Otte v. State
| Citation | 967 N.E.2d 540 |
| Decision Date | 17 May 2012 |
| Docket Number | No. 84A01–1108–CR–356.,84A01–1108–CR–356. |
| Parties | Brian OTTE, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Eric K. Koselke, Indianapolis, IN, Attorney for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, Monika Prekopa Talbot, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Following a jury trial, Appellant–Defendant Brian Otte appeals his convictions for Class D felony Residential Entry (Count l); 1 three counts of Class B misdemeanor Battery (Counts 2, 3, 5); 2 Class A misdemeanor Criminal Mischief (Count 6); 3 Class A misdemeanor Operating a Vehicle While Intoxicated (Count 7); 4 Class B misdemeanor Failure to Stop after Accident Resulting in Damage to Unattended Vehicle (Count 8); 5 and the finding that he is a Habitual Offender (Count 9). 6 Upon appeal, Otte argues that he was tried in violation of Indiana Rule of Criminal Procedure 4 and that the trial court abused its discretion in permitting witness testimony that victims of domestic violence had a certain propensity to recant. We affirm.
On the night of November 11, 2010, Colleen Amos, her boyfriend Justin Shaffer, and her infant child were at her residence on McKinley Boulevard in Terre Haute. At approximately 9:30 p.m. Amos received a call from Otte, her former boyfriend, asking to come over, which request Amos refused. At some point, Amos heard a person break into her house though the back door. Moments later, Otte, who did not have a key to the residence, appeared in Amos's living room, lunged at Shaffer, and began hitting him. Amos attempted to leave for help, at which point Otte forced his way in her direction, upsetting the car seat holding her sleeping infant, and punched her on the right side of her body. This knocked Amos to the ground on her hands and knees and caused her to feel pain. After Otte turned his attention once more to Shaffer, Amos escaped the house and sought help. As Amos spoke to a neighbor, she saw Otte leave the home. Amos reentered the home and locked it, whereupon she noticed her sleeping infant lying in the tipped car seat. Upon hearing crashing noises, Amos looked outside to see Otte repeatedly ramming her car with his truck. Otte subsequently broke into the house again, and fought with Shaffer. Scared for her life, Amos hid in the sunroom and called for help.
Terre Haute Police Officer William Ellerman responded to the scene, where he found that the back door to Amos's home was “all busted out,” and the door jamb was destroyed. Tr. p. 91. Seelyville Town Marshall James Halley subsequently apprehendedOtte following a traffic stop. Otte smelled of alcohol and admitted that he was drunk. A subsequent certified breath test, administered by Terre Haute Police Officer Theodore Lemke, revealed that Otte's blood-alcohol content was .14.
On November 15, 2010, the State charged Otte with seven charges arising out of the November 11–12 incidents. These charges included Class D felony residential entry (Count 1), Class A misdemeanor domestic battery (Count 2), Class A misdemeanor battery (Count 3), Class A misdemeanor invasion of privacy (Count 4), Class A misdemeanor criminal mischief (Count 5), Class A misdemeanor operating a vehicle while intoxicated endangering a person (Count 6) and Class B misdemeanor failure to stop after an accident resulting in vehicle damage (Count 7). On March 10, the State filed an additional count alleging Otte to be a habitual offender (Count 8).
On March 15, 2011, Otte moved for a speedy trial pursuant to Indiana Criminal Rule 4(B)(1). On April 21, 2011, the State filed an amended information alleging ten counts, which included new Counts 9 and 10, two counts of Class A misdemeanor battery. On April 29, the State moved for a continuance of Otte's speedy trial, over Otte's objection, on the grounds that Officers Ellerman and Lemke would be on vacation outside of Indiana and unavailable as witnesses for the May 19, 2011 trial date.
The trial court held two hearings on the State's motion. At a May 4, 2011, hearing, the prosecutor indicated that, upon subpoenaing the State's witnesses, he had learned that Officers Ellerman and Lemke had made unrefundable out-of-state vacation plans which they wished to keep. The prosecutor argued that, pursuant to Indiana Criminal Rule 4(D), the State was permitted a continuance of up to ninety additional days when evidence, such as these officers' testimony, would not otherwise be available. The trial court asked the prosecutor to inform the officers that the county would reimburse them for the cost of moving their vacations, and it took the matter under advisement.
At the May 9, 2011, hearing, the prosecutor confirmed that at least one of the witnesses, Officer Ellerman, would be in Florida and was not inclined to change his vacation plans, even with reimbursement by the county. The trial court concluded that a two-week extension of the trial date was reasonable, granted the State's continuance on May 9, 2011, and reset the trial for June 2, 2011.
On May 11, 2011, the State filed a third amended information, replacing the habitual offender charge in Count 8 with a Class A misdemeanor battery charge and renaming the habitual offender allegation as Count 11. On June 2, 2011, the State filed a fourth amended information alleging the following nine counts: Class D felony residential entry (Count 1); Class A misdemeanor battery (Count 2); Class B misdemeanor battery (Counts 3–5); Class A misdemeanor criminal mischief (Count 6); Class A misdemeanor operating a vehicle while intoxicated endangering a person (Count 7); Class B misdemeanor failure to stop after accident resulting in damage to unattended vehicle (Count 8); and that Otte was a habitual offender (Count 9).
During the June 2–3, 2011 jury trial, defense counsel asked Amos on cross-examination about allegations she had made against Otte in October 2009 which she had subsequently recanted. Amos admitted having claimed three months after making the allegations that she had made them up after Otte began dating another woman. Amos testified at the instant trial that her true basis for recanting was that she had not wanted to go to trial. On redirect examination the prosecutor confirmed with Amos that, despite her recantation,Otte had ultimately been convicted of charges arising out of her allegations.
Following Amos's testimony, the State introduced testimony from domestic violence expert Yvonne Creekbaum, over defense counsel's objection, that victims of domestic violence routinely recant their stories. According to Creekbaum, whose testimony was not based upon the facts of the instant case, domestic violence victims may recant out of fear for their abuser or financial considerations, among other reasons.
Following trial, Otte was convicted of Count 1, Count 2 as a lesser-included Class B misdemeanor, Counts 3, 5, and 6–8, and he was found to be a habitual offender. At a July 13, 2011 sentencing hearing, the trial court imposed an aggregate sentence of eight and one-half years in the Department of Correction. Specifically, Otte received three years in the Department of Correction for Count 1; 180 days for each of Counts 2, 3, and 5, all to be served concurrent with each other and with Count 1; one year on Count 6, to be served concurrent with Count 1; and concurrent sentences of one year in the Department of Correction for Count 7 and 180 days for Count 8, with the sentence in Count 7 to be served consecutive to the sentence in Count 1. The trial court imposed an additional term of four and one-half years for Count 9, to run consecutive to the sentences in Counts 1 and 7.7 This appeal follows.
Upon appeal, Otte contends that his right to a speedy trial pursuant to Indiana Criminal Rule 4 was violated and that the trial court abused its discretion in admitting Creekbaum's testimony.
The State's first response to Otte's Rule 4 challenge is that it is waived. The State argues that Otte was required to move for discharge in addition to his objection in order to preserve this claim for appellate review. The State cites Brown v. State, 725 N.E.2d 823, 825 (Ind.2000) in support of this proposition. While Brown references “the requirement that a defendant object to a trial date set after a Criminal Rule 4 deadline and move for discharge,” it later references these two requirements in the disjunctive, suggesting that either is adequate to preserve a Rule 4 challenge. Id. (). As the Brown court emphasizes, the purpose of Rule 4 is to permit a defendant a timely trial, not a mechanism for avoiding one. Id. A defendant therefore cannot sit idly by and wait for a deadline to pass before complaining about it. Here, there is no suggestion that Otte sat idly by and waited for deadlines to pass, only that he used a single means, namely timely objections, to bring it to the court's attention. We are satisfied that this was enough to preserve the claim and decline the State's invitation to resolve this appeal on waiver grounds. See id. ().
The right of an accused to a speedy trial is guaranteed by the Sixth Amendment to the United States Constitution and by Article I, Section 12 of the Indiana Constitution. Clark v. State, 659 N.E.2d 548, 551 (Ind.1995). This “ ‘fundamental principle of constitutional law’ ” has long been zealously guarded by the Indiana Supreme Court. Id. (quoting Castle v. State, 237 Ind. 83, 85, 143 N.E.2d 570, 572 (1957)). To this end, the provisions of Indiana Criminal Rule 4 implement the defendant's speedy trial right. Id.
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