MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                        FILED
this Memorandum Decision shall not be
                                                                         Feb 28 2020, 10:35 am
regarded as precedent or cited before any
court except for the purpose of establishing                                  CLERK
                                                                          Indiana Supreme Court
the defense of res judicata, collateral                                      Court of Appeals
                                                                               and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Rory Gallagher                                            Curtis T. Hill, Jr.
Marion County Public Defender                             Attorney General of Indiana
Indianapolis, Indiana
                                                          Benjamin J. Shoptaw
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

A.W.,                                                     February 28, 2020
Appellant-Respondent,                                     Court of Appeals Case No.
                                                          19A-JV-1793
        v.                                                Appeal from the Marion Superior
                                                          Court
State of Indiana,                                         The Honorable Marilyn A.
Appellee-Petitioner                                       Moores, Judge
                                                          The Honorable Geoffrey A.
                                                          Gaither, Magistrate
                                                          Trial Court Cause No.
                                                          49D09-1902-JD-215



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-JV-1793 | Febraury 28, 2020                 Page 1 of 10
[1]   The trial court adjudicated A.W. delinquent for an act that would constitute

      Level 6 felony escape 1 if committed by an adult. He raises one issue on appeal,

      which we revise and restate as whether the trial court abused its discretion in

      admitting testimony regarding whether the tracking device in question had been

      assigned to A.W. We affirm.



                                Facts and Procedural History
[2]   On February 25, 2019, David Akers, a Community Adjustment Supervisor with

      the Marion County Juvenile Probation Department, was monitoring a

      computer that kept track of all juveniles placed on electronic monitoring in

      Marion County. Akers noticed a “tamper alert” and he viewed a mapping

      screen to identify the tampered device’s location. (Tr. Vol. II at 11.) The screen

      notified Akers that the tampered monitoring device was at North Central High

      School in Indianapolis. Akers went to the school and located the tracking

      device in the parking lot behind the school. The tracking device’s strap had

      been cut.


[3]   On February 26, 2019, the State alleged A.W. was a delinquent child for

      committing an act that would constitute Level 6 felony escape if committed by

      an adult. The court held a fact-finding hearing on May 23, 2019. Akers was

      the only witness to testify at the hearing. The trial court entered a true finding




      1
          Ind. Code § 35-44.1-3-4.


      Court of Appeals of Indiana | Memorandum Decision 19A-JV-1793 | Febraury 28, 2020   Page 2 of 10
      on the charge of escape. The trial court held a dispositional hearing in July

      2019 on the escape charge and two unrelated cases. The court placed A.W. in

      the custody of the Indiana Department of Correction (“DOC”) until the age of

      twenty-one unless released sooner by the DOC, with a recommended

      commitment of six months.



                                 Discussion and Decision
[4]   We evaluate a decision to admit or exclude evidence using an abuse of

      discretion standard because such decisions are within the trial court’s “sound

      discretion” and are “afforded great deference” on appeal. Fugett v. State, 812

      N.E.2d 846, 848 (Ind. Ct. App. 2004). We will reverse a decision to admit

      evidence only where the admission is a “manifest abuse of discretion by the trial

      court resulting in the denial of a fair trial.” Johnson v. State, 831 N.E.2d 163,

      168-69 (Ind. Ct. App. 2005), trans. denied. “A decision is an abuse of discretion

      if it is clearly against the logic and effect of the facts and circumstances before

      the court. Id. at 169. A.W. argues Akers’ testimony that the electronic

      monitoring device he found belonged to A.W. was inadmissible hearsay, and

      he argues the State failed to lay an adequate foundation for admission of the

      testimony.


[5]   Generally, a party waives an argument or issue on appeal by failing to raise the

      argument or issue before the trial court. Long v. State, 121 N.E.3d 1085, 1088

      (Ind. Ct. App. 2019), trans. denied. The State argues A.W. did not object to

      Akers’ testimony that the serial number for the tracking device he recovered at

      Court of Appeals of Indiana | Memorandum Decision 19A-JV-1793 | Febraury 28, 2020   Page 3 of 10
      the high school matched the serial number for the device issued to A.W., and

      therefore, his argument is waived.


[6]   Here, A.W. did object to Akers’ testimony multiple times on hearsay grounds.

      The Court overruled Akers’ first objection but did not formally rule when A.W.

      subsequently objected. The argument A.W. raised before the trial court and the

      argument he raises on appeal both challenge Akers’ testimony connecting the

      tracking device Akers found at the high school to A.W. Therefore, we hold

      A.W.’s argument is not waived and proceed to the merits. 2 See Omni Ins. Group

      v. Poage, 966 N.E.2d 750, 753 (Ind. Ct. App. 2012) (“We prefer to decide a case

      on the merits whenever possible.”), trans. denied; see also State v. Hancock, 530

      N.E.2d 106, 107 (Ind. Ct. App. 1988) (“This court repeatedly has stressed its

      preference for deciding an issue on the merits rather than invoking waiver.”),

      reh’g denied, trans. denied.


[7]   Indiana Rule of Evidence 801 defines hearsay as “a statement that: (1) is not

      made by the declarant while testifying at the trial or hearing; and (2) is offered

      in evidence to prove the truth of the matter asserted.” Hearsay is inadmissible

      unless it meets one of several exceptions. Ind. R. Evid. 802. Many of these

      exceptions are found in Evidence Rules 803 and 804.




      2
        It is important for trial courts to rule on objections. If a trial court fails to do so, objecting parties are left to
      wonder whether they have adequately preserved an issue for appeal. See Ind. R. Evid. 103(b) (“Once the
      court rules definitively on the record at trial a party need not renew an objection or offer of proof to preserve a
      claim of error for appeal”) (emphasis added). Failing to rule on an objection is unfair to the parties and
      reduces trust in the criminal justice system.

      Court of Appeals of Indiana | Memorandum Decision 19A-JV-1793 | Febraury 28, 2020                          Page 4 of 10
[8]   A.W. objected first to Akers’ testimony that he was monitoring a computer

      with the location of all juveniles on home detention in Marion County on

      February 25, 2019, and that he received a tamper alert on the grounds that the

      information Akers’ learned from monitoring his computer was hearsay. The

      State argued Akers “can testify as to what he saw on the screen and what

      happened afterwards.” (Tr. Vol. II at 9.) The trial court properly overruled

      A.W.’s objection because that testimony was not hearsay because it was not

      being offered for “the truth of the matter asserted.” Ind. R. Evid. 801. Rather,

      it explains why Akers took the investigative steps that he did, and “[a]n out-of-

      court statement introduced to explain why a particular course of action was

      taken during a criminal investigation is not hearsay because it is not offered to

      prove the truth of the matter asserted.” Goodson v. State, 747 N.E.2d 1181, 1185

      (Ind. Ct. App. 2001), trans. denied. Therefore, the trial court did not err when it

      overruled A.W.’s objection. See Bates-Smith v. State, 108 N.E.3d 399, 405 (Ind.

      Ct. App. 2018) (holding detective’s testimony was not hearsay because it was

      offered to explain the course of his investigation and the reason officers stopped

      the defendant’s vehicle).


[9]   A.W.’s second objection was to the State’s question, “Who was supposed to be

      wearing that GPS monitoring?” (Tr. Vol. II at 9.) A.W. objected stating:


              Judge I am going to ask the Court not to allow Mr. Akers to
              testify about who was supposed to be wearing that monitor. He
              got that information from another source. He didn’t put it on
              him. He doesn’t know if that one was one that was actually
              put—supposed to be on [A.W.]. All of that is based on hearsay.
              Uh, he is just telling the Court what somebody else told him.
      Court of Appeals of Indiana | Memorandum Decision 19A-JV-1793 | Febraury 28, 2020   Page 5 of 10
(Id. at 9-10.) The judge did not rule on this objection and allowed the State to

continue to question Akers.


        [State:] Is it standard practice by your department that you
        supervise to ask and inform uh juveniles who get put on GPS,
        what their rules are?


        [Akers:] My staff does that, yes.


        [State:] So that is standard practice?


        [Akers:] Yes.


        [State:] And is it fair to say that your staff have been trained—


        [A.W.’s Counsel:] Judge I am going to object as to—it doesn’t
        matter what happens in everybody else’s case. It only matters
        what happened in [A.W.’s] case. Can Mr. Akers definitively say
        that this specific monitor was put on [A.W.’s] ankle and this is
        the one that [A.W.] had on and this is [the] one that made the
        alert. Maybe the probation officer mixed them up, maybe it was
        somebody else’s monitor but Mr. Akers has no personal
        knowledge as to this specific monitor being on [A.W.’s] foot or
        anything that was went [sic] over with [A.W.] or any evidence.
        Standard practice is not evidence.


        [Court:] Uh huh but he was asking more questions. Go ahead.


(Id. at 10.)




Court of Appeals of Indiana | Memorandum Decision 19A-JV-1793 | Febraury 28, 2020   Page 6 of 10
[10]   The State then proceeded to continue to question Akers about his receipt of the

       tamper alert and decision to go to North Central High School. Later in Akers’

       testimony, the following exchange occurred:


               [State:] And when you were [at the high school] what did you
               find?


               [Akers:] The GPS tracker that we had placed on [A.W.], and the
               reason that I could—


               [A.W.’s Counsel:] Judge I am going to object to the
               characterization that we had placed. Mr. Akers did not place it.


               [Court:] Okay.


               [A.W.’s Counsel:] And he was not there when it happened. He
               can’t testify as to how that happened or when that happened. It
               is information he got from someone else, which is hearsay.


               [Court:] Okay we will note your objection. Go ahead.


               [State:] How did the GPS tracker appear to you?


               [Akers:] When I drove to the parking lot, I was basically going
               off of the last GPS points that I saw so I went to that area of
               North Central, the parking lot which is behind the school near
               the soft ball [sic] field and I retrieved at that time a GPS tracker
               with a serial number [that] matches the same number that we
               have input into the system for [A.W.]


       (Id. at 11-12.)


       Court of Appeals of Indiana | Memorandum Decision 19A-JV-1793 | Febraury 28, 2020   Page 7 of 10
[11]   A.W. argues Akers’ testimony that the specific device Akers found was the

       device assigned to A.W. was inadmissible hearsay, and without that evidence,

       there is insufficient evidence to support the true finding. The Rules of Evidence

       recognize an exception to the rule against hearsay for the record of a regularly

       conducted activity. Ind. R. Evid. 803(6). However, a proper foundation must

       be laid before the exhibit can be admitted, which requires the proponent of the

       exhibit to establish:


                A) the record was made at or near the time by--or from
               information transmitted by--someone with knowledge;


               (B) the record was kept in the course of a regularly conducted
               activity of a business, organization, occupation, or calling,
               whether or not for profit;


               (C) making the record was a regular practice of that activity;


               (D) all these conditions are shown by the testimony of the
               custodian or another qualified witness, or by a certification that
               complies with Rule 902(9) or (10) or with a statute permitting
               certification; and


               (E) neither the source of information nor the method or
               circumstances of preparation indicate a lack of trustworthiness.


       Id. The State did not put into evidence the record indicating the serial number

       of the device Akers recovered at North Central High School or the record of the




       Court of Appeals of Indiana | Memorandum Decision 19A-JV-1793 | Febraury 28, 2020   Page 8 of 10
       serial number recorded in the probation departments’ system for A.W.’s

       device. 3



[12]   Nevertheless, Indiana Code Section 35-44.1-3-4 provides: “A person who

       knowingly or intentionally violates a home detention order or intentionally

       removes an electronic monitoring device or GPS tracking device commits

       escape, a Level 6 felony.” The State was not required to produce the specific

       person who put the electronic monitoring device on A.W. in order to prove the

       offense. The Probation Officer’s Report of Preliminary Inquiry indicates A.W.

       was on pre-dispositional electronic monitoring on February 25, 2019, in Cause

       Number 49D09-1902-JD-000146. Akers testified he discovered an electronic

       monitoring device with a cut strap at North Central High School. On cross-

       examination, A.W. asked Akers, “And although those numbers were input,

       you don’t know if they were properly imputed [sic] and assigned to [A.W.]?”

       (Tr. Vol. II at 12.) Akers answered, “I would say they were because the GPS

       points prior to that always lead [sic] to wear [sic] [A.W.’s] locations were, as

       did this location at North Central HS where [A.W.] was that day.” (Id.)

       Therefore, A.W. was required to wear an electronic monitoring device on the




       3
         The Rules of Evidence are meant to ensure that judicial proceedings are conducted fairly and with an eye
       towards ascertaining the truth. See Ind. R. Evid. 102. To this end, parties need to be mindful of the Rules of
       Evidence and proffer evidence in accordance with the Rules. Business records are excepted from the hearsay
       rule because they bear independent indicia of trustworthiness. Embry v. State, 989 N.E.2d 1260, 1264 (Ind.
       Ct. App. 2013). In the case at bar, the State could have anticipated and addressed A.W.’s objections by
       producing and laying the foundation for admission of the records indicating the serial number of the device
       assigned to A.W.

       Court of Appeals of Indiana | Memorandum Decision 19A-JV-1793 | Febraury 28, 2020                 Page 9 of 10
       date of the offense, Akers found a monitoring device with a cut strap on that

       date, and the electronic monitoring device Akers found consistently had led to

       A.W.’s location.


[13]   “In bench trials, we presume that the court disregarded inadmissible evidence

       and rendered its decision solely on the basis of relevant and probative

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

       even if any evidence was inadmissible here, we hold the State presented

       sufficient admissible evidence to support the trial court’s true finding for escape.

       See Keith v. State, 91 N.E.3d 1029, 1033 (Ind. Ct. App. 2018) (holding sufficient

       evidence supported defendant’s escape conviction when she was supposed to go

       directly home after picking up her monitoring device but she drove to numerous

       other locations instead), trans. denied.



                                               Conclusion
[14]   It was not an abuse of discretion for the trial court to admit evidence of Akers’

       investigative activities. Further, the State presented sufficient evidence to

       support the true finding even without Akers’ testimony matching the serial

       number of the device he recovered at the high school to the serial number listed

       in the probation department’s records. Therefore, we affirm the juvenile court.


[15]   Affirmed.


       Crone, J., and Pyle, J., concur.



       Court of Appeals of Indiana | Memorandum Decision 19A-JV-1793 | Febraury 28, 2020   Page 10 of 10
