Terry E. Garber, Jr. v. State of Indiana ( 2020 )

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.
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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
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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,
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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
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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
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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
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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
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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).
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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.
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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.”
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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).
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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.
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Najam, J., and Mathias, J., concur.
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