MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                          May 15 2015, 8:33 am
Memorandum Decision shall not be regarded as
precedent or cited before any 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
Marielena Duerring                                       Gregory F. Zoeller
South Bend, Indiana                                      Attorney General of Indiana
                                                         Jodi Kathryn Stein
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Terry W. Waugh, Jr.,                                    May 15, 2015

Appellant-Defendant,                                    Court of Appeals Case No.
                                                        71A03-1408-CR-312
        v.                                              Appeal from the St. Joseph Superior
                                                        Court

State of Indiana,                                       Honorable Jerome Frese, Judge
                                                        Cause No. 71D03-0507-FA-43
Appellee-Plaintiff




Friedlander, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A03-1408-CR-312 | May 15, 2015          Page 1 of 15
[1]   Terry W. Waugh, Jr., appeals his conviction for three counts of Child

      Molesting, one as a class A felony and two as class C felonies.1 He presents the

      following restated issues for review:

               1.       Did the trial court abuse its discretion by admitting certain
                        evidence over Waugh’s objection based on Indiana Evidence
                        Rule 403?
               2.       Was DNA evidence admitted without the State establishing a
                        proper chain of custody?
               3.       Is Waugh’s sixty-six-year sentence inappropriate in light of his
                        character and the nature of his offenses?
[2]   We affirm.

[3]   In 1997, Scott Waugh (Scott) began dating B.D.’s mother (Mother) and shortly

      thereafter moved into their residence in South Bend. B.D. was about four years

      old at the time. Scott’s younger brother, Waugh, is about ten years older than

      B.D., and he began essentially living with them2 after a couple years. Waugh

      and B.D. had a good, sibling-type relationship for a number of years.

[4]   Waugh began visiting B.D. in her bedroom in 2003 when B.D. was in fifth

      grade. He expressed jealousy over B.D.’s fifth-grade boyfriend, and he stayed

      up late talking with her. After several nights of conversation, Waugh became




      1
        The version of the statute in effect at the time the offenses were committed classified the charged offenses as
      class A and C felonies. Ind. Code Ann. § 35-42-4-3 (West, Westlaw 2013). This statute has been revised and
      in its current form reclassifies the offenses as Level 1 and 4 felonies. See I.C. § 35-42-4-3 (West, Westlaw
      current with P.L.1-2015 to P.L. 60-2015 of the 2015 First Regular Session of the 119th General Assembly with
      effective dates through April 23, 2015).
      2
       Waugh slept on the couch, as he did not have his own bedroom. Scott and Mother shared an upstairs
      bedroom, and B.D. had her own upstairs bedroom.

      Court of Appeals of Indiana | Memorandum Decision 71A03-1408-CR-312 | May 15, 2015                  Page 2 of 15
      physical with B.D. He would fondle her breasts and her vagina, perform oral

      sex on her, masturbate himself, and occasionally ejaculate on her. These

      actions occurred on a nearly nightly basis through the end of B.D.’s sixth-grade

      year. During this period, Waugh “would say things about how he loved [B.D.]

      and how the first time [she] had sex would be with him”. Transcript at 91.

      There were times that Waugh would “get really down” and indicate to ten- or

      eleven-year-old B.D. that he was going to kill himself. Id. at 92.


[5]   On or about May 8, 2005, Waugh last performed oral sex on B.D., and he

      ejaculated onto her clothing. Waugh was twenty-one years old at this time, and

      B.D. was eleven years old. The next night when Waugh came to her bedroom,

      B.D. informed him that she had a rash on her vaginal area. Waugh had a cold

      sore on his mouth at the time and asked to see the rash. After looking at it,

      Waugh told B.D. it was fine.

[6]   On May 10, 2005, B.D. went to the school nurse regarding her itchy and

      burning rash. Based on her symptoms, the nurse indicated that it might be a

      yeast infection. B.D. went home and told Mother, who then looked at the area

      and observed “bumpy blisters”. Id. at 32. Over-the-counter medicine did not

      relieve the pain, so Mother made an appointment for B.D. at MedPoint.

[7]   The next day, May 11, B.D.’s grandmother took the child to the appointment.

      Dr. Gary Sunada diagnosed B.D. with herpes simplex type one (HSV-1).

      Because B.D. had intact blisters and lesions on her labia, Dr. Sunada believed

      this suggested early onset HSV-1. He testified that HSV-1 is very


      Court of Appeals of Indiana | Memorandum Decision 71A03-1408-CR-312 | May 15, 2015   Page 3 of 15
       communicable and is typically transmitted by direct contact with an open cold

       sore.3 Specifically, Dr. Sunada testified that HSV-1 can be transmitted from the

       lip area to the genital area through direct contact.


[8]    After being informed that she had genital herpes and the doctor explaining how

       it was transmitted, B.D. “almost passed out” during the appointment. Id. at 84.

       Immediately thereafter, B.D. asked her grandmother to go into the restroom

       with her. Once inside the restroom, B.D. began crying and informed her

       grandmother of Waugh’s abuse. B.D.’s grandmother called Mother from the

       car, who in turn called the police.

[9]    During the investigation, police recovered pajama pants and a shirt matching

       the description of the clothing B.D. wore during her last sexual encounter with

       Waugh. DNA testing of the “non-sperm and sperm fractions of the cuttings

       from the pants” matched Waugh’s DNA profile. Id. at 254. The investigation

       also revealed that Waugh had admitted to Scott that while there was no

       intercourse, “there was some inappropriate touching and kissing between him

       and [B.D.] and that involved private parts.” Id. at 273.


[10]   On July 14, 2005, the State charged Waugh with four counts of child molesting:

       Count I and II as class C felonies, Count III as a class A felony, and Count IV

       as a class B felony. After a number of continuances, Waugh’s jury trial was




       3
         Dr. Sunada explained the difference between HSV-1 and HSV-2. According to the doctor, while it can be
       transmitted to other areas of the body, HSV-1 is usually present on the lips and it is the most common cause
       of cold sores. Further, he testified that HSV-2 is “the usual cause of genital herpes.” Id. at 334.

       Court of Appeals of Indiana | Memorandum Decision 71A03-1408-CR-312 | May 15, 2015               Page 4 of 15
       scheduled for January 16, 2007. Waugh appeared for a pretrial hearing in

       December 2006 but failed to appear for a scheduled hearing on January 5, 2007.

       The trial court issued a bench warrant and vacated the trial date. Waugh

       remained at large for nearly seven years, finally being captured by federal

       marshals at a motel in Angola, Indiana, on November 16, 2013.

[11]   Waugh’s jury trial commenced in July 2014, nine years after he was charged.

       B.D., who was twenty-one years old by that time and a senior in college,

       testified against Waugh. The jury found Waugh guilty of Counts I-III and not

       guilty of Count IV. The trial court sentenced Waugh to consecutive eight-year

       sentences for the two class C felonies and a consecutive fifty-year sentence for

       the class A felony. This resulted in an aggregate term of sixty-six years in

       prison, the maximum sentence he could receive. Waugh now appeals.

       Additional facts will be presented below as needed.

                                                        1.

[12]   Waugh contends that the trial court abused its discretion when it allowed Dr.

       Sunada to testify regarding B.D.’s herpes diagnosis. He claims that admission

       of this evidence violated Indiana Evidence Rule 403 because any probative

       value was outweighed by the prejudicial impact.

[13]   A trial court’s ruling on the admissibility of evidence is reviewed for an abuse of

       discretion. Blount v. State, 22 N.E.3d 559 (Ind. 2014). Accordingly, we will

       reverse only where the decision is clearly against the logic and effect of the facts

       and circumstances before the court or the trial court misinterpreted the law. Id.

       Court of Appeals of Indiana | Memorandum Decision 71A03-1408-CR-312 | May 15, 2015   Page 5 of 15
       Further, “[e]rrors in the admission of evidence are to be disregarded as harmless

       unless they affect the substantial rights of the defendant.” Goudy v. State, 689

       N.E.2d 686, 694 (Ind. 1997). “[A]n error in the admission of evidence is

       harmless if the erroneously admitted evidence is cumulative of other evidence

       appropriately admitted.” Collins v. State, 826 N.E.2d 671, 679 (Ind. Ct. App

       2005), trans. denied.


[14]   Evid. R. 403 provides that relevant evidence may be excluded if its probative

       value is substantially outweighed by, among other things, a danger of unfair

       prejudice. “Evaluation of whether the probative value of an evidentiary matter

       is substantially outweighed by the danger of unfair prejudice is a discretionary

       task best performed by the trial court.” Bryant v. State, 984 N.E.2d 240, 249

       (Ind. Ct. App. 2013), trans. denied.


[15]   Waugh claims that the probative value of the evidence was low because the

       State failed to establish that he was a carrier of the HSV-1 virus. Further, he

       asserts that this virus is “extremely common and can be found in children

       without there ever being any form of sexual contact.” Appellant’s Brief at 9.


[16]   B.D. testified that she knew what a cold sore was and that it “developed on the

       mouth” but that she did not know, prior to her diagnosis, that a cold sore was

       related to herpes. Transcript at 120. D.B. further testified that, while she had

       observed cold sores on Waugh before her diagnosis, she had never had any cold sores

       on her mouth prior to that time. In fact, when Waugh learned of the rash, D.B.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1408-CR-312 | May 15, 2015   Page 6 of 15
       testified that he looked at it “to make sure that it didn’t look like the cold sore

       that he had.” Id. at 83.


[17]   Contrary to Waugh’s assertions, the State presented evidence that Waugh had

       cold sores at the time that he was alleged to have performed oral sex on the

       child. Accordingly, there was a substantial likelihood that he carried the HSV-1

       virus. While HSV-1 is highly transmittable even without sexual contact, in this

       case, the child’s HSV-1 was located on her vaginal area rather than her mouth.

       Dr. Sunada explained that such transmission would typically occur via direct

       contact from the lip area of the infected person to the genital area.

[18]   In light of evidence linking Waugh to HSV-1, the trial court did not abuse its

       discretion by allowing Dr. Sunada to testify regarding B.D.’s HSV-1 diagnosis.

       Moreover, any error in the evidence’s admission would have been harmless

       because it was cumulative of B.D.’s testimony. Prior to the doctor’s testimony,

       B.D. testified regarding her appointment and diagnosis. She testified, without

       objection from Waugh, that the doctor told her she had genital herpes, which

       he explained was “transmitted through oral sex or vaginal sex.” Id. at 84. She

       later indicated, “the doctor explained to me that it was a sexually transmitted

       disease.” Id. at 120.


                                                        2.


[19]   Waugh also challenges the admission of the DNA results indicating that his

       DNA was found on B.D.’s pajama pants. He claims the State failed to establish

       an adequate chain of custody.

       Court of Appeals of Indiana | Memorandum Decision 71A03-1408-CR-312 | May 15, 2015   Page 7 of 15
[20]           It is well established in Indiana that an exhibit is admissible if the
               evidence regarding its chain of custody strongly suggests the exact
               whereabouts of the evidence at all times. That is, in substantiating a
               chain of custody, the State must give reasonable assurances that the
               property passed through various hands in an undisturbed condition.
               We have also held that the State need not establish a perfect chain of
               custody whereby any gaps go to the weight of the evidence and not to
               admissibility.
       Culver v. State, 727 N.E.2d 1062, 1067 (Ind. 2000) (citations omitted). Further,

       “[t]o mount a successful challenge to the chain of custody, one must present

       evidence that does more than raise a mere possibility that the evidence may

       have been tampered with.” Troxell v. State, 778 N.E.2d 811, 814 (Ind. 2002).


[21]   The record establishes that on May 11, 2005, South Bend Police Officer Anne

       Hayes collected from B.D.’s bedroom, among other things, the T-shirt and

       pajama pants that B.D. reportedly had worn during the last molestation.

       Officer Hayes testified that she placed these items of clothing in an evidence

       bag, which she then sealed, tagged, and placed in a locked evidence room

       pursuant to standard procedure. Thereafter, on June 23, Detective Ken

       Kahlenbeck met Waugh for a blood draw, the results of which were properly

       sealed in an Indiana State Police (ISP) collection kit and then stored in a secure

       location in the South Bend Police Department until taken to the ISP Laboratory

       for analysis.

[22]   The parties entered into the following stipulation at trial regarding this

       evidence:

               On July 13, 2005, Officer Betsey Culp of the South Bend Police
               Department delivered the sealed [ISP] collection kit containing the

       Court of Appeals of Indiana | Memorandum Decision 71A03-1408-CR-312 | May 15, 2015   Page 8 of 15
               blood drawn from Terry Waugh, Jr., at the South Bend Medical
               Foundation on June 23, 2005, and the sealed evidence bag containing
               pajama pants and a white shirt collected on May 11, 2005, by [Officer
               Hayes] from [B.D.’s bedroom] from their secure storage locations at
               the South Bend Police Department to the [ISP] Laboratory in
               Indianapolis for analysis.
       Transcript at 191-92.


[23]   Julie Mauer, a forensic biologist at the ISP Laboratory testified the lab received

       Item 01 (the sealed collection kit taken from Waugh) and Item 02 (the sealed

       evidence bag containing pajama pants and a shirt from B.D.) and assigned the

       ISP case number 05L1295. Maurer testified that Item 01 was “seal marked

       KK” and Item 02 was “[s]eal marked AH459.”4 Id. at 206. Mauer completed a

       serology examination of the items on September 8, 2005.

[24]   With respect to Item 01, Mauer noted that the collection kit was “signature

       sealed with red evidence tape” and marked “Terry Wayne Waugh, Jr. The

       date/time collected was 06-23-05 at 1619”. Id. at 208. Mauer then made a

       stain card with the blood sample and labeled it with the item number 1A1,

       along with her initials and the ISP case number. After it was dry, Mauer placed

       the stain card into an envelope and then another envelope with a unique ISP

       bar code. Both envelopes were marked with the case number, item number,

       and her initials.




       4
         We observe that the initials of the officers who collected Item 01 and Item 02 were K.K. and A.H.,
       respectively.

       Court of Appeals of Indiana | Memorandum Decision 71A03-1408-CR-312 | May 15, 2015               Page 9 of 15
[25]   Regarding Item 02, Mauer testified that it was a brown paper bag signature

       sealed with clear packing tape. The outer markings on the bag indicated

       “purple pajama pants with Cinderella and white shirt with red, white, and blue

       Raggedy Ann.” Id. at 210. Mauer indicated that two items were found inside

       the bag, purple pants that Mauer labeled 2A and a T-shirt that she labeled 2B.

       Mauer examined each item for stains and took cuttings. The cuttings from the

       pants were placed in an envelope labeled 2A1, and the cuttings from the shirt

       were placed in an envelope labeled 2B1. Mauer testified that she then placed

       envelopes 2A1, 2B1 and 1A1 all together in a larger envelope (with the unique

       ISP bar code, Mauer’s initials, and the ISP case number) and returned them to

       the ISP evidence clerk.

[26]   In December 2005, the large envelope containing 2A1, 2B1 and 1A1 was sent

       to Orchid Cellmark, a private DNA laboratory in Nashville, Tennessee. Sarah

       Walker, a DNA analyst for Orchid Cellmark, testified that evidence is generally

       received by an overnight courier such as FedEx and is placed in a secure

       evidence locker by the forensic supervisor. Walker testified that she examined

       the evidence related to Waugh’s case in June 2006 and that upon her receipt of

       the evidence envelope, she noted it was sealed with no signs of damage or

       tampering. Referring to her case file, Walker specifically testified that the

       envelope contained ISP item 1A1 (a stain card made Terry Waugh’s blood

       standard), item 2A1 (cuttings from B.D.’s pants), and item 2B1 (cuttings from

       B.D.’s T-shirt).




       Court of Appeals of Indiana | Memorandum Decision 71A03-1408-CR-312 | May 15, 2015   Page 10 of 15
[27]   When Walker was asked about the results of her analysis, Waugh objected

       based on chain of custody. He claimed there was a lack of evidence

       establishing how the evidence was transported from the ISP Laboratory to

       Orchid Cellmark. Further, Waugh indicated that the physical evidence had not

       been admitted and, thus, Walker and Mauer could not specifically identify it by

       signature, case number, or laboratory number.

[28]   Following Waugh’s objection, the State asked Walker: “when you received the

       batch of evidence and it was assigned to you, was there an Indiana State Police

       Lab number on that batch of evidence?” Id. at 245. Walker responded

       affirmatively and then stated, “ISP Laboratory case number, 05L1295.” Id. at

       247. Walker further indicated that the paperwork sent from ISP included an

       itemized receipt specifically documenting the contents of the envelope and

       referencing Waugh and B.D.

[29]   Upon this additional testimony, the trial court overruled Waugh’s objection.

       Walker then proceeded to testify that the “DNA results obtained from the non-

       sperm and sperm fractions of the cutting taken from the pants of [B.D.] are

       consistent with the DNA profile obtained from the stain card made from the

       purple top blood standard of Terry Wayne Waugh, Jr., item 1A1.”5 Id at 254.


[30]   We conclude that the State presented sufficient chain-of-custody evidence with

       respect to the pajama pants, Waugh’s blood sample, and items 1A1 and 2A1.



       5
           Walker did not test the cutting from B.D.’s shirt, item 2B1.


       Court of Appeals of Indiana | Memorandum Decision 71A03-1408-CR-312 | May 15, 2015   Page 11 of 15
       Though there are small gaps, the evidence strongly suggests the whereabouts of

       this evidence at all times and that the evidence passed through various hands in

       a sealed and undisturbed condition. In particular, Mauer and Walker testified

       that the evidence came into their possession in a sealed condition, and they

       both referenced the ISP case number 05L1295, the related item numbers, and

       the description of the evidence being tested. Further, during her testimony,

       Walker referenced the paperwork sent from ISP that included an itemized

       receipt documenting the specific contents of the envelope and directly

       referencing Waugh and B.D. See Filice v. State, 886 N.E.2d 24, 35 (Ind. Ct.

       App. 2008) (“[w]hile there is no evidence in the record regarding specific details

       of the sample’s custody at Mid-America, Dr. Evans testified that AIT received

       the sealed sample with a ‘Bill of Lading that identifies each specimen’”), trans.

       denied.


[31]   The State adequately established that the DNA evidence analyzed by Walker

       came from B.D.’s pajama pants and Waugh’s blood sample. The trial court,

       therefore, did not abuse its discretion by allowing Walker to testify regarding

       the DNA results.

                                                        3.

[32]   Finally, Waugh argues his sentence is inappropriate. Indiana Appellate Rule

       7(B) gives appellate courts the authority to revise a defendant’s sentence if,

       “after due consideration of the trial court’s decision, the Court finds that the

       sentence is inappropriate in light of the nature of the offense and the character


       Court of Appeals of Indiana | Memorandum Decision 71A03-1408-CR-312 | May 15, 2015   Page 12 of 15
       of the offender.” Because sentencing is principally a discretionary function, we

       give the trial court’s judgment considerable deference. Cardwell v. State, 895

       N.E.2d 1219 (Ind. 2008). Our inquiry focuses on the aggregate sentence, rather

       than the number of counts, length of the sentence on any individual count, or

       whether sentences are concurrent or consecutive. See Brown v. State, 10 N.E.3d

       1 (Ind. 2014). It is the defendant’s burden to persuade us that the sentence is

       inappropriate. Childress v. State, 848 N.E.2d 1073 (Ind. 2006).


[33]   In this case, the trial court imposed the maximum sentence on each of the three

       counts and ordered them to be served consecutively.6 This resulted in an

       aggregate sentence of sixty-six years in prison. Maximum sentences are

       generally appropriate for the worst offenders. Harris v. State, 897 N.E.2d 927

       (Ind. 2008). “This is not, however, a guideline to determine whether a worse

       offender could be imagined. Despite the nature of any particular offense and

       offender, it will always be possible to identify or hypothesize a significantly

       more despicable scenario.” Id. at 929-30 (quoting Buchanan v. State, 767 N.E.2d

       967, 973 (Ind. 2002)).

[34]   We turn first to the nature of Waugh’s offenses. The evidence establishes that

       after a period of grooming, Waugh systematically abused B.D. on a nearly




       6
         The sentencing range for a class A felony is twenty to fifty years. Ind. Code Ann. § 35-50-2-4(a) ((West,
       Westlaw current with P.L.1-2015 to P.L. 60-2015 of the 2015 First Regular Session of the 119th General
       Assembly with effective dates through April 23, 2015). The sentencing range for a class C felony is two to
       eight years. I.C. § 35-50-2-6(a) (West, Westlaw current with P.L.1-2015 to P.L. 60-2015 of the 2015 First
       Regular Session of the 119th General Assembly with effective dates through April 23, 2015).

       Court of Appeals of Indiana | Memorandum Decision 71A03-1408-CR-312 | May 15, 2015               Page 13 of 15
       nightly basis for approximately two years, while she was ten and eleven years

       old.7 In addition to repeatedly fondling and performing oral sex on the girl who

       was like a sister to him, Waugh often ejaculated on her, including at least once

       on her face. Waugh informed the child that the first time she had sexual

       intercourse would be with him, and he expressed jealousy over a fifth-grade boy

       she liked. Waugh also threatened D.B. on a number of occasions that he would

       kill himself, which frightened the child into keeping quiet. D.B. finally reported

       the abuse after being diagnosed with HSV-1, an incurable herpes virus that

       Waugh transmitted to her vaginal area while performing oral sex on her.8 The

       child’s nightmare, however, did not cease once criminal charges were filed

       because just before his 2007 trial, Waugh fled and remained a fugitive for nearly

       seven years. Waugh carried on with his life – having two children with his

       girlfriend – while D.B. continued to live in fear.9

[35]   With respect to Waugh’s character, the record is not particularly favorable.

       Waugh was thirty-years old and had two children at the time of sentencing, yet




       7
           Waugh’s claim that the period of abuse was much shorter in duration is without merit.
       8
         Waugh claims on appeal that the record does not establish he was the source of the virus. In addition to
       D.B.’s testimony regarding cold sores she saw on Waugh, we observe that the PSI indicates “defendant
       reported he has been tested for STD’s in 2005 and tested positive for HSV-1 (Herpes-Cold Sore).” Appellant’s
       Confidential Appendix at 33.
       9
           D.B., then twenty-one years old, explained at sentencing:

                For more than half my life Terry Waugh has been my nightmare. Even after my disclosure
                when the abuse ceased, I was still afraid of him. When he was not incarcerated for all of those
                years, I double-checked my locks and peeked over my shoulder for his face. I have felt unsafe
                for too long and nearly every day still I am reminded of the things he did to me….
       Transcript at 444.

       Court of Appeals of Indiana | Memorandum Decision 71A03-1408-CR-312 | May 15, 2015                Page 14 of 15
       he had never held full-time job and he admitted daily use of marijuana since age

       fifteen. Despite an average childhood, Waugh dropped out of high school and

       left his parents’ home at age sixteen. This resulted in periods of homelessness

       and him sleeping on the victim’s family’s couch for several years. Finally,

       while we acknowledge that Waugh had no significant prior criminal history, his

       decision to flee and remain a fugitive for nearly seven years speaks volumes as

       to his character.

[36]   In this case, we find that sentence revision is not supported by the nature of the

       offenses, nor by positive character traits of the offender. The evidence does not

       present a sufficiently compelling basis to override the decision of the trial court.

[37]   Judgment affirmed.


       Baker, J., and Najam, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1408-CR-312 | May 15, 2015   Page 15 of 15
