of these calls are not part of the record on appeal. A written summary of the calls was admitted at the evidentiary hearing in this matter without objection.

      Audio recordings of these calls were not admitted into evidence. The characterization of the content of these calls was provided by the prosecutor during the evidentiary hearing at trial without objection.