MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be                                   Oct 13 2017, 9:59 am
regarded as precedent or cited before any
                                                                            CLERK
court except for the purpose of establishing                            Indiana Supreme Court
                                                                           Court of Appeals
the defense of res judicata, collateral                                      and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Christopher J. Petersen                                  Curtis T. Hill, Jr.
Elkhart, Indiana                                         Attorney General of Indiana

                                                         Jesse R. Drum
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Phillip David Lee Witte,                                 October 13, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A03-1701-CR-162
        v.                                               Appeal from the Elkhart Superior
                                                         Court
State of Indiana,                                        The Honorable Evan Roberts,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         20D01-1601-F3-3



Altice, Judge.


                                         Case Summary



Court of Appeals of Indiana | Memorandum Decision 20A03-1701-CR-162 | October 13, 2017          Page 1 of 7
[1]   Following a bench trial, Phillip David Lee Witte was convicted of Level 3

      felony criminal confinement, Level 6 felony intimidation, and Class B

      misdemeanor false informing. On appeal, Witte challenges the admission of

      evidence on hearsay grounds and argues that the State was improperly

      permitted to ask leading questions of the victim.


[2]   We affirm.


                                       Facts & Procedural History


[3]   On the night of October 11, 2015, Kevin Tenner was “strung out” on drugs and

      began to accuse his girlfriend, Heather Morales, of being a police informant.

      Tenner believed the police were following them as they walked home.

      Transcript Vol. 2 at 43. When they arrived back at Tenner’s residence, where he

      lived with Witte, Tenner continued to call Morales a snitch and made her

      remove her shirt and pants to prove that she was not wired.


[4]   Witte and his girlfriend were also at the residence. Witte’s girlfriend went

      upstairs, while Witte stayed with Tenner and Morales. Tenner threw things at

      Morales, including a chain that cut her leg. Tenner and Witte eventually forced

      Morales into a wooden chair, and Witte put tape around her ankles and taped

      them to the chair. The tape ran out, so Morales’s arms remained free. While

      Witte was binding her legs, Tenner went to the neighborhood 7-Eleven and left

      Witte to guard Morales.




      Court of Appeals of Indiana | Memorandum Decision 20A03-1701-CR-162 | October 13, 2017   Page 2 of 7
[5]   Upon Tenner’s return, he continued to call Morales a snitch. He then started

      hitting her with a broom stick all over her body. Tenner also kicked her in the

      ribs, legs, arms, and head after she fell over in the chair. At some point, Witte

      and Tenner picked Morales up in the chair and moved her to another location

      in the house, where the beating continued. Thereafter, Morales was thrown to

      the ground in the chair, and she hit her head.


[6]   During the assault, Morales overheard Witte and Tenner talking about killing

      her. Witte had handed a knife to Tenner near the beginning, but the knife was

      never used. Before Witte went upstairs to bed, he threatened Morales that he

      would kill her if she got out of the chair. Id. at 158. Tenner stayed downstairs

      with Morales and eventually fell asleep on the couch. While the men slept,

      Morales was able to free her feet. She then quickly put on a shirt and ran from

      the home to the 7-Eleven for help. It was daylight when Morales finally

      escaped.


[7]   Officer Carlton Conway of the Elkhart City Police Department spoke briefly

      with Morales at the hospital that day and then went to the reported location of

      the attack. A man answered the door, and Officer Conway explained the

      reason for his visit. The man identified himself as Steven Thompson, but he

      was, in fact, Witte. Tenner was present and also gave a false name to the

      officer. While Officer Conway waited to speak with the homeowner, who was

      not yet on the scene, the men present were permitted to leave.




      Court of Appeals of Indiana | Memorandum Decision 20A03-1701-CR-162 | October 13, 2017   Page 3 of 7
[8]    On February 1, 2016, the State charged Witte with five counts: Count I, Level 3

       felony criminal confinement; Count II, Level 5 felony battery resulting in

       serious bodily injury; Count III, Level 5 felony criminal confinement; Count

       IV, Level 6 felony intimidation; and Count V, Class B misdemeanor false

       informing. Witte waived his right to a jury trial, and the cause was tried before

       the bench on October 11 and 12, 2016. The trial court found him guilty as

       charged and, thereafter, entered judgments of conviction on Counts I, IV, and

       V. Witte received an aggregate sentence of nineteen years, with fourteen years

       executed and five years suspended to probation. He now appeals.


                                           Discussion & Decision


[9]    Before reaching the merits, we are compelled to address the inadequacy of

       Witte’s counsel’s briefing. We note only the most glaring deficiencies, though

       there are more. The brief wholly omits two required sections – the Statement of

       Case and the Summary of Argument. See Ind. Appellate Rule 46(A)(5) and (7).

       And the Statement of Facts section contains no facts relevant to the issues

       presented, as required by App. R. 46(A)(6). In this section, counsel only favors

       us with a list of the charges filed against Witte and then an inaccurate statement

       that Witte was found guilty of just the first three counts. Finally, the two-page

       Argument section is woefully lacking.


[10]   An appellant’s brief must be prepared so that this court, considering the brief

       alone and independently from the record, can intelligently consider each issue

       presented. See Ramsey v. Review Bd. of Ind. Dep’t of Workforce Dev., 789 N.E.2d


       Court of Appeals of Indiana | Memorandum Decision 20A03-1701-CR-162 | October 13, 2017   Page 4 of 7
       486, 488 (Ind. Ct. App. 2003). Witte’s counsel has not done so here and, as a

       result of his flagrant violations of our appellate rules, has risked the dismissal of

       his client’s appeal. See Galvan v. State, 877 N.E.2d 213 (Ind. Ct. App. 2007).

       We exercise our discretion, however, and reach the merits – to the extent

       possible – of the issues presented. Before filing another appellate brief, we

       direct counsel to thoroughly review Indiana’s Rules of Appellate Procedure, as

       continued violations could result in disciplinary action. See In re Clifton, 961

       N.E.2d 18 (Ind. 2011).


[11]   On appeal, Witte argues that the trial court abused its discretion in two regards.

       He claims that hearsay evidence was improperly admitted during Morales’s

       testimony and that the State was permitted to ask leading questions of Morales.

       We will address each in turn.


[12]   With respect to the hearsay issue, Witte directs us to four pages of the transcript

       without quoting any particular part. He then generally complains that Morales

       was permitted to testify that Tenner threatened to kill her on the night in

       question. The State contends that this issue was not preserved below. This

       point is well-taken. Regardless, admission of the challenged testimony, even if

       improper, was harmless. See Ind. Trial Rule 61 (reversal not warranted where

       error does not affect the substantial rights of the parties). See also Hayden v.

       State, 19 N.E.3d 831, 840 (Ind. Ct. App. 2014) (appellant must establish

       prejudice resulting from erroneous hearsay ruling to obtain reversal), trans.

       denied. Witte does not – nor could he in light of Ind. Evidence Rule

       801(d)(2)(A) (statement by a party opponent) – challenge Morales’s testimony

       Court of Appeals of Indiana | Memorandum Decision 20A03-1701-CR-162 | October 13, 2017   Page 5 of 7
       that Witte himself threatened to kill her. We fail to see how Witte was

       prejudiced by the admission of evidence that his cohort, who was violently

       beating Morales, also threatened to kill her.


[13]   Finally, Witte contends that the trial court abused its discretion by allowing,

       over his objection, the State to ask leading questions of Morales on direct

       examination. Witte directs us to one page of the transcript and does not

       otherwise indicate the information obtained through the use of leading

       questions by the State.


[14]   While leading questions generally should not be used on direct examination,

       Ind. Evidence Rule 611(c) permits leading questions when they are “necessary

       to develop the witness’s testimony.” “The use of leading questions on direct

       examination generally rests within the trial court’s discretion.” Williams v.

       State, 733 N.E.2d 919, 922 (Ind. 2000). The trial court so exercised its

       discretion during a brief portion of Morales’s testimony, and Witte has failed to

       establish an abuse of that discretion.1 Moreover, he has not shown that the trial

       court’s action in permitting such questioning, even if erroneous, was anything

       but harmless. See id. at 925 (“we decline to reverse because the trial court’s

       action in permitting these leading questions, even if erroneous, was not




       1
        Contrary to Witte’s apparent assertion on appeal, leading questions on direct examination are not limited to
       use on hostile witnesses. See generally id.

       Court of Appeals of Indiana | Memorandum Decision 20A03-1701-CR-162 | October 13, 2017            Page 6 of 7
       inconsistent with substantial justice and did not affect the substantial rights of

       the defendant”).


[15]   Judgment affirmed.


       Baker, J. and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A03-1701-CR-162 | October 13, 2017   Page 7 of 7
