MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                           FILED
regarded as precedent or cited before any                                  Dec 10 2019, 10:18 am

court except for the purpose of establishing                                    CLERK
the defense of res judicata, collateral                                     Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court
estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
James Harper                                             Curtis T. Hill, Jr.
Harper & Harper, LLC                                     Attorney General of Indiana
Valparaiso, Indiana
                                                         Evan Matthew Comer
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Timothy Haigh,                                           December 10, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-204
        v.                                               Appeal from the La Porte Circuit
                                                         Court
State of Indiana,                                        The Honorable Thomas Alevizos,
Appellee-Plaintiff.                                      Judge

                                                         Trial Court Cause No.
                                                         46C01-1710-F1-958



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-204 | December 10, 2019                    Page 1 of 10
                                          Case Summary
[1]   Timothy Haigh appeals his convictions for two counts of Level 1 felony child

      molesting and one count of Level 4 felony child molesting. Haigh contends

      that the trial court abused its discretion in admitting (1) an uncertified copy of a

      document purporting to be his driver’s license and (2) repeated references to the

      victim’s initial disclosure of molestation. We affirm.



                            Facts and Procedural History
[2]   Haigh and Joseph H. had been friends since they met at college in 2005. Haigh

      “was a very good friend” who “was basically part of the family.” Tr. Vol. II p.

      64. He served as the best man at Joseph’s wedding to Jennifer, was a “pseudo

      brother” to Joseph, and “a favorite uncle” to Joseph’s and Jennifer’s sons, A.H.

      and M.H. Tr. Vol. II pp. 39, 65. In 2011, Haigh, Joseph, and Jennifer formed

      a business partnership for an audio-visual events company, which regularly

      required Haigh to travel from his home in Chicago to Joseph’s and Jennifer’s

      home in Westville. Haigh stayed at Joseph’s and Jennifer’s home on these

      occasions, which by August of 2017, was typically two or three times per month

      but, depending on business, could be as many as four or five times per month.

      Haigh usually slept on the bottom bunk in M.H.’s bedroom when he stayed

      overnight at the family’s home.


[3]   In late-August of 2017, Joseph’s sister, Cory Quyle, visited the family. Before

      Quyle left for the evening, then-six-year-old M.H. asked Quyle “can I tell you a


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-204 | December 10, 2019   Page 2 of 10
      secret?” Tr. Vol. II p. 36. M.H. then disclosed an allegation of sexual contact

      between him and Haigh. Quyle told Joseph and Jennifer what M.H. had told

      her. Joseph and Jennifer reacted with shock but ultimately decided against

      informing the police because they were concerned about the truthfulness of

      M.H.’s allegations. Given the gravity of the accusation, however, Joseph

      installed a hidden security camera in M.H.’s bedroom to record M.H.’s and

      Haigh’s actions when Haigh stayed with the family. The security camera did

      not record any inappropriate conduct during Haigh’s first two or three visits

      following its installation.


[4]   On September 30, 2017, approximately one month after the camera had been

      installed, Haigh traveled to Westville to help Joseph and Jennifer transfer

      equipment to a new storage unit. That night, Haigh slept on the bottom bunk

      in M.H.’s bedroom. The next day, Joseph reviewed the footage recorded by the

      camera in M.H.’s bedroom and observed inappropriate contact between Haigh

      and M.H. Joseph watched Haigh “undress and touch” M.H. Tr. Vol. II p.

      129. Joseph and Jennifer did not watch the entire recording, but “saw instances

      of caressing and contact.” Tr. Vol. II p. 79. The video was “too distressing” so

      Joseph and Jennifer went for “a little walk” and Joseph called police. Tr. Vol.

      II p. 79.


[5]   Officer Jason Yagelski was dispatched to “a sexual assault case involving a

      minor.” Tr. Vol. II p. 185. When he arrived, he was greeted by Joseph and

      Jennifer who “invited [him] into their residence, and they began to tell [him

      about] the incident that took place.” Tr. Vol. II p. 185. Joseph provided

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-204 | December 10, 2019   Page 3 of 10
      Officer Yagelski with a thumb drive containing the footage recorded by the

      camera in M.H.’s room and with what he attested was “a true and accurate”

      copy of Haigh’s driver’s license, which their business was “required to keep on

      file by the DOT.” Tr. Vol. II p. 140. The copy of Haigh’s driver’s license

      indicated that Haigh’s date of birth was “7/5/86.” Tr. Vol. II p. 142. Officer

      Yagelski also collected M.H.’s sheets and the pajamas that he had worn the

      night before and told Jennifer “that it would be a good idea for [her] to take

      [M.H.] up to see a SANE nurse.” Tr. Vol. II p. 81. Jennifer followed Officer

      Yagelski’s suggestion and took M.H. to the hospital.


[6]   Once they arrived at the hospital, Jennifer indicated that M.H. needed a rape

      kit. Jennifer and M.H. were escorted to a private room and Sexual Assault

      Nurse Examiner Judith Sulok interviewed each separately. Jennifer informed

      Nurse Sulok that she had observed video footage showing “possible penis to

      anus contact. There was touching. There was stroking.” Tr. Vol. II p. 84.

      During her physical examination of M.H., Nurse Sulok observed that there was

      a bruise on the bottom of M.H.’s “rectal area, and then there was a lot of

      redness around the opening of the rectum in the folds, and then the rectum itself

      opens up immediately, which is not usual.” Tr. Vol. II p. 241. When asked to

      demonstrate what may have occurred to him, M.H. “took his penis and he took

      his other hand and he went up and down motion on the penis.” Tr. Vol. II p.

      242. Nurse Sulok’s examination also revealed “little notches” in his rectal area

      suggesting prior abuse. Tr. Vol. II p. 249. Nurse Sulok opined that, given her

      training and experience, her observations of M.H.’s rectal area were consistent


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-204 | December 10, 2019   Page 4 of 10
      with the area coming into contact “with an object the size of a penis” and his

      anus “being penetrated by an object the size of a penis.” Tr. Vol. III p. 2.


[7]   On October 4, 2017, the State charged Haigh with two counts of Level 1 felony

      child molesting and one count of Level 4 felony child molesting. The State

      subsequently added a count of Level 1 felony attempted child molesting.

      Following trial, the jury found Haigh guilty as charged. At sentencing, the trial

      court granted the State’s motion to vacate the conviction for attempted child

      molesting and sentenced Haigh to an aggregate thirty-six-year term.



                                Discussion and Decision
[8]   Haigh contends that the trial court abused its discretion by admitting certain

      evidence at trial.


              Questions regarding the admission of evidence are entrusted to
              the sound discretion of the trial court. Fuqua v. State, 984 N.E.2d
              709, 713–14 (Ind. Ct. App. 2013), trans. denied. Accordingly, we
              review the court’s decision on appeal only for an abuse of that
              discretion. Id. The trial court abuses its discretion only if its
              decision regarding the admission of evidence is clearly against
              the logic and effect of the facts and circumstances before it, or if
              the court has misinterpreted the law. Id.


      Harrison v. State, 32 N.E.3d 240, 250 (Ind. Ct. App. 2015).


              I. Uncertified Copy of Haigh’s Driver’s License
[9]   Haigh argues that the trial court abused its discretion by admitting a copy of his

      driver’s license that was “insufficiently authenticated.” Appellant’s Br. p. 11.
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-204 | December 10, 2019   Page 5 of 10
       Haigh asserts that the State was required to authenticate the copy of his driver’s

       license as a public record under Evidence Rule 902(4). However, review of the

       record reveals that the document was not admitted under Evidence Rule 902(4),

       but rather as a record of a regularly conducted business activity under Evidence

       Rule 803(6).


[10]   Evidence Rule 803 provides as follows:


               The following are not excluded by the rule against hearsay,
               regardless of whether the declarant is available as a witness:
                                               ****
               (6) Records of a Regularly Conducted Activity. A record of an
               act, event, condition, opinion, or diagnosis if:
                      (A) the record was made at or near the time by--or
                      from information transmitted by--someone with
                      knowledge;
                      (B) the record was kept in the course of a regularly
                      conducted activity of a business, organization,
                      occupation, or calling, whether or not for profit;
                      (C) making the record was a regular practice of that
                      activity;
                      (D) all these conditions are shown by the testimony
                      of the custodian or another qualified witness, or by a
                      certification that complies with Rule 902(9) or (10) or
                      with a statute permitting certification; and
                      (E) neither the source of information nor the method
                      or circumstances of preparation indicate a lack of
                      trustworthiness.


[11]   “The business records exception permits records of business activity to be

       admitted in circumstances when the recorded information will be trustworthy.”

       Stahl v. State, 686 N.E.2d 89, 92 (Ind. 1997). “The reliability of business records

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-204 | December 10, 2019   Page 6 of 10
       stems from the fact that the organization depends on them to operate, from the

       sense that they are subject to review, audit, or internal checks, from the

       precision engendered by the repetition, and from the fact that the person

       furnishing the information has a duty to do it correctly.” Id. “‘The fact that the

       business record is prepared by a party independent of the business does not

       negate these factors.’” Embrey v. State, 989 N.E.2d 1260, 1264 (Ind. Ct. App.

       2013) (quoting Williams v. Hittle, 629 N.E.2d 944, 947 (Ind. Ct. App. 1994),

       trans. denied). “The sponsor of an exhibit need not have personally made it,

       filed it, or have firsthand knowledge of the transaction represented by it.”

       Boarman v. State, 509 N.E.2d 177, 181 (Ind. 1987). “The sponsor need only

       show that the exhibit was part of certain records kept in the routine course of

       business and placed in the records by one who was authorized to do so, and

       who had personal knowledge of the transaction represented at the time of

       entry.” Id.


[12]   The record establishes that Joseph, Jennifer, and Haigh owned and operated an

       audio-visual events company. Joseph testified that the company was required

       by the DOT to keep a copy of Haigh’s driver’s license on file. Joseph provided

       the copy to Officer Yagelski. Joseph, an owner of the company and custodian

       of the company’s records, testified that the copy of Haigh’s driver’s license

       provided to Officer Yagelski was a true and accurate copy of Haigh’s driver’s

       license on file with the company. Joseph had the requisite knowledge to

       authenticate the copy of Haigh’s driver’s license under Evidence Rule 803(6).

       Nothing in the record indicates a lack of trustworthiness in the manner in which


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-204 | December 10, 2019   Page 7 of 10
       the copy of Haigh’s driver’s license was stored by the company or in which it

       was handed over to Officer Yagelski. The trial court did not abuse its discretion

       in admitting this document into evidence.


[13]   Moreover, even if the copy of Haigh’s driver’s license should have been

       excluded, its admission was harmless. “The improper admission of evidence is

       harmless error when the conviction is supported by such substantial

       independent evidence of guilt as to satisfy the reviewing court that there is no

       substantial likelihood that the questioned evidence contributed to the

       conviction.” Wickizer v. State, 626 N.E.2d 795, 800 (Ind. 1993). Haigh’s

       driver’s license was admitted as evidence that Haigh was over the age of

       twenty-one when he committed the acts at issue. Joseph and Jennifer both

       testified that they met Haigh in 2005, when all three were in college. The jury

       could reasonably infer from this testimony that if Haigh was in college in 2005,

       he was over the age of twenty-one when he committed the acts in September of

       2017.1


                           II. M.H.’s Out-of-Court Statements
[14]   Haigh also contends that the trial court abused its discretion in allowing Quyle,

       Jennifer, Joseph, and Officer Yagelski to make references to M.H.’s initial




       1
         Haigh also raises an argument that the copy of his driver’s license was admitted in violation of the best
       evidence rule, codified at Indiana Evidence Rule 1002. Haigh has waived appellate review of this argument,
       however, because he did not object to the admission of the evidence on this basis at trial. See Konopasek v.
       State, 946 N.E.2d 23, 27 (Ind. 2011).

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-204 | December 10, 2019                Page 8 of 10
       disclosure of abuse. Haigh acknowledges that because he did not object to this

       testimony at trial, he must establish that admission of the challenged evidence

       amounted to fundamental error. See Halliburton v. State, 1 N.E.3d 670, 678 (Ind.

       2013) (“Failure to object at trial waives the issue for review unless fundamental

       error occurred.”). “The fundamental error doctrine is an exception to the

       general rule that the failure to object at trial constitutes procedural default

       precluding consideration of the issue on appeal.” Id. 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.” Id. “The error claimed must either make a fair trial impossible or

       constitute clearly blatant violations of basic and elementary principles of due

       process.” Id. “This exception is available only in egregious circumstances.” Id.


[15]   The evidence at issue falls far short of blatantly violating the principles of due

       process or making a fair trial impossible. As the State points out, the references

       to M.H.’s initial disclosure of abuse were vague and nondescript. The trial

       court limited the testimony to basic facts establishing the timeline of events.

       The testimony did not provide any details about the substance of M.H.’s

       disclosure, nor did it provide any specific statements that were attributed to

       M.H. The testimony reveals that M.H. disclosed a “secret” to Quyle and Quyle

       shared that secret with Joseph and Jennifer. Tr. Vol. II p. 36. The record does

       not reveal what this “secret” was. The testimony further reveals that Joseph

       and Jennifer were shocked by the secret and, because they were unsure of


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-204 | December 10, 2019   Page 9 of 10
       M.H.’s truthfulness, decided to install a surveillance camera in M.H.’s

       bedroom. Further, although Officer Yagelski indicated that Joseph and

       Jennifer informed him that they were initially made aware of M.H.’s disclosure

       by Quyle and that it involved sexual misconduct by a family friend, his

       testimony came after testimony establishing that Haigh was caught in the act on

       a recording from the camera placed in M.H.’s bedroom. As was the case with

       the others’ testimony, Officer Yagelski’s testimony did not contain any specific

       statements attributed to M.H.


[16]   Given the vague and nondescript nature of the challenged evidence considered

       against the significant independent evidence of Haigh’s guilt, we cannot say

       that the harm or potential for harm from the challenged evidence was so

       substantial that it denied Haigh fundamental due process. Haigh, therefore, has

       failed to prove that the admission of the challenged evidence constituted

       fundamental error.


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


       Vaidik, C.J., and Riley, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-204 | December 10, 2019   Page 10 of 10
