Robb, J.
Case Summary and Issues
Following a jury trial, Robert Carr was found guilty of criminal confinement while armed with a deadly weapon, a Level 3 felony; battery resulting in serious bodily injury, a Level 5 felony; and escape, a Level 6 felony, among other offenses. The trial court entered judgment of conviction for the confinement, battery, and escape offenses only and sentenced Carr to an aggregate sentence of fifteen years in the Indiana Department of Correction. On appeal, Carr argues that the admission of a prior statement made by the victim to a law enforcement official violated his Sixth Amendment confrontation rights. Carr also argues that the statement constituted inadmissible hearsay. We conclude that Carr forfeited his Sixth Amendment right to confrontation regarding the prior statement due to his own wrongdoing. In addition, we conclude that the statement was admissible under the hearsay exception to the Indiana Rules of Evidence permitting the admission of a prior statement where the defendant wrongfully caused the declarant’s unavailability for trial. Thus, we affirm.
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On appeal, Carr argues that the admission of S.G.’s statement violated his Sixth Amendment confrontation rights and that the trial court abused its discretion when it admitted S.G.’s statement pursuant to a hearsay exception. The analysis of confrontation clause violations and exceptions to the hearsay rule are separate inquiries. See Holmes v. State, 671 N.E.2d 841, 859 (Ind. 1996) (noting that the confrontation rights guaranteed by our federal constitution and exceptions to the hearsay rule are analyzed separately), abrogated on other grounds by Wilkes v. State, 917 N.E.2d 675 (Ind. 2009). We address these issues in turn.
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The Sixth Amendment’s Confrontation Clause provides in relevant part, “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” U.S. Const. amend. VI. This right precludes the admission of any out-of-court statement that is testimonial in nature if the declarant is not unavailable and the defendant has not had the opportunity to cross-examine the declarant. See Crawford v. Washington, 541 U.S. 36, 59 (2004). However, a defendant may forfeit his right to confrontation where his own wrongdoing caused the declarant to be unavailable to testify at trial. Id. at 62 (relying on Reynolds v. United States, 98 U.S. 145, 158-59 (1878)). The forfeiture by wrongdoing doctrine protects the integrity of the judicial process. See Davis v. Washington, 547 U.S. 813, 833 (2006) (noting that “when defendants seek to undermine the judicial process by procuring or coercing silence from witnesses and victims, the Sixth Amendment does not require courts to acquiesce”). In order for a defendant to have forfeited his confrontation rights by wrongdoing, the defendant must have had in mind the particular purpose of making the witness unavailable. Giles v. California, 554 U.S. 353, 367 (2008). The Supreme Court has not spoken directly on the burden of proof for showing forfeiture by wrongdoing. However, it has noted that federal courts applying Federal Rule of Evidence 804(b)(6), which codified the doctrine, have applied a preponderance of the evidence standard. See Davis, 547 U.S. at 833.
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Nevertheless, we conclude that Carr forfeited his right to confront S.G. on her statement to Detective Cobain because his own wrongdoing procured S.G.’s absence from trial. The State showed that Carr began contacting S.G. in violation of the trial court’s no-contact order as early as March of 2017. S.G. continued to cooperate with the prosecutor by staying in contact and by participating in discovery. After Alden deposed S.G. in April of 2017, Carr knew that S.G. was still cooperating with the prosecution, but he informed Alden that he had decided to reject any plea agreement offered by the State. Thus, Carr sought an alternate resolution to his case.
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…Because Carr forfeited his right to confront S.G. on her statement by his own wrongdoing, his Sixth Amendment rights were not violated by the admission of her prior statement at trial.
I. Hearsay Exception
Carr also argues that the trial court abused its discretion when it admitted S.G.’s statement because the State did not establish an adequate evidentiary foundation for its admission as an exception to the hearsay rules…
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A declarant is considered to be unavailable as a witness if the declarant is absent from trial and the proponent of the statement has been unable to procure the declarant’s attendance at trial by process or other reasonable means. Evid. R. 804(a)(5)(A). In applying Evidence Rule 804(b)(5), we have looked to Federal Evidence Rule 804(b)(6), after which our rule was patterned, and at caselaw construing that rule for guidance and have concluded that the State must only show that the defendant was motivated at least partially by a desire to silence the witness with his wrongdoing. See White v. State, 978 N.E.2d 475, 479-80 (Ind. Ct. App. 2012), trans. denied. The State was required to establish the exception by a preponderance of the evidence. Id. at 480.
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We agree with Carr that there is no evidence that he explicitly urged S.G. to absent herself from trial. Br. of Appellant at 17. However, even though Carr employed the carrot rather than the stick in his efforts, the circumstantial evidence presented by the State supported a reasonable conclusion that S.G. did not appear on January 3, 2018, because of Carr’s efforts. Furthermore, Carr’s arguments pertaining to the trial court’s rationales for admitting the statement are unavailing, see id. at 17-19, as we may sustain the trial court’s ruling on any basis supported by the record. Ikemire, 852 N.E.2d at 644. Finally, contrary to Carr’s assertions on appeal, see Br. of Appellant at 18, given the ample evidence of Carr’s own, active efforts to keep S.G. from trial, it is not necessary for us to impute to him his family’s wrongdoing in erasing the only existing copy of S.G.’s deposition. The State showed by a preponderance of the evidence that S.G. was unavailable as a witness and that Carr engaged in wrongdoing that was intended to, and did, procure S.G.’s unavailability to prevent her from testifying at trial. The trial court did not abuse its discretion when it admitted S.G.’s prior statement.
Conclusion
Given that Carr forfeited his confrontation right as to S.G.’s prior statement and in light of our conclusion that the trial court did not abuse its discretion when it admitted the statement under an exception to the hearsay rules, we affirm Carr’s convictions.
Affirmed. Najam, J., and Altice, J., concur.