Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be

                                                                   FILED
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,                       Apr 30 2012, 9:29 am
collateral estoppel, or the law of the case.
                                                                        CLERK
                                                                      of the supreme court,
                                                                      court of appeals and
                                                                             tax court




ATTORNEY FOR APPELLANT:                             ATTORNEYS FOR APPELLEE:

CHRIS P. FRAZIER                                    GREGORY F. ZOELLER
Indianapolis, Indiana                               Attorney General of Indiana

                                                    KATHERINE MODESITT COOPER
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

LOUIS AMALFITANO,                                   )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )      No. 48A04-1108-CR-446
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                     APPEAL FROM THE MADISON CIRCUIT COURT
                         The Honorable Rudolph R. Pyle, III, Judge
                              Cause No. 48C01-1006-FB-199


                                          April 30, 2012

                MEMORANDUM DECISION - NOT FOR PUBLICATION

BAILEY, Judge
                                          Case Summary

        Louis Amalfitano (“Amalfitano”) was convicted of Criminal Confinement, as a Class

B felony1; Battery Resulting in Serious Bodily Injury, as a Class C felony2; Exploitation of an

Endangered Adult, as a Class D felony3; Financial Exploitation of an Endangered Adult, as a

Class D felony4; two counts of Theft, as Class D felonies5; Obtaining a Controlled Substance

by Fraud, as a Class D felony6; and Possession of a Controlled Substance, as a Class D

felony7. He now appeals.

        We affirm.

                                              Issues

        Amalfitano raises two issues for our review, which we reframe as:

          I.    Whether the trial court abused its discretion when it denied his motion
                to strike certain evidence, thereby violating his confrontation rights;
                and

         II.    Whether his sentence is inappropriate under Appellate Rule 7(B).

                                 Facts and Procedural History

        In August 2009, Amalfitano moved to Anderson with his family, including his father,

Luigi; his brothers, E.A. and V.A.; his fiancée, Stephanie Cole (“Cole”); and his daughter

with Cole. In October 2009, A.T., then sixty-five, lived across the street from the Amalfitano



1
  Ind. Code §§ 35-42-3-3(a)(1) & (b)(2)(B).
2
  I.C. § 35-42-2-1(a)(3).
3
  I.C. §§ 35-46-1-12(a)(1) & (b)(2).
4
  I.C. §§ 35-46-1-12(c) & (d).
5
  I.C. § 35-43-4-2(a).
6
  I.C. § 35-48-4-14(c).
7
  I.C. § 35-48-4-7.
                                                2
family and intervened in a fight involving E.A. The Amalfitano family befriended A.T. and

learned that A.T. was having financial difficulties, and was thus unable to continue living in

her apartment. The Amalfitanos allowed A.T. to move into their home, and V.A. gave up his

bedroom to A.T.

       In early November 2009, the Amalfitano family decided to move to New York City,

where many of their relatives lived. A.T. accompanied them, and the group used A.T.’s

minivan for transportation to New York City and lived in the van for a time. In January

2010, the Amalfitano family returned to Anderson. A.T. also returned to Anderson and

remained with the Amalfitanos.

       After spending a few nights with some of Cole’s family members and in a hotel, the

family, together with A.T., moved to an apartment on 21st Street in Anderson. At this time,

Amalfitano and his brother, E.A., began to throw hot and cold water on A.T. On one

occasion, Amalfitano threw a butter knife at A.T.; the knife struck the back of A.T.’s head

and caused profuse bleeding. A.T. did not obtain professional medical care for this injury.

A.T. was confined to the apartment, and felt as if she had lost her freedom when she moved

there with the Amalfitanos.

       Sometime in April 2010, the Amalfitanos moved to a house on Fletcher Street in

Anderson. Once there, Amalfitano confined A.T. to an unventilated utility room for twenty-

two or twenty-three hours per day. The windows of the room were boarded up, and the

curtains had been drilled into the walls so they could not be raised. A door from the room to

the exterior of the home was padlocked so that it could not be opened. A hook on the interior

                                              3
of the house secured the only other door in the utility room, which led to the kitchen inside

the home.

       A.T. could not leave the utility room for the interior or exterior of the home unless one

of the other occupants permitted her to leave. She was forced to beg to be let out of the room

for any purpose. Unless Amalfitano or another resident of the house permitted A.T. out of

the utility room, A.T. would be forced to urinate and defecate into a plastic grocery bag that

was hanging from the doorknob of the padlocked exterior door. Throughout this period, A.T.

was rarely given food and never received enough to eat.

       At some point, a mattress was placed in the room; Amalfitano and his brother, E.A.,

would soak the mattress so that A.T. had no dry place to sleep. In addition, Amalfitano and

E.A. physically abused A.T. on multiple occasions, which resulted in numerous rib fractures,

bruises, abrasions, and other injuries. A.T. did not receive medical care for these injuries.

       In addition, from around the time A.T. began to live with the Amalfitanos, A.T. was

deprived of access to the proceeds of her Social Security benefits checks. Though at first

A.T. willingly gave up the funds to help the family move to New York, she was soon

compelled to surrender the money. Amalfitano and his father, Luigi, took the funds from

A.T.’s Social Security checks and used the money for their own purposes. Amalfitano and

Luigi also took control of A.T.’s prescriptions for Xanax and Hydrocodone, preventing A.T.

from having access to these medications.

       While the Amalfitanos were living on 21st Street, they met Barbara Shannon

(“Shannon”) and Carlos Hood (“Hood”). Shannon and Hood befriended Amalfitano and

                                               4
Cole, and observed some of Amalfitano’s harsh treatment of A.T. After Shannon inquired

about A.T.’s well being and seeking to remove A.T. from the home, Amalfitano told

Shannon that she could not take A.T. from the residence. Soon afterward, the Amalfitanos

left the apartment on 21st Street and moved to the house on Fletcher Street.

       Shannon and Hood were visiting friends on Fletcher Street when they encountered

Amalfitano and visited the Amalfitano family on several occasions. Shannon inquired about

A.T. twice; each time, Amalfitano told her that A.T. was upstairs. Shannon did not believe

this story because she knew A.T. had difficulty walking, and on one occasion saw a door

locked from the inside of the house. Suspecting that A.T. was being kept in a room behind

the latched door, with Hood’s encouragement Shannon contacted Adult Protective Services

(“APS”). APS in turn contacted the Anderson Police Department.

       On May 27, 2010, Officers Freddie Tevis (“Officer Tevis”), Jim Rhodes (“Officer

Rhodes”), and Ian Spearman (“Officer Spearman”) of the Anderson Police Department

arrived at the Amalfitanos’ home to check on A.T.’s welfare. Luigi was at home with

Amalfitano’s daughter and answered the door. Officer Tevis asked Luigi about A.T. After

giving contradictory explanations of A.T.’s whereabouts and becoming increasingly nervous,

Luigi eventually escorted Officers Tevis and Spearman on a tour through the house. Upon

arriving in the kitchen, Officer Tevis asked to see into the room beyond the latched door into

the utility room.

       Luigi opened the door, and Officer Tevis saw A.T. sitting in a dark utility room.

Because the room was unventilated and had no insulation, it was extremely hot and smelled

                                              5
strongly of human waste. Upon helping A.T. exit the utility room, Officer Tevis observed

that A.T. had numerous injuries, including a large bruise on her right arm resulting from

Amalfitano grabbing and pulling her, and a bruise over her right eye. The bruise over A.T.’s

eye was caused by Amalfitano punching A.T. only a day or two before, which also resulted in

two fractures around A.T.’s right eye socket. A.T. was disoriented, weak, very frail, and

under nourished.

       Upon discovering A.T. in these conditions, police arrested Luigi. Amalfitano and

Cole arrived at the house shortly after police arrested Luigi, and were also arrested. Upon

arrest, Luigi had a bottle of pills belonging to A.T.; the pills were later determined to be

Alprazolam, which is a controlled substance marketed under the brand name Xanax. A.T.

was taken to St. John’s Hospital in Anderson, where she was diagnosed with severe

hypokalemia (potassium deficiency), dehydration, and malnourishment, which put her at

severe risk of sudden cardiac arrest, kidney failure, and liver failure.

       On June 3, 2010, Amalfitano was charged with Criminal Confinement; Battery

Resulting in Serious Bodily Injury; Exploitation of an Endangered Adult; Financial

Exploitation of an Endangered Adult; two counts of Theft; Obtaining Prescription by Fraud;

and two counts of Possession of a Controlled Substance.

       On June 28, 2011, a jury trial commenced, during which the State intended to call

Cole, who was imprisoned pending trial in the Madison County Jail, as a witness. During the

pendency of the trial, and after the trial court had sworn the jury and ordered the separation

of witnesses, Cole called Amalfitano, who had been released on bail, by phone from the jail.

                                              6
The two discussed plans for Cole to refuse to testify.

       The State notified the trial court of Amalfitano’s violation of the order for separation

of witnesses, and in response the trial court revoked Amalfitano’s bail. Cole was called to

testify. After she refused to do so, the State extended use immunity to her and began its

direct examination. Cole testified that she had written a letter to Amalfitano that police had

obtained after a search of the house. In the letter, she referred to Amalfitano’s abuse of A.T.

The incriminating letter was admitted into evidence without objection, after which Cole

refused to continue her testimony. Amalfitano briefly cross-examined Cole, who continued

to refuse to offer testimony.

       The trial court found her to be in criminal contempt of court. Amalfitano then moved

the court to strike from evidence both Cole’s testimony and the letter she had written to

Amalfitano, arguing that to do otherwise would deprive him of his right to confront witnesses

under the Sixth Amendment to the United States Constitution. The trial court denied

Amalfitano’s request.

       On June 30, 2011, the jury found Amalfitano guilty of all charges except for a single

count of Possession of a Controlled Substance. A sentencing hearing was conducted on

August 1, 2011, at the conclusion of which the trial court entered judgment of conviction

against Amalfitano and sentenced him to the statutory maximum terms for each offense, with

each of the sentences run consecutively, for an aggregate sentence of forty-six years

imprisonment.

       This appeal ensued.

                                              7
                                  Discussion and Decision

                                   Admission of Evidence

       Amalfitano contends that the trial court abused its discretion when it admitted into

evidence Cole’s letter to him, which police found during a search of the Amalfitano

residence on Fletcher Street. We review the admission of evidence for an abuse of

discretion, which occurs when the trial court’s decision is clearly against the logic and effect

of the facts and circumstances before it. Turner v. State, 953 N.E.2d 1039, 1045 (Ind. 2011).

Even where the trial court has erred in admitting evidence, we will not reverse the conviction

if the error does not affect the substantial rights of a party, that is, where the conviction “is

supported by substantial independent evidence of guilt satisfying the reviewing court there is

no substantial likelihood the challenged evidence contributed to the conviction.” Id. at 1059.

       An adverse party must make a contemporaneous objection to avoid waiver of an

appeal on the admission of evidence. Jackson v. State, 735 N.E.2d 1146, 1152 (Ind. 2000).

“A contemporaneous objection affords the trial court the opportunity to make a final ruling

on the matter in the context in which the evidence is introduced.” Id. Here, Amalfitano did

not contemporaneously object to the admission of the letter upon its introduction into

evidence. He instead moved to strike the letter and Cole’s testimony after Cole refused to

testify upon direct and cross-examination after the State extended her use immunity.

Amalfitano thus waived appellate review of the admissibility of Cole’s letter.

       Waiver notwithstanding, we turn to the merits of his claim. Amalfitano argues that

the admission of Cole’s letter violated his rights under the Confrontation Clause of the Sixth

                                               8
Amendment to the United States Constitution. Specifically, Amalfitano contends that

admission of the letter violated the prohibition of the admission of out-of-court testimonial

statements under Crawford and its progeny. See Crawford v. Washington, 541 U.S. 36

(2004).

       The Sixth Amendment provides, “In all criminal prosecutions, the accused shall enjoy

the right … to be confronted with the witnesses against him.” U.S. Const. amend. VI. This

right is applicable to the states through the Fourteenth Amendment. Hape v. State, 903

N.E.2d 977, 988 (Ind. Ct. App. 2009) (citing Pointer v. Texas, 380 U.S. 400, 406 (1965);

Howard v. State, 853 N.E.2d 461, 464 (Ind. 2006)), trans. denied.

       In a series of cases, beginning with Crawford, the Supreme Court has held that the

Sixth Amendment renders inadmissible out-of-court testimonial statements of a declarant

unless “the declarant is unavailable, and only where the defendant has had a prior opportunity

to cross-examine.” Crawford, 541 U.S. at 59. This rule has as its governing concern the

exclusion of the “civil-law mode of criminal procedure, and particularly its use of ex parte

examinations as evidence against the accused” that had been used in England and at various

times in the American Colonies. Id. at 50. Animated by this concern, the Court has held that

whether a statement is testimonial depends upon whether it had as its “primary purpose …

creating an out-of-court substitute for trial testimony.” Michigan v. Bryant, 562 U.S. ___,

131 S. Ct. 1143, 1155 (2011). Where a statement did not have such a primary purpose, its

admissibility “is the concern of state and federal rules of evidence, not the Confrontation

Clause.” Id.

                                              9
       Whether an out-of-court statement is testimonial depends not upon the State’s

intention to introduce the statement for purposes of obtaining a conviction of the defendant at

trial, but rather whether the statement was obtained as a substitute for trial testimony. Turner,

953 N.E.2d at 1055. In Davis v. Washington, the Supreme Court held that “not all those

questioned by the police are witnesses and not all ‘interrogations by law enforcement

officers,’ … are subject to the Confrontation Clause.” Bryant, 131 S. Ct. at 1153 (quoting

Crawford, 541 U.S. at 53; citing Davis v. Washington, 547 U.S. 813, 826 (2006)). Thus, the

Court distinguished between statements made to procure emergency assistance from

statements made when it was “‘entirely clear from the circumstances that the interrogation

was part of an investigation into possibly criminal past conduct.’” Id. at 1154 (quoting

Davis, 547 U.S. at 829). A statement need not be formal to be testimonial, but “‘formality or

informality can shed light on whether a particular statement has a primary purpose of use at

trial.’” Id. (quoting Bullcoming v. New Mexico, 564 U.S. ___, 131 S. Ct. 2705, 2721 (2011)

(Sotomayor, J., concurring)).

       Here, Amalfitano objected to the admission as a testimonial statement of an undated

handwritten letter to him from Cole that police obtained during a search of Amalfitano’s and

Cole’s bedroom in the Fletcher Street residence. That letter complained that, with the

couple’s anniversary near, Cole would “literally have to beg you to just want to sit in the

same room as me” because Amalfitano “would rather keep treating an old woman like shit,”

“keep [A.T.] around and keep abusing her … for money,” and force A.T. to sleep on the floor

as “an everyday thing.” (Ex. 33.) Cole further stated that “you have a 65yr old woman sleep

                                               10
on the floor with no blanket no nothing…. You and your brothers really are gonna cause her

to die.” (Ex. 33.)

       We find no error in the trial court’s admission of the letter under the Confrontation

Clause because the letter does not come within the framework of testimonial statements

subject to exclusion. The letter clearly lacks formality, and, more crucially, its primary

purpose was not to provide investigatory material to police. We decline Amalfitano’s

invitation to conclude that such out-of-court statements are testimonial simply because they

are incriminating and obtained as the result of a search warrant.

       Moreover, even if the letter had been testimonial and as a result inadmissible, any

error was harmless in light of the substantial additional evidence of Amalfitano’s guilt. A.T.

testified that she did not receive her medications because Amalfitano took them, was locked

into the room in the Fletcher Street residence, was beaten regularly by Amalfitano, and was

forced to hand over the proceeds from her Social Security checks. V.A. testified that he was

present when Amalfitano threw a butter knife at A.T. that struck her head, knew that A.T.

was forced to remain in the utility room and had himself locked her in the room at least once.

V.A. knew that A.T. was not given enough to eat and would give her food when he could,

and characterized Amalfitano as “the boss of the house it’s whatever he says goes [sic].” (Tr.

366.) Shannon and Hood testified that they personally observed some of Amalfitano’s

mistreatment of A.T., in particular his confinement of A.T., and saw Amalfitano flash money

and prescription drugs that he would not have had as a result of his own or any other family

member’s income. Thus, even if Cole’s letter had not been introduced into evidence, there

                                             11
was sufficient independent evidence to sustain Amalfitano’s convictions. Cf. Turner, 953

N.E.2d at 1059 (setting forth the standard of review for harmless error). He therefore was

not prejudiced by any error.

                                          Sentencing

       Amalfitano further contends that his aggregate forty-six year sentence is inappropriate.

Under Appellate Rule 7(B), this “Court may revise a sentence authorized by statute 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.” It is the

defendant’s burden to persuade this court that his sentence “has met th[e] inappropriateness

standard of review.” Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007) (quoting

Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006)), clarified on reh’g, 875 N.E.2d 218

(Ind. 2007).

       In Reid v. State, the Indiana Supreme Court reiterated the standard by which our state

appellate courts independently review criminal sentences:

       Although a trial court may have acted within its lawful discretion in
       determining a sentence, Article VII, Sections 4 and 6 of the Indiana
       Constitution authorize independent appellate review and revision of a sentence
       through Indiana Appellate Rule 7(B), which provides that a court may revise a
       sentence authorized by statute 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. The burden is on the
       defendant to persuade us that his sentence is inappropriate.

876 N.E.2d 1114, 1116 (Ind. 2007) (internal quotation and citations omitted).

       The Court more recently stated that “sentencing is principally a discretionary function


                                               12
in which the trial court’s judgment should receive considerable deference.” Cardwell v.

State, 895 N.E.2d 1219, 1222 (Ind. 2008). Indiana’s flexible sentencing scheme allows trial

courts to tailor a sentence appropriate to the circumstances presented. See id. at 1224. One

purpose of appellate review is to attempt to “leaven the outliers.” Id. at 1225. “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 myriad other factors

that come to light in a given case.” Id. at 1224.

       Amalfitano was found guilty of eight offenses: one Class B felony, with a sentencing

range of six to twenty years imprisonment and an advisory term of ten years, I.C. § 35-50-2-

5; one Class C felony, with a sentencing range of two to eight years imprisonment and an

advisory term of four years, I.C. § 35-50-2-6(a); and six Class D felonies, each with a

sentencing range of six months to three years imprisonment and an advisory term of eighteen

months. I.C. § 35-50-2-7(a). The trial court found that Amalfitano’s offenses were not a

single episode of criminal conduct and therefore ran the sentences for each offense

consecutively. See I.C. § 35-50-1-2(b) & (c) (defining an “episode of criminal conduct” and

limiting the total of consecutive terms of imprisonment for an episode of criminal conduct to

the advisory sentence for a felony one class higher than the most serious felony for which the

defendant has been convicted). This yielded an aggregate sentence of forty-six years

imprisonment, with none of that time suspended. Amalfitano now contends that his sentence

is inappropriate, and points in part to his father’s sentence, which is an aggregate of forty-six

years, with thirty-four years executed and twelve years suspended to probation. Amalfitano

                                               13
v. State, 956 N.E.2d 208, 211 (Ind. Ct. App. 2011), trans. denied.

       With regard to Amalfitano’s argument comparing his sentence to his father’s sentence,

we observe that Luigi pled guilty to the offenses and negotiated a plea agreement that the

trial court in that case accepted. The trial court then “imposed the maximum sentence

allowed under the plea agreement.” Id. The trial court further explained the difference in

sentencing by noting that Amalfitano was “the ring leader, not [Luigi], not [Cole] and neither

your brother [sic]” based upon V.A.’s testimony at trial and A.T.’s testimony at the

sentencing hearing, in which she identified Amalfitano as the individual most culpable for

her abuse. (Tr. 642). And while Amalfitano claims that his prior juvenile adjudications for

Battery were the result of his father’s provocations, we will not second-guess a trial court’s

weighing of aggravating and mitigating factors that are not improper as a matter of law. Id.

at 211 (citing Anglemyer, 868 N.E.2d at 490-91).

       With respect to the nature of Amalfitano’s offenses, we note that he engaged in a

series of escalating abuse over the course of nearly six months, from November 2009 to May

2010. This conduct involved taking advantage of a position of trust with A.T., which gave

him access to A.T.’s Social Security funds and her prescription medication, which

Amalfitano used to feed his own addictions. Amalfitano forced A.T. to remain in conditions

which may most charitably be described as unsanitary, with little access to a toilet, clothing,

or food, so that A.T. was forced to beg to use a bathroom and would use a plastic grocery bag

to urinate and defecate. Police officers who entered the room in which Amalfitano forced

A.T. to live reported that they could only remain inside for a few seconds at a time because of

                                              14
the overpowering smell of human waste. The room was also unventilated and significantly

hotter than the rest of the house—so much so that one witness reported that his polo shirt and

undershirt were both soaked with perspiration after only a few minutes in the room. The trial

court observed in its sentencing statement, “[a]nimals don’t treat other animals like that.”

(Tr. 645.)

       When police finally rescued A.T., she had lost thirty-six pounds, which caused her

weight to fall below a healthy level, and she suffered from severe hypokalemia and

dehydration, putting her at severe risk of sudden cardiac arrest, kidney failure, and liver

failure. A.T. required significant hospitalization and medical care to recover from these

conditions. A.T.’s physical injuries from Amalfitano’s battering involved numerous broken

ribs and fractures to her right eye socket. A.T. was “close to death when they found her.”

(Tr. 646.) One police officer who had known A.T. for many years testified that A.T. was in

such bad condition that he did not recognize her when he went to visit her in the hospital

because of her injuries and “tremendous loss in weight.” (Tr. 440.) These results go far

beyond the pale of the offenses contemplated by the legislature in setting forth advisory

sentences.

       Nor does Amalfitano’s character speak well of him. At sentencing, he sought to

blame his upbringing for his actions. He has prior juvenile adjudications for resisting an

officer, battery, fraud, and healthcare fraud. Amalfitano was addicted to several prescription

drugs, and only sought treatment after he was arrested. Amalfitano’s conduct during the trial

further reflects badly upon him. Amalfitano had several telephone conversations with Cole

                                             15
during the pendency of the trial that violated the court’s order for separation of witnesses, in

which the two discussed how Cole could avoid giving testimony and recognized that she

could be held in contempt of court for any refusal to testify.

       In light of all this, we conclude that the Amalfitano’s aggregate forty-six year sentence

is not inappropriate under Appellate Rule 7(B).

                                         Conclusion

       Amalfitano waived his challenge to the admissibility of Cole’s letter. Waiver

notwithstanding, the letter was not testimonial and its admission did not constitute a violation

of Amalfitano’s Sixth Amendment right to confrontation, and any error that did arise from

admission of the letter into evidence was harmless. Finally, his sentence is not inappropriate

under Appellate Rule 7(B).

       Affirmed.

ROBB, C.J., and MATHIAS, J., concur.




                                              16
