FOR PUBLICATION
                                                       May 21 2014, 10:38 am




ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

JOEL M. SCHUMM                                   GREGORY F. ZOELLER
Clinical Professor of Law                        Attorney General of Indiana

DANIELLE M. TEAGARDEN                            LARRY D. ALLEN
Certified Legal Intern                           Deputy Attorney General
Appellate Clinic                                 Indianapolis, Indiana
I.U. Robert H. McKinney School of Law
Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

WAYNE HURD,                                      )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )       No. 49A02-1309-CR-753
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                    APPEAL FROM THE MARION SUPERIOR COURT
                          The Honorable Amy M. Jones, Judge
                           Cause No. 49F08-1212-CM-81946


                                        May 21, 2014

                              OPINION - FOR PUBLICATION

VAIDIK, Chief Judge
                                      Case Summary

       Wayne Hurd was convicted of Class B misdemeanor battery following a nighttime

incident at an Indianapolis bus stop. At his bench trial, the trial court prohibited him from

calling his mother as a witness because she was not disclosed until the day of trial. The

trial court sentenced Hurd to probation, which included a condition that prohibited him

from going between 48th Street to the north, 28th Street to the south, Fall Creek Parkway

to the east, and Martin Luther King Jr. Street to the west.

       We find that even if the trial court abused its discretion in excluding Hurd’s mother

as a witness, the error was harmless because the offer of proof was not specific as to the

substance of Hurd’s mother’s testimony, she was not present at the bus stop, and the trial

court found the victim’s testimony credible and Hurd’s testimony to have gaps. However,

we find that the trial court abused its discretion in imposing the probation condition because

it was not reasonably related to Hurd’s treatment and the protection of the public safety.

We therefore affirm in part and reverse and remand in part.

                              Facts and Procedural History

       In November 2012, Susan Schneider took an IndyGo bus home from work as she

had done many times before. She got off the bus at 39th Street and College Avenue in

Indianapolis around 8:45 p.m. As Susan started walking home, which was about one block

away from the bus stop, Hurd approached her from behind, grabbed her right shoulder, and

swung her around. Susan did not know Hurd. Hurd used enough force that Susan almost

lost her footing. Susan kicked Hurd in the groin, causing him to fall to the ground.

Frightened, Susan ran home and barricaded herself inside. She immediately called her


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long-term, live-in boyfriend Douglas Forrest, who was on duty at the time as a sergeant for

the Indianapolis Metropolitan Police Department.

       Because Sergeant Forrest was nearby, he drove by the bus stop. Based on Susan’s

description, Sergeant Forrest apprehended Hurd, handcuffed him, and called for another

officer. Officer Christopher Cooper responded and spoke with Susan. Officer Cooper then

drove Susan to Sergeant Forrest’s location. Susan identified Hurd as the person who had

assaulted her. Tr. p. 21. Hurd told Officer Cooper that he thought Susan was somebody

else. Id.

       The State charged Hurd with Class B misdemeanor battery. Hurd was represented

by a public defender.

       A bench trial was held on August 7, 2013. The day before trial, a different public

defender took over Hurd’s case. At the beginning of trial, the trial court ordered anyone

who was going to be a witness to stand and be sworn in. When a woman stood up, the trial

court said, “I’m not sure who this lady is.” Id. at 5. Defense counsel said it was Hurd’s

mother and he was not sure if he was going to call her as a witness. Id.

       Hurd testified in his own defense that he was in the area of 39th and College on the

night in question because he was going to Church’s Chicken to eat. He said he saw Susan,

who was the only person at the bus stop, and approached her from the front to ask her what

time the bus came. Hurd, who lived on the east side of Indianapolis, needed to take the

bus home. Hurd said as soon as he asked Susan what time the bus came, she ran away.

Hurd denied touching Susan and denied that Susan kneed him in the groin. Id. at 26. Hurd




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explained that he had been diagnosed with paranoid schizophrenia and was taking

medication in November 2012.

       After Hurd testified, defense counsel stated, “I’m just going to grab his mother.” Id.

at 32. The State immediately objected because “[t]his is the first time the State is hearing

that this particular individual might be called as a witness. The State doesn’t even know

her name at this point.” Id. at 32. When the trial court asked if Hurd’s mother had been

discovered as a potential witness, defense counsel responded:

       I apologize, Your Honor, I’m not entirely sure. I actually just got [this case]
       yesterday around three o’clock. I know Ms. Wright was handling it before.
       I just assumed that she had discovered all of the witnesses since it was set for
       trial. . . . I did not know this witness existed until I talked to her today . . . .

Id. at 33. The trial court ruled:

       Well, it doesn’t appear as though there was ever any notice given that this
       particular person was a witness. And having this happen here today the day
       of trial . . . I’m not inclined to have her testify. The other thing I guess I
       would caution is what relevance she might add. I’ve heard absolutely no
       testimony—I don’t even know her name—I’ve heard no testimony of her
       being present during this incident whatsoever. If she is able to provide
       historical information regarding the mental illness that’s come up a few times
       during the course of the trial today that would be maybe appropriate for other
       times in these proceedings. But not so much for the trial so I’m not going to
       have—due to the late discovery notice here—I’m not going to have her . . .
       be called as a witness here today.

Id. Defense counsel then made an offer of proof about Hurd’s character for non-aggressive

behavior. At this point, Hurd’s mother was identified as Brenda Joyce Hayden. Brenda

said that if she were allowed to testify at trial, she would testify about the topics of Hurd’s

mental-health issues, how his medication affects him, his character and tendency for

aggressiveness, and his general disposition. Id. at 35. Notably, defense counsel did not

ask Brenda questions about these topics.

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       The trial court acknowledged that the evidence was disputed. Id. at 38. However,

the court found that Susan was “quite credible” and that there were “a lot of gaps” in Hurd’s

testimony. Id.; see also id. at 41 (trial court: “I don’t believe that [Susan] was being

untruthful. I don’t believe that she has any reason to.”). Concluding that the State met its

burden of proving beyond a reasonable doubt that Hurd committed Class B misdemeanor

battery, the court found him guilty.

       The case immediately proceeded to sentencing. During sentencing, Brenda testified

about Hurd’s mental illness and ongoing treatment at Gallahue Mental Health. Brenda also

said she was thirty-five-year-old Hurd’s guardian and that he lived with her, but he visited

his friends several times a week in the area of 38th and College, often spending the night

with them. Brenda, however, did not allow Hurd’s friends to visit him at their house.

       After listening to complaints about Hurd’s activities near 38th Street, including

reports of trespassing, the trial court sentenced Hurd to a suspended sentence of 178 days

and non-reporting probation. As a condition of Hurd’s probation, the trial court ordered

him to comply with his treatment plan at Gallahue, including taking his medicine, and not

to contact Susan. In addition, the court ordered Hurd to stay away from a five-block radius

of 38th and College. Id. at 47. The court explained to Hurd that if he went back to that

area, he would go to jail. As the trial court was appointing appellate counsel for Hurd, the

prosecutor interrupted and explained that Sergeant Forrest would like the stay-away order

extended from five blocks of 38th and College to two miles of 38th and College. Id. at 50.

Sergeant Forrest suggested 48th Street to the north, 28th Street to the south, Fall Creek

Parkway to the east, and Martin Luther King Jr. Street to the west. Id. Defense counsel


                                             5
objected because “[t]he majority of that would be a public area. You know, we’re fine

with the Court saying that he can’t go to you know, maybe private areas in that vicinity but

a two mile[] radius; there’s sidewalks you know, it’s a largely public area.” Id. The trial

court, almost predicting what was to come, said to Hurd, “I understand what your mom is

saying that you’re not going to get this.” Id. Nevertheless, the trial court extended the

stay-away order and cautioned Hurd from “get[ting] on the bus[] and head[ing] over . . . to

the middle part of the city.” Id. at 51.

       Less than two weeks later, on August 19, 2013, the probation department filed a

notice of probation violation alleging that Hurd violated his probation because he was

arrested for being in the area of 4100 N. College Avenue on August 11. Appellant’s App.

p. 24. The petition was later amended to include two additional allegations. Id. at 25.

       Three months after sentencing, on November 14, 2013, the trial court modified the

stay-away order to limit it to “a one block radius” of Susan’s home. Id. at 15 (capitalization

omitted). According to the CCS, the probation department was notified of this change. Id.

       Hurd now appeals.

                                  Discussion and Decision

       Hurd contends that the trial court erred in excluding his mother as a witness and in

imposing a broad and unduly cumbersome probation condition.

                         I. Exclusion of Late-Disclosed Witness

       Hurd contends that the trial court erred in excluding his mother as a witness even

though she was not disclosed until the day of trial. Hurd claims that according to the offer

of proof, his mother would have testified about his character for peacefulness, which would


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have been relevant in establishing whether he knowingly touched Susan in a rude, insolent,

or angry manner and would have been admissible pursuant to Indiana Evidence Rules

404(a)(2)(A) and 405.

       Trial courts have inherent discretionary power on the admission of evidence, and

their decisions are reviewed only for an abuse of that discretion. Vasquez v. State, 868

N.E.2d 473, 476 (Ind. 2007). In addition, Indiana jurisprudence recognizes a strong

presumption to allow defense testimony, even of late-disclosed witnesses: “‘The most

extreme sanction of witness exclusion should not be employed unless the defendant’s

breach has been purposeful or intentional or unless substantial and irreparable prejudice

would result to the State.’” Id. (quoting Wiseheart v. State, 491 N.E.2d 985, 991 (Ind.

1986)).

       Here, however, we find that even if the trial court abused its discretion in excluding

Hurd’s mother Brenda as a witness, the error was harmless. Not every trial error requires

reversal. Turben v. State, 726 N.E.2d 1245, 1247 (Ind. 2000). Errors in the admission or

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

rights of the party. Fleener v. State, 656 N.E.2d 1140, 1141 (Ind. 1995); see also Ind. Trial

Rule 61. Moreover, in a bench trial, the harm from any evidentiary error is lessened. Berry

v. State, 725 N.E.2d 939, 943 (Ind. Ct. App. 2000).

       We first point out that the offer of proof was not very specific as to what Brenda’s

testimony would have been:

       Q             Ma’am, could you state your name again?
       A             Yes, Brenda Joyce Hayden.
       Q             Okay. And what is your relationship to Mr. Hurd?
       A             I am Wayne’s mother and legal guardian.

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       Q             Okay. And are you familiar with his mental health issues?
       A             Yes, I am.
       Q             Okay. Are you familiar with how his medication affects him?
       A             Yes, I am.
       Q             And are you familiar with his character and his tendencies for
                     aggressiveness and behavior?
       A             Yes, I am.
       Q             And [h]is general disposition?
       A             Yes.

Tr. p. 35. This offer of proof is, at best, minimally sufficient to convey the point of

Brenda’s testimony. See State v. Wilson, 836 N.E.2d 407, 409 (Ind. 2005), reh’g denied.

Looking at this offer generously, it shows that Brenda would have testified that Hurd was

generally non-aggressive when taking his medication.

       But as the trial court explained, see Tr. p. 33, Brenda’s testimony would have limited

relevance because she was not present at the bus stop. Cf. S.T. v. State, 764 N.E.2d 632,

636 (Ind. 2002) (holding that the juvenile should have been allowed to present the

testimony of both his mother and friend at the fact-finding hearing even though they were

belatedly disclosed because although they were not exactly objective and detached

witnesses, “they nonetheless would have added a different perspective to the [juvenile’s]

version of events and reinforced his account, and therefore, the exclusion of the witnesses

unnecessarily prejudiced [him].” (quotation omitted)). And Brenda’s testimony would

have required the trial court to believe that Hurd was taking his medication at the time of

the incident. See Tr. p. 38 (trial court: “And I don’t know necessarily if you have a clear

recollection of what did actually happen, I don’t know if that was based on the medication

you were taking at that time or you weren’t taking.”). Even assuming that Hurd is a

generally peaceful person, this does not negate Susan’s version of events, which the trial


                                             8
court found “quite credible,” account for the “gaps” in Hurd’s testimony that the trial court

found, or explain Hurd’s statement to Officer Cooper at the scene that he thought Susan

was somebody else. Therefore, even if the trial court abused its discretion in excluding

Brenda as a witness, the error was harmless. See, e.g., Williams v. State, 714 N.E.2d 644,

652 (Ind. 1999) (finding exclusion of belatedly disclosed witness harmless where DNA

and other evidence connected defendant to the crime); Farris v. State, 818 N.E.2d 63, 70

(Ind. Ct. App. 2004) (finding exclusion of belatedly disclosed witness harmless where there

was uncertainty about substance of witness’s testimony and evidence against defendant

was otherwise strong), trans. denied.

                                        II. Stay-Away Order

       Next, Hurd contends that the trial court erred in imposing a broad and unduly

cumbersome probation condition that prohibited him “from being within hundreds of city

blocks in the central part of Indianapolis.” Appellant’s Br. p. 10. The State replies that

this issue is moot because after the probation department filed the amended notice of

probation violation, the trial court modified the stay-away order to only a one-block radius

of Susan’s home. See Samm v. State, 893 N.E.2d 761, 765 (Ind. Ct. App. 2008) (“A case

is deemed moot when no effective relief can be rendered to the parties before the court.”).

Hurd responds that because this modification was prospective only and the notice of

probation violation remains pending, the issue is not moot.

       Because it appears from the record before us that this notice of probation violation

remains pending,1 we agree with Hurd that the issue is not moot. We therefore address



       1
           The CCS contained in the record is dated January 29, 2014.
                                                    9
whether the probation condition that prohibited Hurd from going between 48th Street to

the north, 28th Street to the south, Fall Creek Parkway to the east, and Martin Luther King

Jr. Street to the west was broad and unduly cumbersome when the trial court originally

imposed it.

       Probation is a criminal sanction whereby a defendant specifically agrees to accept

conditions upon his behavior in lieu of imprisonment. Bratcher v. State, 999 N.E.2d 864,

873 (Ind. Ct. App. 2013), trans. denied. Trial courts have broad discretion in determining

the appropriate conditions of a defendant’s probation. Id. This discretion is limited only

by the principle that the conditions imposed must be reasonably related to the treatment of

the defendant and the protection of public safety. Id. Thus, our review is essentially limited

to determining whether the conditions placed on the defendant are reasonably related to

attaining these goals. Id. We will not set aside a trial court’s probation terms unless it has

abused its discretion. Id.

       We agree with Hurd that the probation condition was not reasonably related to his

treatment and the protection of the public safety. It was reasonable for the trial court to

express concern for Hurd’s mental health, and the court did so by ordering Hurd to comply

with his treatment regimen at Gallahue. Further, given that Hurd’s conviction was for a

crime against a person, it was also reasonable for the court to prohibit contact with Susan.

However, prohibiting Hurd from entering a significant area of the central part of

Indianapolis is not tailored to his rehabilitation or public safety. Accordingly, we find that

the trial court abused its discretion in originally imposing the probation condition that

prohibited Hurd from going between 48th Street to the north, 28th Street to the south, Fall


                                             10
Creek Parkway to the east, and Martin Luther King Jr. Street to the west. We therefore

remand this case to the trial court with instructions to vacate any pending probation

violations based upon this original condition.

       Affirmed in part and reversed and remanded in part.

NAJAM, J., and BROWN, J., concur.




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