MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Nov 07 2016, 9:30 am
this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals and Tax Court court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Timothy J. Burns Gregory F. Zoeller Indianapolis, Indiana Attorney General of Indiana
Monika Prekopa Talbot Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Lorenzo Montes-Garnica, November 7, 2016 Appellant-Defendant, Court of Appeals Case No. 49A05-1603-CR-655 v. Appeal from the Marion Superior Court State of Indiana, The Honorable David Certo, Judge Appellee-Plaintiff. The Honorable David Hooper, Magistrate Trial Court Cause No. 49G12-1407-CM-36556
Altice, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 49A05-1603-CR-655 | November 7, 2016 Page 1 of 7 [1] Following a bench trial, Lorenzo Montes-Garnica was convicted of Patronizing
a Prostitute, a Class A misdemeanor. On appeal, Montes-Garnica challenges
the sufficiency of the evidence supporting his conviction.
[2] We affirm.
Facts & Procedural History
[3] On the evening of July 23, 2014, Detective Tabatha McLemore of the
Indianapolis Metropolitan Police Department (IMPD) was working undercover
as a prostitute on a street corner in a high-prostitution area. At approximately
7:30 p.m., Detective McLemore observed Montes-Garnica drive by and stare at
her as he passed her location. Montes-Garnica kept driving down the road and
then abruptly crossed lanes of traffic, pulled into a parking lot, turned his car
around, and returned to Detective McLemore’s location. When Montes-
Garnica parked his car along the street, Detective McLemore was on the
opposite side of the street speaking with a male subject in another car. Montes-
Garnica continued to stare at Detective McLemore as she spoke with the other
male subject. The other male subject was unwilling to make an agreement with
Detective McLemore unless she got into his car, so Detective McLemore
withdrew from her conversation with him.
[4] Detective McLemore then walked over to Montes-Garnica’s car. As she
approached, she observed Montes-Garnica lean across his car and unlock the
passenger door. Detective McLemore walked up to the driver’s side window,
which had previously been rolled down, and asked “What’s up?” State’s Exhibit
Court of Appeals of Indiana | Memorandum Decision 49A05-1603-CR-655 | November 7, 2016 Page 2 of 7 2; see also Transcript at 15. Montes-Garnica asked Detective McLemore for her
name and she responded “Tiffany.” State’s Exhibit 2. He then asked Detective
McLemore if she was “doing business,” which Detective McLemore knew from
her experience was commonly known to mean “prostitution” in the Hispanic
community, and she responded affirmatively. Transcript at 15; State’s Exhibit 2.
Detective McLemore then asked Montes-Garnica how much money he had,
and he stated that he had “20.” Transcript at 16; State’s Exhibit 2. Detective
McLemore asked Montes-Garnica what he wanted for twenty dollars, and he
stated “sex.” Id. Detective McLemore knew that “sex” was street terminology
for “sexual intercourse.” Transcript at 16. She asked Montes-Garnica again if
he wanted “sex” and he said “yes.” Id.; State’s Exhibit 2. Detective McLemore
then asked Montes-Garnica if he wanted to go to her place, but he indicated
that he wanted to go to his place on “New York” Street. Id. Detective
McLemore then requested that Montes-Garnica meet her in a nearby alley in
order to avoid police detection. Immediately thereafter, Detective McLemore
walked away from Montes-Garnica’s car and police officers arrived in a marked
vehicle and placed Montes-Garnica under arrest.
[5] The State charged Montes-Garnica with patronizing a prostitute, a Class A
misdemeanor. A bench trial was held on March 3, 2016, at the conclusion of
which the trial court found Montes-Garnica guilty as charged. Montes-Garnica
now appeals. Additional facts will be provided as necessary.
Discussion & Decision
Court of Appeals of Indiana | Memorandum Decision 49A05-1603-CR-655 | November 7, 2016 Page 3 of 7 [6] Montes-Garnica argues that the State presented insufficient evidence to support
his conviction for patronizing a prostitute. Specifically, Montes-Garnica argues
that the evidence was insufficient to establish that an agreement, i.e., mutual
understanding, was ever reached between him and Detective McLemore.
[7] When reviewing a challenge to the sufficiency of the evidence, we do not
reweigh evidence or judge the credibility of witnesses. Duncan v. State, 23
N.E.3d 805, 812 (Ind. Ct. App. 2014), trans. denied. Instead, we consider only
the evidence and the reasonable inferences supporting the verdict. Id. If there
is substantial evidence of probative value from which a reasonable trier of fact
could have found the defendant guilty of the crime charged beyond a
reasonable doubt, then the judgment will not be disturbed. Id. It is not
necessary that the evidence overcome every reasonable hypothesis of
innocence; rather, the evidence is sufficient if an inference may reasonably be
drawn from it to support the conviction. Drane v. State, 867 N.E.2d 144, 147
(Ind. 2007).
[8] To sustain Montes-Garnica’s conviction for patronizing a prostitute, the State’s
evidence had to prove beyond a reasonable doubt that Montes-Garnica (1)
knowingly or intentionally (2) offered to pay or agreed to pay (3) money (4) to
Detective McLemore (5) on the understanding that Detective McLemore would
engage in sexual intercourse or other sexual conduct with Montes-Garnica. See
Ind. Code § 35-45-4-3(1). An agreement means “a mutual understanding
between two or more persons about their relative rights and duties regarding
Court of Appeals of Indiana | Memorandum Decision 49A05-1603-CR-655 | November 7, 2016 Page 4 of 7 past or future performances; a manifestation of mutual assent by two or more
persons.” Harwell v. State, 821 N.E.2d 381, 383 (Ind. Ct. App. 2004).
[9] The State’s evidence consisted of Detective McLemore’s testimony and a
recording of the encounter between Montes-Garnica and Detective McLemore
that was captured by a hidden device worn by Detective McLemore during the
encounter. In the recording, Detective McLemore gives what Montes-Garnica
describes as a “‘real time’ interpretation” of the “limited sounds” coming from
his mouth. Appellant’s Brief at 7. He notes that there is no evidence showing
Detective McLemore’s ability to speak or understand Spanish. With that in
mind, he urges this court to listen to the recording before deciding the accuracy
of Detective McLemore’s testimony. Acknowledging that Detective
McLemore testified that she was repeating what he was saying, Montes-
Garnica asserts that after listening to the recording, “one would be hard pressed
to conclusively say what words were being uttered” by him. Id. at 10.
[10] Montes-Garnica’s argument boils down to a request that this this court reweigh
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MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Nov 07 2016, 9:30 am
this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals and Tax Court court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Timothy J. Burns Gregory F. Zoeller Indianapolis, Indiana Attorney General of Indiana
Monika Prekopa Talbot Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Lorenzo Montes-Garnica, November 7, 2016 Appellant-Defendant, Court of Appeals Case No. 49A05-1603-CR-655 v. Appeal from the Marion Superior Court State of Indiana, The Honorable David Certo, Judge Appellee-Plaintiff. The Honorable David Hooper, Magistrate Trial Court Cause No. 49G12-1407-CM-36556
Altice, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 49A05-1603-CR-655 | November 7, 2016 Page 1 of 7 [1] Following a bench trial, Lorenzo Montes-Garnica was convicted of Patronizing
a Prostitute, a Class A misdemeanor. On appeal, Montes-Garnica challenges
the sufficiency of the evidence supporting his conviction.
[2] We affirm.
Facts & Procedural History
[3] On the evening of July 23, 2014, Detective Tabatha McLemore of the
Indianapolis Metropolitan Police Department (IMPD) was working undercover
as a prostitute on a street corner in a high-prostitution area. At approximately
7:30 p.m., Detective McLemore observed Montes-Garnica drive by and stare at
her as he passed her location. Montes-Garnica kept driving down the road and
then abruptly crossed lanes of traffic, pulled into a parking lot, turned his car
around, and returned to Detective McLemore’s location. When Montes-
Garnica parked his car along the street, Detective McLemore was on the
opposite side of the street speaking with a male subject in another car. Montes-
Garnica continued to stare at Detective McLemore as she spoke with the other
male subject. The other male subject was unwilling to make an agreement with
Detective McLemore unless she got into his car, so Detective McLemore
withdrew from her conversation with him.
[4] Detective McLemore then walked over to Montes-Garnica’s car. As she
approached, she observed Montes-Garnica lean across his car and unlock the
passenger door. Detective McLemore walked up to the driver’s side window,
which had previously been rolled down, and asked “What’s up?” State’s Exhibit
Court of Appeals of Indiana | Memorandum Decision 49A05-1603-CR-655 | November 7, 2016 Page 2 of 7 2; see also Transcript at 15. Montes-Garnica asked Detective McLemore for her
name and she responded “Tiffany.” State’s Exhibit 2. He then asked Detective
McLemore if she was “doing business,” which Detective McLemore knew from
her experience was commonly known to mean “prostitution” in the Hispanic
community, and she responded affirmatively. Transcript at 15; State’s Exhibit 2.
Detective McLemore then asked Montes-Garnica how much money he had,
and he stated that he had “20.” Transcript at 16; State’s Exhibit 2. Detective
McLemore asked Montes-Garnica what he wanted for twenty dollars, and he
stated “sex.” Id. Detective McLemore knew that “sex” was street terminology
for “sexual intercourse.” Transcript at 16. She asked Montes-Garnica again if
he wanted “sex” and he said “yes.” Id.; State’s Exhibit 2. Detective McLemore
then asked Montes-Garnica if he wanted to go to her place, but he indicated
that he wanted to go to his place on “New York” Street. Id. Detective
McLemore then requested that Montes-Garnica meet her in a nearby alley in
order to avoid police detection. Immediately thereafter, Detective McLemore
walked away from Montes-Garnica’s car and police officers arrived in a marked
vehicle and placed Montes-Garnica under arrest.
[5] The State charged Montes-Garnica with patronizing a prostitute, a Class A
misdemeanor. A bench trial was held on March 3, 2016, at the conclusion of
which the trial court found Montes-Garnica guilty as charged. Montes-Garnica
now appeals. Additional facts will be provided as necessary.
Discussion & Decision
Court of Appeals of Indiana | Memorandum Decision 49A05-1603-CR-655 | November 7, 2016 Page 3 of 7 [6] Montes-Garnica argues that the State presented insufficient evidence to support
his conviction for patronizing a prostitute. Specifically, Montes-Garnica argues
that the evidence was insufficient to establish that an agreement, i.e., mutual
understanding, was ever reached between him and Detective McLemore.
[7] When reviewing a challenge to the sufficiency of the evidence, we do not
reweigh evidence or judge the credibility of witnesses. Duncan v. State, 23
N.E.3d 805, 812 (Ind. Ct. App. 2014), trans. denied. Instead, we consider only
the evidence and the reasonable inferences supporting the verdict. Id. If there
is substantial evidence of probative value from which a reasonable trier of fact
could have found the defendant guilty of the crime charged beyond a
reasonable doubt, then the judgment will not be disturbed. Id. It is not
necessary that the evidence overcome every reasonable hypothesis of
innocence; rather, the evidence is sufficient if an inference may reasonably be
drawn from it to support the conviction. Drane v. State, 867 N.E.2d 144, 147
(Ind. 2007).
[8] To sustain Montes-Garnica’s conviction for patronizing a prostitute, the State’s
evidence had to prove beyond a reasonable doubt that Montes-Garnica (1)
knowingly or intentionally (2) offered to pay or agreed to pay (3) money (4) to
Detective McLemore (5) on the understanding that Detective McLemore would
engage in sexual intercourse or other sexual conduct with Montes-Garnica. See
Ind. Code § 35-45-4-3(1). An agreement means “a mutual understanding
between two or more persons about their relative rights and duties regarding
Court of Appeals of Indiana | Memorandum Decision 49A05-1603-CR-655 | November 7, 2016 Page 4 of 7 past or future performances; a manifestation of mutual assent by two or more
persons.” Harwell v. State, 821 N.E.2d 381, 383 (Ind. Ct. App. 2004).
[9] The State’s evidence consisted of Detective McLemore’s testimony and a
recording of the encounter between Montes-Garnica and Detective McLemore
that was captured by a hidden device worn by Detective McLemore during the
encounter. In the recording, Detective McLemore gives what Montes-Garnica
describes as a “‘real time’ interpretation” of the “limited sounds” coming from
his mouth. Appellant’s Brief at 7. He notes that there is no evidence showing
Detective McLemore’s ability to speak or understand Spanish. With that in
mind, he urges this court to listen to the recording before deciding the accuracy
of Detective McLemore’s testimony. Acknowledging that Detective
McLemore testified that she was repeating what he was saying, Montes-
Garnica asserts that after listening to the recording, “one would be hard pressed
to conclusively say what words were being uttered” by him. Id. at 10.
[10] Montes-Garnica’s argument boils down to a request that this this court reweigh
the evidence and judge the credibility of the witnesses. This we will not do.
[11] Detective McLemore testified that she has been involved in over 1000
patronizing a prostitute cases throughout her fourteen-year career with IMPD.
Detective McLemore explained how Montes-Garnica stared at her as he drove
by her location and that he continued to stare at her using his rearview mirror.
Montes-Garnica then purposefully turned his car around and came back and
parked his car near where Detective McLemore was positioned. As she
Court of Appeals of Indiana | Memorandum Decision 49A05-1603-CR-655 | November 7, 2016 Page 5 of 7 approached, he unlocked his passenger door and willingly engaged in
conversation with her.
[12] With regard to the recording of the encounter, Detective McLemore testified
that she purposefully repeated Montes-Garnica’s words throughout because he
was very soft spoken and she wanted to ensure that his words were properly
recorded. In addition, she repeatedly testified that Montes-Garnica spoke some
English and that she understood everything he said during their exchange.
After repeating his words, Detective McLemore gave Montes-Garnica the
opportunity to say no or disagree with her statements. Notably, Montes-
Garnica never offered any words of protest or disagreement with Detective
McLemore’s statements.
[13] Next, while we agree that the recording does not clearly capture Montes-
Garnica asking whether Detective McLemore is “doing business,” we note that
it does capture Detective McLemore asking, “Am I doing business? Yes.”
State’s Exhibit 2. Finally, the recording clearly captures Montes-Garnica stating
in plain English that he will pay “20” for “sex” after Detective McLemore
indicated that she was “doing business.” Transcript at 16; State’s Exhibit 2. The
encounter concluded with Detective McLemore and Montes-Garnica settling
on having “sex” at Montes-Garnica’s place on New York Street. Id.
[14] Detective McLemore testified that “doing business” is synonymous for
prostitution in the Hispanic community and that “sex” is a common term used
for “sexual intercourse” in patronizing prostitution. Transcript at 25, 18. From
Court of Appeals of Indiana | Memorandum Decision 49A05-1603-CR-655 | November 7, 2016 Page 6 of 7 this evidence, it is clear that the encounter between Montes-Garnica and
Detective McLemore concerned prostitution and involved an exchange of
money for sexual intercourse.
[15] The evidence most favorable to the conviction establishes that Montes-Garnica
knowingly or intentionally offered to pay or agreed to pay twenty dollars to
Detective McLemore for sexual intercourse. This evidence is sufficient to
sustain Montes-Garnica’s conviction for patronizing a prostitute as a Class A
misdemeanor.
[16] Judgment affirmed.
[17] Bradford, J. and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A05-1603-CR-655 | November 7, 2016 Page 7 of 7