Opinion
22A-CR-1159
02-13-2023
Mario R. Tellis, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff.
Attorney for Appellant Donald J. Frew Fort Wayne, Indiana Attorneys for Appellee Theodore E. Rokita Attorney General of Indiana Sierra A. Murray 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Allen Superior Court Trial Court Cause No. 02D06-2011-F3-87 The Honorable David M. Zent, Judge
Attorney for Appellant Donald J. Frew Fort Wayne, Indiana
Attorneys for Appellee Theodore E. Rokita Attorney General of Indiana Sierra A. Murray Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
RILEY, JUDGE
STATEMENT OF THE CASE
[¶1] Appellant-Defendant, Mario Tellis (Tellis), appeals his conviction for aggravated battery, a Level 3 felony, Ind. Code § 35-42-2-1.5(2).
[¶2] We affirm.
ISSUES
[¶3] Tellis presents this court with two issues on appeal, which we restate as:
(1) Whether the trial court abused its discretion by admitting certain evidence; and
(2) Whether Tellis' fifteen-year sentence is inappropriate in light of the nature of the offense and his character.
FACTS AND PROCEDURAL HISTORY
[¶4] In 2020, Tellis lived with Shakia Tucker (Tucker) and Tucker's children, M.S., who was twelve years old, and Y.S., who was nine years old, in a two-bedroom house on Bowser Street in Fort Wayne, Indiana. On November 22, 2020, while Tucker's children were not at home, Tellis and Tucker snorted cocaine at about 10:00 a.m. and consumed alcohol throughout the day. Tucker stopped drinking alcohol at 8:00 p.m. and left to pick up M.S. and her friend from her mother's house. Tellis was still drinking alcohol when Tucker returned home. As Tucker, M.S., M.S.'s friend, and Tucker's one-year-old niece retired to bed, Tellis remained in the living room playing a game on his phone and drinking alcohol.
[¶5] At around 2:00 a.m. the following day, Tucker was awakened by Tellis who was talking loudly. After using the bathroom, she walked to the living room and found Tellis on the floor playing a game on his phone. A verbal argument ensued. Tellis followed Tucker to the kitchen and told her that he should "punch her in the mouth." (Transcript Vol. I, p. 209). Tucker tried to calm down Tellis, but he "was just cussing." (Tr. Vol. I, p. 171). At that point, Tellis hit Tucker. Tucker ran out of the house, but Tellis caught up with her outside, where she begged him not to hold on to her as he punched "her several times[,]" and he pulled "her by her hair back towards the house." (Tr. Vol. I, p. 209). He also told her he would "beat [her] ass" when they returned inside the house. (Tr. Vol. I, p. 209). Although Tellis allowed Tucker to return to the house on her own terms, she exited the house again and ran down the street. Tellis caught up with Tucker, punched her a couple more times, and knocked out her two front teeth. Tellis then picked up the teeth, handed them to Tucker, and stated that she "got everything that she deserved." (Tr. Vol. I, p. 242). The two then walked back to the house. Once inside the house, Tucker called her mother and gave her "mother kind of a code word so that [her mother] could call 911." (Tr. Vol. I, p. 242). Tucker also texted M.S. and directed her to call 911.
[¶6] Fort Wayne Police Department officers were dispatched to Tucker's residence at approximately 2:21 a.m. When Tucker saw the police, she ran outside to meet them. Officer Ryan Rockey (Officer Rockey) observed that Tucker was "worried, fearful, scared, [and] afraid." (Tr. Vol. I, p. 208). While Officer Rockey was speaking with Tucker about where Tellis had hit her, Tellis briefly exited the house. Officer Rockey made visual contact with Tellis. Tucker then informed the officers that Tellis had a firearm and that he was walking with it around the house.
[¶7] Following Tucker's report that Tellis possessed a firearm, the officers relocated everyone farther away from the house. More officers were dispatched, and they set up a perimeter around the house. Tellis briefly ventured onto the porch and was instructed to raise his hands and walk toward the officers slowly. Rather than comply, Tellis retreated to the house. The officers then turned on the red and blue lights of their squad cars and used the "PA system" to "loud hail [] anybody in the house to come out." (Tr. Vol. I, p. 227). The officers did that for about forty minutes, but Tellis did not exit his house. A flash bang grenade was also deployed in the front yard, but Tellis did not exit his house. In addition, dispatch called Tellis' mobile, but Tellis claimed to be at another location. Around 3:11 a.m., and in an effort to avoid being apprehended, Tellis climbed through a back window, and was immediately taken into custody.
[¶8] Detective Lorna Russell (Detective Russell) arrived at the scene around 3:30 a.m. and first spoke with Tucker. Tucker expressly reported that she and Tellis "had gotten into an argument[], . . . [Tellis] had knocked her teeth out[,] . . .that she attempted to get away from [Tellis] by running out the back door and through an alley[,] . . . [and] that [Tellis] caught up with her, punched her in the face a couple more times," and dragged her back into the house. (Tr. Vol. I, pp. 241, 242).
[¶9] On November 30, 2020, the State filed an Information, charging Tellis with Level 3 felony aggravated battery, Level 5 felony domestic battery, and Level 6 felony domestic battery. Tellis was incarcerated at the Allen County Jail. Between May 29, 2021, and April 11, 2022, Tellis' jail pin number as well as thirteen other pin numbers were used to call Tucker 340 times, and Tucker answered sixty-four of those calls. On April 19, 2021, Tellis was ordered to have no contact with Tucker. Despite the no-contact order, Tellis contacted Tucker numerous times using the jail messaging system and phone system between December 23 and December 30, 2021.
On December 28, 2021, the State charged Tellis with contempt of court for violating the no-contact order. The State added three Counts of contempt for further violation of the no-contact order. A bench trial was conducted on April 14, 2022, and Tellis was found guilty as charged. Tellis was subsequently sentenced to 420 days in the Allen County Jail.
[¶10] On December 27, 2021, the State filed a motion to admit evidence under the doctrine of forfeiture by wrongdoing where the State alleged that it would prove, by a preponderance of the evidence, that Tellis encouraged wrongdoing that was intended to procure the unavailability of Tucker as a witness at his trial or deposition. At the hearing, the State played a jail phone call where Tellis was heard asking Tucker "to help him out" and Tellis is heard putting another inmate on the phone and the "person even goes so far as to say as long as you don't admit to anything that night, we're good." (Tr. Vol. I, p. 200). Upon considering the motion, the trial court stated that Tucker's statements to the police would be incorporated if she failed to appear.
[¶11] A three-day jury trial was commenced on April 12, 2022. Tucker stated that she was still in love with Tellis and did not wish to be present at the trial. When she testified, she had a partial memory of the attack, and she went so far as claiming that while she had thought that Tellis had hit her and knocked out her front teeth, she concluded that she had fallen into a truck while discussing the incident with Tellis. Based on Tucker's partial recollection of the attack by Tellis, the State was permitted to present Tucker's out-of-court statements to the police pursuant to several hearsay exceptions. Officer Rockey testified under the excited utterance exception, and Detective Russell testified under the doctrine of forfeiture by wrongdoing hearsay exception. Over Tellis' continuing objection, Detective Russell testified that Tellis had repeatedly battered Tucker and knocked out Tucker's two front teeth. Detective Russell disavowed Tucker's claim that her teeth had come out after she fell into a truck. At the close of the evidence, Tellis was found guilty as charged.
[¶12] On May 6, 2022, the trial court held a sentencing hearing. The trial court granted the State's request to vacate the Level 5 felony domestic battery and Level 6 felony domestic battery convictions due to double jeopardy concerns. The trial court subsequently sentenced Tellis to fifteen years in the Department of Correction for Level 3 felony aggravated battery.
[¶13] Tellis now appeals. Additional information will be provided as necessary.
DISCUSSION AND DECISION
I. Admission of Evidence
[¶14] A trial court has broad discretion to admit or exclude evidence. Blount v. State, 22 N.E.3d 559, 564 (Ind. 2014). An abuse of discretion occurs when the trial court's decision goes against the logic and effect of the facts and circumstances presented to it. Doolin v. State, 970 N.E.2d 785, 787 (Ind.Ct.App. 2012).
[¶15] Tellis claims that the admission of Tucker's statements to Detective Russell violated his right to confrontation established by the Sixth Amendment of the United States Constitution. Here, however, Tellis did not object to Detective Russell's testimony based on the Sixth Amendment, rather, his objections were based on grounds of hearsay. As the State correctly argues, Tellis has waived his Confrontation Clause argument. See Small v. State, 736 N.E.2d 742, 747 (Ind. 2000) (holding, where Small argued his right to confront witnesses was violated, Small did not object on confrontation grounds at trial and that the claim of error was waived). Waiver notwithstanding, his argument fails on the merits.
Although Tellis also alleges that his right to confrontation under Article 1, Section 13 of the Indiana Constitution was violated, he makes no separate argument on that basis. As a result, we decline to take up this matter on Indiana constitutional grounds. Klein v. State, 698 N.E.2d 296, 299 (Ind.1998).
[¶16] When a defendant contends that a constitutional violation has resulted from the admission of evidence, our standard of review is de novo. Speers v. State, 999 N.E.2d 850, 999 (Ind. 2013). The Sixth Amendment's Confrontation Clause provides, in relevant part, "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. CONST. amend. VI. This right allows the admission of an absent witness's testimonial out-of-court statement only if the witness is unavailable and the defendant has had a prior opportunity to cross-examine the witness. Crawford v. Washington, 541 U.S. 36, 59, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).
[¶17] Nevertheless, "when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of [the declarant's] prior testimonial statements . . . . The Clause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it." Crawford, 541 U.S. at 59 n.9. To this end, our supreme court clarified that claimed losses of memory at trial have no effect on availability for purposes of the Confrontation Clause:
Although some courts and commentators contended that a witness who asserts an inability to recall any significant information is for all practical purposes unavailable for confrontation, this issue was settled in United States v. Owens, 484 U.S. 554, 558, 108 S.Ct. 838, 98 L.E.2d 951 (1988). In Owens, the Supreme Court . . . held that as long as the declarant testifies the Confrontation Clause has been satisfied even if the declarant is unable to recall the events in question. . . . The feigned or real absence of memory is itself a factor for the trier of fact to establish, but does not render the witness unavailable. Rather, as Owens explained, it is a factor for the trier of fact to consider in evaluating the witness's current and earlier versions. We conclude that a witness who is present and responds willingly to questions is "available for cross-examination" as that term is used in Crawford in discussing the Confrontation Clause, just as
Owens observed that such a witness is "subject to cross-examination" under the common understanding of that phrase. We believe no significance attaches to these slightly different verbal formulations.Fowler v. State, 829 N.E.2d 459, 466 (Ind. 2005) (internal citations and footnote omitted). Tucker was present at Tellis' trial, she testified, and she was available for cross-examination. See Proctor v. State, 874 N.E.2d 1000,1002-03 (Ind.Ct.App. 2007) (where we upheld the trial court's admission of a witness's statement when that witness was present at trial, testified, and responded willingly to questions, because despite the witness's lack of memory of the events, she was available for cross-examination for purposes of the defendant's confrontation right). Therefore, we find no Crawford violation and conclude that the admission of Tucker's statements to Detective Russell did not violate Tellis' Sixth Amendment rights.
[¶18] Tellis also argues that Tucker's out-of-court statements to Detective Russell were inadmissible under the forfeiture by wrongdoing doctrine and that his Sixth Amendment rights were violated. As we have already concluded, Tucker testified, and Tellis' Sixth Amendment rights were not violated. Even assuming otherwise, which we conclude is not, Tellis' wrongdoing in this case resulted in the forfeiture of any distinct right to confront as created by the Indiana Rules of Evidence.
[¶19] Indiana Evidence Rule 804(b)(5) provides that the "forfeiture by wrongdoing" hearsay exception permits a "statement offered against a party that has engaged in or encouraged wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness for the purpose of preventing the declarant from attending or testifying." White v. State, 978 N.E.2d 475, 479 (Ind. App. 2012).
[¶20] The evidence shows that after Tellis repeatedly hit Tucker and Tucker managed to contact 911 with the assistance of others, she cooperated with the police and narrated the details of the incident to the first responding officers. When Detective Russell arrived at the scene at approximately 3:30 a.m., Tucker reiterated that Tellis had beaten her and had knocked out two of her front teeth during the altercation. After Tellis' arrest, and while Tellis was in custody at the county jail, Tellis called Tucker and told her to change her story or not appear at his trial. Indeed, when Tucker appeared at Tellis' trial, she had a partial recollection of the incident. Tucker claimed that she could not recall the specific details of the beating and that she possibly fell into a truck which is how her teeth were knocked out. Based on the foregoing, the State proved by a preponderance of the evidence that Tellis engaged in or encouraged wronging that was intended to and did procure the unavailability of Tucker as a witness. Accordingly, we cannot accept Tellis' claim that the trial court abused its discretion by admitting Detective Russell's testimony under the doctrine of forfeiture by wrongdoing.
II. Inappropriate Sentence
[¶21] Tellis contends that his fifteen-year sentence is inappropriate in light of the nature of the offense and his character. We may revise a sentence if it is inappropriate in light of the nature of the offense and the character of the offender. Ind. Appellate Rule 7(B). The defendant has the burden of persuading us that his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). The principal role of a Rule 7(B) review "should be to attempt to leaven the outliers and identify some guiding principles for trial courts and those charged with improvement of the sentencing statutes, but not to achieve a perceived 'correct' result in each case." Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). "Appellate Rule 7(B) analysis is not to determine whether another sentence is more appropriate but rather whether the sentence imposed is inappropriate." Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012) (internal quotation marks and citation omitted), reh'g denied. Whether a sentence is inappropriate turns on "the culpability of the defendant, the severity of the crime, the damage done to others, and a myriad of other factors that come to light in a given case." Cardwell, 895 N.E.2d at 1224.
[¶22] When determining whether a sentence is inappropriate, we acknowledge that the advisory sentence "is the starting point the Legislature has selected as an appropriate sentence for the crime committed." Childress, 848 N.E.2d at 1081. For his Level 3 felony domestic battery conviction, Tellis faced a sentencing range of three to sixteen years, with the advisory sentence being nine years. I.C. § 35-50-2-5(b). Tellis received a fifteen-year sentence.
[¶23] The nature of the offense is determined by the details and circumstances of how the offense was committed and by the defendant's participation. Perry v. State, 78 N.E.3d 1, 13 (Ind.Ct.App. 2017). "When determining the appropriateness of a sentence that deviates from an advisory sentence, we consider whether there is anything more or less egregious about the offense as committed by the defendant that 'makes it different from the typical offense accounted for by the legislature when it set the advisory sentence.'" Moyer v. State, 83 N.E.3d 136, 142 (Ind.Ct.App. 2017) (quoting Holloway v. State, 950 N.E.2d 803, 807 (Ind.Ct.App. 2011)), trans. denied. Turning to the specifics of his offense, Tellis repeatedly battered Tucker and knocked out two of her front teeth. When he handed the teeth to Tucker, he stated that she "got everything that she deserved." (Tr. Vol. I, p. 242). After the police arrived at his residence, he ignored the officers' orders, refused to exit his home, and even told dispatch that he was at another location. He finally tried to escape by exiting his house through the back window. While in custody, he tried to dissuade Tucker from testifying against him and repeatedly violated the no-contact order.
[¶24] When considering the character of the offender, one relevant fact is the defendant's criminal history. Johnson v. State, 986 N.E.2d 852, 857 (Ind.Ct.App. 2013). Tellis' criminal history includes convictions from different states. He was convicted of cocaine possession in Mississippi in 2004. In 2008, he was convicted of possession of marijuana in Missouri. Then between 2008 and 2018, Tellis was convicted of domestic assault, possession of cocaine, and vandalism in Tennessee. In 2018, he was convicted of possession of a firearm in Mississippi. Notably, Tellis has been the subject of petitions to revoke his probation in previous cases, and at the time he committed the instant offense, he was on probation for the possession of a firearm conviction in Mississippi. Finally, while in custody at the Allen County Jail for the instant offense, he violated the no-contact order numerous times.
[¶25] In light of the foregoing, Tellis has failed to persuade us that his fifteen-year sentence is inappropriate in light of the nature of the offense and his character.
CONCLUSION
[¶26] Based on the foregoing, we conclude that Tellis' Sixth Amendment rights were not violated, and the trial court did not abuse its discretion in admitting Tucker's statements to Detective Russell under the forfeiture by wrongdoing doctrine. In addition, we conclude that Tellis' fifteen-year sentence is not inappropriate in light of the nature of the offense and his character.
[¶27] Affirmed.
[¶28] Bailey, J. and Vaidik, J. concur