MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                             FILED
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the                 Dec 07 2017, 7:36 am

purpose of establishing the defense of res judicata,                    CLERK
collateral estoppel, or the law of the case.                        Indiana Supreme Court
                                                                       Court of Appeals
                                                                         and Tax Court




ATTORNEY FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
Matthew D. Anglemeyer                                  Curtis T. Hill, Jr.
Marion County Public Defender                          Attorney General of Indiana
Appellate Division
                                                       Tyler Banks
Indianapolis, Indiana
                                                       Deputy Attorney General
                                                       Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Terrius Anderson,                                          December 7, 2017

Appellant-Defendant,                                       Court of Appeals Case No.
                                                           49A02-1705-CR-976

        v.                                                 Appeal from the Marion Superior
                                                           Court
State of Indiana,                                          The Honorable Barbara C.
                                                           Crawford, Judge
Appellee-Plaintiff.
                                                           Trial Court Cause No.
                                                           49G09-1603-F6-11112




Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1705-CR-976 | December 7, 2017      Page 1 of 7
                                          Case Summary
[1]   In March of 2016, Indianapolis Metropolitan Police Detective Sergeant Karen

      Dague was interviewing N.H., a human-trafficking victim, in the detective’s

      vehicle, which was parked in a public parking lot. A vehicle driven by

      Appellant-Defendant Terrius Anderson pulled alongside Detective Dague’s

      vehicle. When N.H. appeared to become scared, Detective Dague turned

      around to see Anderson, sitting with both legs out of his vehicle, not wearing

      pants, and stroking his bare penis. When Detective Dague attempted to write

      down Anderson’s license plate number, Anderson quickly backed his vehicle

      out, requiring Detective Dague to jump out of the way.


[2]   The State charged Anderson with, inter alia, conducting a performance harmful

      to minors and criminal recklessness. At trial, Detective Dague testified that

      N.H. was fourteen years old and that she knew this because N.H. had told her

      and Homeland Security had verified the information. The trial court found

      Anderson guilty of conducting a performance harmful to minors and criminal

      recklessness and imposed sentence. Anderson contends that the trial court

      abused its discretion in admitting Detective Dague’s testimony regarding N.H.’s

      age. Because we agree, we affirm in part, reverse in part, and remand with

      instructions to vacate Anderson’s conviction for conducting a performance

      harmful to minors.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1705-CR-976 | December 7, 2017   Page 2 of 7
                            Facts and Procedural History
[3]   At approximately 10:25 a.m. on March 21, 2016, Detective Dague, a supervisor

      in the human trafficking unit, was interviewing N.H. in a public parking lot

      near 21st Street and Shadeland Avenue in Indianapolis. Detective Dague had

      apparently personally met with N.H. twice before. As Detective Dague spoke

      with N.H. in the detective’s undercover vehicle, another vehicle pulled into the

      next space. At some point, Detective Dague noticed that N.H. “got a very

      scared look on her face[,] got tears in her eyes and her eyes got wide.” Tr. Vol.

      II p. 13. Detective Dague turned around and saw “Anderson sitting with both

      legs out of his car without pants on with an erect penis. Stroking it up and

      down looking at me, red eyes smiling.” Tr. Vol. II p. 13. Detective Dague was

      unable to arrest Anderson because she was with N.H. but did stand behind his

      vehicle to record his license plate number. As Detective Dague was doing this,

      “all of a sudden the car [revved] and came at [her] at fast speed and [she]

      jumped out of the way.” Tr. Vol. II p. 15.


[4]   On March 23, 2016, the State charged Anderson with Level 6 felony

      dissemination of matter harmful to minors, two counts of Class A misdemeanor

      public indecency, Class B misdemeanor public nudity, and Class B

      misdemeanor criminal recklessness. The State later added a charge of Level 6

      felony conducting a performance harmful to minors. On March 20, 2017, a

      bench trial was held. Detective Dague testified that she believed N.H. to be

      fourteen years old and later testified that she knew this because N.H. had told

      her and from information received from Homeland Security. Anderson

      Court of Appeals of Indiana | Memorandum Decision 49A02-1705-CR-976 | December 7, 2017   Page 3 of 7
      objected to his testimony on hearsay grounds, which objection the trial court

      overruled. Ultimately, the trial court entered judgment against Anderson for

      conducting a performance harmful to minors and criminal recklessness. On

      April 17, 2017, the trial court sentenced Anderson to 180 days of incarceration

      for criminal recklessness and 545 days for conducting a performance harmful to

      minors. After taking earned credit time into account, Anderson received a 292-

      day sentence, all suspended to probation.


                                Discussion and Decision
                           Admission of Detective Dague’s
                           Testimony Regarding N.H.’s Age
[5]   Anderson argues that the trial court abused its discretion in admitting Detective

      Dague’s testimony regarding N.H.’s age. In general, the admissibility of

      evidence is within the sound discretion of the trial court. Curley v. State, 777

      N.E.2d 58, 60 (Ind. Ct. App. 2002), trans. denied. We will reverse a trial court’s

      decision on the admissibility of evidence only upon a showing of an abuse of

      that discretion. Id. An abuse of discretion may occur if the trial court’s

      decision is clearly against the logic and effect of the facts and circumstances

      before the court, or if the court has misinterpreted the law. Id. The Court of

      Appeals may affirm the trial court’s ruling if it is sustainable on any legal basis

      in the record, even though it was not the reason enunciated by the trial court.

      Moore v. State, 839 N.E.2d 178, 182 (Ind. Ct. App. 2005), trans. denied. We do

      not reweigh the evidence, and consider the evidence most favorable to the trial


      Court of Appeals of Indiana | Memorandum Decision 49A02-1705-CR-976 | December 7, 2017   Page 4 of 7
      court’s ruling. Hirsey v. State, 852 N.E.2d 1008, 1012 (Ind. Ct. App. 2006),

      trans. denied.


[6]   Anderson contends that Detective’s Dague’s testimony regarding N.H.’s age is

      inadmissible hearsay. The State argues that the record is sufficient to establish

      that Detective Dague had personal knowledge of N.H.’s age.


              Hearsay is evidence of a statement made out of court that is
              offered in a judicial proceeding to prove the truth of a fact
              asserted in the statement. Ind. Evidence Rule 801(c); Timmons v.
              State (1992), Ind., 584 N.E.2d 1108; McConnell v. State (1984),
              Ind., 470 N.E.2d 701.… Hearsay is not admissible unless it fits
              within some exception to the hearsay rule. Evid. R. 802 and 803;
              Miller v. State (1991), Ind., 575 N.E.2d 272. A trial error in the
              admission of hearsay evidence warrants remedial action on
              appeal, where such error caused prejudice to the substantial
              rights of the defendant. Harvey v. State (1971), 256 Ind. 473, 269
              N.E.2d 759.
      Craig v. State, 630 N.E.2d 207, 209 (Ind. 1994).


[7]   We agree with Anderson that Detective Dague’s testimony was inadmissible

      hearsay. Although Detective Dague testified that she had personal knowledge

      of N.H.’s age, she testified that she knew N.H.’s age because (1) N.H. told her

      and (2) Homeland Security verified the information. Put simply, to the extent

      that Detective Dague knew N.H.’s age, it was because somebody told her,

      which is insufficient to establish personal knowledge. See Ind. Evidence Rule

      602 (“A witness may testify to a matter only if evidence is introduced sufficient

      to support a finding that the witness has personal knowledge of the matter.”).



      Court of Appeals of Indiana | Memorandum Decision 49A02-1705-CR-976 | December 7, 2017   Page 5 of 7
      Because these out-of-court statements were being used to establish N.H.’s age,

      they fit squarely within the definition of hearsay.


[8]   The State argues that ruling in Anderson’s favor would provide the basis for

      exclusion of evidence of any name, date, or place in any trial. This argument

      fails to account for the various hearsay exceptions that might be used to prove a

      person’s age, none of which were used here, even assuming such evidence

      exists. For example, age could be proved by the admission of a public record of

      a vital statistic, Evid. R. 803(9); a record of a religious organization concerning

      personal or family history, Evid. R. 803(11); a birth certificate, Evid. R.

      803(12); family records, Evid. R. 803(13); or the hearsay exception that it seems

      would most often allow a witness to testify regarding her own age, reputation

      concerning personal or family history, Evid. R. 803(19). See also Hengstler v.

      State, 189 N.E. 623, 627 (Ind. 1934) (“Appellant complains of permitting the

      prosecuting witness to testify as to her age upon information from her mother[.]

      Such evidence is competent.”). A parent, family member, or friend may also be

      in a position to give testimony as to a child’s age. Given the myriad ways in

      which age can be proved in court, the State has not convinced us that a ruling in

      favor of Anderson would lead to successful challenges to any attempt to do so.

      We conclude that Anderson has established that the trial court abused its

      discretion in admitting Detective Dague’s testimony regarding N.H.’s age.

      Consequently, as the State concedes would be appropriate if Anderson won on

      the evidentiary challenge, we remand with instructions to vacate Anderson’s




      Court of Appeals of Indiana | Memorandum Decision 49A02-1705-CR-976 | December 7, 2017   Page 6 of 7
      conviction and sentence for Level 6 felony conducting a performance harmful

      to minors.


[9]   We affirm the judgment of the trial court in part, reverse in part, and remand

      with instructions.


      May, J., and Barnes, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1705-CR-976 | December 7, 2017   Page 7 of 7
