                                                                               FILED
                                                                       Jul 09 2020, 8:32 am

                                                                               CLERK
                                                                           Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court




ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEE
Daniel J. Vanderpool                                        Curtis T. Hill, Jr.
Vanderpool Law Firm                                         Attorney General of Indiana
Warsaw, Indiana
                                                            Megan M. Smith
                                                            Deputy Attorney General
                                                            Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Jamie R. Webb,                                              July 9, 2020
Appellant-Defendant,                                        Court of Appeals Case No.
                                                            19A-CR-2424
        v.                                                  Appeal from the Wabash Circuit
State of Indiana,                                           Court

Appellee-Plaintiff                                          The Honorable Robert R.
                                                            McCallen III
                                                            Trial Court Cause No.
                                                            85C01-1903-F4-347




May, Judge.




Court of Appeals of Indiana | Opinion 19A-CR-2424 | July 9, 2020                                   Page 1 of 17
[1]   Jamie R. Webb challenges her conviction of and twenty-year sentence for Level

      4 felony burglary. 1 Webb argues that the trial court abused its discretion by

      declining to admit an affidavit containing Webb’s hearsay statement to the

      arresting officer and that her sentence is inappropriate given the nature of her

      offense and her character. We affirm.



                                Facts and Procedural History
[2]   In December 2017, Candace Coe and Samuel Velacquez took over ownership

      and operation of Dreama’s Restaurant in Wabash, Indiana. Velacquez’s duties

      included managing the back-kitchen area and serving as the cook, while Coe

      took charge of the wait staff and handled payroll. Webb and her mother, Freda

      Patton, were both employees at Dreama’s from November 2016 to February

      2019.


[3]   In addition to running the restaurant together, Coe and Velacquez were

      romantically involved and shared a rented residence. In late December 2018,

      the two ended their relationship and Velacquez moved to Ohio. Velacquez

      took with him his personal belongings, which included only some clothing.

      The household items and electronics he and Coe acquired during their

      relationship belonged to Coe. Coe was left as the sole operator of the

      restaurant.




      1
          Ind. Code § 35-43-2-1(1).




      Court of Appeals of Indiana | Opinion 19A-CR-2424 | July 9, 2020         Page 2 of 17
[4]   A month later, Coe’s restaurant venture took a turn for the worse, and finally

      on February 19, 2019, Coe was forced to permanently shut down Dreama’s due

      to an inability to pay her employees. The next day, Coe told Patton that Coe

      could not afford to pay her or Webb approximately one month’s worth of back

      wages. Based on Coe’s recommendation, Webb filed a “labor claim” for

      “payment of wages” which totaled $3,885.75. (Tr. Vol. II at 131.)


[5]   On the night of February 24, 2019, Webb and Patton recruited seventy-year-old

      Eugene Grimm to take them from Webb’s apartment to Coe’s residence in

      Grimm’s truck. Grimm testified he was not initially aware why Webb and

      Patton wanted to go to Coe’s house that night, and he testified he had provided

      Webb and Patton transportation on other occasions because they did not own a

      car. After Grimm dropped Webb and Patton off at Coe’s house, he sat in his

      truck and observed the pair examining the backdoor, entering, and then

      carrying out furniture, TV’s, and other household items, which they placed in

      the back of Grimm’s truck. Grimm noted the pair did not make any effort to

      conceal themselves or their actions. From there Grimm drove Webb and

      Patton back to Webb’s apartment, where Webb and Patton unloaded the items

      and placed them inside Webb’s apartment.


[6]   During this time, Coe was away from her home visiting her sister in

      Kendallville, Indiana. On February 26, 2019, Coe was informed by one of her

      friends that Webb and Patton had taken some items from her house. She

      immediately returned to file a police complaint with Officer Drew Bender, and

      on February 27, 2019, police officers obtained a search warrant for Webb’s



      Court of Appeals of Indiana | Opinion 19A-CR-2424 | July 9, 2020       Page 3 of 17
      apartment. No one answered when officers arrived at Webb’s apartment, so

      they kicked down the front door. An investigation of the residence revealed

      numerous items that belonged to Coe: two televisions, a DVD player, fifty

      DVDs, pictures, a jewelry box, a heater, a PlayStation 4, a mirror, some

      shelves, and a microwave. Some of the electronics were plugged into the wall

      for use when officers arrived.


[7]   On March 8, 2019, the State charged Webb with Level 5 felony burglary, 2 Level

      4 felony burglary, and Class A misdemeanor theft. 3 On March 21, 2019, the

      State additionally alleged Webb was a habitual offender. 4 During trial on

      August 21, 2019, Webb asserted her right not to testify but attempted to enter

      into evidence an affidavit from Officer Bender containing statements she had

      made to him during the search of her apartment. In that affidavit, Officer

      Bender noted Webb had indicated she had authorization from Velacquez to

      enter into Coe’s home and take certain property as compensation for her lost

      wages.


[8]   As part of her offer to prove, Webb argued she satisfied Evidence Rule

      (804)(a)’s unavailability criteria by “exercising her constitutional right not to

      testify against herself.” (Id. at 162.) The State, however, disagreed by asserting

      that unavailability is afforded only toward privileges such as “attorney-client



      2
          Ind. Code § 35-43-2-1.
      3
          Ind. Code § 35-43-4-2(a).
      4
          Ind. Code § 35-50-2-8.




      Court of Appeals of Indiana | Opinion 19A-CR-2424 | July 9, 2020           Page 4 of 17
       privilege, doctor-patient privilege, pastor-parishioner privilege” and not from

       “exercising your Fifth Amendment right.” (Id. at 163.) Webb further

       explained that she was entitled to present her statement from the affidavit

       regarding consent under the hearsay exception for statements against interest as

       set forth in Evidence Rule 804(b)(3) because the statement was inculpatory and

       exculpatory – she admitted she “was there, but [she] had permission.” (Id.)

       The court decided that, because the statement was not entirely against Webb’s

       interest and because she would not be available for cross-examination,

       admission of the statement was not permissible under Evidence Rule 804(b)(3).


[9]    Webb additionally requested an instruction about the defense of consent. The

       trial court indicated it would not issue the instruction because Webb had not

       presented admissible evidence of consent, but the court allowed Webb to argue

       why the instruction should be included. The trial court ultimately did not allow

       Webb to call Officer Bender to testify about her statement during the search,

       and it did not provide the jury an instruction on the defense of consent, as the

       inadmissible hearsay statements offered by Webb were the only documented

       evidence toward that defense.


[10]   A jury found Webb guilty of Level 4 felony burglary and Class A misdemeanor

       theft. After a bifurcated hearing, the jury also determined Webb was a habitual

       offender. Following a sentencing hearing on September 16, 2019, the trial court

       convicted Webb of only Level 4 felony burglary, based on double jeopardy

       concerns. It imposed a ten-year sentence for Level 4 felony burglary and added




       Court of Appeals of Indiana | Opinion 19A-CR-2424 | July 9, 2020         Page 5 of 17
       a ten-year enhancement because Webb was a habitual offender, resulting in an

       aggregate twenty-year sentence with two years suspended to probation.



                                   Discussion and Decision
                                       1. Admission of Evidence
[11]   The trial court’s ruling on the admission or exclusion of evidence is reviewed

       for an abuse of discretion. Cherry v. State, 57 N.E.3d 867, 875 (Ind. Ct. App.

       2016), trans. denied. An abuse of discretion occurs if the trial court

       misinterpreted the law or if its decision was clearly against the logic and effect

       of the facts and circumstances before it. Pavlovich v. State, 6 N.E.3d 969, 975

       (Ind. Ct. App. 2014), trans. denied. When presented with an out-of-court

       statement offered to corroborate the truth of the matter asserted, the trial court

       must first examine the statement for hearsay, which is generally inadmissible,

       and then evaluate whether an exception permits its admission. Camm v. State,

       908 N.E.2d 215, 226 (Ind. 2009).


[12]   Hearsay is a statement that: (1) is not made by the declarant while testifying at

       the trial or hearing; and (2) is offered in evidence to prove the truth of the

       matter asserted. Ind. Evid. Rule 801(c). Unless hearsay falls into one of a

       number of delineated exceptions, it is inadmissible at trial. Evid. Rule 802.

       Webb argues the evidence she wished to have admitted was admissible under

       Indiana Evidence Rule 804, which provides in relevant part that hearsay is

       admissible if: (1) the declarant is unavailable as a witness, Evid. Rule 804(a);




       Court of Appeals of Indiana | Opinion 19A-CR-2424 | July 9, 2020           Page 6 of 17
       and (2) the statement was made against the declarant’s interest. Evid. Rule

       804(b)(3).


[13]   At issue is the statement found in an affidavit by Officer Bender wherein he

       averred Webb told him that she had permission to take the items in exchange

       for her lost wages. Webb argues the affidavit containing her hearsay is

       admissible pursuant to Evidence Rule 804 because: (1) she was unavailable to

       testify as a witness on her behalf; and (2) the statement she made to Officer

       Bender was a statement against her interest. We address each part of the

       exception separately.


                           A. Whether Webb was Unavailable as a Witness

[14]   Indiana Evidence Rule 804(a) outlines five classifications of unavailable

       witnesses:


               (a) Criteria for Being Unavailable. A declarant is considered to
               be unavailable as a witness if the declarant:


                        (1) is exempted from testifying about the subject matter
                        of the declarant’s statement because the court rules that a
                        privilege applies;


                        (2) refuses to testify about the subject matter despite a
                        court order to do so;


                        (3)    testifies to not remembering the subject matter;




       Court of Appeals of Indiana | Opinion 19A-CR-2424 | July 9, 2020               Page 7 of 17
                        (4) cannot be present or testify at the trial or hearing
                        because of death or a then-existing infirmity, physical
                        illness, or mental illness; or


                        (5) is absent from the trial or hearing and the statement’s
                        proponent has not been able, by process or other
                        reasonable means, to procure:


                                 (A) the declarant’s attendance, in the case of a
                                 hearsay exception under Rule 804(b)(1) or (5); or


                                 (B) the declarant’s attendance or testimony, in the
                                 case of a hearsay exception under rule 804(b)(2), (3),
                                 or (4).


               But this subdivision (a) does not apply if the statement’s
               proponent procured or wrongfully caused the declarant’s
               unavailability as a witness in order to prevent the declarant from
               attending or testifying.


[15]   The State argues Webb cannot both claim unavailability to introduce a

       statement she made to officers and, at the same time, exercise her right against

       self-incrimination to avoid being cross-examined about the statement.

       However, despite the State’s objection, Webb’s declaration of her Fifth

       Amendment constitutional right against self-incrimination is a valid and

       protected privilege that does meet the criteria for unavailability. See Camm, 908

       N.E.2d at 233 (a witness’ unavailability at defendant’s second trial was

       grounded in his Fifth Amendment privilege against self-incrimination); and see

       Kellems v. State, 651 N.E.2d 326, 328 (Ind. Ct. App. 1995) (depositions from two

       witnesses who were declared unavailable after invoking their Fifth Amendment


       Court of Appeals of Indiana | Opinion 19A-CR-2424 | July 9, 2020              Page 8 of 17
       privilege against self-incrimination were admissible as evidence under the

       hearsay exception rule).


                       B. Whether Webb’s Statement was Against Her Interest

[16]   Evidence Rule 804(b) outlines several exceptions to the rule against hearsay

       that are available if the declarant is unavailable to testify as a witness. The

       exception on which Webb relies provides:


                Statement Against Interest. A statement that a reasonable person in
                the declarant’s position would have made only if the person
                believed it to be true because, when made, it was so contrary to
                the declarant’s proprietary or pecuniary interest or had so great a
                tendency to invalidate the declarant’s claim against someone else
                or to expose the declarant to civil or criminal liability.


       Evid. Rule 804(b)(3). Statements against interest are admissible because they

       tend to expose the declarant to criminal liability, and thus a reasonable person

       in the declarant’s position would not have made the statements if she did not

       believe them to be true. Tolliver v. State, 922 N.E.2d 1272, 1280 (Ind. Ct. App.

       2010).


[17]   Webb argues the trial court abused its discretion when it did not admit Officer

       Bender’s affidavit statement, which provided:


                Webb told me that she had just filed claim against Coe for
                $3,889.75 for back wages. Webb told me that she used to work
                for Coe at Dreama’s Restaurant in Wabash. Webb told me that
                the items weren’t stolen, but that they were given to her as lost
                wages. Webb told me that [Velacquez] gave her permission to go
                into the house to retrieve the items. Webb could not tell me



       Court of Appeals of Indiana | Opinion 19A-CR-2424 | July 9, 2020           Page 9 of 17
               where the house was, but told me that it was [Coe] and
               [Velacquez]’s house and that she had been there before. Webb
               told me they went into the backdoor of Coe’s house, which was
               unlocked. Webb told me they didn’t break in.


       (App. Vo1. II at 22.) Other than her attempt to have Officer Bender’s affidavit

       admitted, Webb presented no additional evidence at trial to support her

       assertion that she had permission to take the items from Coe’s house.


[18]   A statement against interest must be incriminating on its face to be admissible

       under the hearsay exception. Jervis v. State, 679 N.E.2d 875, 878 (Ind. 1997).

       Further, it is not enough that a statement “merely arouse some suspicion as to

       culpability in the factual context of the case.” Id. If taken at its word, Webb’s

       statement is more exculpatory than inculpatory because it provides a complete

       defense for her actions. Thus, at most, Webb was able to demonstrate only that

       her statement is both exculpatory and inculpatory in nature, which is

       insufficient to merit the application of Evidence Rule 804(b)(3). See State ex rel.

       Langdon Hosp., Inc. v. Indem. Co., 211 N.E.2d 322, 38 Ind. App. 492, 494 (1965)

       (“to be admissible the statement against interest should be inconsistent with the

       defense, or it should tend to establish or disprove a material fact”).


[19]   We agree with the State that “Webb is attempting to have her cake and eat it

       too,” (Br. of Appellee at 10), because her supposed statement against interest

       balances farther towards purely exculpatory rather than evenly exculpatory and

       inculpatory, and because she wishes to introduce an unsubstantiated hearsay

       claim without allowing the State a fair opportunity to cross-examine her about




       Court of Appeals of Indiana | Opinion 19A-CR-2424 | July 9, 2020          Page 10 of 17
       her claim of consent. Thus, we hold the trial court did not abuse its discretion

       when it denied Webb’s request to admit Officer Bender’s affidavit containing

       Webb’s claim of consent. See Tolliver v. State, 922 N.E.2d 1272, 1281 (Ind. Ct.

       App. 2010) (hearsay statements were not considered as statements against

       interest when they were not “incriminating on their face and [did] not implicate

       [defendant] in a crime”), trans. denied.


                                 2. Inappropriateness of Sentence
[20]   We will reverse a sentence as inappropriate only if we determine Webb’s

       sentence is inappropriate in light of the nature of the offense committed and

       Webb’s character. See Ind. Appellate Rule 7(B) (allowing appellate review of

       sentences based on defendant’s character and nature of the offense). The nature

       of offense portion of the analysis compares the defendant’s actions with the

       required showing to sustain a conviction under the charged offense, Cardwell v.

       State, 895 N.E.2d 1219, 1224 (Ind. 2008), while the character of the offender

       portion of the analysis permits a broader consideration of a defendant’s

       character. Douglas v. State, 878 N.E.2d 873, 881 (Ind. Ct. App. 2007).


[21]   Ultimately, our determination of appropriateness “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.” Cardwell,

       895 N.E.2d at 1224. The task at hand is not to evaluate whether another

       sentence is more appropriate, but rather whether the sentence imposed is

       inappropriate. Barker v. State, 994 N.E.2d 306, 315 (Ind. Ct. App. 2013), trans.




       Court of Appeals of Indiana | Opinion 19A-CR-2424 | July 9, 2020         Page 11 of 17
       denied. The defendant ultimately bears the burden of demonstrating the

       inappropriateness of the sentence. Patterson v. State, 909 N.E.2d 1058, 1063

       (Ind. Ct. App. 2009).


[22]   When considering the nature of the offense, the advisory sentence is the starting

       point to determine the appropriateness of a sentence. Johnson v. State, 986

       N.E.2d 852, 856 (Ind. Ct. App. 2013). The minimum sentence for a Level 4

       felony burglary is two years and the maximum sentence is twelve years, with a

       six-year advisory sentence. Ind. Code § 35-50-2-5.5. Additionally, a person

       found to be a habitual offender may receive a sentence enhancement between

       six and twenty years. Ind. Code § 35-50-2-8. In all, Webb could have received

       a maximum thirty-two-year sentence, but she was sentenced only to twenty

       years, with two of those years suspended to probation.


[23]   Webb argues she committed the offense in an attempt to right a seeming

       injustice because Coe did not pay her for her work. However, the items Webb

       stole indicate her motivation was geared more toward exacting revenge than to

       correcting an injustice. This is exemplified through a cursory appraisal of the

       items she took from Coe’s home, under the guise of a need to pay her monthly

       rent. Although Webb did take electronics that could have significant monetary

       value, such as two televisions, a PlayStation 4, and a microwave, she also took

       items of personal, sentimental value that would have inconsequential monetary

       value, such as pictures, a mirror, some shelves, and a small jewelry box. In

       addition, the search of Webb’s apartment revealed that the televisions,

       PlayStation 4, and microwave were actually in use, which suggests Webb did



       Court of Appeals of Indiana | Opinion 19A-CR-2424 | July 9, 2020       Page 12 of 17
       not intend to sell Coe’s property to pay her rent. Most telling is that Webb had

       an appropriate legal remedy that she could have pursued to recover her lost

       wages, and she in fact did file a claim for unpaid wages. Webb’s actions

       demonstrate not a desperate need for immediate payment, but rather a

       continuing bitterness toward Coe. As Webb’s actions were clearly retaliatory in

       nature, we do not see her sentence as inappropriate.


[24]   When considering the character of the offender, one relevant fact is the

       defendant’s criminal history. Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct.

       App. 2007). The pre-sentence investigation report (PSI) elucidated Webb’s long

       criminal history, which began with three counts of theft as a juvenile, for which

       she received probation. As an adult, between 1996 and the present day, Webb

       was convicted of four felonies and five misdemeanors, including neglect of a

       dependent resulting in serious bodily injury, battery, forgery, assisting a

       criminal, receiving stolen property, illegal possession of alcohol, and two counts

       of possession of marijuana. At the time of sentencing, Webb had four

       additional criminal charges pending against her, which include Class A

       misdemeanor driving while suspended, 5 Class A misdemeanor knowingly

       driving while suspended with a prior conviction within ten years, 6 Class C




       5
           Ind. Code § 9-24-19-2(1)(2).
       6
           Ind. Code § 9-24-19-2.




       Court of Appeals of Indiana | Opinion 19A-CR-2424 | July 9, 2020         Page 13 of 17
       misdemeanor possession of paraphernalia, 7 and Level 6 felony neglect of a

       dependent. 8


[25]   Although the extent to which a defendant’s criminal history may be used to

       judge the appropriateness of a sentence “varies based on the gravity, nature,

       and number of prior offenses in relation to the current offense,” having

       committed multiple crimes is a “poor reflection on the defendant’s character,

       [as] it may reveal that he or she has not been deterred even after having been

       subjected to the police authority of the State.” Cotto v. State, 829 N.E.2d 520,

       526 (Ind. 2005). Webb’s failure to be deterred is further demonstrated by the

       fact that the State has filed four separate petitions to revoke probation and her

       probations were terminated unsuccessfully on three occasions. Webb’s prior

       convictions for theft and forgery, in conjunction with three unsuccessful

       attempts at probation, do not suggest Webb will amend her behavior following

       the criminal conduct in this current case. See Sainvil v. State, 51 N.E.3d 337, 344

       (Ind. Ct. App. 2016) (defendant’s sentence was not inappropriate given his poor

       character, the similarity of his prior convictions to the present offense, and his

       two failed attempts to maintain satisfactory probation). Further, we concur

       with the trial court’s assessment that Webb had “absolutely no remorse

       whatsoever, despite the evidence of guilt being overwhelming,” (Tr. Vol. II at

       211), which also speaks poorly of her character. See Davis v. State, 892 N.E.2d

       156, 165 (Ind. Ct. App. 2008) (defendant’s eight-year sentence for a Class C


       7
           Ind. Code § 35-48-4-8.3(b)(1).
       8
           Ind. Code § 35-46-1-4.




       Court of Appeals of Indiana | Opinion 19A-CR-2424 | July 9, 2020          Page 14 of 17
       felony was not found to be inappropriate given that her crimes were of

       “dishonesty and moral turpitude” and the defendant demonstrated a complete

       lack of remorse).


[26]   Webb attempts to analogize the facts in her case with those in Frye v. State, 837

       N.E.2d 1012 (Ind. 2005), and Hollin v. State, 877 N.E.2d 462 (Ind. 2007), to

       justify a reduction of her sentence. In Frye, the defendant was convicted of

       felony burglary, felony theft, and misdemeanor false informing, and his

       sentence was enhanced based on his habitual offender status. Frye, 837 N.E.2d

       at 1012. Our Indiana Supreme Court reduced Frye’s sentence from forty years

       to twenty-five years based on the remoteness of Frye’s previous violent offenses

       and the fact that his current offenses were non-violent and alcohol related. Id.

       at 1014.


[27]   In Hollin, the eighteen-year-old defendant was charged with Class B felony

       conspiracy to commit burglary and adjudicated a habitual offender after a jury

       trial. The trial court found his criminal history an aggravating factor and

       considered his young age as a mitigating factor. Following review, his sentence

       was reduced from forty years to twenty years by our Indiana Supreme Court.

       877 N.E.2d at 463. The Court explained that Hollin received the maximum

       penalty of twenty years for his Class B felony conviction, even though the

       advisory sentence for the offense was ten years. Given that Hollin’s crime was

       non-violent, he was unarmed, no one was home at the time of the burglary, and

       his prior crimes were related to auto theft, the Court determined the nature of

       his current offense merited reduction of his sentence. Id. at 465.



       Court of Appeals of Indiana | Opinion 19A-CR-2424 | July 9, 2020        Page 15 of 17
[28]   The facts in Frye and Hollin are distinguishable from the case before us. Webb

       had a Level 6 felony charge pending against her at the time of her sentencing, as

       well as pending charges involving unlawful driving activity and possession of

       drug paraphernalia. Finally, both Frye and Hollin initially received

       significantly lengthier sentences than Webb, such that even following appellate

       reduction, both of their sentences remained longer than Webb’s sentence.


[29]   Webb’s continued inclination toward criminal behavior, as exemplified by her

       inability to successfully finish her probation on three occasions and her current

       pending criminal charges, does not shed a positive light on her character or

       demonstrate a willingness to change her behavior. Further, the deliberate and

       personal nature of Webb’s offense demonstrates retaliation towards Coe, rather

       than an action committed out of serious financial necessity. Under these

       circumstances, we see nothing inappropriate about her twenty-year sentence.

       See Bayes v. State, 466 N.E.2d 447, 449-450 (Ind. 1984) (defendant’s sentence

       was not inappropriate given the vengeful and premeditated nature of the offense

       and the defendant’s criminal history which included five instances of

       probation).


                                                  Conclusion
[30]   Although Webb could be classified as an unavailable witness by invoking her

       Fifth Amendment privilege, the hearsay statement she wished to have admitted

       was not against her interest and thus was not admissible under Evidence Rule

       804. Thus, the trial court did not abuse its discretion when it excluded that




       Court of Appeals of Indiana | Opinion 19A-CR-2424 | July 9, 2020        Page 16 of 17
       evidence. Webb’s sentence is not inappropriate given the vengeful nature of her

       offense and her continuing propensity toward criminal behavior. Accordingly,

       we affirm the judgment of the trial court.


[31]   Affirmed.


       Robb, J., and Vaidik, J., concur.




       Court of Appeals of Indiana | Opinion 19A-CR-2424 | July 9, 2020     Page 17 of 17
