Court of Appeals of Indiana | Opinion 19A-CR-2424 | July 9, 2020 Page 1 of 17

ATTORNEY FOR APPELLANT

Daniel J. Vanderpool

Vanderpool Law Firm

Warsaw, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Megan M. Smith

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Jamie R. Webb,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

July 9, 2020

Court of Appeals Case No.

19A-CR-2424

Appeal from the Wabash Circuit 

Court

The Honorable Robert R. 

McCallen III

Trial Court Cause No.

85C01-1903-F4-347

May, Judge.
Court of Appeals of Indiana | Opinion 19A-CR-2424 | July 9, 2020 Page 2 of 17

[1] Jamie R. Webb challenges her conviction of and twenty-year sentence for Level 

4 felony burglary.

1

 Webb argues that the trial court abused its discretion by 

declining to admit an affidavit containing Webb’s hearsay statement to the 

arresting officer and that her sentence is inappropriate given the nature of her

offense and her character. We affirm. 

Facts and Procedural History

[2] In December 2017, Candace Coe and Samuel Velacquez took over ownership 

and operation of Dreama’s Restaurant in Wabash, Indiana. Velacquez’s duties 

included managing the back-kitchen area and serving as the cook, while Coe 

took charge of the wait staff and handled payroll. Webb and her mother, Freda 

Patton, were both employees at Dreama’s from November 2016 to February 

2019.

[3] In addition to running the restaurant together, Coe and Velacquez were 

romantically involved and shared a rented residence. In late December 2018, 

the two ended their relationship and Velacquez moved to Ohio. Velacquez

took with him his personal belongings, which included only some clothing. 

The household items and electronics he and Coe acquired during their 

relationship belonged to Coe. Coe was left as the sole operator of the 

restaurant. 

1 Ind. Code § 35-43-2-1(1).
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[4] A month later, Coe’s restaurant venture took a turn for the worse, and finally 

on February 19, 2019, Coe was forced to permanently shut down Dreama’s due 

to an inability to pay her employees. The next day, Coe told Patton that Coe 

could not afford to pay her or Webb approximately one month’s worth of back 

wages. Based on Coe’s recommendation, Webb filed a “labor claim” for

“payment of wages” which totaled $3,885.75. (Tr. Vol. II at 131.) 

[5] On the night of February 24, 2019, Webb and Patton recruited seventy-year-old 

Eugene Grimm to take them from Webb’s apartment to Coe’s residence in 

Grimm’s truck. Grimm testified he was not initially aware why Webb and 

Patton wanted to go to Coe’s house that night, and he testified he had provided 

Webb and Patton transportation on other occasions because they did not own a 

car. After Grimm dropped Webb and Patton off at Coe’s house, he sat in his 

truck and observed the pair examining the backdoor, entering, and then 

carrying out furniture, TV’s, and other household items, which they placed in 

the back of Grimm’s truck. Grimm noted the pair did not make any effort to 

conceal themselves or their actions. From there Grimm drove Webb and 

Patton back to Webb’s apartment, where Webb and Patton unloaded the items 

and placed them inside Webb’s apartment. 

[6] During this time, Coe was away from her home visiting her sister in 

Kendallville, Indiana. On February 26, 2019, Coe was informed by one of her 

friends that Webb and Patton had taken some items from her house. She 

immediately returned to file a police complaint with Officer Drew Bender, and 

on February 27, 2019, police officers obtained a search warrant for Webb’s 
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apartment. No one answered when officers arrived at Webb’s apartment, so 

they kicked down the front door. An investigation of the residence revealed 

numerous items that belonged to Coe: two televisions, a DVD player, fifty 

DVDs, pictures, a jewelry box, a heater, a PlayStation 4, a mirror, some 

shelves, and a microwave. Some of the electronics were plugged into the wall 

for use when officers arrived.

[7] On March 8, 2019, the State charged Webb with Level 5 felony burglary,2 Level 

4 felony burglary, and Class A misdemeanor theft.3 On March 21, 2019, the 

State additionally alleged Webb was a habitual offender.

4 During trial on 

August 21, 2019, Webb asserted her right not to testify but attempted to enter 

into evidence an affidavit from Officer Bender containing statements she had 

made to him during the search of her apartment. In that affidavit, Officer 

Bender noted Webb had indicated she had authorization from Velacquez to 

enter into Coe’s home and take certain property as compensation for her lost 

wages.

[8] As part of her offer to prove, Webb argued she satisfied Evidence Rule 

(804)(a)’s unavailability criteria by “exercising her constitutional right not to 

testify against herself.” (Id. at 162.) The State, however, disagreed by asserting

that unavailability is afforded only toward privileges such as “attorney-client 

2 Ind. Code § 35-43-2-1.

3 Ind. Code § 35-43-4-2(a).

4 Ind. Code § 35-50-2-8.
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privilege, doctor-patient privilege, pastor-parishioner privilege” and not from 

“exercising your Fifth Amendment right.” (Id. at 163.) Webb further 

explained that she was entitled to present her statement from the affidavit 

regarding consent under the hearsay exception for statements against interest as 

set forth in Evidence Rule 804(b)(3) because the statement was inculpatory and 

exculpatory – she admitted she “was there, but [she] had permission.” (Id.) 

The court decided that, because the statement was not entirely against Webb’s 

interest and because she would not be available for cross-examination, 

admission of the statement was not permissible under Evidence Rule 804(b)(3).

[9] Webb additionally requested an instruction about the defense of consent. The 

trial court indicated it would not issue the instruction because Webb had not 

presented admissible evidence of consent, but the court allowed Webb to argue 

why the instruction should be included. The trial court ultimately did not allow 

Webb to call Officer Bender to testify about her statement during the search, 

and it did not provide the jury an instruction on the defense of consent, as the 

inadmissible hearsay statements offered by Webb were the only documented 

evidence toward that defense. 

[10] A jury found Webb guilty of Level 4 felony burglary and Class A misdemeanor 

theft. After a bifurcated hearing, the jury also determined Webb was a habitual 

offender. Following a sentencing hearing on September 16, 2019, the trial court 

convicted Webb of only Level 4 felony burglary, based on double jeopardy 

concerns. It imposed a ten-year sentence for Level 4 felony burglary and added 
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a ten-year enhancement because Webb was a habitual offender, resulting in an 

aggregate twenty-year sentence with two years suspended to probation.

Discussion and Decision

1. Admission of Evidence

[11] The trial court’s ruling on the admission or exclusion of evidence is reviewed 

for an abuse of discretion. Cherry v. State, 57 N.E.3d 867, 875 (Ind. Ct. App. 

2016), trans. denied. An abuse of discretion occurs if the trial court 

misinterpreted the law or if its decision was clearly against the logic and effect 

of the facts and circumstances before it. Pavlovich v. State, 6 N.E.3d 969, 975 

(Ind. Ct. App. 2014), trans. denied. When presented with an out-of-court 

statement offered to corroborate the truth of the matter asserted, the trial court 

must first examine the statement for hearsay, which is generally inadmissible, 

and then evaluate whether an exception permits its admission. Camm v. State, 

908 N.E.2d 215, 226 (Ind. 2009). 

[12] Hearsay is a statement that: (1) is not made by the declarant while testifying at 

the trial or hearing; and (2) is offered in evidence to prove the truth of the 

matter asserted. Ind. Evid. Rule 801(c). Unless hearsay falls into one of a 

number of delineated exceptions, it is inadmissible at trial. Evid. Rule 802.

Webb argues the evidence she wished to have admitted was admissible under 

Indiana Evidence Rule 804, which provides in relevant part that hearsay is 

admissible if: (1) the declarant is unavailable as a witness, Evid. Rule 804(a); 
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and (2) the statement was made against the declarant’s interest. Evid. Rule 

804(b)(3). 

[13] At issue is the statement found in an affidavit by Officer Bender wherein he 

averred Webb told him that she had permission to take the items in exchange 

for her lost wages. Webb argues the affidavit containing her hearsay is 

admissible pursuant to Evidence Rule 804 because: (1) she was unavailable to 

testify as a witness on her behalf; and (2) the statement she made to Officer 

Bender was a statement against her interest. We address each part of the 

exception separately.

A. Whether Webb was Unavailable as a Witness

[14] Indiana Evidence Rule 804(a) outlines five classifications of unavailable 

witnesses:

(a) Criteria for Being Unavailable. A declarant is considered to 

be unavailable as a witness if the declarant:

(1) is exempted from testifying about the subject matter 

of the declarant’s statement because the court rules that a 

privilege applies;

(2) refuses to testify about the subject matter despite a 

court order to do so;

(3) testifies to not remembering the subject matter;
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(4) cannot be present or testify at the trial or hearing 

because of death or a then-existing infirmity, physical 

illness, or mental illness; or

(5) is absent from the trial or hearing and the statement’s 

proponent has not been able, by process or other 

reasonable means, to procure:

(A) the declarant’s attendance, in the case of a 

hearsay exception under Rule 804(b)(1) or (5); or

(B) the declarant’s attendance or testimony, in the 

case of a hearsay exception under rule 804(b)(2), (3), 

or (4).

But this subdivision (a) does not apply if the statement’s 

proponent procured or wrongfully caused the declarant’s 

unavailability as a witness in order to prevent the declarant from 

attending or testifying.

[15] The State argues Webb cannot both claim unavailability to introduce a 

statement she made to officers and, at the same time, exercise her right against 

self-incrimination to avoid being cross-examined about the statement. 

However, despite the State’s objection, Webb’s declaration of her Fifth 

Amendment constitutional right against self-incrimination is a valid and 

protected privilege that does meet the criteria for unavailability. See Camm, 908 

N.E.2d at 233 (a witness’ unavailability at defendant’s second trial was 

grounded in his Fifth Amendment privilege against self-incrimination); and see 

Kellems v. State, 651 N.E.2d 326, 328 (Ind. Ct. App. 1995) (depositions from two 

witnesses who were declared unavailable after invoking their Fifth Amendment 
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privilege against self-incrimination were admissible as evidence under the 

hearsay exception rule). 

B. Whether Webb’s Statement was Against Her Interest

[16] Evidence Rule 804(b) outlines several exceptions to the rule against hearsay 

that are available if the declarant is unavailable to testify as a witness. The 

exception on which Webb relies provides:

Statement Against Interest. A statement that a reasonable person in 

the declarant’s position would have made only if the person 

believed it to be true because, when made, it was so contrary to 

the declarant’s proprietary or pecuniary interest or had so great a 

tendency to invalidate the declarant’s claim against someone else 

or to expose the declarant to civil or criminal liability.

Evid. Rule 804(b)(3). Statements against interest are admissible because they 

tend to expose the declarant to criminal liability, and thus a reasonable person 

in the declarant’s position would not have made the statements if she did not 

believe them to be true. Tolliver v. State, 922 N.E.2d 1272, 1280 (Ind. Ct. App. 

2010).

[17] Webb argues the trial court abused its discretion when it did not admit Officer 

Bender’s affidavit statement, which provided:

Webb told me that she had just filed claim against Coe for 

$3,889.75 for back wages. Webb told me that she used to work 

for Coe at Dreama’s Restaurant in Wabash. Webb told me that 

the items weren’t stolen, but that they were given to her as lost 

wages. Webb told me that [Velacquez] gave her permission to go 

into the house to retrieve the items. Webb could not tell me 
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where the house was, but told me that it was [Coe] and 

[Velacquez]’s house and that she had been there before. Webb 

told me they went into the backdoor of Coe’s house, which was 

unlocked. Webb told me they didn’t break in. 

(App. Vo1. II at 22.) Other than her attempt to have Officer Bender’s affidavit 

admitted, Webb presented no additional evidence at trial to support her 

assertion that she had permission to take the items from Coe’s house.

[18] A statement against interest must be incriminating on its face to be admissible 

under the hearsay exception. Jervis v. State, 679 N.E.2d 875, 878 (Ind. 1997). 

Further, it is not enough that a statement “merely arouse some suspicion as to 

culpability in the factual context of the case.” Id. If taken at its word, Webb’s 

statement is more exculpatory than inculpatory because it provides a complete 

defense for her actions. Thus, at most, Webb was able to demonstrate only that 

her statement is both exculpatory and inculpatory in nature, which is

insufficient to merit the application of Evidence Rule 804(b)(3). See State ex rel. 

Langdon Hosp., Inc. v. Indem. Co., 211 N.E.2d 322, 38 Ind. App. 492, 494 (1965) 

(“to be admissible the statement against interest should be inconsistent with the 

defense, or it should tend to establish or disprove a material fact”).

[19] We agree with the State that “Webb is attempting to have her cake and eat it 

too,” (Br. of Appellee at 10), because her supposed statement against interest 

balances farther towards purely exculpatory rather than evenly exculpatory and 

inculpatory, and because she wishes to introduce an unsubstantiated hearsay 

claim without allowing the State a fair opportunity to cross-examine her about 
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her claim of consent. Thus, we hold the trial court did not abuse its discretion 

when it denied Webb’s request to admit Officer Bender’s affidavit containing 

Webb’s claim of consent. See Tolliver v. State, 922 N.E.2d 1272, 1281 (Ind. Ct. 

App. 2010) (hearsay statements were not considered as statements against 

interest when they were not “incriminating on their face and [did] not implicate 

[defendant] in a crime”), trans. denied.

2. Inappropriateness of Sentence

[20] We will reverse a sentence as inappropriate only if we determine Webb’s 

sentence is inappropriate in light of the nature of the offense committed and 

Webb’s character. See Ind. Appellate Rule 7(B) (allowing appellate review of 

sentences based on defendant’s character and nature of the offense). The nature 

of offense portion of the analysis compares the defendant’s actions with the 

required showing to sustain a conviction under the charged offense, Cardwell v.

State, 895 N.E.2d 1219, 1224 (Ind. 2008), while the character of the offender 

portion of the analysis permits a broader consideration of a defendant’s

character. Douglas v. State, 878 N.E.2d 873, 881 (Ind. Ct. App. 2007). 

[21] Ultimately, our determination of appropriateness “turns on our sense of 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.” Cardwell,

895 N.E.2d at 1224. The task at hand is not to evaluate whether another 

sentence is more appropriate, but rather whether the sentence imposed is 

inappropriate. Barker v. State, 994 N.E.2d 306, 315 (Ind. Ct. App. 2013), trans. 
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denied. The defendant ultimately bears the burden of demonstrating the 

inappropriateness of the sentence. Patterson v. State, 909 N.E.2d 1058, 1063 

(Ind. Ct. App. 2009). 

[22] When considering the nature of the offense, the advisory sentence is the starting 

point to determine the appropriateness of a sentence. Johnson v. State, 986 

N.E.2d 852, 856 (Ind. Ct. App. 2013). The minimum sentence for a Level 4 

felony burglary is two years and the maximum sentence is twelve years, with a 

six-year advisory sentence. Ind. Code § 35-50-2-5.5. Additionally, a person 

found to be a habitual offender may receive a sentence enhancement between 

six and twenty years. Ind. Code § 35-50-2-8. In all, Webb could have received 

a maximum thirty-two-year sentence, but she was sentenced only to twenty

years, with two of those years suspended to probation. 

[23] Webb argues she committed the offense in an attempt to right a seeming 

injustice because Coe did not pay her for her work. However, the items Webb 

stole indicate her motivation was geared more toward exacting revenge than to 

correcting an injustice. This is exemplified through a cursory appraisal of the 

items she took from Coe’s home, under the guise of a need to pay her monthly 

rent. Although Webb did take electronics that could have significant monetary 

value, such as two televisions, a PlayStation 4, and a microwave, she also took 

items of personal, sentimental value that would have inconsequential monetary 

value, such as pictures, a mirror, some shelves, and a small jewelry box. In 

addition, the search of Webb’s apartment revealed that the televisions, 

PlayStation 4, and microwave were actually in use, which suggests Webb did 
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not intend to sell Coe’s property to pay her rent. Most telling is that Webb had 

an appropriate legal remedy that she could have pursued to recover her lost 

wages, and she in fact did file a claim for unpaid wages. Webb’s actions 

demonstrate not a desperate need for immediate payment, but rather a 

continuing bitterness toward Coe. As Webb’s actions were clearly retaliatory in 

nature, we do not see her sentence as inappropriate. 

[24] When considering the character of the offender, one relevant fact is the 

defendant’s criminal history. Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct. 

App. 2007). The pre-sentence investigation report (PSI) elucidated Webb’s long 

criminal history, which began with three counts of theft as a juvenile, for which 

she received probation. As an adult, between 1996 and the present day, Webb 

was convicted of four felonies and five misdemeanors, including neglect of a 

dependent resulting in serious bodily injury, battery, forgery, assisting a 

criminal, receiving stolen property, illegal possession of alcohol, and two counts 

of possession of marijuana. At the time of sentencing, Webb had four

additional criminal charges pending against her, which include Class A 

misdemeanor driving while suspended,

5 Class A misdemeanor knowingly 

driving while suspended with a prior conviction within ten years,6 Class C 

5 Ind. Code § 9-24-19-2(1)(2).

6 Ind. Code § 9-24-19-2.
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misdemeanor possession of paraphernalia,

7 and Level 6 felony neglect of a 

dependent.8

[25] Although the extent to which a defendant’s criminal history may be used to 

judge the appropriateness of a sentence “varies based on the gravity, nature, 

and number of prior offenses in relation to the current offense,” having 

committed multiple crimes is a “poor reflection on the defendant’s character, 

[as] it may reveal that he or she has not been deterred even after having been 

subjected to the police authority of the State.” Cotto v. State, 829 N.E.2d 520, 

526 (Ind. 2005). Webb’s failure to be deterred is further demonstrated by the 

fact that the State has filed four separate petitions to revoke probation and her 

probations were terminated unsuccessfully on three occasions. Webb’s prior 

convictions for theft and forgery, in conjunction with three unsuccessful 

attempts at probation, do not suggest Webb will amend her behavior following 

the criminal conduct in this current case. See Sainvil v. State, 51 N.E.3d 337, 344

(Ind. Ct. App. 2016) (defendant’s sentence was not inappropriate given his poor 

character, the similarity of his prior convictions to the present offense, and his 

two failed attempts to maintain satisfactory probation). Further, we concur 

with the trial court’s assessment that Webb had “absolutely no remorse 

whatsoever, despite the evidence of guilt being overwhelming,” (Tr. Vol. II at 

211), which also speaks poorly of her character. See Davis v. State, 892 N.E.2d 

156, 165 (Ind. Ct. App. 2008) (defendant’s eight-year sentence for a Class C 

7 Ind. Code § 35-48-4-8.3(b)(1).

8 Ind. Code § 35-46-1-4.
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felony was not found to be inappropriate given that her crimes were of 

“dishonesty and moral turpitude” and the defendant demonstrated a complete 

lack of remorse).

[26] Webb attempts to analogize the facts in her case with those in Frye v. State, 837 

N.E.2d 1012 (Ind. 2005), and Hollin v. State, 877 N.E.2d 462 (Ind. 2007), to 

justify a reduction of her sentence. In Frye, the defendant was convicted of 

felony burglary, felony theft, and misdemeanor false informing, and his 

sentence was enhanced based on his habitual offender status. Frye, 837 N.E.2d 

at 1012. Our Indiana Supreme Court reduced Frye’s sentence from forty years 

to twenty-five years based on the remoteness of Frye’s previous violent offenses 

and the fact that his current offenses were non-violent and alcohol related. Id. 

at 1014. 

[27] In Hollin, the eighteen-year-old defendant was charged with Class B felony 

conspiracy to commit burglary and adjudicated a habitual offender after a jury 

trial. The trial court found his criminal history an aggravating factor and 

considered his young age as a mitigating factor. Following review, his sentence 

was reduced from forty years to twenty years by our Indiana Supreme Court. 

877 N.E.2d at 463. The Court explained that Hollin received the maximum 

penalty of twenty years for his Class B felony conviction, even though the 

advisory sentence for the offense was ten years. Given that Hollin’s crime was 

non-violent, he was unarmed, no one was home at the time of the burglary, and 

his prior crimes were related to auto theft, the Court determined the nature of 

his current offense merited reduction of his sentence. Id. at 465. 
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[28] The facts in Frye and Hollin are distinguishable from the case before us. Webb 

had a Level 6 felony charge pending against her at the time of her sentencing, as 

well as pending charges involving unlawful driving activity and possession of

drug paraphernalia. Finally, both Frye and Hollin initially received 

significantly lengthier sentences than Webb, such that even following appellate 

reduction, both of their sentences remained longer than Webb’s sentence.

[29] Webb’s continued inclination toward criminal behavior, as exemplified by her 

inability to successfully finish her probation on three occasions and her current 

pending criminal charges, does not shed a positive light on her character or 

demonstrate a willingness to change her behavior. Further, the deliberate and 

personal nature of Webb’s offense demonstrates retaliation towards Coe, rather 

than an action committed out of serious financial necessity. Under these 

circumstances, we see nothing inappropriate about her twenty-year sentence.

See Bayes v. State, 466 N.E.2d 447, 449-450 (Ind. 1984) (defendant’s sentence 

was not inappropriate given the vengeful and premeditated nature of the offense 

and the defendant’s criminal history which included five instances of

probation).

Conclusion

[30] Although Webb could be classified as an unavailable witness by invoking her 

Fifth Amendment privilege, the hearsay statement she wished to have admitted 

was not against her interest and thus was not admissible under Evidence Rule 

804. Thus, the trial court did not abuse its discretion when it excluded that 
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evidence. Webb’s sentence is not inappropriate given the vengeful nature of her 

offense and her continuing propensity toward criminal behavior. Accordingly, 

we affirm the judgment of the trial court.

[31] Affirmed.

Robb, J., and Vaidik, J., concur.