MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                      Mar 12 2015, 9:34 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
Nancy A. McCaslin                                        Gregory F. Zoeller
McCaslin & McCaslin                                      Attorney General of Indiana
Elkhart, Indiana
                                                         Chandra K. Hein
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Malcolm Walker,                                          March 12, 2015

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A03-1406-CR-222
        v.                                               Appeal from the Elkhart Superior
                                                         Court.
State of Indiana,                                        The Honorable Charles Carter
                                                         Wicks, Judge.
Appellee-Plaintiff
                                                         Cause No. 20D05-1308-FD-897




Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision | 20A03-1406-CR-222 | March 12, 2015   Page 1 of 10
                                   STATEMENT OF THE CASE

[1]   Appellant-Defendant, Malcolm A. Walker (Walker), appeals his conviction of

      failure to register as a sex offender, a Class D felony, Ind. Code § 11-8-8-

      17(a)(5) (2013).


[2]   We affirm.


                                                    ISSUES

[3]   Walker raises two issues on appeal, which we restate as follows:

      (1) Whether the trial court abused its discretion by admitting into evidence

      Walker’s Notice of Obligation to Register; and

      (2) Whether the State presented sufficient evidence to support Walker’s

      conviction of failure to register as a sex offender.


                           FACTS AND PROCEDURAL HISTORY

[4]   On October 8, 2004, Walker was convicted in LaPorte County, Indiana, of

      child molesting, a Class B felony, I.C. § 35-42-4-3 (2004). He was subsequently

      incarcerated in the Indiana Department of Correction (DOC) until July 27,

      2011. Pursuant to Indiana’s Sex Offender Registration Act (Act), upon his

      release from incarceration, Walker was required to register with the Indiana Sex




      Court of Appeals of Indiana | Memorandum Decision | 20A03-1406-CR-222 | March 12, 2015   Page 2 of 10
      and Violent Offender Registry for a period of ten years.1 Accordingly, in

      August of 2011, Walker appeared at the Elkhart County Sheriff’s Department

      to complete his initial registration. On March 6, 2012, Walker renewed his

      annual registration.


[5]   At some point thereafter, Walker was arrested and detained in the Elkhart

      County Jail. Upon his release on April 12, 2013, Walker received a Notice of

      Obligation to Register (Notice). Specifically, the Notice informed Walker that

      he was “required to report IN PERSON AND REGISTER WITH the Sheriff’s

      Department in the County of your residence within [seven] days of your

      release.” (State’s Exh. 4). Walker signed the Notice to acknowledge that he

      would be subject to prosecution for a Class D felony if he failed to comply.


[6]   On April 15, 2013, Walker appeared to complete his registration and submitted

      a change form, whereby he indicated that his former address was “819

      [T]ipton” in Elkhart, Indiana, and that his new address was “511 [H]igh St[.]

      B” in Elkhart. (State’s Exh. 5). Soon thereafter, the Sheriff’s Department

      conducted a house check and found that Walker’s address, as it was written,

      “did not exist.” (Tr. p. 153). Specifically, there was no apartment “B” in the

      building; rather, the four units were addressed as 509, 509 ½, 511, and 511 ½

      West High Street. On June 11, 2013, Walker completed a second change of




      1
        When seventeen-year-old Walker committed the sex offense in 2004, his obligation to register was codified
      at Indiana Code section 5-2-12-13(a)(4). Effective July 1, 2006, the Act was repealed and recodified at
      Indiana Code chapter 11-8-8.

      Court of Appeals of Indiana | Memorandum Decision | 20A03-1406-CR-222 | March 12, 2015          Page 3 of 10
      address form, listing his former address as “Tipton St. 819” and his new address

      as “511 West High St.” (State’s Exh. 8).


[7]   Unable to verify Walker’s address, Detective Brandon Denesuk (Detective

      Denesuk) contacted United States Marshall William Boothe (Marshall Boothe),

      who “assist[s] state and local authorities to locate [and] apprehend

      noncompliant and fugitive sex offenders.” (Tr. p. 178). On June 18, 2013,

      Marshall Boothe attempted to locate Walker at 511 West High Street. He

      “interviewed the neighbors and was [only able] to find one individual in 511

      that even knew Mr. Walker”—Dawn Harris (Harris), Walker’s former step-

      sister. (Tr. p. 180). With Harris’ consent, Marshall Boothe searched the

      apartment and found no “evidence of domain of Mr. Walker at the address.”

      (Tr. p. 182). Also present during the house check was Pierre Fleming

      (Fleming)—who was Harris’ boyfriend at the time and is Walker’s brother.

      Fleming lived with Harris at 511 West High Street from February through June

      of 2013, but he did not provide any information to Marshall Boothe about

      Walker or his living arrangements. Marshall Boothe also attempted to locate

      Walker at 819 Tipton Street, but a female answered the door and would not

      allow him to come inside.


[8]   On July 24, 2013, Detective Denesuk and Marshall Boothe conducted another

      house check at 511 West High Street. When they entered Harris’ apartment,

      Detective Denesuk noticed several pieces of mail addressed to Walker on the

      table but observed nothing else to indicate that Walker was living there. Harris

      confirmed that Walker “was not living there and he had never lived there but he

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       had used the address for mailing purposes only.” (Tr. p. 183).                     Harris signed

       an affidavit, averring that Walker had never lived at 511 West High Street.


[9]    On August 20, 2013, the State filed an Information, charging Walker with one

       Count of failure to register as a sex or violent offender, a Class D felony, I.C. §

       11-8-8-17(a)(5) (2013). On May 22-23, 2014, the trial court conducted a jury

       trial. At the close of the evidence the jury returned a guilty verdict. At the

       sentencing hearing on June 16, 2014, the trial court sentenced Walker to

       eighteen months, fully executed in the DOC.


[10]   Walker now appeals. Additional facts will be provided as necessary.


                                   DISCUSSION AND DECISION

                                           I. Admission of Evidence

[11]   At trial, the State offered into evidence the Notice, which was signed by Walker

       upon his release from the Elkhart County Jail and apprised him of his duty to

       register. Walker objected to the admission of the exhibit, arguing that “the

       same information could be conveyed to the jury with a redacted copy that

       deletes references to him being incarcerated.” (Tr. p. 144). The trial court

       overruled the objection and admitted the Notice without redaction. Walker

       now claims that the admission of this evidence was contrary to Indiana Rule of

       Evidence 403.


[12]   A trial court is vested with broad discretion in admitting and excluding

       evidence, and we review admissibility decisions only for an abuse of that

       discretion. Halliburton v. State, 1 N.E.3d 670, 675 (Ind. 2013). It is an abuse of

       Court of Appeals of Indiana | Memorandum Decision | 20A03-1406-CR-222 | March 12, 2015   Page 5 of 10
       discretion if the trial court’s ruling “is clearly against the logic and effect of the

       facts and circumstances before it.” Id. On review, our court does not reweigh

       evidence and we consider only the evidence most favorable to the trial court’s

       ruling. Harris v. State, 19 N.E.3d 298, 301 (Ind. Ct. App. 2014), trans. denied.

       We may affirm the trial court’s ruling on any legal basis that is supported by the

       record. Id. Even if we find that the trial court has abused its discretion, we will

       not disturb the judgment if the admissibility decision amounts to harmless error.

       Duvall v. State, 978 N.E.2d 417, 422 (Ind. Ct. App. 2012), trans. denied.


[13]   In general, evidence is admissible so long as it is relevant. Herrera v. State, 710

       N.E.2d 931, 935 (Ind. Ct. App. 1999) (citing Ind. Evidence Rule 402), trans.

       denied. Evidence is relevant if it tends to make a material fact “more or less

       probable than it would be without the evidence.” Evid. R. 401. However,

       Evidence Rule 403 provides that the trial court “may exclude relevant evidence

       if its probative value is substantially outweighed by a danger of one or more of

       the following: unfair prejudice, confusing the issues, misleading the jury, undue

       delay, or needlessly presenting cumulative evidence.” A trial court has broad

       “latitude in weighing the probative value of the evidence against the possible

       prejudice of its admission.” Herrera, 710 N.E.2d at 935.


[14]   Walker contends that the fact of his incarceration was irrelevant to his charge of

       failing to register as a sex offender. We disagree. As the State points out,

       Walker was released from prison on his child molesting conviction in July of

       2011, at which point he became obligated to register annually as a sex offender

       for a period of ten years. Thereafter, he registered with the Elkhart County

       Court of Appeals of Indiana | Memorandum Decision | 20A03-1406-CR-222 | March 12, 2015   Page 6 of 10
       Sheriff’s Department in August of 2011 and again in March of 2012. The

       Information charged him with “knowingly fail[ing] to reside at his registered

       address” between April 15, 2013 and July 24, 2013. (Appellant’s Conf. App. p.

       12). See I.C. § 11-8-8-17(a)(5). More than a year had passed between Walker’s

       last registration and his address change on April 15, 2013. By indicating that

       Walker was incarcerated until April 12, 2013, the Notice serves to “clarify the

       timeline for the jury” and is therefore relevant. (State’s Br. p. 6). Furthermore,

       we find that the Notice is relevant for the purpose of proving that Walker

       knowingly violated the Act because it specifically notified him that he must

       register his “place of residence.” (State’s Exh. 4).


[15]   Walker next asserts that the Notice was unfairly prejudicial because he was

       convicted of child molesting in LaPorte County, so “the information about his

       incarceration [in Elkhart County] likely misled the jury as to the relationship

       between the incarceration and the obligation of registering.” (Appellant’s Br. p.

       10). Again, we disagree. In evaluating “the likely unfair prejudicial impact,

       courts will look for the dangers that the jury will (1) substantially overestimate

       the value of the evidence or (2) that the evidence will arouse or inflame the

       passions or sympathies of the jury.” Duvall, 978 N.E.2d at 428. Here, it was

       made clear to the jury that Walker’s obligation to register stemmed from his

       2004 conviction in LaPorte County. The reason for Walker’s subsequent

       incarceration in the Elkhart County Jail was not discussed; nor was the fact of

       the incarceration itself emphasized. The jury was well aware of Walker’s child

       molesting conviction, and any evidence that he may have committed a


       Court of Appeals of Indiana | Memorandum Decision | 20A03-1406-CR-222 | March 12, 2015   Page 7 of 10
       subsequent offense was unlikely to impact its determination as to whether

       Walker did or did not reside at the registered address. Thus, we find no abuse

       of discretion in the trial court’s conclusion that the danger of unfair prejudice

       did not outweigh the probative value of the evidence.


                                         II. Sufficiency of the Evidence

[16]   Walker also claims that the State presented insufficient evidence to uphold his

       conviction for failure to register as a sex offender. When reviewing a challenge

       of the sufficiency of the evidence, our court considers only the probative

       evidence and any inferences that may reasonably be derived therefrom that are

       most favorable to the verdict. Harris v. State, 985 N.E.2d 767, 784 (Ind. Ct.

       App. 2013), trans. denied. We will affirm the conviction unless a reasonable trier

       of fact could not find that each element of the crime has been proven beyond a

       reasonable doubt. Id.


[17]   In order to sustain Walker’s conviction, the State was required to prove beyond

       a reasonable doubt that he knowingly or intentionally did “not reside at [his]

       registered address or location.” I.C. § 11-8-8-17(a)(5) (2013). Upon his release

       from jail, Walker informed the Elkhart County Sheriff’s Department that his

       address was “511 [H]igh St[.] B.” (State’s Exh. 5). A subsequent house check

       revealed that there was no apartment “B” at the given address. Two months

       later, Walker amended his address to simply “511 West High St.” (State’s Exh.

       8). When Detective Denesuk and Marshall Boothe attempted to verify

       Walker’s address, they learned that the apartment at 511 West High Street was

       leased by Harris, who confirmed that Walker did not live with her, but he

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       utilized her address to receive mail. During the trial, Harris testified that she

       had known Walker “since he was a kid,” and although he was welcome to

       “hang out” at her apartment, she unequivocally stated that Walker did not live

       there. (Tr. pp. 196, 200).


[18]   Furthermore, on both of his change of address forms, Walker had listed his

       former address as 819 Tipton Street. Yet, on April 16, 2013, just one day after

       submitting the first change form to the Sheriff’s Department to register 511

       West High Street as his address, Walker updated his information with the

       Bureau of Motor Vehicles and listed 819 Tipton Street as both his legal and

       mailing address. During the trial, Detective Denesuk explained that Walker’s

       sex offender status precludes him from living within 1,000 feet of a school or

       public park, and “819 Tipton Street is approximately seven hundred and

       twenty-five (725) feet [from] Beck Elementary and it is less than two hundred

       fifty feet (250) east of [a youth baseball field].” (Tr. p. 152). According to

       Harris, Walker was living with his girlfriend “on Tip – Tip – Tenth – it start[s]

       with a T.” (Tr. p. 200). Fleming also testified that Walker’s girlfriend lived on

       Tipton Street and that Walker stayed with her several nights per week.


[19]   We find it clear from the evidence that Walker attempted to circumvent the

       restrictions of the Act. He falsely registered the address of his former step-sister

       and his brother in order to disguise the fact that he was actually living with his

       girlfriend in the vicinity of an elementary school and a youth public park.

       Detective Denesuk and Marshall Boothe collectively made several attempts to

       verify Walker’s address, but they never found more than a few pieces of mail to

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       connect Walker to 511 West High Street. In support of his claim of insufficient

       evidence, Walker relies on Fleming’s testimony that Walker did live at the

       registered address. However, it is well established that our court does not

       interfere with the jury’s determination of evidentiary weight, and it was

       certainly within the province of the jury to find the testimony of Detective

       Denesuk, Marshall Boothe, and Harris more credible than that of Fleming. See

       Kelsie v. State, 354 N.E.2d 219, 222 (Ind. 1976). Therefore, we find that there is

       sufficient evidence to support the determination that Walker was not living at

       his registered address.


                                               CONCLUSION

[20]   Based on the foregoing, we conclude that the trial court acted within its

       discretion in admitting into evidence the Notice of Walker’s obligation to

       register as a sex offender. We further conclude that the State presented

       sufficient evidence beyond a reasonable doubt to support Walker’s conviction

       of Class D felony failure to register as a sex offender.


[21]   Affirmed.


[22]   Vaidik, C. J. and Baker, J. concur




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