Webb v. State

• Decision Date: 09 July 2020
• Docket Number: Court of Appeals Case No. 19A-CR-2424
• Citation: 149 N.E.3d 1234
• Parties: Jamie R. WEBB, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff
• Court: Indiana Appellate Court

149 N.E.3d 1234

Jamie R. WEBB, Appellant-Defendant,

v.STATE of Indiana, Appellee-Plaintiff

Court of Appeals Case No. 19A-CR-2424

Court of Appeals of Indiana.

FILED July 9, 2020

Attorney for Appellant: Daniel J. Vanderpool, Vanderpool Law Firm, Warsaw, Indiana

Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Megan M. Smith, Deputy Attorney General, Indianapolis, Indiana

May, Judge.

[1] Jamie R. Webb challenges her conviction of and twenty-year sentence for Level 4 felony burglary.¹ Webb argues that the trial court abused its discretion by declining to admit an affidavit containing Webb's hearsay statement to the arresting officer and that her sentence is inappropriate given the nature of her offense and her character. We affirm.

Facts and Procedural History

[2] In December 2017, Candace Coe and Samuel Velacquez took over ownership and operation of Dreama's Restaurant in Wabash, Indiana. Velacquez's duties included managing the back-kitchen area and serving as the cook, while Coe took charge of the wait staff and handled payroll. Webb and her mother, Freda Patton, were both employees at Dreama's from November 2016 to February 2019.

[3] In addition to running the restaurant together, Coe and Velacquez were romantically involved and shared a rented residence. In late December 2018, the two ended their relationship and Velacquez moved to Ohio. Velacquez took with him his personal belongings, which included only some clothing. The household items and electronics he and Coe acquired during their relationship belonged to Coe. Coe was left as the sole operator of the restaurant.

[4] A month later, Coe's restaurant venture took a turn for the worse, and finally on February 19, 2019, Coe was forced to permanently shut down Dreama's due to an inability to pay her employees. The next day, Coe told Patton that Coe could not afford to pay her or Webb approximately one month's worth of back wages. Based on Coe's recommendation, Webb filed a "labor claim" for "payment of wages" which totaled $3,885.75. (Tr. Vol. II at 131.)

[5] On the night of February 24, 2019, Webb and Patton recruited seventy-year-old Eugene Grimm to take them from Webb's apartment to Coe's residence in Grimm's truck. Grimm testified he was not initially aware why Webb and Patton wanted to go to Coe's house that night, and he testified he had provided Webb and Patton transportation on other occasions because they did not own a car. After Grimm dropped Webb and Patton off at Coe's house, he sat in his truck and observed the pair examining the backdoor, entering, and then carrying out furniture, TV's, and other household items, which they placed in the back of Grimm's truck. Grimm noted the pair did not make any effort to conceal themselves or their actions. From there Grimm drove Webb and Patton back to Webb's apartment, where Webb and Patton unloaded the items and placed them inside Webb's apartment.

[6] During this time, Coe was away from her home visiting her sister in Kendallville, Indiana. On February 26, 2019, Coe was informed by one of her friends that Webb and Patton had taken some items from her house. She immediately returned to file a police complaint with Officer Drew Bender, and on February 27, 2019, police officers obtained a search warrant for Webb's apartment. No one answered when officers arrived at Webb's apartment, so they kicked down the front door. An investigation of the residence revealed numerous items that belonged to Coe: two televisions, a DVD player, fifty DVDs, pictures, a jewelry box, a heater, a PlayStation 4, a mirror, some shelves, and a microwave. Some of the electronics were plugged into the wall for use when officers arrived.

[7] On March 8, 2019, the State charged Webb with Level 5 felony burglary,² Level 4 felony burglary, and Class A misdemeanor theft.³ On March 21, 2019, the State additionally alleged Webb was a habitual offender.⁴ During trial on August 21, 2019, Webb asserted her right not to testify but attempted to enter into evidence an affidavit from Officer Bender containing statements she had made to him during the search of her apartment. In that affidavit, Officer Bender noted Webb had indicated she had authorization from Velacquez to enter into Coe's home and take certain property as compensation for her lost wages.

[8] As part of her offer to prove, Webb argued she satisfied Evidence Rule (804)(a)'s unavailability criteria by "exercising her constitutional right not to testify against herself." (Id. at 162.) The State, however, disagreed by asserting that unavailability is afforded only toward privileges such as "attorney-client privilege, doctor-patient privilege, pastor-parishioner privilege" and not from "exercising your Fifth Amendment right." (Id. at 163.) Webb further explained that she was entitled to present her statement from the affidavit regarding consent under the hearsay exception for statements against interest as set forth in Evidence Rule 804(b)(3) because the statement was inculpatory and exculpatory – she admitted she "was there, but [she] had permission." (Id. ) The court decided that, because the statement was not entirely against Webb's interest and because she would not be available for cross-examination, admission of the statement was not permissible under Evidence Rule 804(b)(3).

[9] Webb additionally requested an instruction about the defense of consent. The trial court indicated it would not issue the instruction because Webb had not presented admissible evidence of consent, but the court allowed Webb to argue why the instruction should be included. The trial court ultimately did not allow Webb to call Officer Bender to testify about her statement during the search, and it did not provide the jury an instruction on the defense of consent, as the inadmissible hearsay statements offered by Webb were the only documented evidence toward that defense.

[10] A jury found Webb guilty of Level 4 felony burglary and Class A misdemeanor theft. After a bifurcated hearing, the jury also determined Webb was a habitual offender. Following a sentencing hearing on September 16, 2019, the trial court convicted Webb of only Level 4 felony burglary, based on double jeopardy concerns. It imposed a ten-year sentence for Level 4 felony burglary and added a ten-year enhancement because Webb was a habitual offender, resulting in an aggregate twenty-year sentence with two years suspended to probation.

Discussion and Decision

1. Admission of Evidence

[11] The trial court's ruling on the admission or exclusion of evidence is reviewed for an abuse of discretion. Cherry v. State , 57 N.E.3d 867, 875 (Ind. Ct. App. 2016), trans. denied . An abuse of discretion occurs if the trial court misinterpreted the law or if its decision was clearly against the logic and effect of the facts and circumstances before it. Pavlovich v. State , 6 N.E.3d 969, 975 (Ind. Ct. App. 2014), trans. denied . When presented with an out-of-court statement offered to corroborate the truth of the matter asserted, the trial court must first examine the statement for hearsay, which is generally inadmissible, and then evaluate whether an exception permits its admission. Camm v. State , 908 N.E.2d 215, 226 (Ind. 2009).

[12] Hearsay is a statement that: (1) is not made by the declarant while testifying at the trial or hearing; and (2) is offered in evidence to prove the truth of the matter asserted. Ind. Evid. Rule 801(c). Unless hearsay falls into one of a number of delineated exceptions, it is inadmissible at trial. Evid. Rule 802. Webb argues the evidence she wished to have admitted was admissible under Indiana Evidence Rule 804, which provides in relevant part that hearsay is admissible if: (1) the declarant is unavailable as a witness, Evid. Rule 804(a) ; and (2) the statement was made against the declarant's interest. Evid. Rule 804(b)(3).

[13] At issue is the statement found in an affidavit by Officer Bender wherein he averred Webb told him that she had permission to take the items in exchange for her lost wages. Webb argues the affidavit containing her hearsay is admissible pursuant to Evidence Rule 804 because: (1) she was unavailable to testify as a witness on her behalf; and (2) the statement she made to Officer Bender was a statement against her interest. We address each part of the exception separately.

A. Whether Webb was Unavailable as a Witness

[14] Indiana Evidence Rule 804(a) outlines five classifications of unavailable witnesses:

(a) Criteria for Being Unavailable . A declarant is considered to be unavailable as a witness if the declarant:

(1) is exempted from testifying about the subject matter of the declarant's statement because the court rules that a privilege applies;

(2) refuses to testify about the subject matter despite a court order to do so;

(3) testifies to not remembering the subject matter;

(4) cannot be present or testify at the trial or hearing because of death or a then-existing infirmity, physical illness, or mental illness; or

(5) is absent from the trial or hearing and the statement's proponent has not been able, by process or other reasonable means, to procure:

(A) the declarant's attendance, in the case of a hearsay exception under Rule 804(b)(1) or (5) ; or

(B) the declarant's attendance or testimony, in the case of a hearsay exception under rule 804(b)(2), (3), or (4).

But this subdivision (a) does not apply if the statement's proponent procured or wrongfully caused the declarant's unavailability as a witness in order to prevent the declarant from attending or testifying.

[15] The State argues Webb cannot both claim unavailability to introduce a statement she made to officers and, at the same time, exercise her right against self-incrimination to avoid being cross-examined about the statement. However, despite the State's objection, Webb's declaration of her Fifth Amendment constitutional right against self-incrimination is a valid and protected privilege that does meet the criteria for unavailability....