MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this FILED Memorandum Decision shall not be regarded as precedent or cited before any court except for the Dec 07 2017, 7:36 am
purpose of establishing the defense of res judicata, CLERK collateral estoppel, or the law of the case. Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Matthew D. Anglemeyer Curtis T. Hill, Jr. Marion County Public Defender Attorney General of Indiana Appellate Division Tyler Banks Indianapolis, Indiana Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Terrius Anderson, December 7, 2017
Appellant-Defendant, Court of Appeals Case No. 49A02-1705-CR-976
v. Appeal from the Marion Superior Court State of Indiana, The Honorable Barbara C. Crawford, Judge Appellee-Plaintiff. Trial Court Cause No. 49G09-1603-F6-11112
Bradford, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1705-CR-976 | December 7, 2017 Page 1 of 7 Case Summary [1] In March of 2016, Indianapolis Metropolitan Police Detective Sergeant Karen
Dague was interviewing N.H., a human-trafficking victim, in the detective’s
vehicle, which was parked in a public parking lot. A vehicle driven by
Appellant-Defendant Terrius Anderson pulled alongside Detective Dague’s
vehicle. When N.H. appeared to become scared, Detective Dague turned
around to see Anderson, sitting with both legs out of his vehicle, not wearing
pants, and stroking his bare penis. When Detective Dague attempted to write
down Anderson’s license plate number, Anderson quickly backed his vehicle
out, requiring Detective Dague to jump out of the way.
[2] The State charged Anderson with, inter alia, conducting a performance harmful
to minors and criminal recklessness. At trial, Detective Dague testified that
N.H. was fourteen years old and that she knew this because N.H. had told her
and Homeland Security had verified the information. The trial court found
Anderson guilty of conducting a performance harmful to minors and criminal
recklessness and imposed sentence. Anderson contends that the trial court
abused its discretion in admitting Detective Dague’s testimony regarding N.H.’s
age. Because we agree, we affirm in part, reverse in part, and remand with
instructions to vacate Anderson’s conviction for conducting a performance
harmful to minors.
Court of Appeals of Indiana | Memorandum Decision 49A02-1705-CR-976 | December 7, 2017 Page 2 of 7 Facts and Procedural History [3] At approximately 10:25 a.m. on March 21, 2016, Detective Dague, a supervisor
in the human trafficking unit, was interviewing N.H. in a public parking lot
near 21st Street and Shadeland Avenue in Indianapolis. Detective Dague had
apparently personally met with N.H. twice before. As Detective Dague spoke
with N.H. in the detective’s undercover vehicle, another vehicle pulled into the
next space. At some point, Detective Dague noticed that N.H. “got a very
scared look on her face[,] got tears in her eyes and her eyes got wide.” Tr. Vol.
II p. 13. Detective Dague turned around and saw “Anderson sitting with both
legs out of his car without pants on with an erect penis. Stroking it up and
down looking at me, red eyes smiling.” Tr. Vol. II p. 13. Detective Dague was
unable to arrest Anderson because she was with N.H. but did stand behind his
vehicle to record his license plate number. As Detective Dague was doing this,
“all of a sudden the car [revved] and came at [her] at fast speed and [she]
jumped out of the way.” Tr. Vol. II p. 15.
[4] On March 23, 2016, the State charged Anderson with Level 6 felony
dissemination of matter harmful to minors, two counts of Class A misdemeanor
public indecency, Class B misdemeanor public nudity, and Class B
misdemeanor criminal recklessness. The State later added a charge of Level 6
felony conducting a performance harmful to minors. On March 20, 2017, a
bench trial was held. Detective Dague testified that she believed N.H. to be
fourteen years old and later testified that she knew this because N.H. had told
her and from information received from Homeland Security. Anderson
Court of Appeals of Indiana | Memorandum Decision 49A02-1705-CR-976 | December 7, 2017 Page 3 of 7 objected to his testimony on hearsay grounds, which objection the trial court
overruled. Ultimately, the trial court entered judgment against Anderson for
conducting a performance harmful to minors and criminal recklessness. On
April 17, 2017, the trial court sentenced Anderson to 180 days of incarceration
for criminal recklessness and 545 days for conducting a performance harmful to
minors. After taking earned credit time into account, Anderson received a 292-
day sentence, all suspended to probation.
Discussion and Decision Admission of Detective Dague’s Testimony Regarding N.H.’s Age [5] Anderson argues that the trial court abused its discretion in admitting Detective
Dague’s testimony regarding N.H.’s age. In general, the admissibility of
evidence is within the sound discretion of the trial court. Curley v. State, 777
N.E.2d 58, 60 (Ind. Ct. App. 2002), trans. denied. We will reverse a trial court’s
decision on the admissibility of evidence only upon a showing of an abuse of
that discretion. Id. An abuse of discretion may occur if the trial court’s
decision is clearly against the logic and effect of the facts and circumstances
before the court, or if the court has misinterpreted the law. Id. The Court of
Appeals may affirm the trial court’s ruling if it is sustainable on any legal basis
in the record, even though it was not the reason enunciated by the trial court.
Moore v. State, 839 N.E.2d 178, 182 (Ind. Ct. App. 2005), trans. denied. We do
not reweigh the evidence, and consider the evidence most favorable to the trial
Court of Appeals of Indiana | Memorandum Decision 49A02-1705-CR-976 | December 7, 2017 Page 4 of 7 court’s ruling. Hirsey v. State, 852 N.E.2d 1008, 1012 (Ind. Ct. App. 2006),
trans. denied.
[6] Anderson contends that Detective’s Dague’s testimony regarding N.H.’s age is
inadmissible hearsay. The State argues that the record is sufficient to establish
that Detective Dague had personal knowledge of N.H.’s age.
Hearsay is evidence of a statement made out of court that is offered in a judicial proceeding to prove the truth of a fact asserted in the statement. Ind. Evidence Rule 801(c); Timmons v. State (1992), Ind., 584 N.E.2d 1108; McConnell v. State (1984), Ind., 470 N.E.2d 701.… Hearsay is not admissible unless it fits within some exception to the hearsay rule. Evid. R. 802 and 803; Miller v. State (1991), Ind., 575 N.E.2d 272. A trial error in the admission of hearsay evidence warrants remedial action on appeal, where such error caused prejudice to the substantial rights of the defendant. Harvey v. State (1971), 256 Ind. 473, 269 N.E.2d 759. Craig v. State, 630 N.E.2d 207, 209 (Ind. 1994).
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this FILED Memorandum Decision shall not be regarded as precedent or cited before any court except for the Dec 07 2017, 7:36 am
purpose of establishing the defense of res judicata, CLERK collateral estoppel, or the law of the case. Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Matthew D. Anglemeyer Curtis T. Hill, Jr. Marion County Public Defender Attorney General of Indiana Appellate Division Tyler Banks Indianapolis, Indiana Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Terrius Anderson, December 7, 2017
Appellant-Defendant, Court of Appeals Case No. 49A02-1705-CR-976
v. Appeal from the Marion Superior Court State of Indiana, The Honorable Barbara C. Crawford, Judge Appellee-Plaintiff. Trial Court Cause No. 49G09-1603-F6-11112
Bradford, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1705-CR-976 | December 7, 2017 Page 1 of 7 Case Summary [1] In March of 2016, Indianapolis Metropolitan Police Detective Sergeant Karen
Dague was interviewing N.H., a human-trafficking victim, in the detective’s
vehicle, which was parked in a public parking lot. A vehicle driven by
Appellant-Defendant Terrius Anderson pulled alongside Detective Dague’s
vehicle. When N.H. appeared to become scared, Detective Dague turned
around to see Anderson, sitting with both legs out of his vehicle, not wearing
pants, and stroking his bare penis. When Detective Dague attempted to write
down Anderson’s license plate number, Anderson quickly backed his vehicle
out, requiring Detective Dague to jump out of the way.
[2] The State charged Anderson with, inter alia, conducting a performance harmful
to minors and criminal recklessness. At trial, Detective Dague testified that
N.H. was fourteen years old and that she knew this because N.H. had told her
and Homeland Security had verified the information. The trial court found
Anderson guilty of conducting a performance harmful to minors and criminal
recklessness and imposed sentence. Anderson contends that the trial court
abused its discretion in admitting Detective Dague’s testimony regarding N.H.’s
age. Because we agree, we affirm in part, reverse in part, and remand with
instructions to vacate Anderson’s conviction for conducting a performance
harmful to minors.
Court of Appeals of Indiana | Memorandum Decision 49A02-1705-CR-976 | December 7, 2017 Page 2 of 7 Facts and Procedural History [3] At approximately 10:25 a.m. on March 21, 2016, Detective Dague, a supervisor
in the human trafficking unit, was interviewing N.H. in a public parking lot
near 21st Street and Shadeland Avenue in Indianapolis. Detective Dague had
apparently personally met with N.H. twice before. As Detective Dague spoke
with N.H. in the detective’s undercover vehicle, another vehicle pulled into the
next space. At some point, Detective Dague noticed that N.H. “got a very
scared look on her face[,] got tears in her eyes and her eyes got wide.” Tr. Vol.
II p. 13. Detective Dague turned around and saw “Anderson sitting with both
legs out of his car without pants on with an erect penis. Stroking it up and
down looking at me, red eyes smiling.” Tr. Vol. II p. 13. Detective Dague was
unable to arrest Anderson because she was with N.H. but did stand behind his
vehicle to record his license plate number. As Detective Dague was doing this,
“all of a sudden the car [revved] and came at [her] at fast speed and [she]
jumped out of the way.” Tr. Vol. II p. 15.
[4] On March 23, 2016, the State charged Anderson with Level 6 felony
dissemination of matter harmful to minors, two counts of Class A misdemeanor
public indecency, Class B misdemeanor public nudity, and Class B
misdemeanor criminal recklessness. The State later added a charge of Level 6
felony conducting a performance harmful to minors. On March 20, 2017, a
bench trial was held. Detective Dague testified that she believed N.H. to be
fourteen years old and later testified that she knew this because N.H. had told
her and from information received from Homeland Security. Anderson
Court of Appeals of Indiana | Memorandum Decision 49A02-1705-CR-976 | December 7, 2017 Page 3 of 7 objected to his testimony on hearsay grounds, which objection the trial court
overruled. Ultimately, the trial court entered judgment against Anderson for
conducting a performance harmful to minors and criminal recklessness. On
April 17, 2017, the trial court sentenced Anderson to 180 days of incarceration
for criminal recklessness and 545 days for conducting a performance harmful to
minors. After taking earned credit time into account, Anderson received a 292-
day sentence, all suspended to probation.
Discussion and Decision Admission of Detective Dague’s Testimony Regarding N.H.’s Age [5] Anderson argues that the trial court abused its discretion in admitting Detective
Dague’s testimony regarding N.H.’s age. In general, the admissibility of
evidence is within the sound discretion of the trial court. Curley v. State, 777
N.E.2d 58, 60 (Ind. Ct. App. 2002), trans. denied. We will reverse a trial court’s
decision on the admissibility of evidence only upon a showing of an abuse of
that discretion. Id. An abuse of discretion may occur if the trial court’s
decision is clearly against the logic and effect of the facts and circumstances
before the court, or if the court has misinterpreted the law. Id. The Court of
Appeals may affirm the trial court’s ruling if it is sustainable on any legal basis
in the record, even though it was not the reason enunciated by the trial court.
Moore v. State, 839 N.E.2d 178, 182 (Ind. Ct. App. 2005), trans. denied. We do
not reweigh the evidence, and consider the evidence most favorable to the trial
Court of Appeals of Indiana | Memorandum Decision 49A02-1705-CR-976 | December 7, 2017 Page 4 of 7 court’s ruling. Hirsey v. State, 852 N.E.2d 1008, 1012 (Ind. Ct. App. 2006),
trans. denied.
[6] Anderson contends that Detective’s Dague’s testimony regarding N.H.’s age is
inadmissible hearsay. The State argues that the record is sufficient to establish
that Detective Dague had personal knowledge of N.H.’s age.
Hearsay is evidence of a statement made out of court that is offered in a judicial proceeding to prove the truth of a fact asserted in the statement. Ind. Evidence Rule 801(c); Timmons v. State (1992), Ind., 584 N.E.2d 1108; McConnell v. State (1984), Ind., 470 N.E.2d 701.… Hearsay is not admissible unless it fits within some exception to the hearsay rule. Evid. R. 802 and 803; Miller v. State (1991), Ind., 575 N.E.2d 272. A trial error in the admission of hearsay evidence warrants remedial action on appeal, where such error caused prejudice to the substantial rights of the defendant. Harvey v. State (1971), 256 Ind. 473, 269 N.E.2d 759. Craig v. State, 630 N.E.2d 207, 209 (Ind. 1994).
[7] We agree with Anderson that Detective Dague’s testimony was inadmissible
hearsay. Although Detective Dague testified that she had personal knowledge
of N.H.’s age, she testified that she knew N.H.’s age because (1) N.H. told her
and (2) Homeland Security verified the information. Put simply, to the extent
that Detective Dague knew N.H.’s age, it was because somebody told her,
which is insufficient to establish personal knowledge. See Ind. Evidence Rule
602 (“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.”).
Court of Appeals of Indiana | Memorandum Decision 49A02-1705-CR-976 | December 7, 2017 Page 5 of 7 Because these out-of-court statements were being used to establish N.H.’s age,
they fit squarely within the definition of hearsay.
[8] The State argues that ruling in Anderson’s favor would provide the basis for
exclusion of evidence of any name, date, or place in any trial. This argument
fails to account for the various hearsay exceptions that might be used to prove a
person’s age, none of which were used here, even assuming such evidence
exists. For example, age could be proved by the admission of a public record of
a vital statistic, Evid. R. 803(9); a record of a religious organization concerning
personal or family history, Evid. R. 803(11); a birth certificate, Evid. R.
803(12); family records, Evid. R. 803(13); or the hearsay exception that it seems
would most often allow a witness to testify regarding her own age, reputation
concerning personal or family history, Evid. R. 803(19). See also Hengstler v.
State, 189 N.E. 623, 627 (Ind. 1934) (“Appellant complains of permitting the
prosecuting witness to testify as to her age upon information from her mother[.]
Such evidence is competent.”). A parent, family member, or friend may also be
in a position to give testimony as to a child’s age. Given the myriad ways in
which age can be proved in court, the State has not convinced us that a ruling in
favor of Anderson would lead to successful challenges to any attempt to do so.
We conclude that Anderson has established that the trial court abused its
discretion in admitting Detective Dague’s testimony regarding N.H.’s age.
Consequently, as the State concedes would be appropriate if Anderson won on
the evidentiary challenge, we remand with instructions to vacate Anderson’s
Court of Appeals of Indiana | Memorandum Decision 49A02-1705-CR-976 | December 7, 2017 Page 6 of 7 conviction and sentence for Level 6 felony conducting a performance harmful
to minors.
[9] We affirm the judgment of the trial court in part, reverse in part, and remand
with instructions.
May, J., and Barnes, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A02-1705-CR-976 | December 7, 2017 Page 7 of 7