MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                                 FILED
regarded as precedent or cited before any                                         Aug 28 2020, 8:40 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




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Christopher Taylor-Price                                 Curtis T. Hill, Jr.
Marion County Public Defender Agency                     Attorney General of Indiana
Appellate Division
                                                         Courtney L. Staton
Indianapolis, Indiana                                    Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Harvey James Hardin,                                     August 28, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-2479
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Charnette D. Garner,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         49G09-1901-F6-1760



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2479 | August 28, 2020             Page 1 of 6
                                          Case Summary
[1]   Following a jury trial, Harvey James Hardin (“Hardin”) was convicted of

      Escape, as a Level 6 felony,1 and adjudicated a habitual offender.2 Hardin now

      appeals, challenging the admission of GPS evidence of his location. We affirm.



                                Facts and Procedural History
[2]   After a court placed Hardin on home detention, Hardin reported to Marion

      County Community Corrections (“MCCC”) on December 19, 2018. When

      prompted to provide the address of his residence, Hardin gave an address on

      Market Street. Hardin was advised of the rules of home detention, including

      the requirement that he stay within his residence and update MCCC of any

      address change in advance. He also signed a document that contained these

      rules. Eventually, Hardin was fitted with an ankle monitor. The monitor had a

      GPS feature as well as a telephone feature that allowed MCCC to call Hardin.


[3]   On December 20, 2018, Hardin’s case manager called Hardin through the

      monitor. On the call, Hardin admitted that he was living at 2332 East

      Washington Street, not at the address he provided on Market Street. Hardin

      claimed that the Wheeler Mission on Market Street did not have space, so he

      was staying with a friend. The case manager instructed Hardin to report to




      1
          Ind. Code § 35-44.1-3-4(b).
      2
          I.C. § 35-50-2-8.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2479 | August 28, 2020   Page 2 of 6
      MCCC on or before the next day. After Hardin failed to report and his monitor

      ran out of power, a warrant was issued for his arrest. On January 3, 2019,

      Hardin was arrested at an apartment building at 2332 East Washington Street.


[4]   The State charged Hardin with three counts of Escape, each as a Level 6 felony.

      In Count 2, the State alleged that, “[o]n or about December 21, 2018,” Hardin

      “knowingly or intentionally violate[d] a home detention order” by “being in a

      location not permitted by his home detention contract terms.” App. Vol. 2 at

      90. The State also alleged that Hardin had the status of a habitual offender.


[5]   A jury trial was eventually held on August 21, 2019. At trial, the State elicited

      testimony from (1) the MCCC employee who went over the home-detention

      rules with Hardin, to whom Hardin had provided the address on Market Street;

      (2) the MCCC employee who called Hardin through the monitor and learned

      from Hardin that he was now living on East Washington Street, not Market

      Street; and (3) the officer who eventually arrested Hardin on East Washington

      Street after Hardin failed to report to MCCC as instructed. The State also

      introduced GPS records from a software program. Those records purportedly

      show Hardin’s location over time through the GPS feature on his monitor.

      Hardin objected to the admission of the records, arguing that the State had not

      shown that the location data was reliable. The trial court admitted the records.


[6]   The jury found Hardin guilty of Count 2 and not guilty of the other counts.

      The trial court entered a judgment of conviction and the matter proceeded to an

      enhancement phase, after which the jury found that Hardin had the status of a


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2479 | August 28, 2020   Page 3 of 6
      habitual offender. The court held a sentencing hearing and sentenced Hardin to

      an aggregate term of five years in the Indiana Department of Correction.


[7]   Hardin now appeals.



                                 Discussion and Decision
[8]   We review evidentiary decisions for an abuse of discretion. Hardin v. State, 148

      N.E.3d 932, 939 (Ind. 2020). However, we will not reverse if the alleged error

      is harmless. Ind. Appellate Rule 66(A). Error is harmless “where its probable

      impact, in light of all the evidence in the case, is sufficiently minor so as not to

      affect the substantial rights of the parties.” Id. In other words, we will not

      reverse “[i]f we are satisfied [that] the conviction is supported by independent

      evidence of guilt such that there is little likelihood the challenged evidence

      contributed to the verdict[.]” Blount v. State, 22 N.E.3d 559, 564 (Ind. 2014).


[9]   Hardin argues that the trial court abused its discretion when it admitted the

      GPS records. However, assuming arguendo that the court improperly admitted

      the records, there is little likelihood that the evidence contributed to the verdict.

      Indeed, to obtain a conviction, the State was obligated to prove beyond a

      reasonable doubt that Hardin knowingly or intentionally violated a home-

      detention order, see I.C. § 35-44.1-3-4(b), by “being in a location not permitted

      by his home detention contract terms,” App. Vol. 2 at 72. At trial, there was

      evidence that Hardin was bound by the following term: “You will be confined

      inside (within the walls of your residence; front door to back door) the residence


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2479 | August 28, 2020   Page 4 of 6
       at all times,” except when traveling to approved locations. Ex. Vol. at 58.

       Hardin was also bound by a term governing address changes: “You must advise

       your Case Manager prior to a change in residence, phone number, who is

       residing with you, employment, employment hours, and the dates and times for

       any activities that you wish to be approved.” Id. Hardin was advised that he

       could call the MCCC Operations Center twenty-four hours per day. Id. at 9.


[10]   Independent of the GPS records, there is evidence that Hardin failed to advise

       MCCC prior to a change in residence—unilaterally traveling to an apartment

       building on East Washington Street without first advising MCCC. Indeed,

       Hardin admitted that he was on East Washington Street and not at the reported

       address on Market Street. Although Hardin claimed that he was living on East

       Washington Street because the Wheeler Mission on Market Street did not have

       room to accommodate him, Hardin nevertheless failed to advise MCCC in

       advance of a change of residence and he traveled to an unapproved location.

       When MCCC called Hardin, Hardin was informed that he failed to advise

       MCCC of the location of his residence in advance. He was given instructions

       to report to MCCC. However, after that conversation, Hardin failed to report.


[11]   All in all, the challenged GPS evidence purportedly showed Hardin’s specific

       location over time—at addresses other than the one on Market Street and

       beyond the 2332 East Washington Street address where Hardin had unilaterally

       moved. Yet, there is independent evidence that Hardin admitted to traveling to

       an unapproved location without first advising MCCC. In light of Hardin’s



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2479 | August 28, 2020   Page 5 of 6
       admission, we are not persuaded that evidence of additional travel contributed

       to the jury’s determination that Hardin violated the terms of home detention.3


[12]   We conclude that the alleged error is, at most, harmless error. We therefore

       need not directly address the admissibility of the challenged evidence.


[13]   Affirmed.


       Vaidik, J., and Baker, Sr. J., concur.




       3
         At times, Hardin points out that the charging information alleged a violation “on or about December 21,
       2018.” App. Vol. 2 at 90. He asserts that the GPS records were the only evidence of his location on
       December 21, 2018. To the extent Hardin suggests that the jury was obligated to ignore the December 20
       phone call between Hardin and MCCC due to the date in the information, we disagree. It is well-established
       that “[w]here . . . time is not an element of the offense, the State is not required to prove the offense occurred
       on the precise date alleged, and its presentation of evidence is not limited to events on that date.” Blount, 22
       N.E.3d at 569. Here, there is ample independent evidence of a breach on or about December 21, 2018.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2479 | August 28, 2020                        Page 6 of 6
