Mark Lynn Rushing v. State of Indiana (mem. dec.), 20A03-1703-CR-493

Mark Rushing and C.G. dated for ~2–3 months in 2014; the relationship ended in mid‑2014 and C.G. ceased contact.
Between July and November 2014 Rushing sent C.G. numerous unwanted, vulgar, and sexually explicit text messages after she blocked him and later unblocked him to preserve evidence.
The State charged Rushing with Class B misdemeanor harassment under Ind. Code § 35‑45‑2‑2(a)(2); trial occurred October 27, 2016; jury convicted; sentence was 180 days (time served).
Pretrial and trial disputes arose over defense counsel’s refusal to subpoena many witnesses Rushing wanted and Rushing’s objection to admission of the text messages (counsel did not object).
During trial Rushing and his attorney had a heated discussion during lunch recess; the court asked the jury if they heard anything (no indication jurors did).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Right to compulsory process	State: defendant must show denial of witness testimony that would affect trial	Rushing: counsel refused to subpoena numerous witnesses who could clear him	Denied — Rushing failed to identify testimony or relevance; counsel’s strategic choice to avoid irrelevant/detrimental witnesses was reasonable
Admission of text messages	State: messages are admissible evidence	Rushing: trial court admitted them without giving him chance to explain his objection	No reversible error — counsel did not object; Rushing had counsel and trial court reasonably relied on counsel’s position; Rushing gave no appellate reason for exclusion
Jury inquiry about counsel‑defendant argument	State: brief inquiry appropriate to ensure no juror exposure	Rushing: trial court’s question was insufficient (no individual questioning), creating fundamental error	No fundamental error — record indicates jurors did not hear argument; individual questioning unnecessary
Sufficiency of evidence (intent to harass)	State: persistent, vulgar texts after lack of response show intent to harass	Rushing: lacked knowledge texts upset C.G. or that she wanted contact to stop	Guilty upheld — jury could reasonably infer intent to harass given repeated unwanted, offensive texts and continued contact despite no response

Washington v. State, 840 N.E.2d 873 (Ind. Ct. App. 2006) (recognizing Sixth Amendment right to present witnesses is important but not absolute)
Driver v. State, 725 N.E.2d 465 (Ind. Ct. App. 2000) (counsel’s strategic decisions bind defendant who consents to representation)
Carter v. State, 738 N.E.2d 665 (Ind. 2000) (counsel may make reasonable strategic choices about calling witnesses)
Shelton v. State, 26 N.E.3d 1038 (Ind. Ct. App. 2015) (standard for appellate review of evidentiary rulings)
Benson v. State, 762 N.E.2d 748 (Ind. 2002) (explaining fundamental error doctrine and its narrow application)
Jewell v. State, 887 N.E.2d 939 (Ind. 2008) (defining fundamental error standards)
Gray v. State, 957 N.E.2d 171 (Ind. 2011) (standard for reviewing sufficiency of the evidence)
Bailey v. State, 907 N.E.2d 1003 (Ind. 2009) (affirmance standard when evidence and inferences support jury verdict)