MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                   FILED
regarded as precedent or cited before any                          Mar 24 2020, 10:00 am
court except for the purpose of establishing
                                                                        CLERK
the defense of res judicata, collateral                             Indiana Supreme Court
                                                                       Court of Appeals
estoppel, or the law of the case.                                        and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Donald J. Frew                                           Curtis T. Hill, Jr.
Fort Wayne, Indiana                                      Attorney General of Indiana
                                                         Caroline G. Templeton
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Tracey L. Welling, Jr.,                                  March 24, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-2208
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable Frances C. Gull,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         02D05-1803-F3-14 & 02D05-1603-
                                                         F5-64



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2208 | March 24, 2020              Page 1 of 13
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, Tracy Welling (Welling), appeals his conviction and

      sentence for one Count of attempted rape, a Level 3 felony, Ind. Code §§ 35-42-

      4-1(a)(1); 35-41-5-1; one Count of domestic battery, a Level 6 felony, I.C. § 35-

      42-2-1.3(b)(2); one Count of strangulation, a Level 6 felony, I.C. § 35-42-2-

      9(b)(1); and one Count of sexual battery, a Level 6 felony, I.C. § 35-42-4-

      8(a)(1)(A).


[2]   We affirm.


                                                   ISSUES
[3]   Welling raises two issues on appeal, which we restate as the following:


          (1) Whether the trial court abused its discretion by not removing a juror

              during Welling’s trial after the juror disclosed to the bailiff that he knew a

              witness; and


          (2) Whether Welling’s sentence is inappropriate in light of the nature of the

              offenses and his character.


                      FACTS AND PROCEDURAL HISTORY
[4]   On February 23, 2018, A.C. returned home from work between 9:00 and 10:00

      p.m. and watched television while her four children, who were all under seven

      years old, were in their bedrooms sleeping. A.C. and Welling were

      romantically involved in the past, but they were no longer in a relationship.

      While watching television, A.C. and Welling were messaging each other on

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2208 | March 24, 2020   Page 2 of 13
      social media. Welling asked A.C. if he could come over and A.C. sent a back a

      “thumbs-up emoji.” (Transcript Vol. II, p. 157). When Welling arrived, A.C.

      thought that Welling was “acting weird,” and she believed that Welling was

      under the influence of alcohol. (Tr. Vol. II, p. 169). They both watched

      television as they talked. Welling then began kissing A.C. and rubbing her

      body. A.C. rejected Welling’s advances because Welling had a girlfriend. A.C.

      ordered Welling to leave her house, and Welling responded by violently

      choking A.C. A.C. lost consciousness several times, and during one of the

      times that she regained it, Welling was on top of her, and he had “stuck his

      penis in [A.C.’s] mouth.” (Tr. Vol. II, p. 172). A.C. attempted to move her

      head back, but Welling resumed choking A.C.


[5]   Welling subsequently grabbed A.C.’s hand and directed her to the bedroom

      where he got undressed. Welling attempted to get “into [A.C.’s] . . . panties,”

      and he tried to put his fingers inside her vagina. (Tr. Vol. II, p. 171). A.C.

      informed Welling that she had a tampon inside her vagina and Welling called

      A.C. a liar. Because A.C. believed that Welling was trying “to have sex” with

      her, she used her hands to cover her “vagina, and then Welling just kept, like

      trying to move [her] hands” and they wrestled for a while. (Tr. Vol. II, p. 172).

      Welling was successful in putting the tips of his fingers inside A.C.’s vagina.

      Welling also choked A.C. in the bedroom. When she regained consciousness,

      A.C. could hear her children yelling in the background. Welling eventually left

      A.C.’s house. A.C.’s oldest son, J.G., who was five years old at the time,

      observed Welling choking A.C. J.G. locked the door when Welling left A.C.’s


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2208 | March 24, 2020   Page 3 of 13
      house. A.C. thereafter contacted her family, who in turn, contacted the Fort

      Wayne Police Department. J.G. reported to the responding officers that he saw

      Welling pull A.C.’s hair and that he saw A.C. lose consciousness as a result of

      the choking.


[6]   A.C. was subsequently taken to the Fort Wayne Sexual Assault Treatment

      Center, where she was examined by sexual assault nurse Shawn Callahan

      (Nurse Callahan). As part of the examination, Nurse Callahan recorded A.C.’s

      injuries. A.C. had red marks on the left side of her neck, a scratch between her

      breasts, and scratches on her shoulder. On the right side of A.C.’s neck, there

      was a heart-shaped red mark. Nurse Callahan also collected DNA swabs from

      several parts of A.C.’s body. Welling’s DNA was found in the swabs taken

      from A.C.’s breast.


[7]   Two days after the incident, A.C. went to the emergency room, and she

      complained of throat pain and pain at the base of her tongue. A scan revealed

      that A.C. had suffered an “incidental collapse of the vallecula” which is a “fold

      or recess of tissue located at the root of the tongue” that is designed to collect

      saliva. (Tr. Vol. II, p. 221).


[8]   On March 1, 2018, the State filed an Information, charging Welling with Level

      3 felony rape, Level 3 felony attempted rape, Level 6 felony domestic battery,

      Level 6 felony strangulation, and Level 6 felony sexual battery. On December

      11, 2018, the State filed an additional Information, charging Welling with Level

      1 felony rape.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2208 | March 24, 2020   Page 4 of 13
[9]    A three-day jury trial commenced on July 30, 2019. On the second day during

       lunch break, Juror 139, who was also a nurse, encountered Nurse Callahan in

       the hallway. They both recognized each other since they had worked together

       at “Towne House.” (Tr. Vol. II, p. 249). When Juror 139 stated that she no

       longer worked there and had left three years ago, Nurse Callahan stated that

       she had heard about that, and Juror 139 inquired about Nurse Callahan’s

       grandson. After Nurse Callahan informed Juror 139 that her grandson was

       doing fine, they both walked away. Shortly after that encounter, Juror 139

       reported her interaction to the bailiff.


[10]   When Welling’s hearing resumed, the trial court conducted an individualized

       voir dire of Juror 139. After being sworn, Juror 139 testified that she was

       surprised to see Nurse Callahan at the courthouse, and she disclosed that she

       had previously worked with Nurse Callahan at the same place, but it had been

       “many years ago.” (Tr. Vol. II, p. 248). Juror 139 additionally testified that

       although she was Facebook friends with Nurse Callahan, she did not have “an

       outside friendship” with her, even though she had liked a photo of Nurse

       Callahan’s grandson. (Tr. Vol. II, p. 247). Juror 139 ultimately confirmed that

       her prior association with Nurse Callahan would not inhibit her ability to be

       fair and impartial. After the trial court questioned Juror 139, it admonished her

       not to speak to the other jurors about the incident. Juror 139 was then excused

       from the courtroom.


[11]   The State was satisfied that Juror 139 would remain impartial, however,

       Welling’s counsel challenged Juror 139’s ability to remain impartial and

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2208 | March 24, 2020   Page 5 of 13
       requested the trial court to remove her as a juror. The trial court denied

       Welling’s request and it reconvened the trial. At the close of the evidence, the

       jury did not find Welling guilty of Level 1 and Level 3 felony rape, but it found

       Welling guilty of Level 3 felony attempted rape, Level 6 felony domestic

       battery, Level 6 felony strangulation, and Level 6 felony sexual battery. On

       August 30, 2019, the trial court conducted a sentencing hearing and sentenced

       Welling to consecutive terms of sixteen years for the Level 3 felony conviction,

       and two and one-half years for each of his three Level 6 felony convictions.

       Welling’s aggregate sentence is twenty-three and one-half years.


[12]   Welling now appeals. Additional information will be provided as necessary.


                               DISCUSSION AND DECISION
                                            I. Removal of a Juror

[13]   Welling argues that he was denied the right to a fair trial because the trial court

       abused its discretion by denying his request to replace Juror 139 with an

       alternate juror during his trial. Article 1, Section 13 of the Indiana Constitution

       guarantees a defendant’s right to an impartial jury. May v. State, 716 N.E.2d

       419, 421 (Ind. 1999). Indiana Trial Rule 47(B) provides, in part, that

       “[a]lternate jurors in the order in which they are called shall replace jurors who,

       prior to the time the jury returns its verdict, become or are found to be unable or

       disqualified to perform their duties.” Trial courts have significant leeway under

       Trial Rule 47(B) in determining whether to replace a juror with an alternate.

       Jervis v. State, 679 N.E.2d 875, 881 (Ind. 1997). Trial courts see jurors firsthand


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2208 | March 24, 2020   Page 6 of 13
       and are in a much better position to assess a juror’s ability to serve without bias

       or intimidation and decide the case according to the law. Id. at 881-82. The

       standard of review regarding a trial court’s decision to remove a juror after a

       trial has begun is abuse of discretion. Scott v. State, 829 N.E.2d 161, 167 (Ind.

       Ct. App. 2005). The court abuses its discretion when its decision is “clearly

       against the logic and effect of the facts and circumstances before the court.”

       Vaughn v. State, 971 N.E.2d 63, 68 (Ind. 2012).


[14]   In the present case, after potential jury members were selected, the trial court

       read out the names of witnesses, including Nurse Callahan’s, who may be

       involved in the case and asked the jury if they recognized any of them. Juror

       139 did not recognize Nurse Callahan as a person she knew. During the second

       day of Welling’s jury trial, Juror 139 met Nurse Callahan in the hallway. Juror

       139 was surprised to see Nurse Callahan in the courthouse, and after

       exchanging pleasantries, which did not include a discussion of the facts

       surrounding the trial, the two parted ways. Juror 139 immediately disclosed

       her interaction to the bailiff.


[15]   After the trial court was informed of Juror 139’s interaction with Nurse

       Callahan, it conducted a voir dire of Juror 139. Juror 139 testified that she had

       worked with Nurse Callahan many years ago. Juror 139 added that she did not

       have an “outside friendship or anything” with Nurse Callahan, but she had

       liked a picture of Nurse Callahan’s grandson on Facebook since she had also

       worked at the same place as Nurse Callahan’s son. (Tr. Vol. II, p. 248). Juror

       139 added that she “had no idea” Nurse Callahan would be at Welling’s trial,

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2208 | March 24, 2020   Page 7 of 13
       and she was “kind of surprised” to see her in the courthouse. (Tr. Vol. II, p.

       249). When asked to disclose the extent of her conversation with Nurse

       Callahan, Juror 139 testified as follows:


               I just told her hi . . . we worked [together] at Towne House and I
               said, “Oh, no, I don’t work there anymore. I left three years
               ago.” And she goes, “Oh, yeah, I heard about that.” And then I
               said, “Well, how’s your grandson doing?” And she said, “Fine.”
               And then we walked away.


       (Tr. Vol. II, p. 249). Juror 139 added that she was not aware that she was

       having a conversation with a witness in the case. Juror 139 denied talking

       about any facts regarding the case. The trial court concluded its inquiry by

       asking whether Juror 139’s past working relationship and Facebook friendship

       with Nurse Callahan would affect her ability to remain fair and impartial as to

       all the testimony she would hear. Juror 139 stated that her prior connection

       with Nurse Callahan “wouldn’t skew” her ability to remain neutral. (Tr. Vol.

       II, p. 249). Welling’s counsel further explored the nature of Juror 139 and

       Nurse Callahan’s working relationship. Juror 139 reiterated that it was many

       years ago since she last worked with Nurse Callahan, and while she and Nurse

       Callahan had worked at the same place, they were stationed in different

       departments.


[16]   Our supreme court has addressed claims of bias in cases involving casual

       relationships between a juror and a witness. In Woolston v. State, 453 N.E.2d

       965, 968 (Ind. 1983), our supreme court held that the trial court did not abuse

       its discretion in refusing Woolston’s request to remove a juror because of his

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2208 | March 24, 2020   Page 8 of 13
       mere familiarity with a witness. In that case, one of the jurors informed the

       court that an expert witness—a doctor who had testified regarding the

       defendant’s insanity defense—had treated the juror’s father and that the juror

       “had little respect for the doctor.” Id. Still, the juror stated that he would try to

       treat the doctor’s testimony the same as that given by any other witness. Id.

       The trial court concluded that the juror could be fair and impartial. Id. Our

       supreme court found no abuse of discretion because there was no evidence in

       the record that the “defendant was placed in substantial peril” by the juror’s

       relationship with a witness. Id.


[17]   In Alvies, a juror named Carr told the trial court that she knew Dudley, the

       coroner who was testifying as a witness in the case, because Dudley had

       installed carpeting in Carr’s home. Alvies, 795 N.E.2d at 502. Our court noted

       that a juror’s familiarity with a witness does not necessarily constitute bias. Id.

       Finding the relationship even less problematic than the one found in Woolston,

       our court said,


               Indeed, unlike Carr, the juror in Woolston affirmatively stated that
               he did not respect the witness but, nevertheless, indicated that he
               would be fair and impartial. Carr gave no indication that she had
               any opinion of Dudley in his capacity as Coroner and, instead,
               made it clear that her knowledge of Dudley would not affect her
               ability to serve as a juror. Again, we must conclude that the
               court did not abuse its discretion when it denied Alvies’ motion
               to remove Carr.


       Id. at 502-03.



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2208 | March 24, 2020   Page 9 of 13
[18]   Here, we likewise find no abuse of discretion in the trial court’s denial of

       Welling’s request to remove Juror 139 from the jury panel. As in Alvies and

       Woolston, by asking its own questions and allowing Welling’s counsel to ask

       Juror 139 questions, the trial court properly analyzed the potential bias and

       considered the nature of Juror 139’s connection to Nurse Callahan and any

       indications of partiality. See Alvies, 795 N.E.2d at 500. Juror 139’s responses

       indicated that she had not formed an opinion regarding Welling’s guilt or

       innocence and would base her decision solely on all the evidence presented. See

       Alvies, 795 N.E.2d at 500. In addition, Juror 139’s testimony regarding her

       relationship with Nurse Callahan showed that any connections she had with

       Nurse Callahan was attenuated by the fact that it had been many years since

       they had both worked at the same place. In fact, Juror 139 added that while she

       and Nurse Callahan had worked at the same place, they had been assigned in

       different departments, and she had no close relationship with Nurse Callahan,

       other than being a casual friend on Facebook.


[19]   Here, the trial judge was in the best position to weigh the evidence and observe

       Juror 139’s demeanor while making the determination that Juror 139 could

       remain impartial. Jervis, 679 N.E.2d at 881. Thus, we hold that the trial court’s

       refusal to replace Juror 139 with an alternate was not an abuse of discretion.


                                         II. Inappropriate Sentence

[20]   Welling contends that his aggregate twenty-three and one-half year sentence is

       inappropriate considering the nature of the offenses and his character. Indiana

       Appellate Rule 7(B) empowers us to independently review and revise sentences
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2208 | March 24, 2020   Page 10 of 13
       authorized by statute if, after due consideration, we find the trial court’s

       decision inappropriate in light of the nature of the offense and the character of

       the offender. Reid v. State, 876 N.E.2d 1114, 1116 (Ind. 2007). The “nature of

       offense” compares the defendant’s actions with the required showing to sustain

       a conviction under the charged offense, while the “character of the offender”

       permits a broader consideration of the defendant’s character. Cardwell v. State,

       895 N.E.2d 1219, 1224 (Ind. 2008); Douglas v. State, 878 N.E.2d 873, 881 (Ind.

       Ct. App. 2007). An appellant bears the burden of showing that both prongs of

       the inquiry favor a revision of his sentence. Childress v. State, 848 N.E.2d 1073,

       1080 (Ind. 2006). Whether we regard a sentence as appropriate at the end of

       the day turns on our sense of the culpability of the defendant, the severity of the

       crime, the damage done to others, and a myriad of other considerations that

       come to light in a given case. Cardwell, 895 N.E.2d at 1224. Our court focuses

       on “the length of the aggregate sentence and how it is to be served.” Id.


[21]   The advisory sentence is the starting point the legislature has selected as an

       appropriate sentence for the crime committed. Abbott v. State, 961 N.E.2d 1016,

       1019 (Ind. 2012). In the instant case, Welling was found guilty of Level 3

       felony attempted rape, Level 6 felony domestic battery, Level 6 felony

       strangulation, and Level 6 felony sexual battery. The sentencing range for a

       Level 3 felony is three to sixteen years, with an advisory sentence of nine years.

       I.C. § 35-50-2-5. A Level 6 felony has a sentencing range of six months to two

       and one-half years, with an advisory sentence of one year. I.C. § 35-50-2-7.

       The trial court imposed maximum sentences of sixteen years for his Level 3


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2208 | March 24, 2020   Page 11 of 13
       felony conviction, and two and one-half years for each of his Level 6 felony

       convictions. Welling’s sentence is an aggregate sentence of twenty-three and

       one-half years.


[22]   The nature of the offense is found in the details and circumstances of the

       commission of the offense and the defendant’s participation. Croy v. State, 953

       N.E.2d 660, 664 (Ind. Ct. App. 2011). After A.C. invited Welling to her home

       and while the two were watching TV, he began kissing her. A.C. rejected

       Welling’s sexual advances and Welling responded by violently choking A.C.

       multiple times causing her to lose consciousness. When she regained

       consciousness, Welling was on top of her and he had put his penis inside her

       mouth. Welling then moved A.C. to the bedroom and after he got undressed,

       he attempted to penetrate A.C.’s vagina with his fingers. A.C. tried to use her

       hands to cover her vagina and otherwise fight him off. A.C. remembered

       hearing her minor children yelling in the background. Eventually, Welling left

       A.C.’s house. A.C.’s oldest son, J.G., who was five years old at the time of the

       attack, informed the responding officers that he saw Welling pull A.C.’s hair,

       and A.C. lose consciousness.


[23]   With respect to Welling’s character, at the time of his sentencing, Welling was

       only twenty-eight years old and had a limited criminal history. In Reis v. State,

       88 N.E.3d 1099, 1105 (Ind. Ct. App. 2017), we held that “[e]ven a minor

       criminal record reflects poorly on a defendant’s character.” (citations omitted).

       As a juvenile, Welling had been adjudicated as a delinquent for conversion, and

       as an adult, he accumulated two convictions, i.e., Class A misdemeanor

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2208 | March 24, 2020   Page 12 of 13
       carrying a handgun without a license in 2014, and Level 5 felony carrying a

       handgun without a license with a prior conviction in 2016. Further, we note

       that at the time he committed the instant offenses, Welling was on probation for

       the Level 5 felony conviction. In addition, Welling’s behavior demonstrated a

       repeated casual disregard for the law. In the presentence investigation report,

       Welling confessed that he used marijuana on a daily basis, and that he also used

       synthetic marijuana for a period of two years.


[24]   Under the circumstances, Welling failed to persuade this court that his

       aggregate twenty-three and one-half years is inappropriate in light of the nature

       of the offenses and his character. Accordingly, we decline to disturb the

       sentence imposed by the trial court.


                                             CONCLUSION
[25]   Based on the foregoing, we conclude the trial court did not abuse its discretion

       by not removing Juror 139 from the panel. Also, we conclude that Welling’s

       sentence is not inappropriate in light of the nature of the offenses and his

       character.


[26]   Affirmed


[27]   Baker, J. and Brown, J. concur




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2208 | March 24, 2020   Page 13 of 13
