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Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the
Mar 21 2011, 9:14 am
of the supreme court,
court of appeals and
ATTORNEY FOR APPELLANT:
ATTORNEYS FOR APPELLEE:
DAVID C. KOLBE
GREGORY F. ZOELLER
Attorney General of Indiana
ANDREW R. FALK
Deputy Attorney General
COURT OF APPEALS OF INDIANA
STATE OF INDIANA,
APPEAL FROM THE KOSCIUSKO SUPERIOR COURT
The Honorable Duane G. Huffer, Judge
Cause No. 43D01-0809-FA-158
March 21, 2011
MEMORANDUM DECISION - NOT FOR PUBLICATION
Shawn Hattery appeals his convictions and sentence for Class D felony
obstruction of justice, Class D felony theft, Class A felony burglary, Class C felony
battery, Class A felony attempted criminal deviate conduct, two counts of Class A felony
criminal deviate conduct, and three counts each of Class A felony rape, Class D felony
criminal confinement, and Class D felony sexual battery.
We affirm Hattery‟s
convictions and sentence.
The restated issues before us are:
whether the trial court properly admitted into evidence
mugshots of Hattery and videotaped depositions of
three State‟s witnesses;
whether there is sufficient evidence to support his
obstruction of justice conviction; and
whether Hattery‟s aggregate 200-year sentence is
The evidence most favorable to Hattery‟s convictions1 is that, sometime after
falling asleep late in the evening of October 4, 2005, twenty-one year-old A.B. awoke in
her bed in her apartment in Warsaw to find that someone heavy was straddling her. A.B.
attempted to fight off the individual, who turned out to be Hattery, but he told her to stop
Hattery‟s “Statement of Facts” in his brief lacks any details regarding the crimes of which he was
convicted, and instead states that all of the relevant facts were related in the procedural “Statement of the
Case” section of the brief. We disagree with this assertion. The details of the crimes here are highly
relevant, especially with respect to Hattery‟s assertion that his sentence is inappropriate.
fighting and that he was just there to “take a few things.” Tr. p. 155. Hattery then bound
A.B.‟s arms together with duct tape. Next, he took out a knife and sliced open A.B.‟s
shirt, then removed her pants. A.B. continued struggling, and Hattery choked her until
she lost consciousness. When A.B. regained consciousness, Hattery punched her in the
face, fracturing two orbital bones. He then wrapped duct tape around A.B.‟s eyes and
mouth and tied her feet to the footboard of her bed.
Hattery then applied lubricant to A.B., sprayed perfume on her, and had vaginal
intercourse with her. He temporarily stopped having intercourse in order to perform oral
sex on A.B., then returned to having vaginal intercourse. After Hattery completed this
encounter, he smoked a cigarette, and then helped himself to a drink from A.B.‟s
Hattery returned to A.B.‟s bedroom, untied her, and turned her over. He re-taped
her arms tightly and re-tied her legs to the headboard. He fondled her breasts and
buttocks, and also bit one of her nipples.
He then had repeated vaginal and anal
intercourse with A.B., and at one point removed the duct tape from her mouth and
attempted to kiss her. When Hattery finished this attack, he took a shower in A.B.‟s
apartment, and returned to the bedroom.
Hattery untied A.B., violently turned her over, and tied her arms to the headboard
and her feet to the footboard.
As before, Hattery had repeated vaginal and anal
intercourse with A.B. After finishing, Hattery used a cloth to attempt to wipe bodily
fluids off of A.B. After Hattery left, A.B. managed to untie herself, and she immediately
sought emergency medical treatment. A physician completed a rape kit and obtained
DNA samples from A.B.
These crimes went unsolved for several years, until Hattery‟s DNA was obtained
following his incarceration for an unrelated conviction and it was found to match the
DNA recovered from A.B. On September 30, 2008, the State charged Hattery with Class
D felony obstruction of justice, Class D felony theft, Class A felony burglary, Class C
felony battery, Class A felony attempted criminal deviate conduct, two counts of Class A
felony criminal deviate conduct, and three counts each of Class A felony rape, Class D
felony criminal confinement, Class D felony sexual battery, and Class D felony
strangulation. The State dismissed the strangulation charge before trial because the
statute creating that offense was not yet in existence in October 2005.
Also before trial, videotaped depositions were taken of three DNA experts. Two
of these experts resided outside of Indiana, and the third was a pregnant woman who was
expecting to deliver approximately two weeks before trial. Hattery himself was not
present at the depositions, but his attorney was and had an opportunity to cross-examine
the witnesses. At the outset of Hattery‟s jury trial on December 1, 2009, the prosecutor
and defense counsel agreed on the record that the videotaped depositions would be
introduced into evidence in lieu of live testimony. Defense counsel expressly stated, “I
had an opportunity to cross-examine those witnesses, and I believe that Mr. Hattery‟s
rights pursuant to the Indiana Constitution and the United States Constitution 6th
Amendment were satisfied.” Id. at 2.
Also during trial, some mugshots of Hattery were introduced into evidence,
without objection. The jury found Hattery guilty as charged. The trial court sentenced
Hattery as follows: fifty years for Class A felony burglary, thirty years for Class A
felony attempted criminal deviate conduct, thirty years for each count of Class A felony
criminal deviate conduct, thirty years for each count of Class A felony rape, four years
for Class C felony battery, one and one-half years for each count of Class D felony
criminal confinement, one and one-half years for each count of Class D felony sexual
battery, one and one-half years for Class D felony obstruction of justice, and one and
one-half years for Class D felony theft. The sentences were to run concurrently, except
with respect to the sentences for burglary, criminal deviate conduct, and rape. This
resulted in an aggregate sentence of 200 years. Hattery now appeals.
I. Admission of Evidence
We first address Hattery‟s challenges to the admission of evidence, namely the
videotaped depositions and the mugshots. We review a trial court‟s evidentiary rulings
for an abuse of discretion. McHenry v. State, 820 N.E.2d 124, 128 (Ind. 2005). An
abuse of discretion occurs if the trial court‟s decision is clearly against the logic and
effect of the facts and circumstances before the court or if it misinterprets the law.
Carpenter v. State, 786 N.E.2d 696, 703 (Ind. 2003).
Hattery, however, failed to object to introduction of either the depositions or the
mugshots. Thus, we may reverse Hattery‟s conviction only if he has demonstrated the
existence of fundamental error. See Purifoy v. State, 821 N.E.2d 409, 412 (Ind. Ct. App.
2005), trans. denied. “The „fundamental error‟ rule is extremely narrow, and applies only
when the error constitutes a blatant violation of basic principles, the harm or potential for
harm is substantial, and the resulting error denies the defendant fundamental due
process.” Boesch v. State, 778 N.E.2d 1276, 1279 (Ind. 2002). “The mere fact that error
occurred and that it was prejudicial will not satisfy the fundamental error rule.” Purifoy,
821 N.E.2d at 412. Fundamental error requires a defendant to show greater prejudice
than ordinary reversible error because no objection has been made. Id.
Hattery wholly fails to make any argument that introduction of the mugshots
constituted fundamental error; in fact, he completely fails to acknowledge that no
objection was made to their introduction. In the absence of any cogent argument that
introduction of the mugshots constituted fundamental error, we will not address the issue
further. See Absher v. State, 866 N.E.2d 350, 355 (Ind. Ct. App. 2007).
With respect to the depositions, Hattery does acknowledge his trial counsel‟s
stipulation that they were admissible, but claims that their admission was fundamental
error in violation of the Confrontation Clause of the Sixth Amendment to the United
States Constitution. He states in his brief, “Nonetheless, the right to confront and crossexamine a witness at trial is fundamental and cannot be waived by trial counsel.”
Appellant‟s Br. p. 4. In support of this statement, Hattery cites two cases: Benefield v.
State, 901 N.E.2d 602 (Ind. Ct. App. 2009), and Barbera v. AIS Servs., LLC, 897 N.E.2d
485 (Ind. Ct. App. 2008). Neither of these cases support Hattery‟s assertion. Barbera, of
course, is a civil case, and as might be expected it makes no mention of a criminal
defendant‟s rights under the Sixth Amendment. As for Benefield, the opinion Hattery
cites was withdrawn by this court and replaced by a subsequent opinion, found at 904
N.E.2d 239 (Ind. Ct. App. 2009), trans. denied, which does not mention the Sixth
In any event, Hattery‟s assertion that an attorney cannot waive a
defendant‟s Confrontation Clause rights is flatly contradicted by the United States
Supreme Court, which has said, “The right to confrontation may, of course, be waived,
including by failure to object to the offending evidence; and States may adopt procedural
rules governing the exercise of such objections.” Melendez-Diaz v. Massachusetts, -U.S. --, 129 S. Ct. 2527, 2534 n.3 (2009).
Thus, Hattery‟s attorney clearly was empowered to waive his confrontation rights.
That being the case, we cannot conclude that such waiver resulted in fundamental error.
Hattery‟s attorney did attend all three depositions and had the opportunity to crossexamine the witnesses. Although Hattery himself was not present at the depositions,
there is no indication that he was forbidden to attend. Moreover, his attendance for the
depositions of technical, scientific experts was much less crucial than it would have been
for the examination of lay witnesses, in which case Hattery might have been able to
provide assistance to his attorney. Also, none of the three witnesses would have been
readily available to testify at trial, due either to travel distance or medical/family
concerns. All of these factors lead us to conclude that introduction of the videotaped
depositions was not fundamental error.
II. Sufficiency of the Evidence
Next, Hattery contends that his conviction for obstruction of justice, i.e. based on
his attempt to clean his bodily fluids off of A.B., was not supported by sufficient
evidence. However, the entirety of Hattery‟s argument on this point is supported by
citation to the statute for resisting law enforcement, Indiana Code Section 35-44-3-3, and
cases interpreting that statute.2
Obstruction of justice is governed by a completely
separate statute, Indiana Code Section 35-44-3-4, containing completely different
elements. Given that Hattery has wholly failed to support his argument on this issue with
any citation to relevant authority, we find it waived for lack of cogency. See Ind.
Appellate Rule 46(A)(8); Lyles v. State, 834 N.E.2d 1035, 1050 (Ind. Ct. App. 2005),
Finally, we address Hattery‟s claim that his 200-year aggregate sentence is
inappropriate under Indiana Appellate Rule 7(B) in light of his character and the nature of
the offenses.3 Although Rule 7(B) does not require us to be “extremely” deferential to a
In fact, one of the cases Hattery cites, Graham v. State, 889 N.E.2d 1283 (Ind. Ct. App. 2008), (which
Hattery incorrectly named “Grand”) was vacated by our supreme court on the resisting law enforcement
issue. See Graham v. State, 903 N.E.2d 963 (Ind. 2009). As with the other instance we have already
noted in which Hattery cited a vacated opinion, we urge counsel to take greater care in assuring the
validity of opinions that he cites to this court.
Hattery has failed to provide us with a copy of the presentence report prepared in his case. In any case
where a defendant is challenging his or her sentence, a copy of that report should be transmitted to this
court to facilitate our review of the sentence. We also would urge, if a defendant fails to include that
report in his or her appendix, that the State provide it to us in an appellee‟s appendix. Regardless, we
conclude we possess sufficient evidence from the sentencing hearing record to review the appropriateness
of Hattery‟s sentence.
trial court‟s sentencing decision, we still must give due consideration to that decision.
Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). We also understand and
recognize the unique perspective a trial court brings to its sentencing decisions. Id.
“Additionally, a defendant bears the burden of persuading the appellate court that his or
her sentence is inappropriate.” Id.
The principal role of Rule 7(B) review “should be to attempt to leaven the outliers,
and identify some guiding principles for trial courts and those charged with improvement
of the sentencing statutes, but not to achieve a perceived „correct‟ result in each case.”
Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). We “should focus on the forest—
the aggregate sentence—rather than the trees—consecutive or concurrent, number of
counts, or length of the sentence on any individual count.” Id. Whether a sentence is
inappropriate ultimately turns on the culpability of the defendant, the severity of the
crime, the damage done to others, and myriad other factors that come to light in a given
case. Id. at 1224. When reviewing the appropriateness of a sentence under Rule 7(B),
we may consider all aspects of the penal consequences imposed by the trial court in
sentencing the defendant, including whether a portion of the sentence was suspended.
Davidson v. State, 926 N.E.2d 1023, 1025 (Ind. 2010).
Hattery may not have received the theoretically maximum sentence that he could
have received, given the great number of offenses with which he was charged.
Nevertheless, it is a very lengthy sentence, and one that will keep him incarcerated for the
rest of his life, even accounting for “good time” credit that he may accumulate. That
being the case, we will treat this case as a “maximum” sentence case.
sentences generally are reserved for the worst offenses and offenders. See Buchanan v.
State, 767 N.E.2d 967, 973 (Ind. 2002). This refers to a general class of offenders and
offenses that warrant extreme punishment, which may encompass a variety of offenses
and offenders. Id.
As for the nature of the offenses, taken together, they represent a horrific set of
actions that certainly fall within the general category of a “worst case” scenario.
Breaking into a single woman‟s apartment in the middle of the night, breaking bones in
her face, and repeatedly sexually assaulting her and keeping her confined for several
hours, while Hattery apparently made himself “at home” by taking a drink from her
refrigerator and showering in her bathroom, are callous actions that deserve an extended
period of incarceration. In our view, they represent a “nightmare” scenario for any
With respect to Hattery‟s character, we first observe that he demonstrated a
complete lack of compassion in committing these crimes, and there is no indication that
he has ever expressed the slightest bit of remorse for them, despite the existence of DNA
evidence identifying him as the culprit. This lack of remorse for such heinous crimes is a
valid consideration in assessing Hattery‟s sentence. See Newsome v. State, 797 N.E.2d
293, 300 (Ind. Ct. App. 2003) (holding that defendant‟s lack of remorse may be a valid
aggravating factor in sentencing, even if defendant insisted on innocence, where there is
evidence aside from uncorroborated testimony of the victim supporting defendant‟s
convictions). Hattery also has a fairly extensive criminal history, beginning with two
juvenile delinquency adjudications for what would be Class C felony burglary if
committed by an adult. He also has an adult conviction for Class B felony burglary, and
also theft and substance abuse related convictions, and apparently was out on bond for
another case when he committed the present offenses. Although the current offenses
were the first of any kind of a violent nature, sexual or otherwise, of which Hattery has
been convicted, the sheer number of prior convictions leads us to conclude that nothing
about his criminal history warrants a reduction in his sentence.
Ultimately, we conclude that Hattery‟s grotesque offenses—which together easily
fall into the “worst” class—warrant the very lengthy sentence he has received. Nothing
in his character convinces us that he should receive a lesser sentence.
aggregate 200-year sentence is not inappropriate.
We affirm all of Hattery‟s convictions and conclude that his 200-year sentence is
not inappropriate. We affirm.
BAKER, J., and VAIDIK, J., concur.