Hightower v. State

• Citation: 866 N.E.2d 356
• Decision Date: 17 May 2007
• Docket Number: No. 49A05-0603-CR-124.,49A05-0603-CR-124.
• Parties: Kevin HIGHTOWER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

866 N.E.2d 356

Kevin HIGHTOWER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 49A05-0603-CR-124.

Court of Appeals of Indiana.

May 17, 2007.

Reginald B. Bishop, Roberts & Bishop, Indianapolis, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Michael Gene Worden, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

CRONE, Judge.

Case Summary

Kevin Hightower appeals his convictions and sentences for corrupt business influence, three counts of theft, conspiracy to commit bribery, and conspiracy to commit forgery.¹ We affirm but remand with instructions.

Issues

Hightower raises various issues, which we distill and restate as follows:

I. Whether the trial court properly admitted into evidence statements of a co-conspirator;

II. Whether the State presented sufficient evidence to support the convictions for corrupt business influence, theft, conspiracy to commit bribery, and conspiracy to commit forgery;

III. Whether Hightower's sentence is proper considering aggravating circumstances, mitigating circumstances, Indiana Appellate Rule 7(B), and the Sixth Amendment; and

IV. Whether the abstract of judgment requires correction.

Facts and Procedural History

Hightower formed Tower, LLC ("Tower"), as a provider of employment training. Tr. at 914.² As president and chief executive officer, Hightower was "responsible for the day-to-day operations and vision of the Tower purpose." State's Ex. 46 (response to request for proposal); Tr. at 925 (Hightower testified that he was the "head of Tower."). He wrote or approved "most of the checks," even those for small amounts. Tr. at 712. Hightower also hired employees for Tower, including William Gutierrez, whom he asked to be Tower's vice president.³ Id. at 688-89.

On May 17, 2002, Hightower and Gutierrez, in their corporate capacities, entered into a one-year "Memorandum of Understanding" ("MOU") between Tower and Results Consulting, Inc. ("Results"). State's Ex. 2. Although originally started in the mid-1990s by James Stiles and another partner, Results conducted no business until Matthew Raibley joined Results in May 2002; at that point, Raibley and Stiles became the sole owners and operators of Results. Tr. at 145, 141, 481. Also at that same time, Raibley was the director of the Indiana Manpower and Comprehensive Training Program ("IMPACT") for the Indiana Family and Social Services Administration ("FSSA"). Id. at 137-39. IMPACT was the employment and training section for families that receive public assistance and had a budget of approximately $50,000,000. Id. Stiles served as the assistant program manager for IMPACT.

The MOU, which was purportedly applicable only to social services contracts outside of Indiana,⁴ stated as follows:

I. Purpose

The purpose of this agreement is to form a working relationship between the two companies in order to promote the best interest of each company's interests and integrity. This working relationship will enable each of the parties to better serve their customers and [sic] well as promote joint ventures involving the two companies.

. . .

III. Scope of the Agreement

Tower, Inc. and Results Consulting, Inc. agree to pursue joint ventures in the business of social service delivery. Tower, Inc. expertise in delivering training and curriculums to customers is acknowledged and Results Consulting, Inc. expertise in providing guidance on funding opportunities, performance based contracting strategies and proposal presentation is acknowledged.

State's Ex. 2. Pursuant to the MOU, Results would be paid $125 per hour to provide Tower with a variety of services, including:

• Identification of possible funding sources and training opportunities

• Locating possible joint cooperative ventures

• Assisting in development of performance based contract proposals

• Providing guidance in proposal presentation and/or perform joint presentations in support of Tower

• Supplying Tower with a "consciousness awareness of social service strategy trends"

• Keeping Tower on the "cutting edge of recent and proposed social service legislation and it[s] possible ramification[s]"

• Providing Tower with a strategy focused approach on assisting agencies in meeting federal participation requirement

Id.⁵

Almost immediately thereafter, Tower requested assistance with proposals within Indiana—despite ethical concerns that had led the parties to initially focus on out-of-state opportunities. Tr. at 37, 283. Accordingly, Raibley and Stiles, while on FSSA time, met with Tower employees regarding various projects and billed Tower per the MOU. Hightower commented that he and Gutierrez needed to "treat [Raibley] well"⁶ since Raibley "approv[ed] the moneys." Id. at 720. Raibley often signed vouchers submitted by Tower, conveyed opportunities to Tower, and assisted with proposals. At one point, Raibley recommended the award of a no-bid contract worth $425,000 to Tower, Results' sole client and only source of income. Id. at 242, 192, 238, 269-70, 515, 556.⁷ Tower paid Results somewhere between $15,000 and $20,000 for its consulting services. See id. at 717, 931 ($16,000 or more). Hightower paid with money orders because "Results wasn't supposed to be doing the actual work on the RFP[⁸] because of a conflict of interest and ethics violation, and he didn't want to put it on record that they performed the work on those specific RFP's, because they were—I believe one of them was to FSSA." Id. at 76. Tower "took advantage" of Raibley's position with FSSA in that it had "access." Id. at 238.

Gutierrez and Tower employee Julie Mitchell falsified certifications that were sent to FSSA for Tower training programs. Id. at 302-03, 324. Specifically, certain information was whited out, and fictitious social security numbers were inserted. Id. Again, FSSA, often through Raibley's authorization of vouchers, paid Tower several thousand dollars for various training programs. Although many of these programs were never completed, Hightower failed to convey this information to Raibley or FSSA, thus precluding FSSA from requesting reimbursement for unearned money. Id. at 284-85.

In the spring of 2004, Hightower, Gutierrez, Raibley, and Luis Terrazas were indicted and charged with numerous counts of a variety of crimes, including corrupt business influence, conspiracy to commit theft, conspiracy to commit bribery, conspiracy to commit forgery, theft, conspiracy to commit obstruction of justice, and identity deception. Hightower waived his right to trial by jury. Tr. at 49. Although presented with an opportunity to file a brief regarding co-conspirator statements, Hightower did not do so. Id. at 130. After amendments and dismissals, on December 19, 2005, a bench trial began on the following ten charges: corrupt business influence (I), conspiracy to commit theft (II), three counts of theft (III, IV, V), conspiracy to commit bribery (VI), three counts of identity deception (VII, VIII, IX), and conspiracy to commit forgery (X). App. at 208. At the conclusion of a three-day trial, the court took the matter under advisement, eventually finding Hightower guilty of seven counts: I through VI and X. Tr. at 982-83.⁹

On February 10, 2006, the court effectively vacated the guilty finding upon the conspiracy and sentenced Hightower as follows:

Ct. 1: corrupt business influence, C felony; 4 yrs. total, 2 exe., 2 susp.

Ct. 4: theft; receiving stolen property, D felony; 2 yrs. total, 1 exe., 1 susp.

Ct. 6: theft; receiving stolen property, D felony; 2 yrs. total, 1 exe., 1 susp.

Ct. 8: theft; receiving stolen property, D felony; 2 yrs. total, 1 exe., 1 susp.

Ct. 11: conspiracy to commit bribery, C felony; 4 yrs. total, 2 exe., 2 susp.

Ct. 33: conspiracy to commit forgery, C felony; 4 yrs. total, 2 exe., 2 susp.

See Appellant's App. at 35 (abstract of judgment); see also Ind.Code §§ 35-45-6-2, 35-43-4-2, 35-44-1-1, and 35-43-5-2. The court ordered the terms to be served concurrently and specified that Hightower was to serve the first year of the executed sentences in the Department of Correction and the second year in "Community Corrections in Component deemed appropriate by Community Corrections." App. at 35. The court noted regular conditions of probation, added 100 hours of community service work for each year of probation, and ordered restitution, "which is joint and several with that co-defendant, in the amount of $98,000." Tr. at 1046-47.

We shall supply additional facts where necessary.

Discussion and Decision

I. Admission of Co-Conspirator Statements

Hightower asserts that the court committed reversible error when it failed to rule on the admission of co-conspirator evidence during pre-trial hearings. He contends that "[a]llowing co-conspirator statements into the hearing without any knowledge of the nature or content of the statements to be offered violates [his] constitutional rights to confront the witness against him and erodes the effectiveness of counsel." Appellant's Br. at 27-28. In a related argument, Hightower challenges the admission of co-conspirator evidence where "there was no independent evidence of a conspiracy." Id. at 29.

Regarding the co-conspirator statements, the court took them under advisement until they were to be introduced at trial. Pre-trial rulings on admissibility do not "determine the ultimate admissibility of the evidence." McCarthy v. State, 749 N.E.2d 528, 537 (Ind.2001). Therefore, even if the court had granted or denied a motion in limine, said ruling would not constitute an appealable issue. See Simmons v. State, 760 N.E.2d 1154, 1158 (Ind.Ct.App.2002). Not until evidence is admitted at trial over a specific objection can a party assert an error on appeal. See Carter v. State, 754 N.E.2d 877, 881 n. 8 (Ind.2001) (noting that defendant must reassert his objection at trial contemporaneously with the introduction of the evidence to preserve the error for appeal), cert. denied; ...