MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                                FILED
regarded as precedent or cited before any                                        Aug 31 2020, 8:35 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
Tyler D. Helmond                                         Curtis T. Hill, Jr.
Voyles Vaiana Lukemeyer                                  Attorney General of Indiana
Baldwin & Webb
                                                         Steven Hosler
Indianapolis, Indiana                                    Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Isaac J. Horne,                                          August 31, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A-CR-877
        v.                                               Appeal from the Vanderburgh
                                                         Superior Court
State of Indiana,                                        The Honorable Robert J. Pigman,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         82D03-2001-F5-30



Baker, Senior Judge.




Court of Appeals of Indiana | Memorandum Decision 20A-CR-877 | August 31, 2020                   Page 1 of 9
[1]   Isaac Horne appeals his convictions for Level 6 Felony Domestic Battery

      Resulting in Moderate Bodily Injury1 and Class A Misdemeanor Invasion of

      Privacy.2 Horne argues that the trial court erroneously determined that his

      constitutional right to confrontation was forfeited by his wrongful conduct.

      Finding no error, we affirm.


                                                          Facts
[2]   On December 29, 2019, Horne hit Amanda Davis in the face when she arrived

      at his house to pick up their daughter. Davis later called 911. Evansville Police

      Officer Korey Winn responded to the dispatch and found Davis holding an ice

      pack to her face. After seeing the extent of Davis’s injuries, Officer Winn called

      for medical assistance. Davis was admitted to the hospital and treated for

      fractures of five bones surrounding her right eye; she remained in the hospital

      for two days. Officer Winn arrested Horne, who denied that he had struck

      Davis.


[3]   On January 2, 2020, the State charged Horne with two counts of Level 5 felony

      attempted obstruction of justice;3 three counts of Level 6 felony domestic

      battery; and Class A misdemeanor invasion of privacy.4




      1
          Ind. Code § 35-42-2-1.3(b)(3).
      2
          Ind. Code § 35-46-1-15.1(a)(1).
      3
       The State later dismissed the obstruction of justice charges and added a charge of Level 5 felony domestic
      battery resulting in serious bodily injury.
      4
          Davis had a no contact order in place on the day that Horne battered her.


      Court of Appeals of Indiana | Memorandum Decision 20A-CR-877 | August 31, 2020                    Page 2 of 9
[4]   Davis failed to appear at two scheduled depositions or at trial. On March 10,

      2020, the State filed a motion for an evidentiary hearing on the issue of the

      admissibility of Davis’s statements to police. According to the State, Horne

      had forfeited his right to confront Davis through his wrongdoing; specifically,

      he had violated the no contact order by making repeated calls to Davis from jail

      and encouraging her not to cooperate with the prosecution. The trial court held

      a hearing the next day at which approximately ninety minutes of phone calls

      were admitted into evidence. On March 12, 2020, the trial court granted the

      State’s motion, finding that Horne had forfeited his right to confront Davis by

      his own wrongdoing and admitting Davis’s statements to police officers into

      evidence.


[5]   Horne’s jury trial took place on March 12, 2020. The jury found Horne guilty

      of three counts of Level 6 felony domestic battery and Class A misdemeanor

      invasion of privacy. At Horne’s April 2, 2020, virtual sentencing hearing, the

      trial court merged two of the domestic battery convictions into the third. Horne

      was sentenced to consecutive terms of two years for domestic battery and nine

      months for invasion of privacy. Horne now appeals.


                                   Discussion and Decision
[6]   Horne’s argument is best framed as whether the trial court erred by admitting

      the statements made by Davis to law enforcement into evidence. A trial court

      has broad discretion in ruling on the admissibility of evidence, and we generally

      afford latitude to the trial court in this decisionmaking process. Carr v. State,


      Court of Appeals of Indiana | Memorandum Decision 20A-CR-877 | August 31, 2020   Page 3 of 9
      106 N.E.3d 546, 552 (Ind. Ct. App. 2018), trans. denied. But when the

      defendant argues that a constitutional violation has resulted from the admission

      of evidence, we apply a de novo standard of review. Id.


[7]   Generally, the Sixth Amendment to the United States Constitution affords

      criminal defendants the right to confront witnesses against him. This rule

      “allows the admission of an absent witness’s testimonial out-of-court statement

      only if the witness is unavailable and the defendant has had a prior opportunity

      to cross-examine the witness.” Scott v. State, 139 N.E.3d 1148, 1153 (Ind. Ct.

      App. 2020), trans. denied. One exception to this rule occurs, however, when the

      defendant forfeits his right to confrontation. Specifically, if the defendant’s own

      wrongdoing caused the declarant to be unavailable to testify at trial, then the

      defendant has forfeited his right to confront that witness. Id. The State must

      prove that the defendant forfeited his right to confrontation by a preponderance

      of the evidence. Id. at 1154.


[8]   First, Horne argues that the State’s motion seeking an evidentiary hearing on

      forfeiture violated his procedural due process rights because it was insufficiently

      specific and failed to provide requisite notice. The motion is entitled “motion

      for evidentiary hearing on the issue of the admissability [sic] of police

      statements based upon forfeiture by wrong doing [sic],” and the body of the

      motion states as follows:


              Comes now the State of Indiana . . . and files the State’s request
              for an evidentiary hearing related to evidence of the Defendant’s



      Court of Appeals of Indiana | Memorandum Decision 20A-CR-877 | August 31, 2020   Page 4 of 9
               efforts to make contact with the reported victim in violation of
               the no contact order in this case.


               This request is made pursuant [to] the United States Supreme
               Court[’s] recognition in Crawford v. Washington (2004), 124 S.Ct.
               1354[,] of the doctrine of forfeiture by wrong doing [sic] as it
               relates to the 6th Amendment and statements made to law
               enforcement as well as the Indiana Court of Appeals in Scott v.
               State[.]


       Appellant’s App. Vol. II p. 64.


[9]    Initially, we note that Horne raised no due process objections to the trial court

       based on the content of the State’s motion. Consequently, he has waived this

       argument. Knapp v. State, 9 N.E.3d 1274, 1281 (Ind. 2014). Waiver

       notwithstanding, we note that Horne did, in fact, receive the process to which

       he was due—a contested, evidentiary hearing on these issues at which he was

       present and represented by counsel. Horne’s attorney cross-examined the

       State’s witnesses and presented vigorous argument on these issues.

       Consequently, regardless of the content of the State’s motion (which, we note,

       described the request and the reasons for the request, including citations to

       multiple authorities), Horne’s due process rights were not violated.


[10]   Next, Horne argues that the trial court erred by finding that the State proved by

       a preponderance of the evidence that Horne’s wrongdoing caused Davis to be

       unavailable to testify. Forfeiture by wrongdoing occurs where the defendant

       engages in behavior that is intended to procure a victim’s absence and the



       Court of Appeals of Indiana | Memorandum Decision 20A-CR-877 | August 31, 2020   Page 5 of 9
       behavior was so significant that the victim, in fact, failed to attend depositions

       or trial. Scott, 139 N.E.3d at 1155; see also Ind. Evid. Rule 804(b)(5).


[11]   We find Scott instructive. In that case, after Scott battered Maria Cook, his

       pregnant girlfriend, she gave a recorded statement to law enforcement

       identifying Scott as the person who had caused her injuries. Scott was arrested.

       Following his arrest, he began contacting Cook from jail, repeatedly asking her

       to change her story so that the case would be dismissed and urging her to tell

       the authorities that she had overexaggerated the incident. She emailed the State

       and the presiding judge, asking that the case be dismissed. Scott then began

       telling Cook that if she did not attend the trial or the depositions (which he

       would ask his attorney to schedule so that she could then fail to appear), then

       the case would be dismissed. Thereafter, the trial court entered a no contact

       order prohibiting Scott from having any contact with Cook. Ignoring the no

       contact order, Scott continued to call her from jail, telling her to miss

       depositions and fail to attend the trial. Cook failed to appear for three

       scheduled depositions or trial. The trial court found that Scott had forfeited his

       right to confront her by his own wrongdoing, admitting her initial statement to

       law enforcement into evidence. 139 N.E.3d at 1151-53.


[12]   This Court affirmed. We found that while Cook initially cooperated with law

       enforcement, after Scott began pressuring her from jail, she asked that the case

       be dismissed and stopped cooperating. He tried to minimize the nature of his

       conduct, but we found that unpersuasive: “[t]he issue is not the severity of

       Scott’s conduct; it is whether Scott engaged in conduct that was designed to

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-877 | August 31, 2020   Page 6 of 9
       procure Cook’s absence and whether that conduct was of such significance that

       she has been ‘kept back’ from attending depositions or trial.” Id. at 1155. We

       found that Scott’s conduct qualified:


               the evidence shows that Scott’s ongoing harassment of Cook
               through the litany of phone calls was a campaign designed to
               prevent Cook from testifying against him. Scott continually and
               repeatedly encouraging her not to attend depositions or trial
               precludes Scott from reaping the benefits of his own wrongdoing
               and to hold otherwise would undermine the integrity of the
               judicial process.


       Id. (emphasis original). Ultimately, we found that the State had proved by a

       preponderance of the evidence that Scott’s conduct was designed, at least in

       part, to keep her from testifying against him, thereby forfeiting his right to

       confrontation.


[13]   In this case, Davis, too, was initially cooperative with law enforcement. She

       called 911 and cooperated with Officer Winn’s investigation at the scene of the

       incident. After Horne was arrested, he began calling Davis (in violation of a no

       contact order) and a mutual friend, Kristi Johnson. The calls began on January

       23, 2020, and continued up to the date of his trial on March 12, 2020.

       Additionally, at least two other inmates called Davis and Johnson on Horne’s

       behalf. Some relevant examples from the ninety minutes of calls are as follows:


           • On January 27, 2020, Horne instructed Davis to “let [them] know . . .
             there is no contest[.]” State’s Ex. 1.
           • On February 27, 2020, another inmate told Johnson that Horne wanted
             her to “tell shorty not to show her pretty face[.]” Id.

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-877 | August 31, 2020   Page 7 of 9
           • Also on February 27, 2020, the same inmate called Davis, instructing her
             to “get down there and get that non-prosecution order[.]” Id.
           • On multiple occasions, Horne told Davis and Johnson that Davis should
             not appear so that the charges would be dismissed. Horne also
             repeatedly asked Davis to request that the State dismiss the case.
           • On March 4, 2020, Horne told Davis that she would “lose” her child to
             the Department of Child Services if Horne got convicted. Id.

       In sum, the evidence demonstrates that Davis initially cooperated with law

       enforcement. But after Horne began repeatedly calling her from jail (and

       having other inmates call her and a friend on his behalf), asking that she try to

       get the case dismissed, instructing her to fail to appear, and threatening her with

       the loss of custody of her child, Davis stopped cooperating. She failed to

       appear at scheduled depositions and did not attend the trial.


[14]   As in Scott, it is apparent that Horne’s litany of phone calls was a campaign

       designed to prevent Davis from testifying against him—all in violation of a no

       contact order—and that his campaign succeeded. Horne should not be able to

       reap the benefits of his own wrongdoing. Consequently, we find that the trial

       court did not err by concluding that the State proved by a preponderance of the

       evidence that Horne’s own wrongdoing caused Davis to be unavailable at trial.

       In other words, Horne forfeited his right to confront Davis’s statements against

       him and the trial court did not err by admitting those statements into evidence. 5




       5
        Horne raises two additional, brief arguments. First, he argues that we should reverse because the trial court
       was unable (due to technical difficulties) to listen to two of the many phone calls submitted by the State.
       Neither party argued that those two calls contained anything different from the other calls that the trial court


       Court of Appeals of Indiana | Memorandum Decision 20A-CR-877 | August 31, 2020                       Page 8 of 9
[15]   The judgment of the trial court is affirmed.


       Bailey, J., and Vaidik, J., concur.




       was able to listen to, nor did either party object to the trial court making a ruling without listening to those
       two calls. Therefore, we decline to reverse on this basis.
       Second, he argues that we should reverse because the trial court failed to make factual findings. There is no
       rule requiring the trial court to make factual findings under these circumstances. Therefore, we decline to
       reverse on this basis.

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-877 | August 31, 2020                         Page 9 of 9
