MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Aug 28 2020, 8:40 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Christopher Taylor-Price Curtis T. Hill, Jr. Marion County Public Defender Agency Attorney General of Indiana Appellate Division Courtney L. Staton Indianapolis, Indiana Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Harvey James Hardin, August 28, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-2479 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Charnette D. Garner, Appellee-Plaintiff. Judge Trial Court Cause No. 49G09-1901-F6-1760
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2479 | August 28, 2020 Page 1 of 6 Case Summary [1] Following a jury trial, Harvey James Hardin (“Hardin”) was convicted of
Escape, as a Level 6 felony,1 and adjudicated a habitual offender.2 Hardin now
appeals, challenging the admission of GPS evidence of his location. We affirm.
Facts and Procedural History [2] After a court placed Hardin on home detention, Hardin reported to Marion
County Community Corrections (“MCCC”) on December 19, 2018. When
prompted to provide the address of his residence, Hardin gave an address on
Market Street. Hardin was advised of the rules of home detention, including
the requirement that he stay within his residence and update MCCC of any
address change in advance. He also signed a document that contained these
rules. Eventually, Hardin was fitted with an ankle monitor. The monitor had a
GPS feature as well as a telephone feature that allowed MCCC to call Hardin.
[3] On December 20, 2018, Hardin’s case manager called Hardin through the
monitor. On the call, Hardin admitted that he was living at 2332 East
Washington Street, not at the address he provided on Market Street. Hardin
claimed that the Wheeler Mission on Market Street did not have space, so he
was staying with a friend. The case manager instructed Hardin to report to
1 Ind. Code § 35-44.1-3-4(b). 2 I.C. § 35-50-2-8.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2479 | August 28, 2020 Page 2 of 6 MCCC on or before the next day. After Hardin failed to report and his monitor
ran out of power, a warrant was issued for his arrest. On January 3, 2019,
Hardin was arrested at an apartment building at 2332 East Washington Street.
[4] The State charged Hardin with three counts of Escape, each as a Level 6 felony.
In Count 2, the State alleged that, “[o]n or about December 21, 2018,” Hardin
“knowingly or intentionally violate[d] a home detention order” by “being in a
location not permitted by his home detention contract terms.” App. Vol. 2 at
90. The State also alleged that Hardin had the status of a habitual offender.
[5] A jury trial was eventually held on August 21, 2019. At trial, the State elicited
testimony from (1) the MCCC employee who went over the home-detention
rules with Hardin, to whom Hardin had provided the address on Market Street;
(2) the MCCC employee who called Hardin through the monitor and learned
from Hardin that he was now living on East Washington Street, not Market
Street; and (3) the officer who eventually arrested Hardin on East Washington
Street after Hardin failed to report to MCCC as instructed. The State also
introduced GPS records from a software program. Those records purportedly
show Hardin’s location over time through the GPS feature on his monitor.
Hardin objected to the admission of the records, arguing that the State had not
shown that the location data was reliable. The trial court admitted the records.
[6] The jury found Hardin guilty of Count 2 and not guilty of the other counts.
The trial court entered a judgment of conviction and the matter proceeded to an
enhancement phase, after which the jury found that Hardin had the status of a
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2479 | August 28, 2020 Page 3 of 6 habitual offender. The court held a sentencing hearing and sentenced Hardin to
an aggregate term of five years in the Indiana Department of Correction.
[7] Hardin now appeals.
Discussion and Decision [8] We review evidentiary decisions for an abuse of discretion. Hardin v. State, 148
N.E.3d 932, 939 (Ind. 2020). However, we will not reverse if the alleged error
is harmless. Ind. Appellate Rule 66(A). Error is harmless “where its probable
impact, in light of all the evidence in the case, is sufficiently minor so as not to
affect the substantial rights of the parties.” Id. In other words, we will not
reverse “[i]f we are satisfied [that] the conviction is supported by independent
evidence of guilt such that there is little likelihood the challenged evidence
contributed to the verdict[.]” Blount v. State, 22 N.E.3d 559, 564 (Ind. 2014).
[9] Hardin argues that the trial court abused its discretion when it admitted the
GPS records. However, assuming arguendo that the court improperly admitted
the records, there is little likelihood that the evidence contributed to the verdict.
Indeed, to obtain a conviction, the State was obligated to prove beyond a
reasonable doubt that Hardin knowingly or intentionally violated a home-
detention order, see I.C. § 35-44.1-3-4(b), by “being in a location not permitted
by his home detention contract terms,” App. Vol. 2 at 72. At trial, there was
evidence that Hardin was bound by the following term: “You will be confined
inside (within the walls of your residence; front door to back door) the residence
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2479 | August 28, 2020 Page 4 of 6 at all times,” except when traveling to approved locations. Ex. Vol. at 58.
Hardin was also bound by a term governing address changes: “You must advise
your Case Manager prior to a change in residence, phone number, who is
residing with you, employment, employment hours, and the dates and times for
any activities that you wish to be approved.” Id. Hardin was advised that he
could call the MCCC Operations Center twenty-four hours per day. Id. at 9.
[10] Independent of the GPS records, there is evidence that Hardin failed to advise
MCCC prior to a change in residence—unilaterally traveling to an apartment
building on East Washington Street without first advising MCCC. Indeed,
Hardin admitted that he was on East Washington Street and not at the reported
address on Market Street. Although Hardin claimed that he was living on East
Washington Street because the Wheeler Mission on Market Street did not have
room to accommodate him, Hardin nevertheless failed to advise MCCC in
advance of a change of residence and he traveled to an unapproved location.
When MCCC called Hardin, Hardin was informed that he failed to advise
MCCC of the location of his residence in advance. He was given instructions
to report to MCCC. However, after that conversation, Hardin failed to report.
[11] All in all, the challenged GPS evidence purportedly showed Hardin’s specific
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Aug 28 2020, 8:40 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Christopher Taylor-Price Curtis T. Hill, Jr. Marion County Public Defender Agency Attorney General of Indiana Appellate Division Courtney L. Staton Indianapolis, Indiana Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Harvey James Hardin, August 28, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-2479 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Charnette D. Garner, Appellee-Plaintiff. Judge Trial Court Cause No. 49G09-1901-F6-1760
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2479 | August 28, 2020 Page 1 of 6 Case Summary [1] Following a jury trial, Harvey James Hardin (“Hardin”) was convicted of
Escape, as a Level 6 felony,1 and adjudicated a habitual offender.2 Hardin now
appeals, challenging the admission of GPS evidence of his location. We affirm.
Facts and Procedural History [2] After a court placed Hardin on home detention, Hardin reported to Marion
County Community Corrections (“MCCC”) on December 19, 2018. When
prompted to provide the address of his residence, Hardin gave an address on
Market Street. Hardin was advised of the rules of home detention, including
the requirement that he stay within his residence and update MCCC of any
address change in advance. He also signed a document that contained these
rules. Eventually, Hardin was fitted with an ankle monitor. The monitor had a
GPS feature as well as a telephone feature that allowed MCCC to call Hardin.
[3] On December 20, 2018, Hardin’s case manager called Hardin through the
monitor. On the call, Hardin admitted that he was living at 2332 East
Washington Street, not at the address he provided on Market Street. Hardin
claimed that the Wheeler Mission on Market Street did not have space, so he
was staying with a friend. The case manager instructed Hardin to report to
1 Ind. Code § 35-44.1-3-4(b). 2 I.C. § 35-50-2-8.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2479 | August 28, 2020 Page 2 of 6 MCCC on or before the next day. After Hardin failed to report and his monitor
ran out of power, a warrant was issued for his arrest. On January 3, 2019,
Hardin was arrested at an apartment building at 2332 East Washington Street.
[4] The State charged Hardin with three counts of Escape, each as a Level 6 felony.
In Count 2, the State alleged that, “[o]n or about December 21, 2018,” Hardin
“knowingly or intentionally violate[d] a home detention order” by “being in a
location not permitted by his home detention contract terms.” App. Vol. 2 at
90. The State also alleged that Hardin had the status of a habitual offender.
[5] A jury trial was eventually held on August 21, 2019. At trial, the State elicited
testimony from (1) the MCCC employee who went over the home-detention
rules with Hardin, to whom Hardin had provided the address on Market Street;
(2) the MCCC employee who called Hardin through the monitor and learned
from Hardin that he was now living on East Washington Street, not Market
Street; and (3) the officer who eventually arrested Hardin on East Washington
Street after Hardin failed to report to MCCC as instructed. The State also
introduced GPS records from a software program. Those records purportedly
show Hardin’s location over time through the GPS feature on his monitor.
Hardin objected to the admission of the records, arguing that the State had not
shown that the location data was reliable. The trial court admitted the records.
[6] The jury found Hardin guilty of Count 2 and not guilty of the other counts.
The trial court entered a judgment of conviction and the matter proceeded to an
enhancement phase, after which the jury found that Hardin had the status of a
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2479 | August 28, 2020 Page 3 of 6 habitual offender. The court held a sentencing hearing and sentenced Hardin to
an aggregate term of five years in the Indiana Department of Correction.
[7] Hardin now appeals.
Discussion and Decision [8] We review evidentiary decisions for an abuse of discretion. Hardin v. State, 148
N.E.3d 932, 939 (Ind. 2020). However, we will not reverse if the alleged error
is harmless. Ind. Appellate Rule 66(A). Error is harmless “where its probable
impact, in light of all the evidence in the case, is sufficiently minor so as not to
affect the substantial rights of the parties.” Id. In other words, we will not
reverse “[i]f we are satisfied [that] the conviction is supported by independent
evidence of guilt such that there is little likelihood the challenged evidence
contributed to the verdict[.]” Blount v. State, 22 N.E.3d 559, 564 (Ind. 2014).
[9] Hardin argues that the trial court abused its discretion when it admitted the
GPS records. However, assuming arguendo that the court improperly admitted
the records, there is little likelihood that the evidence contributed to the verdict.
Indeed, to obtain a conviction, the State was obligated to prove beyond a
reasonable doubt that Hardin knowingly or intentionally violated a home-
detention order, see I.C. § 35-44.1-3-4(b), by “being in a location not permitted
by his home detention contract terms,” App. Vol. 2 at 72. At trial, there was
evidence that Hardin was bound by the following term: “You will be confined
inside (within the walls of your residence; front door to back door) the residence
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2479 | August 28, 2020 Page 4 of 6 at all times,” except when traveling to approved locations. Ex. Vol. at 58.
Hardin was also bound by a term governing address changes: “You must advise
your Case Manager prior to a change in residence, phone number, who is
residing with you, employment, employment hours, and the dates and times for
any activities that you wish to be approved.” Id. Hardin was advised that he
could call the MCCC Operations Center twenty-four hours per day. Id. at 9.
[10] Independent of the GPS records, there is evidence that Hardin failed to advise
MCCC prior to a change in residence—unilaterally traveling to an apartment
building on East Washington Street without first advising MCCC. Indeed,
Hardin admitted that he was on East Washington Street and not at the reported
address on Market Street. Although Hardin claimed that he was living on East
Washington Street because the Wheeler Mission on Market Street did not have
room to accommodate him, Hardin nevertheless failed to advise MCCC in
advance of a change of residence and he traveled to an unapproved location.
When MCCC called Hardin, Hardin was informed that he failed to advise
MCCC of the location of his residence in advance. He was given instructions
to report to MCCC. However, after that conversation, Hardin failed to report.
[11] All in all, the challenged GPS evidence purportedly showed Hardin’s specific
location over time—at addresses other than the one on Market Street and
beyond the 2332 East Washington Street address where Hardin had unilaterally
moved. Yet, there is independent evidence that Hardin admitted to traveling to
an unapproved location without first advising MCCC. In light of Hardin’s
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2479 | August 28, 2020 Page 5 of 6 admission, we are not persuaded that evidence of additional travel contributed
to the jury’s determination that Hardin violated the terms of home detention.3
[12] We conclude that the alleged error is, at most, harmless error. We therefore
need not directly address the admissibility of the challenged evidence.
[13] Affirmed.
Vaidik, J., and Baker, Sr. J., concur.
3 At times, Hardin points out that the charging information alleged a violation “on or about December 21, 2018.” App. Vol. 2 at 90. He asserts that the GPS records were the only evidence of his location on December 21, 2018. To the extent Hardin suggests that the jury was obligated to ignore the December 20 phone call between Hardin and MCCC due to the date in the information, we disagree. It is well-established that “[w]here . . . time is not an element of the offense, the State is not required to prove the offense occurred on the precise date alleged, and its presentation of evidence is not limited to events on that date.” Blount, 22 N.E.3d at 569. Here, there is ample independent evidence of a breach on or about December 21, 2018.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2479 | August 28, 2020 Page 6 of 6