MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be                                  Jul 27 2020, 9:29 am
regarded as precedent or cited before any
                                                                           CLERK
court except for the purpose of establishing                           Indiana Supreme Court
                                                                          Court of Appeals
the defense of res judicata, collateral                                     and Tax Court

estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Bradley Keffer                                           Curtis T. Hill, Jr.
Austin Andreas                                           Attorney General of Indiana
Keffer Hirschauer LLP
Indianapolis, Indiana                                    Jodi Kathryn Stein
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Dakota J. Horn,                                          July 27, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-2575
        v.                                               Appeal from the Tippecanoe
                                                         Superior Court
State of Indiana,                                        The Honorable Randy J. Williams,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         79D01-1801-F2-3



Bradford, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2575| July 27, 2020                   Page 1 of 16
                                          Case Summary
[1]   In May of 2019, Dakota Horn was convicted of Level 2 felony robbery resulting

      in serious bodily injury, Level 3 felony robbery, Level 3 felony criminal

      confinement, Level 3 felony aggravated battery, Level 6 felony conspiracy to

      commit fraud, and Class A misdemeanor theft, and ultimately sentenced to

      thirty-one years with five years suspended to probation. Horn contends that the

      trial court (1) committed fundamental error in admitting the victim’s recorded

      statements to police pursuant to Indiana Evidence Rule 803(5), (2) erroneously

      redacted portions of the victim’s medical records admitted into evidence, and

      (3) erroneously found and/or weighed certain aggravating and mitigating

      factors. Because we disagree, we affirm.



                            Facts and Procedural History
[2]   Between November 24 and 26, 2017, Michial Pardue hired Horn to perform

      work in the basement of his Tippecanoe County residence. On November 26,

      2017, while in the basement, Horn struck Pardue on the right side of his head,

      near the temple, with a ball-peen hammer. After Pardue fell to the floor, Horn

      demanded Pardue’s wallet and mobile telephone, took cash from inside the

      wallet, and tied Pardue’s hands behind his back with an extension cord. Horn

      gave his wife Nicole, who had been waiting in a vehicle in Pardue’s driveway,

      Pardue’s debit card and told her to make a cash withdrawal. Horn threatened to

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2575| July 27, 2020   Page 2 of 16
      hit Pardue again in order to obtain his personal identification number (“PIN”).

      Once Horn obtained the PIN, Nicole drove to a Family Express gas station and

      withdrew a total of $400.00 from an ATM machine using Pardue’s debit card.

      Following the withdrawal, Nicole retrieved Horn from Pardue’s residence, and

      they left. Horn and Nicole would unsuccessfully attempt to withdraw money

      again using Pardue’s debit card, once at an ATM at the Tippecanoe Mall and

      twice in Kokomo.


[3]   Some time later, Pardue used a neighbor’s telephone to call 911 and his bank to

      cancel his debit card. Tippecanoe County Sheriff’s Deputy Jordan Jones arrived

      at Pardue’s residence, and Pardue reported the incident to Deputy Jones and

      showed him where it had occurred. Upon observing Pardue’s head wound,

      Deputy Jones called for medical personnel, who transported Pardue to the

      hospital. Once at the hospital, it was determined that Pardue had sustained a

      depressed fracture to his skull, which required surgery to repair. While at the

      hospital, Pardue spoke to police two different times, both of which

      conversations were recorded.


[4]   During the course of their investigation, law enforcement interviewed Pardue

      twice. Law enforcement also interviewed Nicole and Horn. On November 27,

      2017, law enforcement interviewed Nicole, and she claimed that Pardue and

      Horn had had an altercation after Pardue made sexual advances towards Horn.

      Nicole also stated that Pardue authorized the $400.00 withdrawal to pay Horn

      for his work. On November 29, 2017, during an interview with Detective Ben

      Beutler, Horn claimed that Pardue “bear hugged” him, which resulted in both

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2575| July 27, 2020   Page 3 of 16
      of them falling back into a wall and then onto the ground where Pardue hit the

      back of his head on some lumber. Tr. Vol. III pp. 166–67.1 Horn also claimed

      that Pardue owed him $900.00 for his labor and that he permitted Nicole to

      withdraw $400.00. Horn admitted that he took Pardue’s debit card and mobile

      telephone, subsequently throwing the mobile telephone along the roadside and

      having Nicole throw the debit card in someone’s yard.


[5]   On January 26, 2018, the State charged Horn with Level 2 felony robbery

      resulting in serious bodily injury, Level 2 felony conspiracy to commit robbery

      resulting in serious bodily injury, Level 3 felony robbery, Level 3 felony

      conspiracy to commit robbery, Level 3 felony criminal confinement, Level 3

      felony conspiracy to commit criminal confinement, Level 6 felony conspiracy

      to commit fraud, Level 6 felony theft, and Class A misdemeanor theft. The

      State subsequently added a charge of Level 3 felony aggravated battery. On

      May 1, 2019, because of Pardue’s inability to remember the incident or days

      following it due to his head injury, the State moved to have his recorded

      statements to police admitted at trial pursuant to Indiana Evidence Rule 803(5).

      Prior to trial, a hearing was held regarding the State’s motion, at which the

      State informed the court that since the incident Pardue “had some pretty severe

      memory problems and even watching these videos he doesn’t even remember

      talking to the police about it.” Tr. Vol. II p. 39. Following Pardue’s testimony




      1
       “Tr.” will refer to the transcript prepared for Nicole’s appeal which was transferred to this appeal. Nicole
      and Horn were tried together. “D.H. Tr.” will refer to the sentencing transcript prepared for Horn’s appeal.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2575| July 27, 2020                       Page 4 of 16
      that trial court ruled in limine to admit Pardue’s recorded statements at trial, to

      which Horn did not object, stating, “[Horn] doesn’t have any objection to the

      playing of the tapes or the discs that you have in front of you as long as

      [Pardue] testifies. At this point.” Tr. Vol. II p. 50.


[6]   On May 28 through 31, 2019, a jury trial was held, at which Pardue’s prior-

      recorded statements to police were played for the jury and admitted into

      evidence, without objection.2 During cross-examination, Horn questioned

      Pardue regarding his memory loss as follows:


              [Defense Counsel:] There’s nothing, not one thing that you can
              remember after you’re claiming getting hit with the hammer,
              you’re saying there is nothing about this entire incident that you
              remember.

              [Pardue:] Yes sir.

              [Defense Counsel:] Zero?

              [Pardue:] Zero.


      Tr. Vol. III p. 17. Horn also sought to admit Pardue’s medical records from the

      Veteran’s Administration (“VA”), which the trial court admitted after redacting

      certain portions it determined to be expert opinion. Following the trial, Horn

      was found guilty of Level 2 felony robbery resulting in serious bodily injury,

      Level 3 felony robbery, Level 3 felony criminal confinement, Level 3 felony




      2
       The recorded statements consisted of police body-cam video at the scene, two interviews at the hospital, and
      interviews on November 27 and 30, 2017.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2575| July 27, 2020                    Page 5 of 16
      aggravated battery, Level 6 felony conspiracy to commit fraud, and Class A

      misdemeanor theft. On October 10, 2019, the trial court sentenced Horn to

      nineteen years for his Level 2 felony robbery resulting in serious bodily injury

      conviction, ten years for his Level 3 felony criminal confinement conviction,

      and two years for his Level 6 felony conspiracy to commit fraud conviction.

      The trial court ordered Horn’s sentences to be served consecutively, for an

      aggregate sentence of thirty-one years with five years suspended to probation.

      The trial court also merged Horn’s remaining convictions with his Level 2

      felony robbery conviction.



                                 Discussion and Decision
                            I. Pardue’s Recorded Statements
[7]   Because Pardue testified that he did not remember the interviews with law

      enforcement, Horn contends that the trial court erroneously admitted his

      recorded statements at trial pursuant to Indiana Evidence Rule 803(5). Indiana

      Evidence Rule 803(5) provides the following exception to the hearsay rule:


              (5) Recorded Recollection. A record that:

              (A) is on a matter the witness once knew about but now cannot
              recall well enough to testify fully and accurately;

              (B) was made or adopted by the witness when the matter was
              fresh in the witness’s memory; and

              (C) accurately reflects the witness’s knowledge.



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2575| July 27, 2020   Page 6 of 16
              If admitted, the record may be read into evidence but may be
              received as an exhibit only if offered by an adverse party.


      The State argues that because Pardue testified at the pretrial hearing that each

      of the recorded statements correctly reflected his prior knowledge of the events,

      he properly vouched for the veracity of these statements as required under

      Indiana Evidence Rule 803(5). In Ballard v. State, we noted that


              [b]efore a statement can be admitted under the recorded
              recollection hearsay exception, certain foundational requirements
              must be met, including some acknowledgment that the statement
              was accurate when it was made. Williams v. State, 698 N.E.2d
              848, 850 n.4 (Ind. Ct. App. 1998), trans. denied. A trial court
              should not admit a witness’s statement into evidence when the
              witness cannot vouch for the accuracy of the statement nor
              remember having made the statement. See Kubsch v. State, 866
              N.E.2d 726, 735 (Ind. 2007) (trial court correctly denied
              introduction of witness statement when witness could not vouch
              for statement she could not even remember making).


      877 N.E.2d 860, 862 (Ind. Ct. App. 2007).


[8]   The State’s argument, however, ignores the fact that Pardue has no recollection

      of making these statements to police. At the pretrial hearing, the State informed

      the trial court that “even watching these videos [Pardue] doesn’t even

      remember talking to the police about it.” Tr. Vol. II p. 39. Pardue also testified

      that “I don’t remember any thing [sic] on these tapes. I just recall talking about,

      talking about the events that happened to people, like my daughter and family

      members.” Tr. Vol. II p. 48. It runs contrary to logic that a person could vouch


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2575| July 27, 2020   Page 7 of 16
       for the accuracy of his prior statements to police when he has no recollection of

       making them. Therefore, Pardue’s statements were not admissible pursuant to

       Indiana Evidence Rule 803(5).


[9]    Although we conclude that Pardue’s recorded statements were inadmissible

       pursuant to Indiana Evidence Rule 803(5), Horn failed to object to the

       admission of the statements at trial; therefore, his contention is limited only to

       review for fundamental error.


               The fundamental error exception permits an appellate court to
               review a claim that has been waived by a defendant’s failure to
               raise a contemporaneous objection. Fundamental error is defined
               as an error so prejudicial to the rights of a defendant that a fair
               trial is rendered impossible. The fundamental error exception is
               extremely narrow, and applies only when the error constitutes a
               blatant violation of basic principles, the harm or potential for
               harm is substantial, and the resulting error denies the defendant
               fundamental due process.


       Benefield v. State, 945 N.E.2d 791, 801 (Ind. Ct. App. 2011).


[10]   We conclude that the error was not so fundamental that it rendered a fair trial

       impossible. While Pardue’s recorded statements provide more detail regarding

       the attack, they are merely consistent with myriad other evidence that was

       available to the factfinder tending to show Horn’s guilt. First, Pardue testified,

       based on his own memory, to the circumstances leading up to the attack.

       Pardue recalled Horn working the two days prior to the attack, paying him

       $200.00 each day for the work, and Horn being physically present at the

       residence at the time of the attack. Moreover, there is no dispute that Pardue

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2575| July 27, 2020   Page 8 of 16
       suffered a significant skull fracture, and Dr. Mark Estes testified that the type of

       wound Pardue sustained would be consistent with having come from a

       hammer. The Indiana University Health records stated that Pardue was brought

       to the emergency room “after having been struck in the head with a ball-peen

       hammer. The patient reportedly had hired someone to help him with some

       work around the house. He was struck in head with a hammer and was

       robbed.” Ex. p. 88.


[11]   While Horn claimed that Pardue was injured during a fall that occurred after

       Pardue tried to sexually assault him, the jury was not required to believe Horn’s

       version of the events and did not. Further, Horn admitted to taking Pardue’s

       debit card and mobile telephone. Pardue’s wallet, minus the debit card and

       cash, and mobile telephone were both ultimately recovered along the roadside.

       Last, the jury saw bank records and screenshot images of surveillance video

       tending to establish that Nicole successfully withdrew $400.00 from an ATM

       and unsuccessfully attempted to withdraw $200.00 at an ATM at Tippecanoe

       Mall and $400.00 and $200.00 in Kokomo, all with Pardue’s debit card.

       Because the jury heard and saw more than enough evidence to sustain Horn’s

       convictions beyond Pardue’s statements to police, Horn has failed to establish

       that fundamental error occurred.3




       3
        Because we conclude that there was no fundamental error, we need not address Horn’s contention that the
       recorded statements should have only been read into the record and not played for the jury pursuant to
       Indiana Evidence Rule 803(5).

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2575| July 27, 2020                 Page 9 of 16
                                    II. Redacted VA Records
[12]   Horn contends that the trial court erred by redacting portions of Pardue’s VA

       medical records. “We review a trial court’s decision to admit or exclude

       evidence for an abuse of discretion.” Baker v. State, 997 N.E.2d 67, 70 (Ind. Ct.

       App. 2013). “An abuse of discretion occurs if a trial court’s decision is clearly

       against the logic and effect of the facts and circumstances before the court.” Id.

       Specifically, Horn claims that the trial court improperly redacted page seventy-

       two of the VA medical records as follows:


               IMPRESSIONS & RECOMMENDATIONS:

               The patient complained about and demonstrated memory
               problems before sustaining a head injury on 11/26/17. On
               12/1/17, he reported no retrograde amnesia. Now, he reports an
               unusually long period retrograde amnesia and significantly
               shorter period of anterograde amnesia. The inconsistency in his
               report and a relatively longer retrograde vs. anterograde amnesia are both
               unusual symptoms after the severity of trauma experienced.

               His low scores on PVTS were suggestive of inadequate effort, i.e., at a
               level at which accurate assessment of his ability could not be
               obtained. If the scores on the PVTs were reflective of his true ability, he
               would likely have much more significant difficulty with daily functioning
               than is reported.

               His scores on a personality inventory were suggestive of significant under-
               reporting of psychological and behavioral issues, i.e., issues that are
               typically acknowledged by people both with and without psychiatric
               conditions.

               Without valid testing results, no diagnosis or recommendations
               can be offered. Taken together, these results raise the question about


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2575| July 27, 2020     Page 10 of 16
               whether the patient is trying to appear as if cognitive problems exist and
               psychiatric symptoms do not exist.

       State’s Ex. 15R, Def. Ex. E. (italicized words redacted at trial).


[13]   In Schloot v. Guinevere Real Estate Corp., 697 N.E.2d 1273, 1277 (Ind. Ct. App.

       1998), we addressed the admissibility of medical records pursuant to Indiana

       Evidence Rule 803(6), concluding as follows:


               [H]ospital records may not be excluded as hearsay simply
               because they include opinions or diagnoses. But, and it is a
               substantial but, for medical opinions and diagnoses to be
               admitted into evidence, they must meet the requirements for
               expert opinions set forth in Evid. R. 702.


       Indiana Evidence Rule 702 requires the following:


               (a) A witness who is qualified as an expert by knowledge, skill,
               experience, training, or education may testify in the form of an
               opinion or otherwise if the expert’s scientific, technical, or other
               specialized knowledge will help the trier of fact to understand the
               evidence or to determine a fact in issue.

               (b) Expert scientific testimony is admissible only if the court is
               satisfied that the expert testimony rests upon reliable scientific
               principles.


       For a witness to be qualified as an expert, two requirements must be met.

       Schaefer v. State, 750 N.E.2d 787, 793 (Ind. Ct. App. 2001). “First, the subject

       matter must be distinctly related to some scientific field, business, or profession

       beyond the knowledge of the average person.” Id. “Second, the witness must



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2575| July 27, 2020     Page 11 of 16
       have sufficient skill, knowledge, or experience in that area so that the opinion

       will aid the trier of fact.” Id.


               Once the foundational requirements have been satisfied and the
               opinion elicited, the expert witness is subject to the hallmark of
               our adversarial system—cross-examination. The strengths and
               weaknesses of the expert’s opinion may be questioned against the
               facts, its conclusiveness or lack thereof may be explored, and any
               lack of certitude may be fully revealed to the finder of fact. The
               finder of fact is entitled to weigh and determine the credibility to
               be accorded the expert’s opinion based on the evidence
               presented, including the extent of the witness’s experience and
               expertise, the reliability of the analytical methods employed, and
               the degree of certitude with which the opinion is cast.


       Id. at 794–95 (cleaned up). See also Schloot, 697 N.E.2d at 1277 (noting that

       “expressions of opinion within medical or hospital records historically have not

       been admissible under the business records exception because their accuracy

       cannot be evaluated without the safeguard of cross-examination of the person

       offering the opinion.”).


[14]   Because Dr. Jay Summers did not testify at trial, we conclude that the trial

       court was well within its discretion to redact his opinions regarding Pardue’s

       health in Pardue’s VA medical records. Without Dr. Summers testifying, the

       proper foundation for expert opinion evidence contained in medical records

       was not laid, i.e., area of practice, years of practice, credentials, etc. Moreover,

       had Dr. Summers’s opinions remained unredacted, it would have deprived the




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2575| July 27, 2020   Page 12 of 16
       State the opportunity to cross-examine him regarding his opinions or to

       determine the trustworthiness of his opinions.


[15]   Horn directs our attention to Chambers v. Mississippi, 410 U.S. 284 (1973), to

       argue that the Indiana Rules of Evidence were “mechanistically” applied in this

       case, effectively denying him due process. Chambers, however, is distinguishable

       and does not take Horn where he needs to go. In Chambers, the Supreme Court

       held that “the exclusion of third-party confessions may constitute a reversible

       due process violation if the hearsay statements are characterized by ‘persuasive

       assurances of trustworthiness.’” Saintignon v. State, 118 N.E.3d 778, 787 (Ind.

       Ct. App. 2019) (quoting Chambers, 410 U.S. at 300–02). While the Court

       concluded that the trial court’s decision to deny the admission of third-party

       confessions based on state evidentiary rules denied Chambers a fair trial, it

       made clear that its decision was narrowly confined to that particular case,

       noting, “Nor does our holding signal any diminution in the respect traditionally

       accorded to the States in the establishment and implementation of their own

       criminal trial rules and procedures. Rather, we hold quite simply that under the

       facts and circumstances of this case the rulings of the trial court deprived

       Chambers of a fair trial.” Chambers, 480 U.S. at 302–03. The present matter

       involves expert opinion evidence rather than third-party confessions. Moreover,

       Horn fails to support his argument with any Indiana precedent applying the

       Chambers decision in cases where expert opinion evidence is at issue, and our

       research reveals none. Horn has failed to establish that the trial court erred in

       this regard.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2575| July 27, 2020   Page 13 of 16
                       III. Aggravating and Mitigating Factors
[16]   So long as the sentence imposed by the trial court is within the statutory range,

       we review it only for an abuse of discretion. Reyes v. State, 909 N.E.2d 1124,

       1127 (Ind. Ct. App. 2009). “An abuse of discretion occurs if the decision is

       clearly against the logic and effect of the facts and circumstances before the

       court, or the reasonable, probable, and actual deductions to be drawn

       therefrom.” Id. A trial court may abuse its discretion by (1) failing to enter a

       sentencing statement; (2) entering a sentencing statement that explains reasons

       for imposing a sentence, including mitigating and aggravating factors, which

       are not supported by the record; or (3) citing reasons that are contrary to law.

       Id.


                                          A. Position of Trust
[17]   Because Horn and Pardue had only a casual business relationship, Horn

       contends that the trial court erred by finding a position of trust as an

       aggravating factor. Even assuming that the trial court erred in this regard, we

       need not remand for resentencing because we are confident that the trial court

       would have imposed the same slightly-enhanced sentence given the other

       aggravating factors it found at sentencing, i.e., criminal history and the harm

       and injury inflicted on the victim were greater than required to satisfy the

       statutory elements of the crimes, which Horn does not challenge. See Kayser v.

       State, 131 N.E.3d 717, 723 (Ind. Ct. App. 2019) (finding that even without

       considering an aggravating factor, it is unnecessary to remand for resentencing

       because we are confident that the trial court would have imposed the same
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2575| July 27, 2020   Page 14 of 16
       sentence given defendant’s criminal history, which was unchallenged), see also

       Gleason v. State, 965 N.E.2d 702, 712 (Ind. Ct. App. 2012) (“One valid

       aggravator alone is enough to enhance a sentence or to impose it consecutive to

       another.”).4


                                                 B. Restitution
[18]   Horn contends that because the trial court found his willingness to pay

       restitution as a mitigating factor after imposing his sentence, it erred by failing

       to resentence him. At the sentencing hearing, following the imposition of

       Horn’s sentence, the trial court stated, “I think I need to add as a mitigator that

       there has been a willingness shown to pay the restitution in this cause, my

       apologies I should have brought that up earlier,” but chose not to change

       Horn’s sentence. D.H. Tr. Vol. II p. 53. Although the trial court did find that

       Horn’s willingness to pay restitution was a mitigating factor, it appears by its

       decision not to change Horn’s sentence that the trial court afforded this

       mitigating factor little to no weight, which it was entitled to do. See Singer v.

       State, 674 N.E.2d 11, 17–18 (Ind. Ct. App. 1996) (“It is well settled, however,

       that a sentencing court is not required to find the existence of mitigating

       circumstances nor to give mitigating circumstances the same weight as the




       4
        The advisory sentence for a Level 2, Level 3, and Level 6 felony convictions is seventeen and one-half years,
       nine years, and one year, respectively. Ind. Code § 35-50-2-4.5, 5, 7. Horn’s sentence was only slightly
       enhanced above the advisory.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2575| July 27, 2020                    Page 15 of 16
       defendant gives them.”). Horn has failed to establish that the trial court abused

       its discretion in this regard.


[19]   The judgment of the trial court is affirmed.


       Baker, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2575| July 27, 2020   Page 16 of 16
