MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                               Sep 29 2017, 9:27 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
Nancy A. McCaslin                                        Curtis T. Hill, Jr.
McCaslin & McCaslin                                      Attorney General of Indiana
Elkhart, Indiana
                                                         Ellen H. Meilaender
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Mark Lynn Rushing,                                       September 29, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A03-1703-CR-493
        v.                                               Appeal from the Elkhart Superior
                                                         Court
State of Indiana,                                        The Honorable Charles Carter
Appellee-Plaintiff                                       Wicks, Judge
                                                         Trial Court Cause No.
                                                         20D05-1511-CM-1776



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A03-1703-CR-493 | September 29, 2017         Page 1 of 11
[1]   Mark Rushing was convicted of Class B Misdemeanor Harassment. 1 He

      appeals, arguing that he was denied his right to compulsory process, that the

      trial court erred in admitting certain evidence, that fundamental error occurred

      when the trial court made a certain inquiry of the jury, and that there was

      insufficient evidence. Finding no error, we affirm.


                                                     Facts
[2]   Rushing and C.G. met sometime in or around March 2014 and dated for two to

      three months. During this time, Rushing pressured C.G. to have sex; C.G. told

      Rushing that “it wasn’t right outside of marriage.” Tr. Vol. II p. 146. Rushing

      ended the relationship sometime in June or July 2014. C.G. did not speak to

      Rushing or ask him to text her after their relationship ended.


[3]   Sometime between July and November 2014, Rushing began sending C.G. text

      messages that “were not very pleasant.” Id. at 160. After C.G. blocked

      Rushing’s number on her phone, she received multiple phone calls from him

      from a different phone number, and he left her a voicemail message. C.G.’s

      pastor advised her to unblock Rushing’s number so that evidence could be

      collected. When C.G. did so in November 2014, her phone “started blowing

      up” with text messages from Rushing that were “disturbing,” “vulgar,” and

      “violent.” Id. at 148, 161. Rushing’s messages to C.G. included the following:




      1
          Ind. Code § 35-45-2-2(a)(2).


      Court of Appeals of Indiana | Memorandum Decision 20A03-1703-CR-493 | September 29, 2017   Page 2 of 11
          • “Don’t be scared come see me [C.G.]! I will let you suck my c*ck. You
            said you like c*ck. You said you want to be taken. But you would rather
            a guy stalk you. Makes you a wh*re. Now come learn to be a sl*t!”
          • “You ready to f*ck yet?”
          • “B*tch wake up!!! Let’s have sex!!!”
          • “Your a wh*re you will f*ck a complete stranger said you want to be
            taken. The guys you f*ck won’t even go out with you again. Now get
            over here and f*ck.”
          • “Full erection babe lets go.”
          • “Like I said let’s F*CK now! Where is my key? Who told you to throw
            it away? Who told you to stop talking to me? It’s time to f*ck.”
          • “You like stalked and rapped. That’s why you let it happen wh*re.”

      State’s Exs. 1-13 (spelling and grammar original). C.G. did not respond to

      Rushing’s text messages.


[4]   On November 2, 2015, the State charged Rushing with Class B misdemeanor

      harassment. Rushing’s first attorney withdrew from the case after he and

      Rushing disagreed about how to proceed and what witnesses to call; in an April

      13, 2016, pre-trial hearing, counsel stated that there “are some things I found

      not appropriate to do.” Tr. Vol. II p. 41. Rushing was then appointed a public

      defender. In a September 19, 2016, pre-trial hearing, Rushing’s new counsel

      stated that he and Rushing were having difficulty developing a list of witnesses

      because Rushing wanted his attorney to subpoena numerous witnesses, and “as

      his attorney I’m not going to subpoena all these people just to get them in here

      to a defense that I believe has no merit.”2 Id. at 66. The trial court explained to




      2
       Counsel explained this conflict during the September 19, 2016, pre-trial hearing. Although not discussed on
      appeal, the record shows that Rushing wanted approximately twenty people from his church to testify that at

      Court of Appeals of Indiana | Memorandum Decision 20A03-1703-CR-493 | September 29, 2017        Page 3 of 11
      Rushing that his public defender was to determine how to best represent

      Rushing and that Rushing did not get to dictate to his counsel how the trial

      would proceed. The trial court also explained that the witnesses Rushing

      wanted to call did not necessarily relate to his charge but rather to mitigating

      factors considered during sentencing.


[5]   Rushing’s jury trial took place on October 27, 2016. At the start of the trial,

      when the trial court asked the parties whether they had objections to the

      proposed voir dire instructions, Rushing objected that he wanted to call

      witnesses that his counsel was not going to call. The trial court told Rushing

      that he would have to “confer with your counsel about other witnesses but their

      testimony would have to be relevant” and that Rushing’s counsel considered

      the witnesses “detrimental to your case.” Id. at 90, 92.


[6]   Once trial began, the State moved to admit Rushing’s text messages to C.G.

      into evidence. When the trial court asked whether there were any objections,

      Rushing stated “I do,” while his counsel stated, “I have no objection.” Id. at

      149. The trial court admitted the exhibits “without objection.” Id.


[7]   During the lunch recess, Rushing became upset with his attorney and left the

      courthouse. Following that recess but before the jury returned to the




      least several of them suggested that Rushing stop taking his medication. Rushing knew that he would have
      problems if he stopped taking his medication. Defense counsel told Rushing that whether or not he took
      medication was not a defense to the charge of harassment.



      Court of Appeals of Indiana | Memorandum Decision 20A03-1703-CR-493 | September 29, 2017      Page 4 of 11
      courtroom, the State told the trial court that Rushing and his counsel got into

      an argument that the jury might have heard. When the trial court asked

      whether they needed to question the jury about it, Rushing’s counsel stated,

      “Not on his behalf but he did get pretty heated.” Id. at 167. When the jury

      returned to the courtroom, the trial court stated as follows:


              Now one other thing I’m told that the defendant and his attorney
              were having some discussion in the courtroom over the lunch
              hour after you were sent out into recess. Did any of you hear any
              of that discussion? Okay. Just a second. I have some notes I’ve
              got to make.


      Id. at 171.


[8]   The jury found Rushing guilty as charged. On March 9, 2017, the trial court

      imposed a sentence of 180 days, which was a sentence of time served. Rushing

      now appeals.


                                   Discussion and Decision
[9]   Rushing makes four arguments on appeal: (1) that he was denied his right to

      compulsory process to call certain witnesses; (2) that the trial court erred by

      admitting the State’s exhibits; (3) that fundamental error occurred following the

      trial court’s inquiry to the jury about Rushing’s argument with his counsel; and

      (4) that there was insufficient evidence to prove that Rushing intended to harass

      C.G.




      Court of Appeals of Indiana | Memorandum Decision 20A03-1703-CR-493 | September 29, 2017   Page 5 of 11
                                     I. Compulsory Process
[10]   Rushing argues under the Sixth Amendment to the United States Constitution

       and Article I, Section 13 of the Indiana Constitution that he was denied his

       right to compulsory process to call certain witnesses to testify on his behalf.


[11]   The Sixth Amendment to the United States Constitution provides that “In all

       criminal prosecutions, the accused shall enjoy the right . . . to have compulsory

       process for obtaining witnesses in his favor.” Article 1, Section 13 of the

       Indiana Constitution provides that “In all criminal prosecutions, the accused

       shall have the right to . . . have compulsory process for obtaining witnesses in

       his favor.” We have stated that the Sixth Amendment guarantees a criminal

       defendant the right to present witnesses on his behalf. Washington v. State, 840

       N.E.2d 873, 880 (Ind. Ct. App. 2006). Although the right to present witnesses

       is of critical importance, it is not absolute and must sometimes yield to other

       legitimate interests in the criminal trial process. Id.


[12]   Rushing wanted to call numerous witnesses who he believed “could clear his

       name.” Appellant’s Br. p. 16. During his trial, Rushing stated that he had

       witnesses his attorney refused to call. The trial court explained that Rushing

       needed to confer with counsel, who considered the potential witnesses

       “detrimental” to the case. Tr. Vol. II p. 92. The trial court further explained

       that the witnesses’ testimony would have to be relevant to the case and that “I

       have to agree with your counsel I’m not sure I understand what [the witnesses]

       would have to do with anything.” Id. at 90. Although on appeal Rushing does


       Court of Appeals of Indiana | Memorandum Decision 20A03-1703-CR-493 | September 29, 2017   Page 6 of 11
       not provide any information about what his witnesses would have testified to or

       how they would have helped clear his name, the record shows that Rushing

       wanted them to testify to what defense counsel considered a meritless defense.

       Further, Rushing’s attorney offered another strong strategic reason for not

       calling the witnesses—the witnesses were not relevant to the issue of whether

       Rushing harassed C.G. Counsel is free to make reasonable strategic decisions.

       Carter v. State, 738 N.E.2d 665, 676 (Ind. 2000). It is reasonable for counsel to

       refrain from calling witnesses whose testimony would not be relevant to the

       charge being tried. Rushing’s argument is unavailing.


                                  II. Admission of Evidence
[13]   Rushing also argues that the trial court erroneously admitted the text messages

       into evidence. We will reverse a trial court’s ruling on the admissibility of

       evidence only if the decision is clearly against the logic and effect of the facts

       and circumstances and the error affects a party's substantial rights. E.g., Shelton

       v. State, 26 N.E.3d 1038, 1042 (Ind. Ct. App. 2015).


[14]   At trial, when the State moved to admit Rushing’s text messages to C.G. into

       evidence, Rushing objected, but his counsel did not, and the trial court admitted

       the exhibits without objection. Rushing contends that the trial court erred by

       failing to provide Rushing with the opportunity to explain why he objected to

       the admission of this evidence. But Rushing “consented to representation by

       counsel, thus allocating to his counsel the power to make binding decisions of

       trial strategy.” Driver v. State, 725 N.E.2d 465, 471 (Ind. Ct. App. 2000). The


       Court of Appeals of Indiana | Memorandum Decision 20A03-1703-CR-493 | September 29, 2017   Page 7 of 11
       trial court properly considered counsel’s lack of objection and admitted the

       exhibits without objection. Moreover, on appeal, Rushing fails to offer even

       one reason as to why he objected to the admission of this evidence or why it

       was error for the trial court to admit it. The trial court did not err in admitting

       this evidence.


                                          C. The Argument
[15]   Rushing next argues that fundamental error occurred when the trial court did

       not sufficiently inquire into whether the jury overheard Rushing’s argument

       with his counsel.


[16]   Because Rushing did not object to the trial court’s questioning of the jury, he

       must establish fundamental error to prevail. The fundamental error doctrine is

       an exception to the general rule that the failure to object at trial constitutes a

       procedural default precluding consideration of an issue on appeal. Benson v.

       State, 762 N.E.2d 748, 755 (Ind. 2002). Fundamental error is extremely narrow

       and available only when the record reveals a clearly blatant violation of basic

       and elementary principles, where the harm or potential for harm cannot be

       denied, and which violation is so prejudicial to the rights of the defendant as to

       make a fair trial impossible. Jewell v. State, 887 N.E.2d 939, 942 (Ind. 2008).


[17]   The trial court asked the jury whether they had heard Rushing arguing with his

       counsel during the lunch recess. Rushing contends that this inquiry constitutes

       fundamental error because the record does not reflect whether the jurors

       actually heard the argument and the jury members were not questioned

       Court of Appeals of Indiana | Memorandum Decision 20A03-1703-CR-493 | September 29, 2017   Page 8 of 11
       individually. When the trial court asked the jury about this matter, the trial

       court stated: “Did any of you hear any of that discussion? Okay.” Tr. Vol. II

       p. 171. Although the record does not explicitly show that the jury responded in

       the negative to the trial court’s question, such response can be inferred from the

       fact that the trial court said “Okay” and then moved on to closing arguments.

       In other words, the record does not reflect that the jury overheard the argument

       because the jury did not, in fact, overhear the argument. Thus, individual

       questioning of the jurors about the matter was unnecessary. The trial court did

       not commit error, let alone fundamental error, in its inquiry to the jury about

       Rushing’s argument with his counsel.


                              D. Sufficiency of the Evidence
[18]   Finally, Rushing argues that there is insufficient evidence supporting his

       conviction. When reviewing a claim of insufficient evidence, we will consider

       only the evidence and reasonable inferences that support the conviction. Gray

       v. State, 957 N.E.2d 171, 174 (Ind. 2011). We will affirm if, based on the

       evidence and inferences, a reasonable jury could have found the defendant

       guilty beyond a reasonable doubt. Bailey v. State, 907 N.E.2d 1003, 1005 (Ind.

       2009).


[19]   To convict Rushing of Class B misdemeanor harassment, the State was required

       to prove beyond a reasonable doubt that Rushing, with the intent to harass,

       annoy, or alarm another person but with no intent of legitimate communication




       Court of Appeals of Indiana | Memorandum Decision 20A03-1703-CR-493 | September 29, 2017   Page 9 of 11
       communicated with a person by telegraph, mail, or other form of written

       communication. I.C. § 35-45-2-2(a)(2).


[20]   Specifically, Rushing argues that the State failed to prove beyond a reasonable

       doubt that Rushing intended to harass C.G. Several months after Rushing and

       C.G.’s relationship had ended, Rushing began texting C.G. and continued to do

       so despite receiving no response from her. When C.G. blocked Rushing’s

       number on her phone, he began calling her from another phone number. When

       C.G. unblocked him, Rushing repeatedly texted her, again without receiving

       any reply. Although Rushing argues that, when he sent C.G. the text messages,

       he did not know that they upset her or that she wanted them to stop, his

       continued attempts to contact C.G. despite her lack of response suggests that he

       was determined to contact her regardless of whether she was interested in

       communicating with him. In addition, Rushing’s text messages to C.G. were

       demeaning, offensive, and lewd—hardly the kind of communication that would

       encourage a response. Because Rushing knew that C.G. did not want to engage

       in sexual activity before marriage, he would have been aware that C.G. would

       not welcome his sexual text messages. Under these circumstances, it is entirely

       reasonable to infer that Rushing communicated with C.G. with the intent to

       harass and annoy her. In other words, the evidence is sufficient to support his

       conviction.




       Court of Appeals of Indiana | Memorandum Decision 20A03-1703-CR-493 | September 29, 2017   Page 10 of 11
[21]   The judgment of the trial court is affirmed.


       Bailey, J., and Altice, J., concur.




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