MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Nov 30 2020, 11:09 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Alexander L. Hoover Curtis T. Hill, Jr. Nappanee, Indiana Attorney General of Indiana Megan M. Smith Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Michael M. Harvey, November 30, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-548 v. Appeal from the Elkhart Superior Court State of Indiana, The Honorable Teresa L. Cataldo, Appellee-Plaintiff. Judge Trial Court Cause No. 20D03-1904-F1-7
Tavitas, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-548 | November 30, 2020 Page 1 of 15 Case Summary [1] After a jury trial, Michael Harvey was convicted of Counts I and II, child
molesting, as Level 1 felonies; and Count III, incest, a Level 4 felony. Harvey
now appeals both his convictions and his sentence. We affirm.
Issues [2] Harvey raises two issues, which we restate as:
I. Whether the trial court abused its discretion by admitting certain evidence.
II. Whether Harvey’s sentence was inappropriate in light of the nature of the offenses and the offender’s character.
Facts [3] In July and August of 2018, Harvey lived with his daughter, nine-year-old J.H.,
and Candace Poe—J.H.’s mother—at the Garden Inn in Elkhart. Sometime
between July 10, 2018, and August 9, 2018, Harvey “took off his pants, and he
put his private part in [J.H.]’s mouth.” Tr. Vol. II p. 229. Harvey told J.H. to
“not to tell anybody, and if [J.H. did tell,] something very bad will happen to
[J.H.] and to [Harvey]. And if [J.H.] didn’t tell anybody, [Harvey] would get
[J.H.] something very special.” Id. at 232. J.H. subsequently disclosed to Poe
that Harvey had engaged J.H. in oral sex on multiple occasions. J.H. also
described the abuse to a forensic interviewer and to a nurse examiner.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-548 | November 30, 2020 Page 2 of 15 [4] Elkhart General Hospital reported J.H.’s disclosure to the Elkhart City Police
Department, and the case was assigned to Detective Jacqueline Davis. On
January 8, 2019, Detective Davis conducted an interview of Harvey. During
the interview, Harvey denied the child molestation allegations and claimed that
“it was a misunderstanding.” Id. at 167. On April 10, 2019, the State charged
Harvey with Counts I and II, child molesting, as Level 1 felonies; and Count
III, incest, a Level 4 felony.
[5] Prior to trial, Harvey filed a motion in limine to preclude evidence of a prior
battery conviction. The facts underlying that battery conviction are as follows:
Harvey pleaded guilty to battery after Harvey disciplined his son by striking his
son with a belt, producing visible welts. The motion in limine was granted.
[6] At the jury trial, the State called Poe as a witness. During Harvey’s cross-
examination of Poe, the following colloquy ensued:
Q: Candace, you obviously had an opportunity over the 15 years or so to observe Michael’s behavior around the children, correct?
A: Yes.
Q: And in regards to—did you see him do homework with the children as a father?
Q: Did you see him interact with the kids?
Court of Appeals of Indiana | Memorandum Decision 20A-CR-548 | November 30, 2020 Page 3 of 15 A: Yes.
Q: Did he seem to get along with the kids?
A: Yeah.
Q: How did he seem to get along with the kids?
A: Amazing dad. He was a good dad to the kids.
Q: Did the kids seem to enjoy interacting with him?
A: Yes, they did.
Tr. Vol. II pp. 206-07.
[7] The State subsequently sought to introduce evidence of Harvey’s prior battery
conviction, arguing at sidebar that Harvey’s counsel opened the door to the
evidence “because he asked about [Harvey’s] behavior around the kids.” Id. at
207. The trial court agreed. Harvey objected that Poe lacked direct knowledge
of the prior battery and conducted a voir dire examination of Poe. The trial
court overruled Harvey’s objection, and the State elicited evidence from Poe
that “there was an allegation of child battery made of [Harvey],” and that
Harvey “discipline[d]” his own son using a “chain belt thing, hook.” Id. at 221-
22. The discipline resulted in injuries to the child, including “welts and bruises”
on the child’s back. Id. at 222.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-548 | November 30, 2020 Page 4 of 15 [8] On January 8, 2020, the jury returned a verdict of guilty on all counts. On
February 6, 2020, the trial court imposed sentences for each conviction, finding
the following aggravating factors, and no mitigating factors:
The defendant has a history of criminal behavior including ten prior misdemeanors and two prior felony convictions. The victim in this case was less than 12 years old. The Defendant had the care, custody and control over the victim. The events of molestation occurred numerous times other than what was charged. The defendant informed the victim not to tell anybody or something bad would happen and that she would get something very special. The defendant admitted during his testimony to two instances as a type of explanation where the defendant was questioning the victim in regards to her prior molestation by her brother.
Appellant’s App. Vol. II p. 174. The trial court sentenced Harvey to fifty years
in the Department of Correction on Count I; forty years on Count II to be
served consecutively to the sentence on Count I; and eight years on Count III to
be served concurrently to the sentence on Count I, for an aggregate sentence of
ninety years. Harvey now appeals.
Analysis I. Admission of Evidence
[9] Harvey argues that the trial court abused its discretion by admitting evidence of
his prior battery conviction, for which the victim was one of his own children.
We review challenges to the admission of evidence for an abuse of the trial
court’s discretion. Fansler v. State, 100 N.E.3d 250, 253 (Ind. 2018). In those
Court of Appeals of Indiana | Memorandum Decision 20A-CR-548 | November 30, 2020 Page 5 of 15 instances, we will reverse only where the decision is clearly against the logic
and effect of the facts and circumstances. Id.
[10] Harvey’s first argument is that the evidence of the prior conviction was
inadmissible under Indiana Evidence Rule 404. 1 Harvey, however, did not
raise a Rule 404 objection at trial; rather, Harvey argued that: “Ms. Poe was not
present when these matters took place. So she is testifying about the
information as it relates to her perception, things . . . she had seen and
observed. She doesn’t have any specific information about the event in and of
itself.” Tr. Vol. II p. 208. Harvey’s objection, therefore, appears to have been
1 Evidence Rule 404 provides, in pertinent part:
(a) Character Evidence. (1) Prohibited Uses. Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait. (2) Exceptions for a Defendant or Victim in a Criminal Case. The following exceptions apply in a criminal case: (A) a defendant may offer evidence of the defendant's pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it; (B) subject to the limitations in Rule 412, a defendant may offer evidence of an alleged victim’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it; and (C) in a homicide case, the prosecutor may offer evidence of the alleged victim’s trait of peacefulness to rebut evidence that the victim was the first aggressor. (3) Exceptions for a Witness. Evidence of a witness’s character may be admitted under Rules 607, 608, and 609. (b) Crimes, Wrongs, or Other Acts. (1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character. . . .
Court of Appeals of Indiana | Memorandum Decision 20A-CR-548 | November 30, 2020 Page 6 of 15 based on Indiana Evidence Rule 602, which requires that “[a] witness may
testify to a matter only if evidence is introduced sufficient to support a finding
that the witness has personal knowledge of the matter.” Our Supreme Court
has held that “[a] party’s failure to object to, and thus preserve, an alleged trial
error results in waiver of that claim on appeal.” Batchelor v. State, 119 N.E.3d
550, 556 (Ind. 2019) (citing Durden v. State, 99 N.E.3d 645, 651 (Ind. 2018)).
We find, for failure to object on the basis of Rule 404, that the issue is waived.
[11] Harvey also argues that the evidence was inadmissible under Indiana Rule of
Evidence 403, which states: “The court may exclude relevant evidence if its
probative value is substantially outweighed by a danger of one or more of the
following: unfair prejudice, confusing the issues, misleading the jury, undue
delay, or needlessly presenting cumulative evidence.” Again, however,
Harvey’s objection appears to be to Poe’s lack of knowledge, not that the
battery conviction was unfairly prejudicial. Harvey’s counsel, however, also
argued to the trial court:
The farther [sic] that we go down the line I think the more prejudicial it would become, to the extend [sic] that we get involved with DCS investigations and things of that nature. I think we cloud issues, and we do create more of a sense of prejudice under those circumstances without being able to get back in and re-litigate the DCS case and what took place in connection with that. That would confuse the jury.
Tr. Vol. II p. 217.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-548 | November 30, 2020 Page 7 of 15 [12] Waiver notwithstanding, regarding Evidence Rule 404 and Evidence Rule 403,
our Supreme Court has held:
When a party touches upon a subject in direct examination, leaving the trier of fact with a false or misleading impression of the facts related, the direct examiner may be held to have opened the door to the cross examiner to explore the subject fully, even if the matter so brought out on cross examination would have otherwise been inadmissible.
Oliver v. State, 755 N.E.2d 582, 586 (Ind. 2001) (quoting Tawdul v. State, 720
N.E.2d 1211, 1217–18 (Ind. Ct. App. 1999)); see also Hall v. State, 36 N.E.3d
459, 472 (Ind. 2015) (noting that “otherwise inadmissible evidence may become
admissible if a party opens the door to questioning on that evidence in order to
correct a deceptively incomplete disclosure”) (quotations omitted).
[13] The State elicited evidence of the prior conviction to directly rebut evidence
offered by Harvey on cross-examination of Poe. Poe’s testimony that
“[Harvey] was a good dad to the kids” left the jury with a false or misleading
impression, which was directly rebutted by the fact that Harvey was convicted
of battering one of those kids. Tr. Vol. II pp. 206-07.
[14] By eliciting testimony regarding the quality of Harvey’s relationship with his
children and the quality of Harvey’s parenting, Harvey indeed “opened the
door,” and invited rebuttal of this evidence. Harvey argues that the battery
conviction was “a type of offense completely different than the instant offense,
on a completely different child than J.H., and which occurred many years prior
Court of Appeals of Indiana | Memorandum Decision 20A-CR-548 | November 30, 2020 Page 8 of 15 to the instant offense. . . .” Appellant’s Br. p. 10. But, as the trial court astutely
pointed out: “when the door is open, the door is open.” Tr. Vol. II p. 219.
[15] Rule 404 precludes character evidence, including prior bad acts, pursuant to the
purpose for which that evidence is elicited. See, e.g., Wilson v. State, 931 N.E.2d
914, 919-20 (Ind. Ct. App. 2010) (citing Dumes v. State, 718 N.E.2d 1171, 1175
(Ind. Ct. App. 1999)) (“Simply stated, evidence is inadmissible under Indiana
Evidence Rule 404(b) when its only apparent purpose is to prove that the
defendant is a person who commits crime.”), trans. denied. Evidence of a
person’s character trait is only prohibited by Rule 404 if it is elicited to show
that the person acted in accordance with that character trait in a particular
instance. See, e.g., Clark v. State, 668 N.E.2d 1206, 1211 (Ind. 1996). Character
evidence elicited for any other purpose does not run afoul of Rule 404’s
prohibition. Rule 404(b) provides a non-exhaustive list of possible alternative
purposes, but any purpose other than the one named in Rule 404 will suffice to
defeat the objection. See Shoultz v. State, 995 N.E.2d 647, 655 (Ind. Ct. App.
2013) (quoting Hicks v. State, 690 N.E.2d 215, 219 (Ind.1997)), trans. denied.
[16] The State elicited the prior conviction to directly rebut evidence offered by
Harvey’s trial counsel on cross-examination of Poe. The fact that Harvey was
convicted of battering one of his children clearly rebuts “[Harvey] was a good
dad to the kids,” as elicited during the cross-examination of Poe. Here, Harvey
was charged with crimes of a sexual nature, and it is improbable that a
reasonable juror would look at a prior crime of violence and conclude that it
proves—or even suggests—that a defendant committed the sexual crimes
Court of Appeals of Indiana | Memorandum Decision 20A-CR-548 | November 30, 2020 Page 9 of 15 alleged in the case in front them. Accordingly, the trial court did not abuse its
discretion by admitting evidence of the battery conviction.
[17] Harvey next argues that, even if the prior battery conviction was not improper
character evidence under Rule 404, it was alternatively inadmissible under Rule
403. Indiana Rule of Evidence 403 states: “The court may exclude relevant
evidence if its probative value is substantially outweighed by a danger of one or
more of the following: unfair prejudice, confusing the issues, misleading the
jury, undue delay, or needlessly presenting cumulative evidence.” “‘All
relevant evidence is “inherently prejudicial” in a criminal prosecution, so the
inquiry [pursuant to Evidence Rule 403] boils down to a balance of the
probative value [of the proffered evidence] against the likely unfair prejudicial
impact [of the proffered evidence].’” State v. Seabrooks, 803 N.E.2d 1190, 1193-
94 (Ind. Ct. App. 2004) (quoting Carter v. State, 766 N.E.2d 377, 382 (Ind.
2002)). “‘When determining the likely unfair prejudicial impact, courts will
look for the dangers that the jury will (1) substantially overestimate the value of
the evidence or (2) that the evidence will arouse or inflame the passions or
sympathies of the jury.’” Id. “[T]rial courts are given wide latitude in weighing
the probative value of evidence against the prejudice caused by its admission.”
Wilcoxson v. State, 132 N.E.3d 27, 31-32 (Ind. Ct. App. 2019) (citing Bishop v.
State, 40 N.E.3d 935, 952 (Ind. Ct. App. 2015), trans. denied), trans. denied.
[18] As rebuttal evidence, the prior conviction was directly probative of the
credibility of Poe, and her claim that Harvey was an “amazing dad.” Tr. Vol.
II pp. 206-07. Though it is certainly true that evidence of a prior criminal
Court of Appeals of Indiana | Memorandum Decision 20A-CR-548 | November 30, 2020 Page 10 of 15 history is prejudicial in the eyes of a juror, Harvey concedes that his conviction
was “a completely different type of offense than the instant offense, on a
completely different child than J.H. and which occurred many years prior to the
instant offense.” Appellant’s Br. p. 10. We find that the trial court did not err
in finding that the probative value was not substantially outweighed by the
danger of unfair prejudice. Accordingly, the trial court did not abuse its
[19] Finally, we find that even if the evidence was admitted in error, that error was
harmless. “An error is harmless when it results in no prejudice to the
‘substantial rights’ of a party.” Durden v. State, 99 N.E.3d 645, 652 (Ind. 2018)
(citing Camm v. State, 908 N.E.2d 215, 225 (Ind. 2009)); Ind. Trial Rule 61.
According to Indiana Trial Rule 61: “at every stage of the proceeding,” courts
must “disregard any error or defect” that “does not affect the substantial rights
of the parties.” Under Indiana Appellate Rule 66(A): “[n]o error or defect” in a
trial court ruling “is ground for granting relief or reversal on appeal” when “its
probable impact . . . is sufficiently minor so as not to affect the substantial rights
of the parties.” “[A] conviction may stand when the error had no bearing on
the outcome of the case.” Durden, 99N.E.3d at 652. Here, we cannot find that
the prior battery conviction had much effect on the jury in light of the evidence
of guilt. “A conviction may be sustained on the uncorroborated testimony of a
single witness.” Jewell v. State, 539 N.E.2d 959, 964 (Ind. 1989) (citing Slaughter
v. State, 531 N.E.2d 185, 186 (Ind. 1988)). Accordingly, any error in admitting
evidence of Harvey’s prior conviction was harmless.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-548 | November 30, 2020 Page 11 of 15 II. Appellate Rule 7(B)
[20] Harvey next challenges his sentence pursuant to Indiana Appellate Rule 7(B).
The Indiana Constitution authorizes independent appellate review and revision
of a trial court’s sentencing decision. See Ind. Const. art. 7, §§ 4, 6; Jackson v.
State, 145 N.E.3d 783, 784 (Ind. 2020). Our Supreme Court has implemented
this authority through Indiana Appellate Rule 7(B), which allows this Court to
revise a sentence when it is “inappropriate in light of the nature of the offense
and the character of the offender.” Our review of a sentence under Appellate
Rule 7(B) is not an act of second guessing the trial court’s sentence; rather,
“[o]ur posture on appeal is [ ] deferential” to the trial court. Bowman v. State, 51
N.E.3d 1174, 1181 (Ind. 2016) (citing Rice v. State, 6 N.E.3d 940, 946 (Ind.
2014)). We exercise our authority under Appellate Rule 7(B) only in
“exceptional cases, and its exercise ‘boils down to our collective sense of what
is appropriate.’” Mullins v. State, 148 N.E.3d 986, 987 (Ind. 2020) (quoting
Faith v. State, 131 N.E.3d 158, 160 (Ind. 2019)).
[21] “‘The principal role of appellate review is to attempt to leaven the outliers.’”
McCain v. State, 148 N.E.3d 977, 985 (Ind. 2020) (quoting Cardwell v. State, 895
N.E.2d 1219, 1225 (Ind. 2008)). The point is “not to achieve a perceived
correct sentence.” Id. “Whether a sentence should be deemed inappropriate
‘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.’” Id. (quoting Cardwell, 895 N.E.2d at 1224). Deference to the trial
court’s sentence “should prevail unless overcome by compelling evidence
Court of Appeals of Indiana | Memorandum Decision 20A-CR-548 | November 30, 2020 Page 12 of 15 portraying in a positive light the nature of the offense (such as accompanied by
restraint, regard, and lack of brutality) and the defendant’s character (such as
substantial virtuous traits or persistent examples of good character).” Stephenson
v. State, 29 N.E.3d 111, 122 (Ind. 2015).
[22] When determining whether a sentence is inappropriate, the advisory sentence is
the starting point the legislature has selected as an appropriate sentence for the
crime committed. Fuller v. State, 9 N.E.3d 653, 657 (Ind. 2014). In the case at
bar, Count I and Count II were Level 1 felonies, with a sentencing range “of
between twenty (20) and fifty (50) years, with the advisory sentence being thirty
(30) years.” Ind. Code § 35-50-2-4. Count III was a Level 4 felony, with a
sentencing range of “between two (2) and twelve (12) years, with the advisory
sentence being six (6) years.” Ind. Code § 35-50-2-5.5. The trial court imposed
the maximum sentence of fifty years on Count I; a consecutive sentence of forty
years on Count II; and a sentence of eight years on Count III to run
concurrently to Count I, for an aggregate sentence of ninety years.
[23] Our analysis of the “nature of the offense” requires us to look at the nature,
extent, and depravity of the offense. Sorenson v. State, 133 N.E.3d 717, 729 (Ind.
Ct. App. 2019), trans. denied. Here, Harvey abused a position of trust, coercing
his nine-year-old daughter to engage in sexual acts on multiple occasions.
Harvey then attempted to conceal the crime, threatening that harm would befall
both Harvey and J.H. if J.H. were to reveal the molestation.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-548 | November 30, 2020 Page 13 of 15 [24] Our analysis of the character of the offender involves a “broad consideration of
a defendant’s qualities,” Adams v. State, 120 N.E.3d 1058, 1065 (Ind. Ct. App.
2019), including the defendant’s age, criminal history, background, and
remorse. James v. State, 868 N.E.2d 543, 548-59 (Ind. Ct. App. 2007). We note
that, in the instant case, Harvey has not expressed remorse or accepted
responsibility. Indeed, he attempted to conceal his crimes by encouraging J.H.
to keep them a secret, warning her that bad things would happen if she did not,
and offering her rewards if she did.
[25] Moreover, “[t]he significance of a criminal history in assessing a defendant's
character and an appropriate sentence varies based on the gravity, nature,
proximity, and number of prior offenses in relation to the current offense.”
Sandleben v. State, 29 N.E.3d 126, 137 (Ind. Ct. App. 2015) (citing Bryant v.
State, 841 N.E.2d 1154, 1156 (Ind. 2006)), trans. denied. “Even a minor criminal
history is a poor reflection of a defendant’s character.” Prince v. State, 148
N.E.3d 1171, 1174 (Ind. Ct. App. 2020) (citing Moss v. State, 13 N.E.3d 440,
448 (Ind. Ct. App. 2014), trans. denied). Harvey’s criminal record is decidedly
not minor, and includes felony convictions for possession of cocaine and
battery resulting in bodily injury to a victim less than fourteen years old, and
misdemeanor convictions for theft, disorderly conduct, contributing to the
delinquency of a minor, operating a motor vehicle without a valid driver’s
license, false informing, invasion of privacy, intimidation, and driving while
suspended.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-548 | November 30, 2020 Page 14 of 15 [26] Harvey’s arguments that his prior convictions are dissimilar to the ones
committed in the instant case and that Harvey is only a “moderate” risk to re-
offend are unavailing. In view of the age of J.H., repeated abuse of J.H., the
severity of the crimes, and Harvey’s lengthy and established criminal history,
we cannot find that his sentence is inappropriate.
Conclusion [27] The trial court did not abuse its discretion by admitting evidence of Harvey’s
prior battery conviction; nor was Harvey’s sentence inappropriate in light of the
nature of the offenses and the offender’s character. We affirm.
[28] Affirmed.
Kirsch, J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-548 | November 30, 2020 Page 15 of 15