                                                                        FILED
                                                                    Aug 04 2020, 8:47 am

                                                                        CLERK
                                                                    Indiana Supreme Court
                                                                       Court of Appeals
                                                                         and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Elizabeth A. Bellin                                        Curtis T. Hill, Jr.
Elkhart, Indiana                                           Attorney General of Indiana
                                                           Courtney Staton
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Terry E. Garber, Jr.,                                      August 4, 2020
Appellant/Defendant,                                       Court of Appeals Case No.
                                                           20A-CR-309
        v.                                                 Appeal from the Elkhart Superior
                                                           Court
State of Indiana,                                          The Hon. Kristine A. Osterday,
                                                           Judge
Appellee/Plaintiff.
                                                           Trial Court Cause Nos.
                                                           20D01-1903-F3-10



Bradford, Chief Judge.




Court of Appeals of Indiana | Opinion 20A-CR-309 | August 4, 2020                           Page 1 of 13
                                            Case Summary
[1]   In February of 2019, Terry Garber, Jr., forced his way into the apartment of his

      ex-girlfriend K.M. and forcibly penetrated her anus and vagina with his fingers

      in the presence of K.M.’s three minor children. When the children interrupted

      him, Garber struck one on the genitals and beat another repeatedly on his bare

      buttocks. The State charged Garber with Level 3 felony rape and two counts of

      Level 6 felony battery. A jury found Garber guilty as charged, and the trial

      court sentenced him to an aggregate sentence of twenty years of incarceration

      with two suspended to probation. Garber contends that (1) the trial court

      abused its discretion in admitting some testimony regarding out-of-court

      statements made by K.M., (2) the admission of other testimony regarding out-

      of-court statements by K.M. and allegedly-vouching testimony by a physician

      who had examined K.M. constituted fundamental error, and (3) his sentence is

      inappropriately harsh. Because we disagree, we affirm.


                             Facts and Procedural History
[2]   In February of 2019, K.M. was living in an Elkhart apartment with her three

      children: seven-year-old K.J.H., six-year-old K.L.H., and eleven-month-old

      M.G. M.G. is K.M.’s child with Garber, with whom she had been in a

      relationship until September or October of 2018. At around 6:00 p.m. on

      February 14, 2019, Garber came to K.M.’s apartment, and K.M. allowed

      Garber in, gave him some food, and told him he had to go, which he did. A




      Court of Appeals of Indiana | Opinion 20A-CR-309 | August 4, 2020       Page 2 of 13
      short time later, Garber returned and asked if he could stay the night. K.M.

      told Garber that he could not, and he left.

[3]   A short time later, Garber returned again, and when K.M. opened the door to

      tell him to leave, he forced it open and said, “Daddy’s home, b******. Daddy’s

      home.” Tr. Vol. IV pp. 27–28. Garber first pinned K.M. against a wall and

      then a sliding glass door before trying to pull her leggings down as she fought

      and struggled. Despite K.M.’s struggles, Garber managed to penetrate her anus

      and vagina with his fingers. K.M. felt like Garber was “trying to pull his thing

      out” as he was trying to remove her leggings. Tr. Vol. IV p. 39.

[4]   By this time, all three children were in the room, screaming. Angered by the

      interruption, Garber hit K.L.H. on his “private part” before turning his

      attention to K.J.H., spanking him repeatedly on his bare buttocks. Tr. Vol. IV

      p. 152. K.M. kicked Garber, which allowed her to collect her children, dial

      911, tell the dispatcher that she needed help, and attempt to flee to Quintejah

      Ward’s apartment across the hallway. Before K.M. could reach the other

      apartment, Garber grabbed her by the hair and attempted to drag her back to

      her apartment. Ward opened her door, and K.M. yelled “[h]e raped me” before

      Ward’s boyfriend “pinned” Garber, which allowed K.M. and the children to

      enter Ward’s apartment. Tr. Vol. III pp. 139, 140.

[5]   Once inside Ward’s apartment, K.M. received a return call from 911 and

      reported that she had been assaulted. K.M. then called her boyfriend

      Christopher Sawyer and told him that Garber had tried to rape her and had

      spanked K.J.H. Elkhart Police Corporal Jared Davies responded to the scene,


      Court of Appeals of Indiana | Opinion 20A-CR-309 | August 4, 2020          Page 3 of 13
      arriving within minutes. Corporal Davies recorded his interview with K.M.

      with his body camera, during which K.M. identified Garber as her assailant.

      After K.M. was transported to a hospital, emergency-room physician Katherine

      Hughes examined her, and K.M., inter alia, told Dr. Hughes that Garber had

      digitally penetrated her anus and vagina. What was later determined to be

      Garber’s DNA was found under K.M.’s fingernails.

[6]   On March 28, 2019, the State charged Garber with Level 3 felony rape and two

      counts of Level 6 felony battery. A jury trial was held on December 10, 2019,

      during which the State introduced Corporal Davies’s bodycam footage of

      K.M.’s statement to him and Sawyer’s testimony about K.M.’s telephone call.

      Over Garber’s objections, the trial court admitted this testimony on the basis

      that K.M.’s statements to Sawyer and Corporal Davies had been excited

      utterances. Ward’s testimony that K.M. had yelled that she had been raped and

      Dr. Hughes’s testimony that K.M. had told her that Garber had digitally

      penetrated her were admitted without objection. The following exchange also

      occurred during Dr. Hughes’s testimony:

              BY [Prosecutor]:
                 Q. Dr. Hughes, I don’t even want to try to imagine how many
              total patients you have seen throughout the course of your career
              but through your training and experience, would you agree with
              me that people are likely to provide accurate information when
              they’re being treated at the emergency room?
                  A. For the most part, I feel like people are honest. Sometimes
              I ask them questions about drug abuse or alcoholism or their
              sexual preferences and they’re very honest. I don’t think that



      Court of Appeals of Indiana | Opinion 20A-CR-309 | August 4, 2020       Page 4 of 13
              there’s a reason really for people to lie when they’re seeking
              medical care.
      Tr. Vol. III p. 177. Garber did not object to this testimony. The jury found

      Garber guilty as charged, and on January 21, 2020, the trial court held a

      sentencing hearing, after which it imposed an aggregate sentence of twenty

      years of incarceration with two suspended to probation.


                                  Discussion and Decision
                                   I. Admission of Evidence
[7]   Garber contends that the admission of testimony regarding out-of-court

      statements made by K.M. and alleged vouching testimony, taken as a whole,

      constituted fundamental error. In general, a trial court’s ruling on the

      admission or exclusion of evidence is reviewed for an abuse of discretion that

      results in prejudicial error. Williams v. State, 43 N.E.3d 578 (Ind. 2015). A trial

      court’s evidentiary decision will be reversed for an abuse of discretion only

      where the court’s decision is clearly against the logic and effect of the facts and

      circumstances, or when the court misinterprets the law. Id.


[8]   If no objection is made to testimony, however, any claim related to its

      admission is waived for appellate review. See Wilson v. State, 931 N.E.2d 914,

      919 (Ind. Ct. App. 2010) (“The failure to raise an issue at trial waives the issue

      on appeal.”), trans. denied. In such cases, review is limited to determining if

      fundamental error occurred. The doctrine applies only in “extraordinary

      circumstances,” Hardley v. State, 905 N.E.2d 399, 402 (Ind. 2009), and is meant



      Court of Appeals of Indiana | Opinion 20A-CR-309 | August 4, 2020          Page 5 of 13
       to cure the “most egregious and blatant trial errors that otherwise would have

       been procedurally barred, not to provide a second bite at the apple for defense

       counsel who ignorantly, carelessly, or strategically fail to preserve an error.”

       Ryan v. State, 9 N.E.3d 663, 668 (Ind. 2014). A fundamental error is such a

       gross error that it renders a fair trial “‘impossible.’” Hardley, 905 N.E.2d at 402

       (quoting Barany v. State, 658 N.E.2d 60, 64 (Ind. 1995)).


          A. Testimony Regarding K.M.’s Out-of-Court Statements
[9]    Garber contends that the admission of testimony from Ward, Sawyer, Corporal

       Davies, and Dr. Hughes regarding statements K.M. made to them was

       erroneous. As an initial matter, Garber did not object to Ward’s and Dr.

       Hughes’s testimony, so any claim as to their admission at trial is waived for

       appellate review. See, e.g., Wilson, 931 N.E.2d at 919. In any event, Garber

       does not contend that any of the above testimony was anything more than

       merely cumulative of K.M.’s testimony. It is well-settled that even “[t]he

       improper admission of evidence is harmless error when the erroneously

       admitted evidence is merely cumulative of other evidence before the trier of

       fact.” Hunter v. State, 72 N.E.3d 928, 932 (Ind. Ct. App. 2017), trans. denied.

[10]   That said, Garber contends the Indiana Supreme Court’s opinions in Modesitt v.

       State, 578 N.E.2d 649 (Ind. 1991), and Stone v. State, 268 Ind. 672, 377 N.E.2d

       1372 (1978), require reversal. It is true that Modisett and Stone are both cases in

       which the Court addressed the admissibility of testimony regarding out-of-court

       statements by witnesses, like K.M., who also testified at trial. Modesitt, 578



       Court of Appeals of Indiana | Opinion 20A-CR-309 | August 4, 2020         Page 6 of 13
       N.E.2d at 654; Stone, 268 Ind. at 679, 377 N.E.2d at 1375–76. Modesitt and

       Stone, however, do not help Garber.

[11]   Modesitt and Stone both discussed (and Modesitt overruled) the Indiana Supreme

       Court case of Patterson v. State, 263 Ind. 55, 324 N.E.2d 482 (1975), which “held

       that prior out-of-court statements, not under oath, were admissible as

       substantive evidence if the declarant was present and available for cross

       examination at the time of the admission of such statements.” Modesitt, 578

       N.E.2d at 651. In response to what the Court saw as impermissible expansion

       and misapplication of the rule in Patterson, and based on a survey of law from

       other states and Federal Rule of Evidence 801(d)(1), the Modesitt Court held

       that

               a prior statement is admissible as substantive evidence only if the
               declarant testifies at trial and is subject to cross examination
               concerning the statement, and the statement is (a) inconsistent
               with the declarant’s testimony, and was given under oath subject
               to the penalty of perjury at a trial, hearing, or other proceeding,
               or in a deposition, or (b) consistent with the declarant’s testimony
               and is offered to rebut an express or implied charge against the
               declarant of recent fabrication or improper influence or motive,
               or (c) one of identification of a person made after perceiving the
               person.
       Modesitt, 578 N.E.2d at 653–54. The Modesitt Court also clarified that its

       “decision d[id] not affect the existing, recognized hearsay rule and its

       exceptions.” Id. at 654.

[12]   In 1994, the Indiana Rules of Evidence became effective, with the current Rule

       801(d)(1) essentially codifying Modesitt and providing that


       Court of Appeals of Indiana | Opinion 20A-CR-309 | August 4, 2020          Page 7 of 13
         a statement is not hearsay if:
         (1) A Declarant-Witness’s Prior Statement. The declarant testifies
         and is subject to cross-examination about a prior statement, and
         the statement:
             (A) is inconsistent with the declarant’s testimony and was
             given under penalty of perjury at a trial, hearing, or other
             proceeding or in a deposition;
             (B) is consistent with the declarant’s testimony, and is offered
             to rebut an express or implied charge that the declarant recently
             fabricated it or acted from a recent improper influence or
             motive in so testifying; or
             (C) is an identification of a person shortly after perceiving the
             person.
While it does not seem that any of K.M.’s statements would qualify for any of

the hearsay exclusions mentioned in Modesitt and Evidence Rule 801(d),

Sawyer’s and Corporal Davies’s testimony regarding K.M.’s statements to them

was admitted on the basis that her statements were excited utterances, and the

Modesitt Court made it clear that it was not altering the existing law regarding

the hearsay rule or its exceptions, one of which was, and still is, an excited

utterance.1 Because K.M.’s statements were admitted as excited utterances,

rulings that Garber does not challenge, Modesitt simply does not apply in this




1
  The “excited utterance” exception to the hearsay rule has long been recognized in Indiana. See, e.g.,
Ketcham v. State, 240 Ind. 107, 111–12, 162 N.E.2d 247, 249 (1959) (“Another exception commonly
recognized to the rule against hearsay is that concerning the res gestae. [….] The most frequent application has
been in the area of spontaneous exclamations, that is, statements made during or after an affray, a collision or
the like, used to prove the facts asserted in the statement. The words must be reasonably contemporaneous
with the act or incident to which it is connected.”). An “excited utterance” is currently defined as “[a]
statement relating to a startling event or condition, made while the declarant was under the stress of
excitement that it caused.” Ind. R. Evid. 803(2).


Court of Appeals of Indiana | Opinion 20A-CR-309 | August 4, 2020                                  Page 8 of 13
       case. Garber has failed to establish harmful error, much less fundamental error,

       in this regard.


                                     B. Dr. Hughes’s Statement
[13]   As mentioned, when asked if she believed that emergency-room patients

       provide accurate information, Dr. Hughes replied, “For the most part, I feel like

       people are honest. Sometimes I ask them questions about drug abuse or

       alcoholism or their sexual preferences and they’re very honest. I don’t think

       that there’s a reason really for people to lie when they’re seeking medical care.”

       Tr. Vol. III p. 177. Garber did not object to this testimony on the basis that it

       was impermissible vouching but attempts to avoid the effects of his waiver by

       claiming that its admission constituted fundamental error.2

[14]   While we think that Dr. Hughes’s testimony comes close to crossing the line,

       we conclude that the cited testimony does not quite rise to the level of

       impermissible vouching. It is true that Evidence Rule 704(b) provides that

       “[w]itnesses may not testify to opinions concerning intent, guilt, or innocence

       in a criminal case; the truth or falsity of allegations; whether a witness has

       testified truthfully; or legal conclusions.” Dr. Hughes, however, actually did

       none of these things. In the cited passage, Dr. Hughes did not opine that K.M.

       was telling the truth, offering only a general observation on how emergency-




       2
         Garber actually argues that Dr. Hughes’s allegedly-vouching testimony, when considered along with
       testimony regarding K.M.’s out-of-court statements, constitutes fundamental error. Because we have already
       concluded that no error occurred in the admission of the testimony regarding the out-of-court statements,
       however, we address the allegedly-vouching testimony in isolation.


       Court of Appeals of Indiana | Opinion 20A-CR-309 | August 4, 2020                             Page 9 of 13
       room patients behave based on her experience. This does not quite qualify as

       impermissible vouching. See, e.g., Alvarez-Madrigal v. State, 71 N.E.3d 887, 893

       (Ind. Ct. App. 2017) (concluding that testimony from a pediatrician that “some

       statistics will quote that less than two to three children out of a thousand are

       making up claims [of molestation]” did not constitute vouching because it “was

       not a statement as to [the victim’s] credibility [or] an opinion regarding the truth

       of the allegations against Alvarez-Madrigal”), trans. denied; Baumholser v. State,

       62 N.E.3d 411, 416 (Ind. Ct. App. 2016) (concluding that testimony from

       forensic interviewer that molestation victims often delay disclosure was not

       vouching because it “did not relate to the truth or falsity of [the victim’s]

       allegations [but was only] a statement about how victims of child molestation

       behave in general”), trans. denied. While we do not wish to encourage the

       elicitation of testimony similar to Dr. Hughes’s in the future, we nonetheless

       conclude that Garber has failed to establish error in this regard, much less

       fundamental error.


                                   II. Inappropriate Sentence
[15]   We “may revise a sentence authorized by statute 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 of the offender.” Ind.

       Appellate Rule 7(B). “Although appellate review of sentences must give due

       consideration to the trial court’s sentence because of the special expertise of the

       trial bench in making sentencing decisions, Appellate Rule 7(B) is an

       authorization to revise sentences when certain broad conditions are satisfied.”

       Court of Appeals of Indiana | Opinion 20A-CR-309 | August 4, 2020         Page 10 of 13
       Shouse v. State, 849 N.E.2d 650, 660 (Ind. Ct. App. 2006), trans. denied (citations

       and quotation marks omitted). “[W]hether we regard a sentence as appropriate

       at the end of the day turns on our sense of the culpability of the defendant, the

       severity of the crime, the damage done to others, and myriad other factors that

       come to light in a given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind.

       2008). In addition to the “due consideration” we are required to give to the

       trial court’s sentencing decision, “we understand and recognize the unique

       perspective a trial court brings to its sentencing decisions.” Rutherford v. State,

       866 N.E.2d 867, 873 (Ind. Ct. App. 2007). As mentioned, the trial court

       imposed a significantly-enhanced sentence of twenty years of incarceration (out

       of a possible maximum of twenty-one years) with two years suspended to

       probation.3

[16]   The nature of Garber’s offenses is egregious. Garber forced his way into the

       home of his ex-girlfriend and forcibly penetrated her in front of her minor

       children, including one that they shared, while she fought and struggled. It

       seems that Garber’s intent was to force intercourse on K.M. as well, had he not

       been interrupted. When he was interrupted by the children, Garber hit one in

       the genitals and beat another repeatedly on his bare buttocks. As K.M.

       attempted to flee with the children, Garber grabbed her by the hair and




       3
         For rape, the trial court could have imposed a sentence of between three and sixteen years of incarceration,
       with the advisory being nine years, and for battery, sentences of between six months and two and one-half
       years, with the advisory being one year. Ind. Code §§ 35-50-2-5(b), -7(b).


       Court of Appeals of Indiana | Opinion 20A-CR-309 | August 4, 2020                                Page 11 of 13
       attempted to force her to the ground while she was holding M.G. The nature of

       Garber’s offenses does not warrant a reduction in his sentence.

[17]   As for Garber’s character, it is revealed through his extensive criminal record

       and other criminal activity, and it is not good. Garber, born in October of 1985,

       had juvenile delinquency adjudications for marijuana dealing in 2000 and

       battery resulting in bodily injury and two counts of theft in 2003. As an adult,

       Garber has prior convictions for Class D felony criminal recklessness, Class D

       felony residential entry, Class D felony strangulation, Class D felony failure to

       return to lawful detention, Level 6 felony intimidation, Level 6 felony

       residential entry, Class A misdemeanor resisting law enforcement, Class A

       misdemeanor domestic battery, Class C misdemeanor operating a vehicle

       without ever receiving a license, and three counts of Class C misdemeanor

       illegal consumption of an alcoholic beverage. Moreover, Garber has violated

       the terms of probation three times and was on probation when he committed

       the instant offenses. Finally, Garber has admitted to extensive illegal drug and

       alcohol use, beginning with marijuana at age thirteen; moving on to alcohol at

       age seventeen or eighteen; and including methamphetamine, heroin, Adderall,

       and synthetic marijuana. Despite Garber’s numerous criminal convictions,

       many of which involved violence, and other admitted criminal activity, not

       only has he not chosen to reform himself, his crimes are becoming more

       serious. In light of the nature of his offenses and his character, Garber has

       failed to establish that a reduction in his sentence is warranted.

[18]   We affirm the judgment of the trial court.


       Court of Appeals of Indiana | Opinion 20A-CR-309 | August 4, 2020         Page 12 of 13
Najam, J., and Mathias, J., concur.




Court of Appeals of Indiana | Opinion 20A-CR-309 | August 4, 2020   Page 13 of 13
