MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                                 FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                                  Apr 23 2020, 9:27 am

court except for the purpose of establishing                                     CLERK
                                                                           Indiana Supreme Court
the defense of res judicata, collateral                                       Court of Appeals
                                                                                and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Timothy P. Broden                                         Curtis T. Hill, Jr.
Lafayette, Indiana                                        Attorney General of Indiana
                                                          Tyler G. Banks
                                                          Supervising Deputy Attorney
                                                          General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Kevin James McCaster, Jr.,                                April 23, 2020
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          19A-CR-2398
        v.                                                Appeal from the Tippecanoe
                                                          Circuit Court
State of Indiana,                                         The Honorable Sean M. Persin,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause No.
                                                          79C01-1906-F5-106



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2398 | April 23, 2020                     Page 1 of 7
                                        Statement of the Case
[1]   Kevin James McCaster, Jr., (“McCaster”), pled guilty to Level 6 felony

      domestic battery1 and two counts of Level 6 felony invasion of privacy.2 The

      trial court sentenced him to two years for each conviction and ordered the

      sentences to run consecutively to each other, with five years executed at the

      Department of Correction (“DOC”). On appeal, McCaster argues that the trial

      court erred when it excluded children from his sentencing hearing. Concluding

      that the trial court had the inherent authority to exclude the children, we affirm

      the trial court’s judgment.


[2]   We affirm.


                                                      Issue
                 Whether the trial court erred when it excluded children from
                 McCaster’s sentencing hearing.


                                                      Facts
[3]   McCaster and Crystal Jones (“Jones”), who are no longer in a relationship,

      have three daughters who are nine, eight, and six years old. McCaster also has

      an infant son with his current girlfriend. In June 2019, McCaster went to

      Jones’ house, kicked in her front door, and physically attacked her. The State




      1
          IND. CODE § 35-42-2-1.3.
      2
          I.C. § 35-46-1-15.1.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2398 | April 23, 2020   Page 2 of 7
      charged McCaster with Class A misdemeanor domestic battery, Level 6 felony

      domestic battery, Level 5 felony domestic battery, and Level 6 felony residential

      entry.


[4]   The same day that McCaster was charged with these offenses, the trial court

      issued a no-contact order prohibiting McCaster from contacting Jones.

      However, over the course of the following five days, McCaster telephoned

      Jones several times from jail. During the telephone calls, McCaster told Jones

      not to cooperate with law enforcement or the prosecutor’s office. He also told

      her to make up a story that someone else had hit her or to say that he had hit

      her in the face while opening a door. McCaster further instructed Jones to

      write a letter explaining that she did not want to be involved in prosecuting

      McCaster. As a result of the calls, the State charged McCaster with three

      counts of Class A misdemeanor invasion of privacy and three counts of Level 6

      felony invasion of privacy.


[5]   In August 2019, pursuant to a plea agreement, McCaster pled guilty to Level 6

      felony domestic battery and two counts of Level 6 felony invasion of privacy.

      The State dismissed the remaining counts, and sentencing was left to the trial

      court’s discretion.


[6]   At the beginning of the September 2019 sentencing hearing, while the State was

      setting up an audiotape of one of McCaster’s telephone calls to Jones, the trial

      court stated as follows:




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2398 | April 23, 2020   Page 3 of 7
              We’ll note that we’re on the record. This is 79C01-1906-F5-106.
              State of Indiana versus Kevin McCaster Jr., and the state had
              some exhibits, adults can be in here. I don’t want the children in
              here during the sentencing hearing. They can wait on the bench
              outside. Wait before you play that. I should clarify if it’s like a
              newborn I don’t care if they’re in here, they don’t understand
              what’s going on. I don’t want children that can listen and
              understand what’s going on being in here. A newborn is fine to
              be in here as long the child is not making any noise. And the
              reason for that Mr. McCaster is we’re going to talk about some
              things that they don’t need to be listening to okay. And we’re
              going to be playing recordings that I don’t want them listening to
              so by agreement of the parties I think there were some court
              excuse me jail phone calls that the court could listen to.


      (Tr. Vol. 2 at 29-30). McCaster did not object to the trial court excluding the

      children from the sentencing hearing.


[7]   The trial court listened to an audiotape of one of the telephone calls, which

      included two expletives. After hearing testimony and argument from both

      parties, the trial court stated as follows:


              Let’s talk about the case. The state’s exhibit one. Not only do
              we have [Jones], we have another witness, b*tch you’re going to
              take these kids, breaking down the door, kicking down the door,
              punching her in the face several times. [Jones] gets mad, she
              throws a shoe at you, you walk back to her and beat her again.
              In the face. The child’s got to get out of the courtroom. It’s not
              the first time. We’ve been here before. . . . [T]he kids are on the
              phone, kids are crying, and you’re saying don’t do this to me.
              Don’t do this to me. You think that she did this? Heck no.
              Please don’t go down there, please don’t talk to them. You don’t
              communicate to them they can’t do anything. . . . Think about
              what you have done physically to her and what you’ve done
              emotionally to her. Putting her in this situation. And then
              suggesting to her this is all her fault. Making her feel guilty. It’s
              all her, because she can make it go away all she has to do is make
              a phone call. . . . Tell them that you kind of bumped into the

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2398 | April 23, 2020   Page 4 of 7
               door and it kind of hit you in the face. Are you kidding me? Are
               you kidding me? How does that—are you surprised that I’m
               upset when I listen to these calls? I love you daddy in the
               background, they’re listening to the whole conversation, heart
               breaking to listen to your kids. Heartbreaking. They love you to
               death. But it’s not [Jones’] fault that you’re here, it’s your fault
               that you’re here.


       (Tr. Vol. 2 at 52-54).


[8]    Thereafter, the trial court sentenced McCaster to two (2) years for each of the

       three convictions. The trial court further ordered the sentences to run

       consecutively to each other, with five years executed at the DOC. McCaster

       now appeals.


                                                    Decision
[9]    McCaster’s sole argument is that the trial court erred when it excluded children

       from his sentencing hearing. At the outset, we note that McCaster did not

       object to the exclusion of the children. He has therefore waived appellate

       review of this issue. See Palilonis v. State, 970 N.E.2d 713, 730 (Ind. Ct. App.

       2012) (holding that failure to make a contemporaneous objection results in

       waiver of the issue on appeal), trans. denied.


[10]   Waiver notwithstanding, we find no error. INDIANA CODE § 5-14-2-3 provides

       that a trial court may not order the exclusion of the general public from a

       criminal proceeding unless it gives both parties and the public a “meaningful

       opportunity to be heard on the issue of any proposed exclusion.” INDIANA

       CODE § 5-14-2-6(g) further explains that after giving the parties and the public


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2398 | April 23, 2020   Page 5 of 7
       the opportunity to be heard, the trial court must make specific findings of fact

       and conclusions thereon in support of its order.


[11]   Here, McCaster’s sole argument is that the trial court failed to comply with

       INDIANA CODE § 5-14-2-6(g). McCaster specifically contends that “the record is

       devoid of any findings with respect to the number of children excluded from the

       sentencing hearing pursuant to the closure order, their respective ages, their

       relationship to [McCaster] o[r] other interested parties, or whether any adults

       were required to absent themselves from the sentencing hearing in order to

       supervise the children outside the courtroom.” (McCaster’s Br. at 9).


[12]   However, INDIANA CODE § 5-14-2-7 further provides that “[t]his chapter does

       not affect the inherent power of a court to make limited exclusions of witnesses,

       to relieve overcrowding, to protect the order and decorum of the courtroom, or

       to exclude those individuals whose presence constitutes a direct threat to the

       safety of the spectators, parties, or witnesses.”


[13]   In this case, we conclude that the trial court had the inherent power to exclude

       children from the sentencing hearing. The trial court specifically explained that

       the sentencing hearing would include a discussion that was not appropriate for

       children to hear. In addition, the trial court did not want children to hear the

       recording of McCaster’s telephone call to Jones. Our review of the evidence

       reveals that the telephone call that the trial court listened to contained

       expletives. Further, during the sentencing hearing, the trial court reviewed the

       specific details of a McCaster’s domestic violence case wherein McCaster


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2398 | April 23, 2020   Page 6 of 7
punched Jones, the mother of his three daughters, in the face multiple times.

The trial court also reviewed the specific details of the threatening telephone

calls that McCaster had made to Jones in violation of a protective order and

pointed out that his children could be heard crying in the background. The trial

court had the inherent authority to exclude children from the sentencing

hearing to protect them from hearing the specific details of the case and the

telephone call. We find no error. See also Long v. State, 121 N.E.3d 1085, 1088

(Ind. Ct. App. 2019) (explaining that a trial court is “given latitude to manage

the courtroom and maintain order and decorum”), trans. denied.


Affirmed.


Bradford, C.J., and Baker, J., concur.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2398 | April 23, 2020   Page 7 of 7
