Sawyer v. State

JOHN W. SAWYER, Appellant-Defendant,

v.STATE OF INDIANA, Appellee-Plaintiff.

No. 48A02-1105-CR-454

COURT OF APPEALS OF INDIANA

Dated: December 29, 2011

Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT:

JASON A. CHILDERS

Hulse, Lacey, Hardacre, Austin,

Sims & Childers, P.C.

Anderson, Indiana

ATTORNEYS FOR APPELLEE:

GREGORY F. ZOELLER

Attorney General of Indiana

RYAN D. JOHANNINGSMEIER

Deputy Attorney General

Indianapolis, Indiana

APPEAL FROM THE MADISON CIRCUIT COURT

The Honorable Rudolph R. Pyle III, Judge

Cause No. 48C01-0910-FC-602

MEMORANDUM DECISION - NOT FOR PUBLICATION

BAILEY, Judge

Case Summary

John W. Sawyer ("Sawyer") appeals following his convictions for Battery, as a Class C felony;¹ Strangulation, a Class D felony;² Intimidation, as a Class D felony;³ Resisting Law Enforcement, as a Class A misdemeanor;⁴ and Cruelty to a Law Enforcement Animal, as a Class A misdemeanor.⁵ We affirm in part and vacate in part.

Issues

Sawyer presents the following issues for our review:

I. Whether sufficient evidence supports his conviction for Resisting Law Enforcement;

II. Whether double jeopardy principles prohibit his convictions for Resisting Law Enforcement and Battery on a Law Enforcement Animal;

III. Whether the trial court abused its discretion by admitting hearsay testimony of an unavailable witness;

IV. Whether the trial court abused its discretion by admitting certain evidentiary exhibits;

V. Whether the trial court abused its discretion by not finding Sawyer's prior military service to be a mitigating factor in sentencing; and

VI. Whether his sentence is inappropriate given his character and the nature of his offense.

Facts and Procedural History

On October 25, 2009, Shalonda Smith ("Smith") went to a group home in Anderson, Indiana, to visit her friend, Christopher Peoples ("Peoples"). Peoples lived in the home, as did Sawyer and others. At some point during Smith's visit, she encountered Sawyer in the downstairs common area of the house. Sawyer was drunk and said to Smith, "You know I want you. I haven't been without [sic] a woman in so many months. I need you." Tr. 53. Smith rejected Sawyer's advances and told him that she did not like him. Sawyer then went to the kitchen, obtained a knife, and placed it against Smith's hip and neck and told her that if she would not sleep with him, he would kill her. Sawyer also choked her and cut her finger as she attempted to get away from him.

Smith went upstairs to Peoples's room and Sawyer followed. Sawyer kicked in the door to the room, grabbed Smith by the neck, threw her down, and choked her while Smith begged for her life. Sawyer then took Smith by the neck and dragged her to his room, where he said, "You're gonna sleep with me." Tr. 66.

At some point, Peoples confronted Sawyer. Smith ran behind Peoples for protection, and Peoples told Sawyer that he could not hit her while he was around. Sawyer, wielding a knife, responded by saying, "Well boy, you about to die." Tr. 96. The three eventually ended up outside, where Sawyer attacked Peoples as Peoples called the police. Peoples fended off Sawyer with a tree branch and Smith stayed behind Peoples for protection. During Sawyer's attack, Sawyer told Peoples that he wanted to kill him.

The entire incident lasted fifteen minutes, Sawyer used two different knives,⁶ and Smith sustained two different cuts on her fingers, bruises on her neck, and a scratch behind her ear. The police arrived and ordered Sawyer to show his hands and go to the ground. Sawyer did not comply and kept moving his hands toward his pockets. After Sawyer continued to disobey the officers' commands, the police eventually released a law enforcement dog on Sawyer. Sawyer repeatedly punched the dog in the head and face in retaliation, but ultimately relented and was taken into custody.

Sawyer was charged with Battery with a Deadly Weapon, a Class C felony; Criminal Confinement, as a Class C felony;⁷ two counts of Intimidation, as Class D felonies; Strangulation, a Class D felony; Resisting Law Enforcement, as a Class A misdemeanor; and Battery on a Law Enforcement Animal, as a Class A misdemeanor. A jury trial was held on January 18, 2010 and January 20, 2010. At the trial's conclusion, the jury found Sawyer guilty of Battery with a Deadly Weapon, Strangulation, one count of Intimidation, Resisting Law Enforcement, and Battery on a Law Enforcement Animal. The jury found him not guilty of Criminal Confinement and the other count of Intimidation.⁸

The court held a sentencing hearing on April 11, 2011, and after hearing argument of counsel, found Sawyer's criminal history and the fact that he committed the offenses while on probation as aggravating factors. Sawyer was sentenced to eight years imprisonment forBattery, three years for Strangulation, three years for Intimidation, one year for Resisting Law Enforcement, and one year for Battery on a Law Enforcement Animal, all executed at the Department of Correction. The court ordered his sentences to be served concurrently, for an aggregate sentence of eight years. Sawyer now appeals.

Discussion and Decision

Sufficiency of the Evidence and Double Jeopardy

Sawyer argues that insufficient evidence supports his conviction for Resisting Law Enforcement. He also maintains that double jeopardy principles under the Indiana Constitution prohibit his convictions for both Resisting Law Enforcement and Battery on a Police Animal. The State concedes that Sawyer's convictions for both crimes violate double jeopardy principles. We therefore need not address Sawyer's sufficiency argument and vacate his conviction for Resisting Law Enforcement.

Testimony of Christopher Peoples

At Sawyer's trial, the court allowed the State to read into evidence Peoples's prior testimony on the events in this case that he gave at Sawyer's probation revocation hearing. This was done in lieu of Peoples's live testimony because Peoples was determined to be unavailable. Sawyer argues that this constitutes reversible error because it violated his federal constitutional right to confront the witnesses against him.⁹ We disagree.

The admission of evidence is within the sound discretion of the trial court. Guy v. State, 755 N.E.2d 248, 252 (Ind. Ct. App. 2001), trans. denied. We will not reverse a trial court's decision on whether to admit certain evidence absent a showing of manifest abuse of discretion resulting in the denial of a fair trial. Id. A trial court abuses its discretion when its decision is clearly against the logic and effect of the facts and circumstances. Tolliver v. State, 922 N.E.2d 1272, 1278 (Ind. Ct. App. 2010), trans. denied.

In determining the admissibility of evidence, the reviewing court will only consider the evidence in favor of the trial court's ruling and unrefuted evidence in the defendant's favor. Guy, 755 N.E.2d at 252. Even if the decision to admit evidence was an abuse of discretion, we will not reverse if the admission of evidence was harmless error. Tolliver, 922 N.E.2d at 1278. Error is harmless if "the conviction is supported by substantial independent evidence of guilt as to satisfy the reviewing court that there is no substantial likelihood that the questioned evidence contributed to the conviction." Id. (quoting Cook v. State, 734 N.E.2d 563, 569 (Ind. 2000)).

The Sixth Amendment to the United States Constitution provides: "In all criminal prosecutions, the accused shall enjoy the right. . .to be confronted with the witnesses against him[.]" The Fourteenth Amendment makes this right of confrontation obligatory upon thestates. Howard v. State, 853 N.E.2d 461, 464-65 (Ind. 2006) (citing Pointer v. Texas, 380 U.S. 400, 406 (1965) and Brady v. State, 575 N.E.2d 981, 985 (Ind. 1991)). The essential purpose of the Sixth Amendment right of confrontation is to ensure that the defendant has the opportunity to cross-examine witnesses against him. Id. The right to adequate and effective cross-examination is fundamental and essential to a fair trial. Id. It includes the right to ask pointed and relevant questions in an attempt to undermine the opposition's case, and the opportunity to test a witness's memory, perception, and truthfulness. Id. The admission of a hearsay statement made by a declarant who does not testify at trial violates the Sixth Amendment if (1) the statement was testimonial and (2) the declarant is unavailable and the defendant lacked a prior opportunity for cross-examination. Id. (citing Crawford v. Washington, 541 U.S. 36 (2004)).

Sawyer argues that he lacked a prior opportunity to cross-examine Peoples. In particular, he contends that his prior cross-examination of Peoples at the probation revocation hearing was not meaningful because a probation revocation hearing, as a civil matter, does not have the same evidentiary burden as a criminal trial. See Cox. v. State, 706 N.E.2d 547, 551 (Ind. 1999) ("A probation hearing is civil in nature and the State need only prove the alleged violations by a preponderance of the evidence"). He also argues that he did not have adequate time to prepare for the probation revocation hearing.

The Confrontation Clause does not guarantee "cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." Jarrell v. State, 852 N.E.2d 1022, 1027 (Ind. Ct. App. 2006) (quoting Kentucky v. Stincer, 482 U.S. 730, 739 (1987)).The right to cross-examination is satisfied if the defendant has the opportunity to bring out such matters as a witness's bias, lack of care and attentiveness, poor eyesight, or even bad memory. Id. "'[T]he right to confrontation is a trial right, designed to prevent improper restrictions on the types of questions that defense counsel may ask during cross-examination.'" Id. (quoting Pennsylvania v. Ritchie, 480...