Opinion
23A-CR-2110
06-13-2024
J'Quan Dehaai-Johnson, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff.
ATTORNEY FOR APPELLANT Bruce W. Graham Graham Law Firm PC Lafayette, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana, Ian McLean Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Tippecanoe Superior Court The Honorable Steven P. Meyer, Judge Trial Court Cause No. 79D02-2209-F4-48
ATTORNEY FOR APPELLANT Bruce W. Graham Graham Law Firm PC Lafayette, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana, Ian McLean Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
SHEPARD, SENIOR JUDGE
[¶1] J'Quan Lavon Nehemiah DeHaai-Johnson physically and mentally abused his live-in girlfriend over a span of several days. He appeals from his convictions on various counts of criminal confinement, intimidation, and domestic battery. He argues the trial court erred in excluding certain evidence. Johnson also appeals from the court's sentencing order, including the court's ruling forfeiting his cash bond. The State concedes the court should not have forfeited Johnson's bond.
The record contains several different spellings of Johnson's name. We use the spelling Johnson provided to the trial court. Tr. Vol. 2, p. 13.
[¶2] We conclude the court erred as to the bond but otherwise affirm Johnson's convictions and sentence. Accordingly, we affirm in part, reverse in part, and remand with instructions.
Facts and Procedural History
[¶3] Halley DeWeese entered into a romantic relationship with Johnson in August 2021. She moved in with him soon after. The relationship did not work out. DeWeese left Johnson several times, on one occasion for several months, but he persuaded her to resume their relationship.
[¶4] In August 2022, Ezekiel Hatke, who was Johnson's uncle, moved in with DeWeese and Johnson, sleeping on the couch in their one-bedroom apartment. During that month, Johnson began to physically attack DeWeese, claiming she needed to be punished and to "feel the pain that [she] put [him] through." Tr. Vol. 3, p. 41. The punishments started with Johnson hitting DeWeese with a belt while she was nude, but they escalated to him forcing her to burn herself with cigarettes. He also burned her with a cigarette twice. In addition, Johnson repeatedly ordered DeWeese to use one of his knives to cut herself on her breasts and the sides of her torso. She once cut her breasts after he threatened to cut them off entirely. Johnson also hit DeWeese and kicked her while wearing steel-toed boots. Finally, he took control of her phone, often preventing her from accessing it.
[¶5] DeWeese became terrified of Johnson. She later said he "alter[ed] the way that [she] thought" and "nothing felt right, nothing felt real." Id. at 47-48. DeWeese "clung" to Johnson despite his abusive misconduct because "he was the only thing that really felt real." Id. at 48.
[¶6] On September 10, 2022, Johnson became angry with DeWeese and knocked her head against the wall. Next, he forced her to take off her clothes and get into the shower, where he made her pour expired orange juice and milk over herself while he recorded her. The juice stung the knife cuts on DeWeese's sides. After DeWeese tried to clean herself off and got dressed, she returned to the bedroom, where Johnson was talking with Hatke. Johnson became angry again after Hatke left the room. He accused DeWeese of having cheated on him earlier in their relationship, which she denied. Johnson grabbed her while they yelled at each other. Hatke returned to the bedroom to say a neighbor had complained about the noise.
[¶7] Johnson and Hatke briefly left the bedroom before returning and yelling at DeWeese. Her next memory is of being held down on the floor, on her stomach, while Johnson bound her wrists and ankles with duct tape and a belt, resulting in her being "hog tied." Id. at 58. He also taped her mouth shut. Johnson then struck DeWeese's rear repeatedly while her face was pressed into the carpet. He cut off the duct tape, and she sat up. Johnson headbutted DeWeese and asked her what she was going to do. She offered to go wash the dishes. As DeWeese washed the dishes, Johnson criticized her, striking her repeatedly with a wooden spoon. They then returned to the bedroom, where they fell asleep. When DeWeese awoke, Johnson was still asleep, so she grabbed her wallet and fled the apartment, without shoes. She encountered an acquaintance, who arranged for her to get a ride to her mother's home.
[¶8] When DeWeese arrived at her mother's home, she was shoeless, dirty, and smelled bad. She was also crying. DeWeese's mother observed many bruises on DeWeese's arms and tape marks on her wrists, and DeWeese showed her the wounds on her torso. DeWeese's mother called 911.
[¶9] Officer Jonathon Stanfield of the Lafayette Police Department was dispatched to the home. He saw bruises on DeWeese's arms and legs, in varying states of healing. He also saw small circular marks that appeared to be burns, and marks around her wrists consistent with being wrapped with tape. Another officer took photos of DeWeese's injuries.
[¶10] Later, a police officer obtained a search warrant for DeWeese and Johnson's apartment. Four officers searched the apartment and found a piece of duct tape in the bathroom. Hair was stuck to the tape. They also found a roll of duct tape in the bedroom, along with several knives. One of the knives matched DeWeese's description of the knife she used to cut herself when Johnson demanded it. Several days later, DeWeese was interviewed by another officer, who took more photos of her injuries.
[¶11] The State ultimately charged Johnson with ten felonies and three misdemeanors for his acts against DeWeese, including multiple counts of criminal confinement and domestic battery. After the initial hearing, the trial court ordered Johnson to have no contact with DeWeese. He signed a statement saying he understood the court's order. Despite the no contact order, Johnson and DeWeese communicated by phone and text message, and they moved in together in December 2022. After they resumed living together, Johnson made DeWeese contact the police and a prosecutor via a letter and email. At his direction, she disavowed her prior statements and said Johnson was innocent, claiming she voluntarily inflicted the injuries on herself.
[¶12] The State moved to revoke Johnson's bond after discovering he was living with DeWeese. The trial court granted that motion and sent Johnson to jail.
[¶13] The case proceeded to trial. DeWeese testified as described above. Johnson testified in his own defense, stating he did not injure DeWeese or force her to injure herself. Johnson further stated DeWeese had voluntarily cut herself throughout their relationship.
[¶14] The jury determined Johnson was guilty of Level 4 felony criminal confinement, two counts of Level 6 felony domestic battery, one count of Level 6 felony intimidation, and one count of Class A misdemeanor domestic battery. The jury returned not guilty verdicts on the other charges.
[¶15] The trial court reduced one of the Level 6 felony domestic battery convictions to a Class A misdemeanor to avoid potential double jeopardy issues with the criminal confinement conviction. The court sentenced Johnson to twelve years, with three years suspended to supervised probation. In addition, the court deemed Johnson's cash bond to be forfeited. This appeal followed.
Issues
[¶16] Johnson raises three issues, which we expand and restate as:
I. Whether the trial court erred in excluding certain evidence about DeWeese's past.
II. Whether the court abused its sentencing discretion.
III. Whether Johnson's sentence is inappropriate in light of the nature of the offenses and the character of the offender.
IV. Whether the court erred in declaring Johnson had forfeited his cash bond.
Discussion and Decision
I. Evidence Related to DeWeese's Past
[¶17] Johnson argues the trial court erred in excluding evidence showing DeWeese had a history of cutting herself before they began their relationship. He further argues the exclusion of this evidence unfairly hindered his defense and violated his Sixth Amendment right to fully cross-examine DeWeese.
[¶18] As for the Sixth Amendment claim, an "[a]ppellant may not state one ground for his position at trial and state another ground on appeal . . . to do so constitutes a waiver of the issue." Jester v. State, 551 N.E.2d 840, 843 (Ind. 1999). Both before trial and during DeWeese's cross-examination, Johnson never claimed limiting his questioning of her about her history of cutting herself amounted to a Sixth Amendment violation. Instead, he merely argued such evidence was "relevant," Tr. Vol. 2, p. 107, and DeWeese's testimony "opened the door" to further discussion of her history on cross-examination, Tr. Vol. 3, p. 87. Johnson waived his Sixth Amendment claim by failing to state it at trial. See Washington v. State, 840 N.E.2d 873, 880 (Ind.Ct.App. 2006) (Sixth Amendment challenge to exclusion of witnesses waived because of failure to raise constitutional claim at trial), trans. denied.
[¶19] Next, the State argues Johnson waived any other challenge to the trial court's evidentiary ruling by failing to make an offer of proof. "[A]n offer of proof is required to preserve an error in the exclusion of a witness' testimony." Dowdell v. State, 720 N.E.2d 1146, 1150 (Ind. 1999). Indiana Rule of Evidence 103(a)(2) states a party may claim error in a trial court's exclusion of evidence if the party "informs the court of its substance by an offer of proof, unless the substance was apparent from the context."
[¶20] Johnson stated at trial he would provide an offer of proof if the trial court did not allow him to cross-examine DeWeese about her pre-relationship history of cutting herself. But Johnson failed to present the offer after her testimony or at any other point during the trial. Further, having reviewed the rest of the record, we cannot conclude the sporadic, general references to DeWeese's history of cutting herself provided sufficient context to have informed the trial court of the substance of the testimony at issue. As a result, Johnson failed to preserve his claim. See Dylak v. State, 850 N.E.2d 401, 408 (Ind.Ct.App. 2006) (Dylak failed to preserve challenge to trial court's exclusion testimony because he did not submit offer of proof), trans. denied.
[¶21] Notwithstanding waiver, to reverse the trial court's evidentiary ruling Johnson would have to show the ruling, when considered "in light of all of the evidence in the case," affected his substantial rights. Ind. Appellate Rule 66(A); see also Ind. Evidence Rule 103(a) (a party alleging error from an evidentiary ruling must show the ruling "affects a substantial right").
[¶22] Here, Johnson testified DeWeese voluntarily cut herself with a knife throughout their relationship, so the jury heard some of the evidence he wished to present. In addition, the jury determined Johnson was not guilty of criminal confinement and domestic battery charges involving the use of a knife, indicating they did not necessarily accept all of DeWeese's testimony. And there is strong evidence to support the five convictions, including testimony from DeWeese, her mother, and the officers, as well as the evidence officers found in the apartment. Even if Johnson had preserved his challenge to the trial court's exclusion of evidence, we cannot conclude any error would have affected his substantial rights. See Greenwell v. State, 588 N.E.2d 1269, 1270 (Ind. 1992) (no reversible error in exclusion of evidence about other defendant's reputation for violent temperament; trial court allowed Greenwell to offer other evidence showing other defendant had a temper and could become angry).
II. Sentencing Discretion
[¶23] Johnson argues the trial court erred in identifying aggravating factors during sentencing. We review a trial court's sentencing decisions "under an abuse of discretion standard." McCain v. State, 148 N.E.3d 977, 981 (Ind. 2020). "An abuse of discretion occurs if the decision is clearly against the logic and effect of the facts and circumstances before the court, or the reasonable, probable, and actual deductions to be drawn therefrom." Powell v. State, 895 N.E.2d 1259, 1262 (Ind.Ct.App. 2008), trans. denied. Our Supreme Court has explained:
One way in which a trial court may abuse its discretion is failing to enter a sentencing statement at all. Other examples include entering a sentencing statement that explains reasons for imposing a sentence-including a finding of aggravating and mitigating factors if any-but the record does not support the
reasons, or the sentencing statement omits reasons that are clearly supported by the record and advanced for consideration, or the reasons given are improper as a matter of law.Anglemyer v. State, 868 N.E.2d 482, 490-91 (2007), clarified on reh'g, 875 N.E.2d 218 (2007).
[¶24] The General Assembly has provided a nonexclusive list of aggravating and mitigating sentencing factors for trial courts to consider. See Ind. Code § 35-381-7.1 (2019) (describing aggravating and mitigating factors). Here, the trial court identified the following aggravating factors:
The overall seriousness of the offenses; the repetitive nature of the offenses; he violated a Protective Order and No Contact Order entered on behalf of the victim in this case while the case was pending; his bond was revoked while this case was pending; his overall disdain for the authority of the Court; and the harm, injury or loss suffered by the victim was more than what is necessary to prove the elements of the offense.Appellant's App. Vol. II, pp. 18-19.
[¶25] Johnson argues the "overall seriousness" and "repetitive nature" aggravating factors are inappropriate because they are inherently part of the nature of the offenses and the sentencing ranges set by statute, and in any event the record does not demonstrate the crimes were repetitive. Appellant's Br. pp. 24-25. We disagree. The particular circumstances of offenses, such as the length of the misconduct or whether it was ongoing, "can properly be considered as aggravation." Phipps v. State, 90 N.E.3d 1190, 1198 (Ind. 2018). During the sentencing hearing, the trial court noted Johnson had established a controlling relationship with DeWeese and initiated a campaign of punishment culminating in "brutally torturing" DeWeese "for a series of days." Tr. Vol. 4, p. 18. And the court noted Johnson repeatedly "beat" DeWeese. Id. Further, Johnson committed the five offenses on different days, demonstrating he repeated his violent misconduct. As a result, these two aggravating circumstances are supported by the evidence.
[¶26] Johnson further argues the trial court erred in identifying the harm, injury or loss suffered by DeWeese as an aggravating factor. He claims that factor is duplicative of the aggravating factors of the overall seriousness of the offenses and their repetitive nature. We disagree. As we explain below, Johnson's offenses profoundly injured DeWeese's mental health in a long-lasting manner, and the supporting evidence is distinct from the evidence supporting the seriousness of the offenses and whether they were repetitive in nature.
[¶27] Next, Johnson does not dispute he violated the protective order and no contact order, and he concedes the trial court revoked his bond. He instead argues his contact with DeWeese was a "voluntary reuniting," and the value of these aggravating factors is "questionable." Appellant's Br. p. 26. We again disagree. Even if DeWeese had contacted Johnson, such contact would not preclude the trial court from finding Johnson violated its orders. See Dixon v. State, 869 N.E.2d 516, 520 (Ind.Ct.App. 2007) (victim's alleged consent to contact with Dixon did not ameliorate Dixon's violation of protective order). Further, the revocation of Johnson's bond is a separate aggravating factor because the trial court was not obligated to jail him as punishment for his violation of the orders. Rather, incarceration reflects the magnitude of Johnson's violations, which included resuming living with DeWeese.
[¶28] Finally, Johnson argues the trial court erred in concluding Johnson expressed disdain for the court's authority, arguing he was "free to express himself." Appellant's Br. p. 26. The trial court determined Johnson showed disdain for the trial court by: (1) violating the protective order and no-contact order; and (2) making certain comments during a phone call, a recording of which was admitted as evidence at the sentencing hearing. Johnson's violations of the trial court's orders are ample proof of disdain for the court's authority. See Holt v. State, 62 N.E.3d 462, 466 (Ind.Ct.App. 2016) (violation of protective order shows refusal to obey trial court). Further, the court's interpretation of Johnson's recorded statements was a credibility determination. "Without evidence of some impermissible consideration by the court, we accept its determination of credibility." Pickens v. State, 767 N.E.2d 530, 535 (Ind. 2002). Johnson has failed to show the trial court abused its sentencing discretion.
III. Inappropriateness of Sentence
[¶29] Johnson argues his sentence of twelve years, with three years suspended, is too high and asks the Court to reduce it to six years, with two years suspended to community corrections. Article 7, section 6 of the Indiana Constitution authorizes the Court to review and revise sentences. Indiana Appellate Rule 7(B) implements the Court's constitutional authority, providing the Court may revise a sentence "if, after due consideration of the trial court's decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender."
[¶30] In reviewing a sentence under Appellate Rule 7(B), "we seek to leaven the outliers rather than to achieve a perceived correct result in each case." McFarland v. State, 153 N.E.3d 369, 373 (Ind.Ct.App. 2020), trans. denied. "We review sentences in their entirety to avoid overlooking the forest by focusing on the trees." Turkette v. State, 151 N.E.3d 782, 786 (Ind.Ct.App. 2020), trans. denied. The burden is on the defendant to persuade the Court that the sentence is inappropriate. Robinson v. State, 91 N.E.3d 574, 577 (Ind. 2018).
[¶31] At the time Johnson committed his offenses, the maximum sentence for a Level 4 felony was twelve years, the minimum sentence was two years, and the advisory sentence was six years. Ind. Code § 35-50-2-5.5 (2014). The maximum sentence for a Level 6 felony was two and one-half years, the minimum sentence was six months, and the advisory sentence was one year. Ind. Code § 35-50-2-7 (2019). And the maximum sentence for a Class A misdemeanor was one year. Ind. Code § 35-50-3-2 (1977).
[¶32] The trial court sentenced Johnson to ten years for Level 4 felony criminal confinement, two years for Level 6 domestic battery, and two years for Level 6 felony intimidation. The court further sentenced Johnson to a year for each of his two convictions of Class A misdemeanor domestic battery. It ordered Johnson to serve one of the misdemeanor sentences concurrently with the Level 4 felony sentence. And the court ordered Johnson to serve his sentences for the two Level 6 felonies and the remaining misdemeanor concurrently with one another, but consecutively to the Level 4 felony sentence, for a total sentence of twelve years. Finally, the trial court suspended three years of Johnson's sentence. His executed term of nine years is well short of the maximum sentence of nineteen years.
[¶33] "The nature of the offenses is found in the details and circumstances of the commission of the offenses and the defendant's participation." Croy v. State, 953 N.E.2d 660, 664 (Ind.Ct.App. 2011). Johnson presents no arguments about the nature of his offenses, but they are horrific. Beginning in August 2022, Johnson imposed increasingly harsh physical abuse on DeWeese. He struck her with a belt while she was nude, hit and kicked her, and forced her to cut and burn herself. On the day DeWeese fled their apartment, Johnson hit her head and forced her to pour expired milk and orange juice on herself, stinging her knife cuts. He then restrained her with duct tape, binding her legs, arms, and mouth. Johnson struck DeWeese again while she was bound, and headbutted her after he released her. When she offered to do the dishes to end his abuse, he watched her, criticizing her and hitting her with a wooden spoon.
[¶34] In addition, Johnson engaged in a campaign of psychological domination and control over DeWeese. Among other threats, he said he would cut off her breasts, which prompted her to cut herself with his knife. DeWeese explained Johnson effectively destroyed her sense of what was real and unreal, causing her to cling to him. And he limited her access to her phone. DeWeese's mother told the sentencing court Johnson had isolated DeWeese from her family, cutting off contact and causing her to miss several family gatherings such as funerals. After the State filed charges against Johnson, he made her write false recantations of her prior statements.
[¶35] DeWeese's mother told the court DeWeese had lost her ability to trust others, and her family has had to learn to love a "completely different" person. Appellant's Conf. App. Vol. III, p. 28. DeWeese said the consequences of Johnson's crimes against her would "haunt [her] forever." Tr. Vol. 3, p. 248.
[¶36] "The character of the offender is found in what we learn of the offender's life and conduct." Croy, 953 N.E.2d at 664. Johnson was twenty-two years old at sentencing. His prior criminal history consists of juvenile offenses. In 2014, Johnson was placed in an informal adjustment program after committing an act that, if it had been committed by an adult, would have been Class D felony battery. The offense is remote in time, but it demonstrates Johnson was undeterred from committing violent offenses.
[¶37] Johnson did not obtain a high school diploma or GED. His work history is spotty at best, showing continued employment from October 2022 to February 2023, along with part-time delivery work. Johnson argues he is young and has a lot of family support. The trial court identified those facts as mitigating circumstances, but we cannot conclude those circumstances outweigh the disturbing nature of Johnson's offenses. He has failed to persuade us his sentence is an outlier needing correction.
IV. Forfeiture of Bond
[¶38] Johnson argues the trial court erred in declaring his cash bond to be forfeited. He claims forfeiture would have been justified only if he had not appeared for court proceedings, but he appeared as required at all hearings and at trial. The State agrees, concluding the court's forfeiture decision was "not authorized by statute." Appellee's Br. p. 26. In light of the State's concession, we need not address the matter further. We reverse the forfeiture decision and remand with instructions to the trial court to release the cash bond to the person authorized to receive it, minus any deductions allowed by statute.
Conclusion
[¶39] For the reasons stated above, we affirm in part, reverse in part, and remand with instructions to release Johnson's cash bond.
[¶40] Affirmed in part, reversed in part, and remanded with instructions.
Weissmann, J., and Foley, J., concur.