Wallace Henderson v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jan 26 2017, 8:58 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Joel M. Schumm Curtis T. Hill, Jr.
Appellate Clinic Attorney General
Indiana University Robert H. McKinney
School of Law Jesse R. Drum
Deputy Attorney General
Joshua C. Woodward Indianapolis, Indiana
Certified Legal Intern
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Wallace Henderson, January 26, 2017
Appellant-Defendant, Court of Appeals Case No.
49A05-1605-CR-984
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Mark D. Stoner,
Appellee-Plaintiff Judge
The Honorable Jeffrey L. Marchal,
Magistrate
Trial Court Cause No.
49G06-1509-F5-32403
Crone, Judge.
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Case Summary
[1] Wallace Henderson appeals his conviction for level 5 felony knowing failure to
reside at the address registered with the sex offender registry. He challenges the
trial court’s admission of a witness verification form as well as the sufficiency of
the evidence to support his conviction. We affirm.
Facts and Procedural History
[2] Henderson is a convicted sex offender subject to Indiana’s sex offender
registration requirements. In August 2013, he was convicted of class D felony
failure to register as a sex offender. In May 2015, he was convicted of level 5
felony failure to register as a sex offender. In the summer of 2015, he was out
of the Department of Correction (“DOC”) on parole and was homeless.
Pursuant to Indiana Code Section 11-8-8-12(c), he was required to report in
person to the Marion County Sheriff’s Department every seven days to register
the temporary address where he would be staying during those seven days. On
July 13, 2015, Henderson registered his address as 520 East Market Street, the
street address for Wheeler Mission (“Wheeler”).
[3] Wheeler is a homeless shelter that provides meals and a bed for its registered
residents. Unless a resident is enrolled in a special program, he is permitted to
stay only ten nights per month inside the shelter. Residents must register with
Wheeler each day, and Wheeler’s curfew is 4:30 p.m. Registration as a resident
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of Wheeler is distinct from registration with the Sheriff’s Department as a sex
offender.
[4] According to Wheeler’s records, Henderson was a resident from July 13, 2015
through July 16, 2015, having registered with Wheeler on each of those four
days. From July 13 through August 24, 2015, Henderson reported weekly to
Marion County Sheriff’s Deputy Rolley Ferguson, each time listing his address
as Wheeler’s street address. According to Deputy Ferguson, he looked for
Henderson at Wheeler several times but could not locate him, and on August
27, 2015, Wheeler verified that Henderson was not a registered resident. When
Henderson reported to the Sheriff’s Department on August 31, 2015, and again
listed his address as Wheeler’s street address, Deputy Ferguson told him that he
had evidence that Henderson was not staying there. According to the deputy,
Henderson responded, “Well, I’m going back there.” Tr. at 49. Later that day,
Deputy Ferguson discovered an active arrest warrant on Henderson related to
his parole. Shortly thereafter, Henderson returned to the Sheriff’s Department
and indicated that he had missed curfew and could not check in to Wheeler.
The deputy arrested him on the active warrant.
[5] On September 9, 2015, Deputy Ferguson visited Wheeler and inquired
concerning Henderson’s history as a resident at the shelter. Shift Supervisor
John Hamblen consulted the shelter’s computer records and determined that
Henderson had not been a resident at Wheeler since July 16, 2015. Hamblen
signed a witness verification form to that effect.
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[6] The State charged Henderson with four counts of level 5 felony failure to
register as a sex offender with a prior conviction, one of which was dismissed
on the State’s motion.1 A bench trial ensued, and the trial court found
Henderson guilty on the remaining three counts, two of which were merged due
to double jeopardy concerns. The trial court entered judgment on Count I –
knowing failure to reside at the address registered with the sex offender registry.
[7] Henderson now appeals. Additional facts will be provided as necessary.
Discussion and Decision
Section 1 – The trial court acted within its discretion in
admitting the witness verification form.
[8] Henderson maintains that the trial court abused its discretion in admitting the
witness verification form signed by Hamblen. We review rulings on the
admission or exclusion of evidence for an abuse of discretion resulting in
prejudicial error. Williams v. State, 43 N.E.3d 578, 581 (Ind. 2015). An abuse of
discretion occurs when the trial court’s decision is clearly against the logic and
effect of the facts and circumstances before it or where the trial court
misinterprets the law. Id. To determine whether an error prejudiced the
defendant, we assess the probable impact of the challenged evidence upon the
jury, in light of all the other evidence that was properly presented. Id. If
1
Count I – knowingly not residing at the address registered with the sex offender registry; Count II – failing
to update his registered address within seventy-two hours of changing his address (merged); Count III –
making a material misstatement or omission while registering as a sex offender (merged); and Count IV –
failing to register as required between September 1 and September 9, 2015 (dismissed on State’s motion).
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substantial independent evidence of guilt supports the conviction, the error is
harmless. Id.
[9] Henderson particularly asserts that the witness verification form, admitted as
State’s Exhibit 1, was inadmissible on hearsay grounds. Hearsay is a statement
not made by the declarant while testifying at the trial or hearing and offered in
evidence to prove the truth of the matter asserted. Ind. Evidence Rule 801(c).
Indiana Evidence Rule 802 excludes hearsay unless otherwise allowed under
Indiana’s evidentiary rules or other law. Exceptions to the rule against hearsay
include:
(6) Records of a Regularly Conducted Activity. A record of an
act, event, condition, opinion, or diagnosis if:
(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(11) or (12) 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.
Ind. Evid. Rule 803(6).
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[10] Henderson asserts that the witness verification form, admitted as a business
record under Rule 803(6), was actually a public record subject to specific
limitations found in Rule 803(8)(B)(i). This subparagraph prohibits the
admission of “investigative reports by police and other law enforcement
personnel, except when offered by an accused in a criminal case.”
The reason for this exclusion is that observations by police
officers at the scene of the crime or the apprehension of the
defendant are not as reliable as observations by public officials in
other cases because of the adversarial nature of the confrontation
between the police and the defendant in criminal cases.
Perry v. State, 956 N.E.2d 41, 51 (Ind. Ct. App. 2011) (citations omitted).
[11] While Henderson correctly notes that the challenged form is captioned as a
Sheriff’s Department investigative form, the information contained therein is
not attributable to Deputy Ferguson or any other law enforcement personnel.
Rather, the source of the information was Wheeler’s computer records, which it
kept in the ordinary course of business and according to strict protocols. The
information was merely transcribed from those records by Wheeler’s dayshift
supervisor and does not include any narrative or observations by law
enforcement personnel. As such, neither the source of the information nor the
method or circumstances surrounding its preparation indicate a lack of
trustworthiness. See Ind. Evidence Rule 803(6)(E). Simply put, the witness
verification form is Wheeler’s business record transcribed on a law enforcement
form. Supervisor Hamblen, a sixteen-year employee at Wheeler, testified at
length concerning the rules and procedures surrounding Wheeler’s resident
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registration and recordkeeping, and on appeal, Henderson does not challenge
the foundation for admitting Hamblen’s statements on the form as a business
record. Consequently, we find no abuse of discretion in the admission of the
witness verification form.
Section 2 – The evidence is sufficient to support Henderson’s
conviction.
[12] Henderson also challenges the sufficiency of evidence to support his conviction.
When reviewing a challenge to the sufficiency of evidence, we neither reweigh
evidence nor judge witness credibility. Drane v. State, 867 N.E.2d 144, 146 (Ind.
2007). Rather, we consider only the evidence and reasonable inferences most
favorable to the judgment and will affirm the conviction “unless no reasonable
fact-finder could find the elements of the crime proven beyond a reasonable
doubt.” Id. It is therefore not necessary that the evidence “overcome every
reasonable hypothesis of innocence.” Id. (citation omitted).
[13] Henderson was convicted under Indiana Code Section 11-8-8-17, which states
that a sex offender who knowingly or intentionally does not reside at the sex
offender’s registered address or location and has a prior unrelated conviction for
failure to register commits level 5 felony failure to register. Ind. Code § 11-8-8-
17(a)(5), -(b). Henderson stipulated to the prior unrelated conviction but claims
that the State failed to prove beyond a reasonable doubt that he failed to reside
at Wheeler’s address during the six weeks between July 20 and August 24,
2015.
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[14] Specifically, Henderson asserts that the State failed to establish his knowing
failure to reside at Wheeler because the State did not introduce any evidence
that he had not been sleeping outside Wheeler on the sidewalk, alley, or parking
lot during those six weeks.2 The evidence most favorable to the judgment and
introduced during trial, includes Deputy Ferguson’s in-depth explanation
concerning the dual purposes of the sex offender registry: to promote public
safety by alerting neighbors when a sex offender is living in the area and to
provide law enforcement with a means of locating the offender. Tr. at 42. The
deputy also testified as to how the registered address works in the case of a
homeless sex offender. Id. He explained that the offender must provide a
location where he can be found, such as a certain corner of a certain
intersection and that if the offender indicates that he lives in a tent, he must
specify a location where the tent will be placed. Id. Deputy Ferguson
emphasized that he personally registered Henderson with the sex offender
registry on July 13, 2015, and that Henderson did not specify that he was
homeless but instead merely listed a street address that happened to be
Wheeler’s street address. Id. at 43. Henderson signed the form, which was
titled, “TEMPORARY RESIDENCE/HOMELESS OFFENDER FORM,”
2
In conjunction with this assertion, we note Henderson’s argument that certain comments by the trial court
during closing argument amounted to improper burden-shifting. He correctly observes that the trial court
mentioned his decision not to testify at trial, but he admits that he did not contemporaneously object to the
trial court’s comments. As such, he waived the issue absent a showing of fundamental error. Delarosa v.
State, 938 N.E.2d 690, 694 (Ind. 2010). Because he did not allege fundamental error in his principal appellate
brief but instead raised it for the first time in his reply brief, Henderson has waived consideration of this
claim. See Curtis v. State, 948 N.E.2d 1143, 1148 (Ind. 2011) (appellant must allege fundamental error in his
principal appellate brief and may not raise it for first time in reply brief).
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under the same street address (Wheeler’s) every week from July 13 through
August 24, 2015. State’s Ex. 4. The deputy testified that he visited Wheeler at
the stated street address on August 27, 2015, and learned that Henderson had
not been registered there for over a month. Tr. at 44-45. As a result, he
confronted Henderson when Henderson came in to sign the registry on August
31, 2015, stating, “I have information that you’re not staying there,” to which
Henderson replied, “Well, I’m going back there.” Id. at 49. After Deputy
Ferguson arrested Henderson on the active parole warrant, he visited Wheeler
again on September 9, 2015, and obtained a witness verification form indicating
that Henderson had not been a resident of Wheeler since July 16, 2015.
[15] We find the evidence sufficient to support a reasonable inference that
Henderson knowingly failed to reside at the temporary address that he had
listed with the sex offender registry. In the face of the deputy’s accusation,
Henderson’s response that he was going back to the mission betrays his
knowledge that he was not currently a resident there. Moreover, the
documentary evidence corroborates the trial testimony that Henderson had not
registered with Wheeler as a resident for six weeks. Henderson’s arguments
amount to invitations to reweigh evidence, which we may not and will not do.
The evidence is sufficient to support Henderson’s conviction. Accordingly, we
affirm.
[16] Affirmed.
Riley, J., and Altice, J., concur.
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