MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                              FILED
regarded as precedent or cited before any                                  Jun 10 2020, 10:39 am
court except for the purpose of establishing                                       CLERK
the defense of res judicata, collateral                                        Indiana Supreme Court
                                                                                  Court of Appeals
estoppel, or the law of the case.                                                   and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Elizabeth Flynn                                          Tyler G. Banks
Braje, Nelson & Janes, LLP                               Supervising Deputy Attorney
Michigan City, Indiana                                   General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Kersee Anderson,                                         June 10, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-202
        v.                                               Appeal from the LaPorte Circuit
                                                         Court
State of Indiana,                                        The Honorable Thomas J.
Appellee-Plaintiff.                                      Alevizos, Judge
                                                         Trial Court Cause Nos.
                                                         46C01-1610-MR-6
                                                         46C01-1005-FA-106



Shepard, Senior Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-202 | June 10, 2020                           Page 1 of 13
[1]   A jury determined Kersee Anderson fatally shot Wade Hatcher. Anderson
                                                              1
      appeals his convictions of murder, a felony, and possession of a firearm by a
                                                       2
      serious violent felon, a Level 4 felony. He also appeals the revocation of his

      probation in a separate case. We affirm.


[2]   On October 1, 2016, Anderson, a probationer, was involved in a confrontation

      with members of the Cooper family, including Terrance Cooper (Cooper), at a

      hospital. Anderson later bragged on Facebook that he had hit Cooper, and he

      was ready to go to “war” against the Cooper family. Tr. Vol. III, p. 12. Over

      the next few weeks, Anderson posted on Facebook that he was still angry at the

      Cooper family, and he asked a friend to help him find a gun.


[3]   On the evening of October 15, Cooper was driving in Michigan City. His

      friend Wade Hatcher sat in the front passenger seat. At the same time,

      Anderson was riding in Arriss Duke’s car with siblings Britney Shell (Britney)

      and Brente Shell (Brente). Anderson sat behind the driver, Duke. All the

      windows were rolled down.


[4]   Anderson saw Cooper, and Duke followed him. As Duke drove along the right

      side of Cooper’s car, Anderson produced a handgun and shot at Cooper several




      1
          Ind. Code § 35-42-1-1 (2014).
      2
          Ind. Code § 35-47-4-5 (2016).



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-202 | June 10, 2020   Page 2 of 13
              3
      times. One shot struck Hatcher in the head. Cooper drove back to his house.

      Hatcher was subsequently taken to a hospital, where he was pronounced dead.


[5]   On October 17, the State charged Anderson with murder and unlawful

      possession of a firearm by a serious violent felon. The trial court presided over

      a jury trial beginning on March 28, 2018. That trial ended after the jury failed

      to reach a unanimous verdict.


[6]   The court conducted a second jury trial in November 2018. In a bifurcated

      proceeding, the jury first determined Anderson was guilty of murder. After

      receiving additional evidence, the jury found Anderson guilty of the firearm

      charge.


[7]   Meanwhile, the State had filed a notice of probation violation. On December

      26, 2018, the trial court presided over a sentencing hearing and a probation

      dispositional hearing. The court imposed a sentence for the convictions and

      further determined Anderson had violated the terms of his probation, ordering

      him to serve his previously-suspended sentence.


[8]   Anderson raises the following restated issues:


              I.       Did the trial court err in denying his motion for discharge?




      3
       During a subsequent police interrogation, Anderson denied firing a handgun at Cooper or Hatcher, but he
      admitted that Brente had given him a handgun as they rode in Duke’s car.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-202 | June 10, 2020                  Page 3 of 13
               II.      Did the trial court err in admitting evidence?


                     I. Motion for Discharge – Criminal Rule 4(C)
[9]    Anderson argues the trial court should have discharged him because the State

       failed to timely try him. Indiana Criminal Rule 4(C) provides, in relevant part:


               No person shall be held on recognizance or otherwise to answer
               a criminal charge for a period in aggregate embracing more than
               one year from the date the criminal charge against such
               defendant is filed, or from the date of his arrest on such charge,
               whichever is later; except where a continuance was had on his
               motion, or the delay was caused by his act, or where there was
               not sufficient time to try him during such period because of
               congestion of the court calendar . . . . Any defendant so held
               shall, on motion, be discharged.


[10]   It is the State’s duty to bring a defendant to trial within one year of being

       charged or arrested. Blair v. State, 877 N.E.2d 1225 (Ind. Ct. App. 2007), trans.

       denied. But the purpose of Criminal Rule 4 is to ensure early trials, not to allow

       defendants to manipulate the means designed for their protection and permit

       them to escape trials. Rivers v. State, 777 N.E.2d 51 (Ind. Ct. App. 2002), trans.

       denied. When a defendant seeks or acquiesces in a delay of trial, the one-year

       time limit is extended by the length of the delay. Mefford v. State, 51 N.E.3d 327

       (Ind. Ct. App. 2016). On review of a Criminal Rule 4 claim, we examine

       factual findings for clear error and consider questions of law de novo. Id.


[11]   The State charged Anderson on October 17, 2016, and did not bring him to trial

       for the first time until March 26, 2018. Anderson does not dispute that the trial


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-202 | June 10, 2020   Page 4 of 13
       court had previously extended the trial date to January 16, 2018, outside the

       one-year deadline, and he concedes he did not object to that date.


[12]   Anderson’s Rule 4(C) claim instead focuses on a January 9, 2018 pretrial

       hearing. Prior to the hearing, Anderson had filed a motion to continue the

       January 16 trial, claiming the State had belatedly provided voluminous

       discovery materials.


[13]   At the January 9 hearing, the trial court decided to extend the trial date rather

       than strike the State’s belated exhibits. Next, the State calculated how many

       days it believed were left in the one-year period. Anderson’s counsel explained

       that one of his partners had attended prior hearings, but he had no reason to

       doubt the State’s calculations. Anderson further stated “[w]hat I would

       probably do is object just for the sake of the record . . . . But based on the

       calculation, based on everything I do know, I think their calculation is correct.”

       Supp. Tr. Vol. II, p. 38. Counsel further indicated Anderson might be eligible

       “for release on own recognizance,” id., but did not object based on Rule 4(C).


[14]   Next, the court suggested March 26 as a trial date. Anderson’s counsel said he

       was available that day. The court also offered earlier dates in March, but

       Anderson’s counsel stated March 26 was the only date that worked for his

       schedule. As a result, the court scheduled the trial to begin on March 26, with

       the delay “attributable to the State.” Appellant’s App. Vol. II, p. 90.


[15]   On January 17, 2018, the State filed a Motion to Set Trial Date Within

       Criminal Rule 4 Constraint, stating that it believed the March 26 trial date was

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-202 | June 10, 2020   Page 5 of 13
       beyond the Rule 4(C) deadline. The court denied the State’s request to move

       up the trial date, noting “the Defendant has not made motion for dismissal,” id.

       at 93, and Anderson further selected March 26 as the beginning trial date. In

       any event, the court further advised, “[i]f either party disagrees with these

       conclusions and findings, such party should file an objection to the same . . . on

       January 25, 2018.” Id. at 96. Anderson did not timely file an objection, waiting

       until March 13, 2018 to move for discharge.


[16]   We conclude Anderson acquiesced to the delay leading to the March 26 trial

       date both by failing to object at the January 9 hearing on grounds of Rule 4(C)

       and by agreeing to the March 26 date. In addition, he later failed to timely file

       a written objection to the trial court’s Rule 4(C) analysis. The trial court did not

       err in denying Anderson’s motion for discharge. See Dean v. State, 901 N.E.2d

       648 (Ind. Ct. App. 2009) (no error in denying motion for discharge; trial court

       set a trial date outside the one-year period, but Dean failed to object), trans.

       denied.


                                     II. Admission of Evidence
[17]   Anderson challenges the trial court’s decision to admit into evidence at retrial a

       transcript of Brente’s testimony from the first trial and a photograph of

       ammunition that was found at the home of Anderson’s girlfriend, where

       Anderson sometimes stayed. The trial court has inherent discretionary power

       over the admission of evidence, and its evidentiary decisions are reviewed only

       for an abuse of discretion. Jones v. State, 780 N.E.2d 373 (Ind. 2002). An abuse


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-202 | June 10, 2020   Page 6 of 13
       occurs when a decision is clearly against the logic and effects of the facts and

       circumstances before the court. Cox v. State, 774 N.E.2d 1025 (Ind. Ct. App.

       2002).


                                    1. Brente’s Prior Trial Testimony

[18]   Brente testified at Anderson’s first trial. Brente did not appear at Anderson’s

       retrial, and the court permitted the State to read his prior trial testimony into the

       record. Anderson argues the State did not sufficiently demonstrate that it was

       unable to locate Brente.


[19]   A hearsay statement is a statement “not made by the declarant while testifying

       at the trial or hearing; and . . . is offered in evidence to prove the truth of the

       matter asserted.” Ind. Evid. R. 801(c). In general, hearsay evidence is

       inadmissible. Ind. Evid. R. 802. There is an exception for former testimony by

       an unavailable witness if the testimony:


                (A) was given as a witness at a trial, hearing, or lawful
                deposition, whether given during the current proceeding or a
                different one; and


                (B) is now offered against a party who had . . . an opportunity
                and similar motive to develop it by direct, cross-, or redirect
                examination.


       Ind. Evid. R. 804(b)(1).


[20]   Before a witness’ prior recorded testimony may be admitted in lieu of live

       testimony, the prosecution must show the witness is unavailable. Berkman v.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-202 | June 10, 2020   Page 7 of 13
       State, 976 N.E.2d 68, 75 (Ind. Ct. App. 2012), trans. denied. A witness is

       unavailable if the witness “is absent from the trial or hearing and the

       statement’s proponent has not been able, by process or other reasonable means,

       to procure . . . the declarant’s attendance[.]” Ind. Evid. R. 804(a)(5)(A). A

       witness’ refusal to testify renders the witness unavailable for purposes of using

       that person’s prior testimony. Guy v. State, 755 N.E.2d 248 (Ind. Ct. App.

       2001), trans. denied.


[21]   In Anderson’s case, during retrial the prosecutor asked permission to read

       Brente’s prior trial testimony into the record due to his absence. Detective

       Havlin of the Michigan City Police Department testified that the prosecutor’s

       office had attempted to serve a subpoena on Brente at the last Michigan City

       address they had for him, and it was returned indicating that he no longer lived

       there. In addition, the detective searched numerous databases and asked

       Britney where her brother could be found, but he was unable to locate a new

       address. Detective Havlin called Brente at the last phone number he had on file

       but did not reach him. Britney indicated Brente was living with his girlfriend

       but did not know the girlfriend’s last name. Next, the prosecutor told the trial

       court that she had spoken with Brente by telephone, but he refused to tell her

       his address or where he worked, much less testify, citing fears for his safety.


[22]   Under these circumstances, we conclude the State made a reasonable, good-

       faith effort to locate Brente and demonstrated that he was unavailable to testify

       at retrial. See Tiller v. State, 896 N.E.2d 537 (Ind. Ct. App. 2008) (trial court did

       not err in determining State’s witness was unavailable; witness had told a

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-202 | June 10, 2020   Page 8 of 13
       prosecutor he would not testify because he was afraid, a detective tried but

       failed to locate the witness, and the witness’s girlfriend did not know his

       location).


[23]   Even if the trial court had abused its discretion in admitting Brente’s prior trial

       testimony, any error was harmless. Errors in the admission or exclusion of

       evidence are to be disregarded as harmless unless they affect the substantial

       rights of a party. Swingley v. State, 739 N.E.2d 132 (Ind. 2000).


[24]   Here, setting aside Brente’s testimony, other evidence amply demonstrated that

       Anderson committed the offenses and violated the terms of his probation.

       There is no dispute that Hatcher was fatally shot on October 15, 2016, as he

       rode in Cooper’s car. In the days before the shooting, Anderson expressed

       animus toward Cooper on social media and asked for help in finding a gun.


[25]   Next, security camera footage from various Michigan City businesses and

       testimony by Britney, Duke, and Cooper demonstrated that on October 15,

       Anderson was riding in Duke’s car when Duke encountered Cooper. Britney

       heard Anderson curse at Cooper and Hatcher, and then, according to Britney

       and Cooper, Anderson shot at Cooper. Duke did not see Anderson shoot, but

       he heard gunshots coming from behind him, where Anderson was sitting.


[26]   Cooper unequivocally identified Anderson as the shooter, subsequently

       identifying him in a photographic lineup. In addition, an officer found a fired

       bullet casing in the back seat of Duke’s car. Finally, during police questioning

       Anderson admitted that Brente had given him a handgun while they were in

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-202 | June 10, 2020   Page 9 of 13
       Duke’s car. This is ample evidence from which the jury could have convicted

       Anderson of murder and possession of a firearm by a serious violent felon, even
                                                                        4
       if Brente’s evidence had been admitted in error.


                           2. State’s Exhibit 14: Photograph of Ammunition

[27]   Anderson argues the trial court erred during the murder phase of retrial by

       admitting into evidence a photograph of ammunition the police found at his

       girlfriend’s home. He claims the photograph was irrelevant and unduly

       prejudicial.


[28]   “Evidence is relevant if . . . it has any tendency to make a fact more or less

       probable than it would be without the evidence; and . . . the fact is of

       consequence in determining the action.” Ind. Evid. Rule 401. In general,

       relevant evidence is admissible unless the evidence otherwise violates a

       constitutional provision, a statute, or the Indiana Rules of Evidence. Ind. Evid.

       Rule 402. Indiana Evidence Rule 403 provides that relevant evidence may be

       excluded at trial if its “probative value is substantially outweighed by a danger

       of . . . unfair prejudice[.]” A trial court’s discretion is wide on issues of

       relevance and unfair prejudice. Snow v. State, 77 N.E.3d 173 (Ind. 2017).




       4
         In his reply brief, Anderson argues for the first time that reading Brente’s prior trial testimony into the
       record violated his right to cross-examine witnesses under the federal and state constitutions. A reply brief
       may not present new theories of appeal. Ward v. State, 567 N.E.2d 85 (Ind. 1991). In any event, a denial of
       the right of confrontation is harmless error where the evidence supporting the conviction is so convincing that
       a jury could not have found otherwise. Jackson v. State, 735 N.E.2d 1146 (Ind. 2000). The evidence set forth
       above meets this standard.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-202 | June 10, 2020                     Page 10 of 13
[29]   At trial, the State bore the burden of proving Anderson shot Hatcher. The

       murder weapon, a handgun, was never located. Anderson claims State’s

       Exhibit 14, a photograph of a bag of ammunition that was found in a bedroom

       where Anderson had stayed with his girlfriend, was irrelevant because it was

       not 9 millimeter ammunition, while Hatcher was killed by a 9 millimeter round.


[30]   We disagree for two reasons. First, the trial court did not admit State’s Exhibit

       14 until after Anderson’s recorded police interview was admitted into evidence.

       During the interview, Anderson told the police he did not own a gun. The

       photograph of the ammunition, which was found in the bedroom where

       Anderson was staying with his girlfriend, makes it more probable that he did

       own a firearm and calls Anderson’s credibility into question.


[31]   Second, during retrial Anderson raised the possibility that another type of

       ammunition had been used in the shooting. In his opening statement, Hatcher

       told the jury:


               One thing I just want to make sure that we’re clear on and what
               the evidence will be, [the State’s ballistics expert] will come in
               and testify, but [the expert] will not tell you that the bullet
               fragments that were found in Wade Hatcher came from a .9
               millimeter. He will not tell you that because he’s a scientist and
               he can’t tell you that because it was a bullet fragment. It cannot
               be microscopically examined to determine what bullet it was.
               But what he will tell you is that it has the same class
               characteristics as the .38 caliber family. We have a lot of gun
               owners. You may be familiar with guns. But he will tell you that
               a .9 millimeter is within that .38 caliber family, but there are
               other calibers, other weapons, that are also in that .38 caliber


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-202 | June 10, 2020   Page 11 of 13
               family; and he will also tell you that the .38 caliber family is one
               of the largest families of bullets with respect to the weapons.


       Tr. Vol. II, p. 30. As a result, the ammunition depicted in State’s Exhibit 14

       was relevant because Anderson raised the possibility of a different caliber of

       ammunition being used in the killing.


[32]   Turning to the question of unfair prejudice, the Indiana Supreme Court has

       noted that while the mere possession of a firearm is generally not illegal,

       evidence of a firearm “can be unfairly prejudicial,” especially when it suggests

       another uncharged crime. Snow, 77 N.E.3d at 179. In this case, the issue is

       ammunition, not a firearm. In any event, during the murder phase of the trial,

       the parties did not present any evidence that Anderson was forbidden from

       possessing a handgun. There was no suggestion of another crime, charged or

       uncharged, besides murder during that phase. We conclude the prejudicial

       effect of State’s Exhibit 14 was not so unfair as to outweigh its probative value.

       The trial court did not abuse its discretion in admitting the photograph. See

       Fuentes v. State, 10 N.E.3d 68 (Ind. Ct. App. 2014) (no undue prejudice in

       admitting photograph of rifle found in Fuentes’ car, even though he was alleged

       to have committed offense with a different gun; possession of a firearm is

       generally not an offense), trans. denied.


                                                Conclusion
[33]   For the reasons state above, we affirm the judgment of the trial court.


[34]   Affirmed.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-202 | June 10, 2020   Page 12 of 13
Bradford, C.J., and Pyle, J., concur.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-202 | June 10, 2020   Page 13 of 13
