MAURICIO v. STATE (2025)

MEMORANDUM DECISION

Case Summary

[1] Clifton James Mauricio was convicted of seven counts relating to his attempted robbery of a Fort Wayne business and sentenced to 86 years. He now appeals, arguing the trial court erred in admitting certain evidence and imposing consecutive sentences for five of the counts totaling 50 years because they are not crimes of violence. We find no error in the admission of the evidence but remand for resentencing.

Facts and Procedural History

[2] SMS Property Management is a business in Fort Wayne. Sean Stinson is the owner, Thomas Hood is the maintenance supervisor, David Voltz shows properties and processes applications, and Lia Green oversees the leases and collects payments. Residents pay their rent by cash, check, or money order, but mostly cash, and the company has a system for regularly making bank deposits, with different employees taking turns going to the bank.

[3] As of May 2019, Green had worked at SMS for around four years. During that time, she came to know a resident named Clayton Mauricio. When Clayton went to SMS every month to pay his rent, Green spoke to him. Green knew Clayton's voice “very well,” including that he was “soft-spoken” and had a stutter. Tr. Vol. IV pp. 227, 229. Clayton has an identical twin, Clifton, but Green didn't know that.

[4] On May 10, Stinson, Hood, Voltz, and Green were at the SMS office. Shortly before 5:00 p.m., another employee left to make a bank deposit. Before the office closed at 6:00 p.m., a man wearing all black and a motorcycle helmet entered the office, pointed a gun at them, announced “[t]his is a robbery,” and ordered them to “get the fu** down.” Tr. Vol. III p. 144; Tr. Vol. IV p. 214. The man said that if they didn't listen to him, he would “blow [their] fu**in’ head[s] off.” Tr. Vol. III p. 131. He also threatened to shoot them if they looked at him. The man asked where the money was, but they told him that someone had already left for the bank.

[5] Once everyone was on the ground, the man went to a backpack he had brought with him and pulled out zip ties. He first zip-tied Stinson's hands behind his back. As the man started to zip-tie Hood's hands, Voltz, who had a license to carry a handgun, took his gun out of his waistband, stood up, and started firing at the man. The man returned fire and took cover in a back office. Voltz and the man continued firing at each other until they both ran out of bullets, at which point they started fighting hand-to-hand. Voltz, who had recently undergone heart surgery and was on blood thinners, was exhausted and bleeding profusely. He told the man he was done fighting. Voltz thought they were done fighting, but the man, whose helmet had come off, hit Voltz on his face and head with it.

[6] Eventually, the man packed up, put his helmet back on, and left on a bicycle. Hood locked the door and called 911. Voltz was seriously injured. He had been shot above the left eye, in the left shoulder, in the left abdomen, and in the left hip, and he had a broken nose, broken ribs, and missing teeth. He was taken to the hospital, where he ultimately recovered after being in a coma for several days.

[7] Police responded to the scene, where they found a significant amount of blood. There was a blood trail approximately 1,400 feet long that led away from SMS and tracked the path taken by the man on the bicycle. Police collected blood from various areas at the scene for DNA testing and took a buccal swab from Voltz. The initial results showed that the DNA from the blood came from Voltz and an “unknown individual.” Id. at 236. Several months later, an “investigative lead” led police to seek a search warrant for a buccal swab from Clifton. Id. at 237. Once police learned that Clifton has a twin, they took a buccal swab from Clayton as well.

[8] The results showed that it was one trillion times more likely that the DNA from some of the blood collected at the scene belonged to Voltz and either Clifton or his brother than if it originated from two unknown, unrelated individuals. Because Clifton and Clayton are identical twins, their DNA profiles could not be distinguished.

[9] In July 2020, the State charged Clifton with the following seven counts: Count I: Level 2 felony attempted robbery, Count II: Level 3 felony aggravated battery (Voltz), Count III: Level 3 felony criminal confinement (Voltz), Count IV: Level 3 felony criminal confinement (Hood); Count V: Level 3 felony criminal confinement (Green); Count VI: Level 3 felony criminal confinement (Stinson), and Count VII: a firearm enhancement. A jury trial was held in June 2024.

[10] The day before trial, Clifton filed a motion in limine, seeking the exclusion of “[a]ny and all opinions comparing or identifying Clifton and/or Clayton Mauricio's voices as heard on recording.” Appellant's App. Vol. II p. 220. On the second day of trial, the trial court, which had taken the motion under advisement, denied it, “[p]rovided the State can lay some foundation as to how these people recognize that voice.” Tr. Vol. III p. 56.

[11] During trial, the court admitted into evidence Exhibit 156, which is a recording of a November 2021 phone call from a jail inmate using Clifton's PIN to a phone number belonging to Clayton. In the recording, the man calling from the jail identifies himself as “Cliff.” Tr. Vol. IV p. 208. Green testified that sometime before trial, the prosecutor had her come to the office because he wanted “to play something” for her. Id. at 242. He didn't tell her that it was a jail call or who the speakers were. After listening to the recording, Green identified the two voices as belonging to Clayton and the man who committed the attempted robbery, whom she later learned is Clifton. Id. at 228. She said she recognized Clayton's voice based on her interactions with him through the years, including that he has a soft-spoken style and stutter. Her recognition of Clifton's voice was based on listening to the man's voice during the attempted robbery, during which he kept calling her “big girl.” Id. at 229, 230. The recording was played for the jury, after which Green identified the voices. Clifton didn't object to Green's testimony identifying his voice.

[12] Clifton was found guilty as charged. The trial court sentenced him to 30 years for Count I, 16 years for Count II, 5 years each for Counts III-VI, and 20 years for the firearm enhancement. The court ordered the sentences to run consecutively, for a total sentence of 86 years.

[13] Clifton now appeals.

Discussion and Decision

I. The trial court did not err in admitting Green's identification of Clifton's voice on the jail phone call

[14] Clifton contends the trial court erred in allowing Green to testify that she recognized his voice on the jail phone call because she was not “sufficiently familiar” with his voice. Appellant's Br. p. 11. “Generally, the identities of both parties must be authenticated before admitting a telephone call.” Young v. State, 696 N.E.2d 386, 389 (Ind. 1998); Ind. Evidence Rule 901(b)(5). Identity may be established by testimony of a witness familiar with the speaker's voice and who recognizes it in the conversation. State v. Motley, 860 N.E.2d 1264, 1266 (Ind. Ct. App. 2007). Identity may also be inferred from the circumstances and details included in the conversation. Id.

[15] As the State points out, although Clifton filed a pretrial motion in limine on this issue, he didn't object at trial when Green identified his voice and therefore has waived this issue for review. See Hornsby v. State, 202 N.E.3d 1135, 1148 (Ind. Ct. App. 2023) (explaining that a motion in limine is not sufficient to preserve an issue for appeal and that a contemporaneous objection at trial is required), trans. denied. In limited circumstances, a defendant can seek review of a waived issue for fundamental error. But Clifton has not argued fundamental error on appeal, and so review of this issue is waived as well. See Bowman v. State, 51 N.E.3d 1174, 1179 (Ind. 2016) (holding that where appellant “failed to raise the issue of fundamental error in his initial appellate brief[,]” such a claim was “entirely waived”). Notably, Clifton didn't file a reply brief to respond to the State's argument that he has doubly waived this issue.

[16] Regardless, Clifton cannot establish fundamental error. The phone call was placed from the jail using Clifton's PIN, the call was made to a phone number belonging to Clayton, the caller identified himself as “Cliff,” and Green identified Clifton's voice based on hearing his voice during the attempted robbery and distinguishing it from Clayton's voice, which she knew “very well” from their monthly interactions. The trial court did not err, much less commit fundamental error, in admitting Green's testimony.

II. We remand for resentencing on Counts I and III-VI

[17] Clifton next contends the trial court erred in “[i]mposing consecutive sentences for Counts I and III-VI in an amount of fifty (50) years” because it violates Indiana Code section 35-50-1-2, which provides, in relevant part:

(c) ․ [E]xcept for crimes of violence, the total of the consecutive terms of imprisonment, exclusive of terms of imprisonment under IC 35-50-2-8 and IC 35-50-2-10 (before its repeal) to which the defendant is sentenced for felony convictions arising out of an episode of criminal conduct shall not exceed the period described in subsection (d).

(d) Except as provided in subsection (c), the total of the consecutive terms of imprisonment to which the defendant is sentenced for felony convictions arising out of an episode of criminal conduct may not exceed the following:

* * * *

(5) If the most serious crime for which the defendant is sentenced is a Level 2 felony, the total of the consecutive terms of imprisonment may not exceed thirty-two (32) years.

As Clifton notes, attempted robbery and criminal confinement are not crimes of violence. See Ind. Code § 35-50-1-2(a). As a result, his argument continues, his sentences for Counts I and III-VI cannot exceed 32 years. See id. at (d)(5).

[18] The State concedes error and agrees this case needs remanded:

[T]he aggregate sentence resulting from Defendant's consecutive sentences for Counts I, III, IV, V and VI, none of which qualify as crimes of violence, under part (a) of the statute, cannot exceed 32 years. I.C. § 35-50-1-2(d)(5). Remand would allow the trial court to rectify the sentence so that it is in compliance with the statute governing consecutive sentences for non-violent felony offenses and reduce that portion of the sentence (as applied to Counts I, III, IV, V and VI), from 50 years to 32 years.

Appellee's Br. p. 21. We therefore remand this case to the trial court with instructions to sentence Clifton to no more than 32 years on Counts I and III-VI.

[19] Affirmed in part and reversed and remanded in part.

Vaidik, Judge.

Bailey, J., and DeBoer, J., concur.