MEMORANDUM DECISION
                                                                          FILED
Pursuant to Ind. Appellate Rule 65(D),
                                                                     Aug 24 2016, 10:26 am
this Memorandum Decision shall not be
regarded as precedent or cited before any                                 CLERK
                                                                      Indiana Supreme Court
court except for the purpose of establishing                             Court of Appeals
                                                                           and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Barbara J. Simmons                                      Gregory F. Zoeller
Oldenburg, Indiana                                      Attorney General of Indiana

                                                        Ellen H. Meilaender
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

James Alexander,                                        August 24, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        49A02-1601-CR-2
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Marshelle Dawkins
Appellee-Plaintiff.                                     Broadwell, Commissioner
                                                        Trial Court Cause No.
                                                        49G17-1503-CM-7218



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1601-CR-2 | August 24, 2016           Page 1 of 9
                                       Statement of the Case
[1]   James Alexander (“Alexander”) appeals his conviction, following a bench trial,

      for invasion of privacy as a Class A misdemeanor. He raises one issue on

      appeal, namely, whether the trial court abused its discretion when it excluded

      the testimony of his witness. Having concluded that the trial court did not

      abuse its discretion, we affirm.


                                 Facts and Procedural History
[2]   Alexander and Ms. Chaklan Lacy (“Lacy”) were in a relationship from January

      until April of 2014. In July 2014, Alexander was convicted of battery and

      sentenced to four years in the Marion County Community Corrections Program

      on work release. As a condition of Alexander’s probation, the Marion Superior

      Court issued a no-contact order under which Alexander was prohibited from

      having any contact with Lacy “in person, by telephone or letter, through an

      intermediary, or in any other way, directly or indirectly, except through an

      attorney of record.” State’s Ex. 5.


[3]   On September 11, 2014, at a time when the no-contact order was in effect, Lacy

      received a telephone call from Alexander’s sister, Deidra Culpepper

      (“Culpepper”), with whom Lacy had become friendly during her relationship

      with Alexander. Although Lacy did not recognize the telephone number from

      which the call originated, she recognized Culpepper’s voice from having spoken

      with her over one hundred times in the past. In the background of the

      telephone conversation, Lacy heard Alexander’s voice coming from


      Court of Appeals of Indiana | Memorandum Decision 49A02-1601-CR-2 | August 24, 2016   Page 2 of 9
      Culpepper’s end of the telephone call, and she heard him instructing Culpepper

      to ask Lacy what she did with his belongings. Culpepper then asked Lacy what

      she did with Alexander’s belongings.


[4]   On March 9, 2015, the State charged Alexander with two counts of invasion of

      privacy as a Class A misdemeanor due to his alleged violations of the no-

      contact order. On August 25, Alexander’s counsel deposed Lacy. On

      November 2 and December 7, the court held a bench trial on Count II,1 which

      related to the September 11, 2014, telephone call. Culpepper’s role as the

      intermediary in that telephone call was set out in the probable cause affidavit

      filed on March 9, but the State did not list Culpepper as a witness it intended to

      call on its March 9 charging information.2


[5]   On the morning of the first day of trial, November 2, Alexander filed a witness

      list indicating for the first time that he intended to call Culpepper as a witness,

      although the list did not provide any address or other contact information for

      Culpepper. After hearing Alexander’s explanation for the late disclosure of his

      witness, the trial court stated that the situation felt “like gamesmanship,” but it

      continued the trial anyway to December 7 so that the State could have an

      opportunity to depose Culpepper. Tr. at 6.




      1
        Count I, which related to an alleged incident on July 10, 2014, was dismissed by the trial court on the
      State’s motion.
      2
         Although the charging information contained in the record on appeal does not contain a State’s witness
      list, all parties and the trial court agreed that such a list was located at the bottom of the March 9 charging
      information and that that list did not include Culpepper.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1601-CR-2 | August 24, 2016                    Page 3 of 9
[6]   On November 4, the State filed notice of its intent to depose Culpepper on

      November 13 at 3:00 p.m. Culpepper failed to appear for that deposition.

      Alexander’s counsel subsequently informed the prosecutor that Culpepper had

      missed the deposition because she works in the afternoons, and he asked for a

      morning deposition to accommodate her schedule. On November 16, the State

      filed notice of its intent to depose Culpepper on December 4 at 10:00 a.m.

      Culpepper failed to appear for the deposition. Alexander’s counsel informed

      the prosecutor later that morning that Culpepper had failed to appear because

      she was at a dental appointment. Alexander’s counsel suggested that

      Culpepper could be available that afternoon, but the prosecutor was not

      available at that time. That same day the State filed a motion to exclude

      Culpepper as a witness based on her failure to appear for two properly-noticed,

      scheduled depositions for which she had been subpoenaed.


[7]   At the December 7 hearing, the trial court granted the State’s motion to exclude

      Culpepper as a witness. Noting that a subpoena for a deposition is “not an

      invitation, it’s a court order,” and that Lacy was once again missing work to be

      at the hearing, the trial court disagreed with Alexander’s suggestions that,

      instead of excluding Culpepper’s testimony, the court should continue the

      hearing again or allow the State to talk to Culpepper out in the hallway. Tr. at

      11. The trial court also disagreed with Alexander’s suggestion that the hearing

      be bifurcated so that Lacy could testify that day and Culpepper could testify at a

      later date, after the State was able to depose her. The trial court stated that it

      would have been willing to do that “but for the fact that it’s [the court’s]


      Court of Appeals of Indiana | Memorandum Decision 49A02-1601-CR-2 | August 24, 2016   Page 4 of 9
      impression that the reason that this person isn’t being made available to the

      State is because of gamesmanship.” Id. at 13-14. The trial court continued, “I

      don’t know on whose part [the gamesmanship is], probably on Ms.

      Culpepper[’s] part[,] but I don’t know that for a fact[,] and[,] at this point, we’re

      going to proceed.” Id. at 14.


[8]   At the conclusion of the hearing, the trial court found Alexander guilty on

      Count II. In reaching its conclusion, the court stated that the State had proven

      Alexander’s guilt beyond a reasonable doubt, “regardless of what the um,

      individual who call[ed] Ms. Lacy may or may not have said.” Tr. at 36. The

      trial court based its decision on Lacy’s testimony “that she heard [Alexander

      during the telephone call] and she [was] familiar with [Alexander’s] voice

      because she was in a relationship with [him],” and that Lacy had heard

      Alexander “say to the person that was on the phone with [Lacy] . . . [to] ask

      [Lacy] about some clothing and what happened to the clothing.” Id.


[9]   After the trial court’s sentencing statement, Alexander’s counsel made an offer

      of proof as to Ms. Culpepper’s excluded testimony. Defense counsel noted that

      Ms. Culpepper would have testified that she had not spoken to Lacy on the

      telephone since April 21, 2014, and that she did not contact Lacy via telephone

      on behalf of Alexander “during the time he was on work release.” Id. at 41.

      This appeal ensued.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1601-CR-2 | August 24, 2016   Page 5 of 9
                                     Discussion and Decision
[10]   Alexander maintains that the trial court erred in excluding Culpepper from

       testifying on his behalf. A trial court has broad discretion in ruling on the

       admission of evidence, and we review those rulings only for an abuse of

       discretion. See, e.g., Vasquez v. State, 868 N.E.2d 473, 476 (Ind. 2007).


               To reverse a trial court’s decision to exclude evidence, . . . there
               must be (1) error by the court, (2) that affects Defendant’s
               substantial rights, and (3) the defense must have made an offer of
               proof or the evidence must have been clear from the context.
               Likewise, we leave to the trial court decisions regarding the
               orderly procedure of a trial. And where a trial court has made a
               decision regarding a violation or sanction, we will reverse only if
               there is clear error and resulting prejudice.


       Id. (quotations and citations omitted).


[11]   However, we also must give substantial weight to a defendant’s constitutional

       right to compulsory process under the Sixth Amendment to the United States

       Constitution and Article 1, Section 13 of the Indiana Constitution. Id. Thus,

       we recognize a strong presumption to allow defense testimony, even of late-

       disclosed witnesses. Id. In determining whether excluding a witness violates a

       defendant’s right to compulsory process, we consider the following five factors:


               (i) when the parties first knew of the witness; (ii) the importance
               of the witness’s testimony; (iii) the prejudice resulting to the
               opposing party; (iv) the appropriateness of lesser remedies such
               as continuances; and (v) whether the opposing party would be
               unduly surprised and prejudiced by the inclusion of the witness’s
               testimony.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1601-CR-2 | August 24, 2016   Page 6 of 9
       Id. (citing Williams v. State, 714 N.E.2d 644, 651 n.5 (Ind. 1999); Cook v. State,

       675 N.E.2d 687, 691 n.3 (Ind. 1996)). Moreover, a trial court has the discretion

       to exclude a belatedly disclosed witness when there is evidence of bad faith on

       the part of counsel or a showing of substantial prejudice to the State. Id. at 475

       (citing Williams, 714 N.E.2d at 651).


[12]   Here, a consideration of the five factors leads us to conclude that the trial court

       did not abuse its discretion in excluding Culpepper as a defense witness.

       Alexander acknowledges on appeal that he believed Culpepper’s testimony

       would have been “of extreme importance to [his] defense.” Appellant’s Br. at

       14. And Alexander was aware from the beginning of this case that Culpepper

       played a role in the September 11, 2014, telephone call that was the basis for

       Count II, as her role was noted in the March 9 probable cause affidavit.

       Alexander also knew from the March 9 list of the State’s witnesses that the

       State did not intend to call Culpepper at trial. Thus, Alexander knew for over

       six months before the initial trial date that Culpepper was a potential witness

       who the State did not intend to call. That was more than sufficient time for

       Alexander to decide to list Culpepper as a witness for the defense; to do so only

       on the morning of the first day of trial was unreasonable. See, e.g., Crocker v.

       State, 378 N.E.2d 645, 647 (Ind. Ct. App. 1978).


[13]   And the State would have been prejudiced by any of the alternative solutions to

       an exclusion of Culpepper’s testimony, such as a second continuance or a

       bifurcated hearing. The State and the trial court both had made prior efforts to

       accommodate Alexander and Culpepper by continuing the first hearing and

       Court of Appeals of Indiana | Memorandum Decision 49A02-1601-CR-2 | August 24, 2016   Page 7 of 9
       rescheduling depositions. To require Lacy to miss work a third time to

       accommodate Alexander’s last-minute request for a second continuance would

       have been prejudicial to Lacy and the State.


[14]   Moreover, the trial court correctly considered what appeared to be

       “gamesmanship” by the defense. See, e.g., Wisehart v. State, 491 N.E.2d 985,

       991 (Ind. 1986). The trial court noted that the defense offered no good reason

       why Alexander waited until the morning of the first scheduled hearing to list

       Culpepper as a witness and no good reason for Culpepper’s repeated failures to

       appear at depositions for which she had been subpoenaed. See, e.g., Hatfield v.

       Edward J. DeBartolo Corp., 676 N.E.2d 395, 398-99 (Ind. Ct. App. 1997), trans.

       denied.


[15]   Further, the State would have been prejudiced if it had been required to talk to

       Culpepper in the hallway before trial rather than questioning her in a

       deposition. Alexander had an opportunity to depose the State’s witness, Lacy.

       There is no apparent reason why the State should not have also had such an

       opportunity to depose Alexander’s witness. See Wisehart, 491 N.E.2d at 991

       (noting that Indiana courts require “that discovery rules be fairly balanced

       between the State and the defendant”).




       Court of Appeals of Indiana | Memorandum Decision 49A02-1601-CR-2 | August 24, 2016   Page 8 of 9
[16]   The trial court did not abuse its discretion in excluding Culpepper as a witness. 3

       However, we note that, even if the court had erroneously excluded the

       evidence, the error would have been harmless as the identity of the person who

       initiated the telephone call had no impact on the trial court’s decision. See, e.g.,

       Vasquez, 868 N.E.2d at 477 (holding that an “erroneous exclusion of evidence

       does not . . . require a reversal if its probable impact on the [fact finder], in light

       of all of the evidence in the case, is sufficiently minor so as not to affect the

       defendant’s substantial rights.”). The trial court specifically noted that it was

       basing its decision not on the identity of the person who initiated the September

       11 telephone call but on Lacy’s positive identification of Alexander’s voice

       telling the initiator of the call to ask Lacy a question. Thus, we affirm the trial

       court’s judgment.


[17]   Affirmed.


       Vaidik, C.J., and Baker, J., concur.




       3
         We do not address Alexander’s unsupported, categorical assertion that the exclusion of evidence should be
       reversed “when the excluded evidence challenged the credibility of the State’s investigation and witnesses;
       presented an alternative, exculpatory explanation of the State’s evidence; or showed that someone else could
       have committed the crime,” Appellant’s Br. at 13, because Alexander provides no citation to authority for
       this statement or argument as to how the statement applies to this case. Ind. Appellate Rule 46(A)(8)(a)
       (“Each contention must be supported by citations to the authorities, statutes, and the Appendix or parts of
       the Record on Appeal relied on.”); Pierce v. State, 29 N.E.3d 1258, 1267 (Ind. 2015) (noting failure to support
       arguments with appropriate citations to legal authority and record evidence waives those arguments for our
       review).

       Court of Appeals of Indiana | Memorandum Decision 49A02-1601-CR-2 | August 24, 2016                 Page 9 of 9
