      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                     FILED
      regarded as precedent or cited before any                            Dec 31 2019, 6:01 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
      Bruce W. Graham                                          Curtis T. Hill, Jr.
      Graham Law Firm, P.C.                                    Attorney General of Indiana
      Lafayette, Indiana
                                                               Ian McLean
                                                               Supervising Deputy Attorney
                                                               General
                                                               Indianapolis, Indiana



                                                IN THE
          COURT OF APPEALS OF INDIANA

      Mark C. Marshall,                                        December 31, 2019
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               19A-CR-760
              v.                                               Appeal from the Tippecanoe
                                                               Superior Court
      State of Indiana,                                        The Honorable Steven P. Meyer,
      Appellee-Plaintiff.                                      Judge
                                                               Trial Court Cause No.
                                                               79D02-1710-F5-141



      Mathias, Judge.


[1]   Mark C. Marshall (“Marshall”) was convicted in Tippecanoe Superior Court of

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

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-760 | December 31, 2019              Page 1 of 14
      felony criminal confinement. Marshall was also adjudicated an habitual

      offender. Marshall appeals his convictions and raises two issues on appeal,

      which we reorder and restate as:


        I. Whether the trial court abused its discretion when it excluded Marshall’s
           alibi evidence; and,

       II. Whether the trial court erred when it attached the habitual offender
           sentencing enhancement to Marshall’s Level 5 felony domestic battery
           conviction.

[2]   Concluding that the trial court acted within its discretion when it excluded

      evidence of Marshall’s alibi but erred when it attached the habitual offender

      sentence enhancement to the domestic battery sentence, we affirm in part,

      reverse in part, and remand for proceedings consistent with this opinion.


                                 Facts and Procedural History
[3]   Marshall and A.H. were involved in a romantic relationship, and they have a

      child together, L.M., who was born in September 2014. On January 5, 2016,

      Marshall pleaded guilty to battering A.H.


[4]   On September 1, 2016, A.H. and Marshall were no longer involved in a

      romantic relationship. A.H. was outside her home with L.M., who was almost

      two years old. Marshall arrived at A.H.’s home at approximately 3:15 p.m.

      A.H. told Marshall to leave, but Marshall refused. He dared A.H. to run, and

      when she did, Marshall chased her.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-760 | December 31, 2019   Page 2 of 14
[5]   Marshall caught A.H. as she reached her front porch. A.H., who was carrying

      L.M., attempted to hang onto the porch swing. Marshall grabbed her by the

      throat and choked her as he dragged A.H. and L.M. into the house. A.H.’s

      momentum caused her to fall to the floor.


[6]   Marshall shut the front door and locked it. He knelt and placed his knees on

      A.H.’s chest. He pinned her arms with his hands. He then put his hands around

      A.H.’s throat and choked her again. A.H. could not breathe and nearly lost

      consciousness. Marshall temporarily loosened his grip, allowed A.H. to gasp for

      air, and resumed applying pressure to her throat. Marshall punched A.H. in the

      head twice and demanded that she replace his lost clothing.


[7]   L.M. stood near her mother’s head and cried. Marshall screamed at the child

      and told her to go to her room. Marshall rose from the floor and grabbed A.H.’s

      purse and cell phone. Marshall did not want A.H. to use her phone to call the

      police.


[8]   Marshall allowed A.H. to sit on the couch and hold L.M. on her lap after L.M.

      returned to the living room. A.H. calmed Marshall down. She told him she

      would replace his clothes. She promised he could be a part of their family again.

      Marshall made A.H. swear she would not call the police. Marshall then left

      A.H.’s house.


[9]   A.H. and L.M. went to A.H.’s parents’ house, and A.H. called the police.

      Police Department Officer William Dorsey (“Officer Dorsey”) responded to the

      911 call. He interviewed A.H. and took photographs of her injuries. A.H.’s

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-760 | December 31, 2019   Page 3 of 14
       throat was red and swollen. She had scratches on her throat and rug burns on

       her back. A.H. told the officer that Marshall had attacked her and gave the

       officer Marshall’s phone number.


[10]   Officer Dorsey called Marshall and asked to speak to him about an incident

       involving A.H. Marshall refused to speak to the officer about A.H. and stated

       that he was at work. The officer asked to meet with Marshall, but Marshall did

       not want the officer at his place of employment. The officer then asked

       Marshall where he was at approximately 3:00 p.m. Marshall replied that he was

       at IU Hospital in Lafayette visiting his terminally ill brother. He told the officer

       that he left the hospital through Entrance 4 around 3:30 or 3:45 to go to work.


[11]   Officer Dorsey proceeded to the hospital. He spoke to the security officers on

       duty, and they allowed Officer Dorsey to watch the security tape for Entrance

       4. Officer Dorsey watched footage of people entering and exiting Entrance 4

       between 3:00 p.m. and 4:00 p.m. on September 1, 2016. The officer did not

       observe anyone remotely matching Marshall’s description use the hospital

       entrance.


[12]   On October 25, 2017, the State charged Marshall with Level 5 felony domestic

       battery, Level 6 felony domestic battery, Level 6 felony strangulation, Level 6

       felony criminal confinement, and Class A misdemeanor domestic battery. The

       State also alleged that Marshall was an habitual offender. Marshall filed a

       notice of alibi on May 30, 2018, well after the December 7, 2017 omnibus date.

       The State filed a motion to exclude the alibi defense, which the trial court


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-760 | December 31, 2019   Page 4 of 14
       granted. However, the trial court informed Marshall that he could testify in his

       own defense.


[13]   A few weeks before his January 8, 2019 jury trial commenced, Marshall filed an

       amended notice of alibi. The trial court again granted the State’s motion to

       exclude Marshall’s alibi defense except that Marshall would be allowed testify

       in his own defense. During trial, Marshall made an offer to prove and presented

       Teresa Robinson’s (“Robinson”) testimony that she visited Marshall’s

       terminally ill brother every day and Marshall was living in his brother’s hospital

       room. Robinson could not recall the specific dates and times that she visited the

       hospital or whether she saw Marshall at the hospital on September 1, 2016.

       Therefore, Marshall withdrew Robinson’s proposed testimony. Tr. Vol. II, p.

       204. On the second day of trial, Marshall attempted to admit a letter

       purportedly written by a doctor at the hospital stating that Marshall stayed at

       his brother’s bedside during his brother’s hospital stay from August 22 to

       September 29, 2016. The State objected to the letter, and the trial court

       sustained the objection.


[14]   In a bifurcated proceeding, the jury found Marshall guilty of Level 6 felony

       domestic battery, Level 6 felony strangulation, Level 6 felony criminal

       confinement, and Class A misdemeanor domestic battery. Marshall waived his

       right to a jury trial on the Level 5 felony domestic battery charge and the

       habitual offender allegation. After a bench trial, the trial court found that

       Marshall was guilty of Level 5 felony domestic battery because he had a



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-760 | December 31, 2019   Page 5 of 14
       previous Level 6 felony domestic battery conviction and also found that

       Marshall was an habitual offender.


[15]   Marshall’s sentencing hearing was held on April 2, 2019. The trial court merged

       the guilty findings on all three domestic battery charges and entered a judgment

       of conviction only on Level 5 felony domestic battery. Marshall was ordered to

       serve five years for the domestic battery conviction concurrent with the two-

       year sentences he received for the Level 6 felony criminal confinement and

       strangulation convictions. The trial court enhanced Marshall’s sentence on the

       Level 5 felony by six years due to the habitual offender finding, resulting in an

       aggregate sentence of eleven years in the Department of Correction. The trial

       court ordered the last two years of the sentence to be served in Community

       Corrections. Marshall now appeals his convictions and sentence.


                                               Alibi Defense
[16]   Marshall argues that the trial court abused its discretion when it granted the

       State’s motion to exclude his alibi defense and excluded testimony from Teresa

       Robinson, his alibi witness. The trial court has broad discretion in ruling on the

       admissibility of evidence. Edwards v. State, 930 N.E.2d 48, 49 (Ind. Ct. App.

       2010), trans. denied. We will reverse such a ruling only when the trial court

       abuses its discretion. Id. at 50. An abuse of discretion occurs when the trial

       court’s action is clearly erroneous and against the logic and effect of the facts

       and circumstances before it. Washington v. State, 840 N.E.2d 873, 879 (Ind. Ct.

       App. 2006), trans. denied.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-760 | December 31, 2019   Page 6 of 14
[17]   Indiana Code section 35-36-4-1 requires that when a defendant who is charged

       with a felony intends to offer in his defense evidence of an alibi, he must file

       with the court and serve upon the prosecutor, no later than twenty days prior to

       the omnibus date, a written statement of his intention to offer such a defense. A

       defendant who does not timely file the notice of alibi defense may show good

       cause for not doing so. If the defendant fails to show good cause, the trial court

       “shall exclude evidence offered by the defendant to establish an alibi.” Ind.

       Code § 35-36-4-3(b); see also Washington, 840 N.E.2d at 879.


[18]   Marshall argues that the delay in filing his notices of alibi defense was due to

       attorney neglect. In Washington, the defendant argued that he had good cause

       for failing to file his notice of alibi prior to the omnibus date because he had

       multiple attorneys, and trial counsel had been told by prior counsel that the

       notice of alibi had been filed. Trial counsel admitted fault for failing to check

       the court file. The trial court concluded that counsel's negligence was not good

       cause for the tardy filing. Our court concluded that the trial court acted within

       its discretion when it determined that Washington failed to establish good

       cause. Id. at 880.


[19]   In this case, Marshall filed his notice of alibi defense on May 30, 2018, over five

       months after the omnibus date.1 Marshall claimed that he was visiting his




       1
         In his brief, citing Indiana Code section 35-36-8-1, Marshall argues that the omnibus date should have been
       reset when his first attorney withdrew due to a conflict of interest. Although Marshall appears to be correct in
       this regard, he did not raise this argument in the trial court. Therefore, he has waived it for appeal. See Pigg v.
       State, 929 N.E.2d 799, 803 (Ind. Ct. App. 2010), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-760 | December 31, 2019                      Page 7 of 14
       brother at IU Arnett Hospital in Lafayette, Indiana on September 1, 2016.

       Marshall stated that he left the hospital sometime between 3:30 p.m. and 3:45

       p.m. to go to work.2 Appellant’s App. p. 73. Marshall claimed that he was

       either with his brother or at work on the date and time that A.H. was attacked.

       Marshall acknowledged the tardiness of his filing but argued good cause

       because his first attorney withdrew due to a conflict of interest, and his new

       counsel was not made aware of the alibi defense until April 13, 2018. Id. at 74.


[20]   Eighteen days before his trial began, Marshall filed an amended notice of alibi

       defense. In that notice, Marshall stated that he was “mistaken” in his first

       notice because he quit his job on August 30 or 31, 2016. Therefore, he was not

       at work when the offense occurred on September 1, 2016. He maintained that

       he was never at A.H.’s residence on that date, but that he was at the hospital all

       day without access to any transportation. Appellant’s App. pp. 90–91. Marshall

       did not list any witnesses that would testify in support of his alibi defense and

       informed the court that his brother was deceased.


[21]   At a pretrial hearing, Marshall asked the court to allow Robinson to testify that

       she often visited Marshall’s brother in the hospital and Marshall was always

       present. Robinson did not testify that Marshall was at the hospital on

       September 1, 2016. The trial court ruled that Robinson would be allowed to

       testify that Marshall was living at the hospital if the State presented evidence



       2
        Contrary to the State’s argument, Marshall’s notice was arguably specific enough to put the State on notice
       of his claimed alibi.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-760 | December 31, 2019                 Page 8 of 14
       that he was living elsewhere, but she would not be allowed to testify concerning

       Marshall’s alibi. The trial court reaffirmed its earlier ruling that Marshall would

       be allowed to testify in his own defense.


[22]   For the same reasons expressed in Washington, we conclude that the trial court

       acted within its discretion when it concluded that Marshall failed to establish

       good cause for the late filing of his two notices of alibi. Marshall’s counsels’

       alleged negligence is not good cause for the tardy filing. 3


[23]   Even if Marshall could establish good cause, he has not established that he was

       prejudiced by the trial court’s decision to exclude his alibi defense. Marshall’s

       only witness or evidence concerning his whereabouts at the time A.H. was

       assaulted was his own testimony. Marshall was allowed to testify in his defense.

       Robinson would have only testified that she went to visit Marshall’s brother in

       the hospital every day around 10:00 a.m., that she was not sure which dates he

       was hospitalized, that Marshall was living in his brother’s hospital room, and

       she saw Marshall at the hospital every time she visited. Tr. Vol. 2, pp. 198–203.

       Presumably because Robinson’s testimony did not aid Marshall in his alibi

       defense, Marshall withdrew her as a witness. Tr. Vol. 2, p. 204. Effectively,

       Marshall was allowed to present the only evidence of his claimed alibi.




       3
           Unlike the defendant in Washington, Marshall does not raise any constitutional arguments in his brief.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-760 | December 31, 2019                    Page 9 of 14
[24]   For all of these reasons, we conclude that Marshall has not established any

       error in the trial court’s decision to exclude his alibi defense.


                               Habitual Offender Enhancement
[25]   Marshall argues that the habitual offender sentencing enhancement of his Level

       5 felony domestic battery conviction is prohibited by Indiana Code section 35-

       50-2-8(e). That statute provides:


               The state may not seek to have a person sentenced as a habitual
               offender for a felony offense under this section if the current
               offense is a misdemeanor that is enhanced to a felony in the same
               proceeding as the habitual offender proceeding solely because the
               person had a prior unrelated conviction.


[26]   Here, Marshall’s misdemeanor domestic battery conviction was enhanced to a

       Level 5 felony because Marshall had a prior domestic battery conviction against

       the same victim, A.H. See Ind. Code § 35-42-2-1.3(c). Therefore, Marshall

       argues, and the State agrees, that Indiana Code section 35-50-2-8(e) prohibits an

       habitual offender enhancement on the Level 5 felony domestic battery

       conviction. Appellant’s Br. at 13–14; Appellee’s Br. at 19. See also Perry v. State,

       78 N.E.3d 1, 10 (Ind. Ct. App. 2017).


[27]   The parties do not agree whether the habitual offender adjudication can

       enhance either of his Level 6 felony strangulation or confinement convictions.

       Marshall argues that the evidence is insufficient to establish that he was eligible

       for an habitual sentencing enhancement.



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-760 | December 31, 2019   Page 10 of 14
[28]   On the date Marshall committed his offenses,4 Indiana Code section 35-50-2-8

       provided that


                  (d) A person convicted of a felony offense is a habitual offender if
                  the state proves beyond a reasonable doubt that:

                           (1) the person has been convicted of three (3) prior
                           unrelated felonies; and

                           (2) if the person is alleged to have committed a prior
                           unrelated:

                                   (A) Level 5 felony;

                                   (B) Level 6 felony;

                                   (C) Class C felony; or

                                   (D) Class D felony;

                           not more than ten (10) years have elapsed between the
                           time the person was released from imprisonment,
                           probation, or parole (whichever is latest) and the time the
                           person committed the current offense.

[29]   Our supreme court considered the statute in Johnson v. State, 87 N.E.3d 471

       (Ind. 2017) and held:


                  For a person to be sentenced as a habitual offender, the State
                  must prove beyond a reasonable doubt that “the person has been
                  convicted of three (3) prior unrelated felonies[.]” Of those three
                  unrelated felonies, subsection (d)(2) requires that if the person
                  has committed “a prior unrelated” lower-level felony, it must not
                  have been more than ten years since the person was released and



       4
           Indiana Code section 35-50-2-8 was amended effective July 1, 2017.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-760 | December 31, 2019   Page 11 of 14
                the current offense was committed. The indefinite article “a” is
                defined as “a) one; one sort of ... b) each; any one.” Therefore,
                applying a plain reading to the statute, “a” refers to prior
                unrelated lower-level felonies used to establish the enhancement
                under subsection 8(d)(1), and requires that “one,” “each,” or
                “any one” of the prior unrelated lower-level felonies meet the
                ten-year requirement. This outcome is bolstered by the fact that
                elsewhere in the same section, the legislature used the phrase “at
                least one,” but did not do so here.


       Id. at 473 (internal citations omitted and emphasis in original). 5 Accordingly,

       the court held that “the plain meaning of the 2015 version of subsection 8(d)

       requires that each lower-level felony—namely a Level 5, Level 6, Class C, or

       Class D felony—the State uses to establish subsection 8(d)(1) must meet the ten-

       year requirement found in subsection 8(d)(2).” Id. (emphasis added).


[30]   Here, the State alleged that Marshall was convicted of 1) Class D felony theft

       and/or Class D felony battery on April 10, 2010, 2) Class C felony burglary,

       Class D felony battery by bodily waste, and/or Class D felony intimidation on

       April 24, 2002, and 3) Class B felony arson on June 4, 1987. Appellant’s App.

       p. 36. Marshall does not dispute that the 2010 convictions and the B felony

       conviction can be used to establish that he is an habitual offender. However, he




       5
         The court acknowledged the General Assembly’s amendment to the statute effective July 1, 2017, which
       now states: “not more than ten (10) years have elapsed between the time the person was released from
       imprisonment, probation, or parole (whichever is latest) for at least one (1) of the three (3) prior unrelated
       felonies and the time the person committed the current offense.”

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-760 | December 31, 2019                    Page 12 of 14
       contends that the 2002 felony convictions do not qualify under the habitual

       offender statute because the convictions do not meet the ten-year requirement.


[31]   The State was required to prove that not more than ten years elapsed between

       Marshall’s release from imprisonment, probation, or parole for the 2002 felony

       convictions because they are considered lower level felonies under the statute.

       See Johnson, 87 N.E.3d at 473. On April 24, 2002, Marshall was ordered to

       serve an aggregate eight-year sentence for the Class C and D felony convictions,

       and that sentence was enhanced by twelve years because he was found to be an

       habitual offender. The trial court ordered Marshall to serve fourteen years of the

       twenty-year sentence executed in the Department of Correction and suspended

       six years to probation. Appellant’s Conf. App. p. 163.


[32]   The date that Marshall was released from probation for these offenses was not

       admitted into evidence. However, the pre-sentence investigation report

       establishes that Marshall was still on probation for these offenses in 2009. See

       Appellant’s Conf. App. pp. 163–64. Therefore, we may reasonably infer that

       Marshall’s release from probation for the 2002 felony offenses was within ten

       years of September 1, 2016, the date Marshall committed the offense at issue in

       this appeal.


[33]   For all of these reasons, we conclude that the State proved that Marshall is an

       habitual offender and remand this case to the trial court for re-sentencing

       consistent with this opinion. See Johnson, 87 N.E.3d at 474.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-760 | December 31, 2019   Page 13 of 14
                                                 Conclusion
[34]   The trial court acted within its discretion when it excluded evidence of

       Marshall’s alibi defense because Marshall failed to establish good cause for his

       tardy notice of alibi. However, the trial court erred when it sentenced Marshall

       by attaching the habitual offender enhancement to the Level 5 felony domestic

       battery conviction. Therefore, we remand this case to the trial court for

       resentencing consistent with this opinion.


[35]   Affirmed in part, reversed in part, and remanded for proceedings consistent

       with this opinion.


       Robb, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-760 | December 31, 2019   Page 14 of 14
