MEMORANDUM DECISION
                                                                    FILED
Pursuant to Ind. Appellate Rule 65(D),                          Nov 07 2016, 9:30 am

this Memorandum Decision shall not be                               CLERK
regarded as precedent or cited before any                       Indiana Supreme Court
                                                                   Court of Appeals
                                                                     and Tax Court
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
Timothy J. Burns                                        Gregory F. Zoeller
Indianapolis, Indiana                                   Attorney General of Indiana

                                                        Monika Prekopa Talbot
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Lorenzo Montes-Garnica,                                 November 7, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        49A05-1603-CR-655
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable David Certo, Judge
Appellee-Plaintiff.                                     The Honorable David Hooper,
                                                        Magistrate
                                                        Trial Court Cause No.
                                                        49G12-1407-CM-36556



Altice, Judge.


                                         Case Summary



Court of Appeals of Indiana | Memorandum Decision 49A05-1603-CR-655 | November 7, 2016   Page 1 of 7
[1]   Following a bench trial, Lorenzo Montes-Garnica was convicted of Patronizing

      a Prostitute, a Class A misdemeanor. On appeal, Montes-Garnica challenges

      the sufficiency of the evidence supporting his conviction.


[2]   We affirm.


                                       Facts & Procedural History


[3]   On the evening of July 23, 2014, Detective Tabatha McLemore of the

      Indianapolis Metropolitan Police Department (IMPD) was working undercover

      as a prostitute on a street corner in a high-prostitution area. At approximately

      7:30 p.m., Detective McLemore observed Montes-Garnica drive by and stare at

      her as he passed her location. Montes-Garnica kept driving down the road and

      then abruptly crossed lanes of traffic, pulled into a parking lot, turned his car

      around, and returned to Detective McLemore’s location. When Montes-

      Garnica parked his car along the street, Detective McLemore was on the

      opposite side of the street speaking with a male subject in another car. Montes-

      Garnica continued to stare at Detective McLemore as she spoke with the other

      male subject. The other male subject was unwilling to make an agreement with

      Detective McLemore unless she got into his car, so Detective McLemore

      withdrew from her conversation with him.


[4]   Detective McLemore then walked over to Montes-Garnica’s car. As she

      approached, she observed Montes-Garnica lean across his car and unlock the

      passenger door. Detective McLemore walked up to the driver’s side window,

      which had previously been rolled down, and asked “What’s up?” State’s Exhibit

      Court of Appeals of Indiana | Memorandum Decision 49A05-1603-CR-655 | November 7, 2016   Page 2 of 7
      2; see also Transcript at 15. Montes-Garnica asked Detective McLemore for her

      name and she responded “Tiffany.” State’s Exhibit 2. He then asked Detective

      McLemore if she was “doing business,” which Detective McLemore knew from

      her experience was commonly known to mean “prostitution” in the Hispanic

      community, and she responded affirmatively. Transcript at 15; State’s Exhibit 2.

      Detective McLemore then asked Montes-Garnica how much money he had,

      and he stated that he had “20.” Transcript at 16; State’s Exhibit 2. Detective

      McLemore asked Montes-Garnica what he wanted for twenty dollars, and he

      stated “sex.” Id. Detective McLemore knew that “sex” was street terminology

      for “sexual intercourse.” Transcript at 16. She asked Montes-Garnica again if

      he wanted “sex” and he said “yes.” Id.; State’s Exhibit 2. Detective McLemore

      then asked Montes-Garnica if he wanted to go to her place, but he indicated

      that he wanted to go to his place on “New York” Street. Id. Detective

      McLemore then requested that Montes-Garnica meet her in a nearby alley in

      order to avoid police detection. Immediately thereafter, Detective McLemore

      walked away from Montes-Garnica’s car and police officers arrived in a marked

      vehicle and placed Montes-Garnica under arrest.


[5]   The State charged Montes-Garnica with patronizing a prostitute, a Class A

      misdemeanor. A bench trial was held on March 3, 2016, at the conclusion of

      which the trial court found Montes-Garnica guilty as charged. Montes-Garnica

      now appeals. Additional facts will be provided as necessary.


                                          Discussion & Decision



      Court of Appeals of Indiana | Memorandum Decision 49A05-1603-CR-655 | November 7, 2016   Page 3 of 7
[6]   Montes-Garnica argues that the State presented insufficient evidence to support

      his conviction for patronizing a prostitute. Specifically, Montes-Garnica argues

      that the evidence was insufficient to establish that an agreement, i.e., mutual

      understanding, was ever reached between him and Detective McLemore.


[7]   When reviewing a challenge to the sufficiency of the evidence, we do not

      reweigh evidence or judge the credibility of witnesses. Duncan v. State, 23

      N.E.3d 805, 812 (Ind. Ct. App. 2014), trans. denied. Instead, we consider only

      the evidence and the reasonable inferences supporting the verdict. Id. If there

      is substantial evidence of probative value from which a reasonable trier of fact

      could have found the defendant guilty of the crime charged beyond a

      reasonable doubt, then the judgment will not be disturbed. Id. It is not

      necessary that the evidence overcome every reasonable hypothesis of

      innocence; rather, the evidence is sufficient if an inference may reasonably be

      drawn from it to support the conviction. Drane v. State, 867 N.E.2d 144, 147

      (Ind. 2007).


[8]   To sustain Montes-Garnica’s conviction for patronizing a prostitute, the State’s

      evidence had to prove beyond a reasonable doubt that Montes-Garnica (1)

      knowingly or intentionally (2) offered to pay or agreed to pay (3) money (4) to

      Detective McLemore (5) on the understanding that Detective McLemore would

      engage in sexual intercourse or other sexual conduct with Montes-Garnica. See

      Ind. Code § 35-45-4-3(1). An agreement means “a mutual understanding

      between two or more persons about their relative rights and duties regarding



      Court of Appeals of Indiana | Memorandum Decision 49A05-1603-CR-655 | November 7, 2016   Page 4 of 7
       past or future performances; a manifestation of mutual assent by two or more

       persons.” Harwell v. State, 821 N.E.2d 381, 383 (Ind. Ct. App. 2004).


[9]    The State’s evidence consisted of Detective McLemore’s testimony and a

       recording of the encounter between Montes-Garnica and Detective McLemore

       that was captured by a hidden device worn by Detective McLemore during the

       encounter. In the recording, Detective McLemore gives what Montes-Garnica

       describes as a “‘real time’ interpretation” of the “limited sounds” coming from

       his mouth. Appellant’s Brief at 7. He notes that there is no evidence showing

       Detective McLemore’s ability to speak or understand Spanish. With that in

       mind, he urges this court to listen to the recording before deciding the accuracy

       of Detective McLemore’s testimony. Acknowledging that Detective

       McLemore testified that she was repeating what he was saying, Montes-

       Garnica asserts that after listening to the recording, “one would be hard pressed

       to conclusively say what words were being uttered” by him. Id. at 10.


[10]   Montes-Garnica’s argument boils down to a request that this this court reweigh

       the evidence and judge the credibility of the witnesses. This we will not do.


[11]   Detective McLemore testified that she has been involved in over 1000

       patronizing a prostitute cases throughout her fourteen-year career with IMPD.

       Detective McLemore explained how Montes-Garnica stared at her as he drove

       by her location and that he continued to stare at her using his rearview mirror.

       Montes-Garnica then purposefully turned his car around and came back and

       parked his car near where Detective McLemore was positioned. As she


       Court of Appeals of Indiana | Memorandum Decision 49A05-1603-CR-655 | November 7, 2016   Page 5 of 7
       approached, he unlocked his passenger door and willingly engaged in

       conversation with her.


[12]   With regard to the recording of the encounter, Detective McLemore testified

       that she purposefully repeated Montes-Garnica’s words throughout because he

       was very soft spoken and she wanted to ensure that his words were properly

       recorded. In addition, she repeatedly testified that Montes-Garnica spoke some

       English and that she understood everything he said during their exchange.

       After repeating his words, Detective McLemore gave Montes-Garnica the

       opportunity to say no or disagree with her statements. Notably, Montes-

       Garnica never offered any words of protest or disagreement with Detective

       McLemore’s statements.


[13]   Next, while we agree that the recording does not clearly capture Montes-

       Garnica asking whether Detective McLemore is “doing business,” we note that

       it does capture Detective McLemore asking, “Am I doing business? Yes.”

       State’s Exhibit 2. Finally, the recording clearly captures Montes-Garnica stating

       in plain English that he will pay “20” for “sex” after Detective McLemore

       indicated that she was “doing business.” Transcript at 16; State’s Exhibit 2. The

       encounter concluded with Detective McLemore and Montes-Garnica settling

       on having “sex” at Montes-Garnica’s place on New York Street. Id.


[14]   Detective McLemore testified that “doing business” is synonymous for

       prostitution in the Hispanic community and that “sex” is a common term used

       for “sexual intercourse” in patronizing prostitution. Transcript at 25, 18. From


       Court of Appeals of Indiana | Memorandum Decision 49A05-1603-CR-655 | November 7, 2016   Page 6 of 7
       this evidence, it is clear that the encounter between Montes-Garnica and

       Detective McLemore concerned prostitution and involved an exchange of

       money for sexual intercourse.


[15]   The evidence most favorable to the conviction establishes that Montes-Garnica

       knowingly or intentionally offered to pay or agreed to pay twenty dollars to

       Detective McLemore for sexual intercourse. This evidence is sufficient to

       sustain Montes-Garnica’s conviction for patronizing a prostitute as a Class A

       misdemeanor.


[16]   Judgment affirmed.


[17]   Bradford, J. and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1603-CR-655 | November 7, 2016   Page 7 of 7
