MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Mar 12 2015, 9:34 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Nancy A. McCaslin Gregory F. Zoeller
McCaslin & McCaslin Attorney General of Indiana
Elkhart, Indiana
Chandra K. Hein
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Malcolm Walker, March 12, 2015
Appellant-Defendant, Court of Appeals Case No.
20A03-1406-CR-222
v. Appeal from the Elkhart Superior
Court.
State of Indiana, The Honorable Charles Carter
Wicks, Judge.
Appellee-Plaintiff
Cause No. 20D05-1308-FD-897
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Defendant, Malcolm A. Walker (Walker), appeals his conviction of
failure to register as a sex offender, a Class D felony, Ind. Code § 11-8-8-
17(a)(5) (2013).
[2] We affirm.
ISSUES
[3] Walker raises two issues on appeal, which we restate as follows:
(1) Whether the trial court abused its discretion by admitting into evidence
Walker’s Notice of Obligation to Register; and
(2) Whether the State presented sufficient evidence to support Walker’s
conviction of failure to register as a sex offender.
FACTS AND PROCEDURAL HISTORY
[4] On October 8, 2004, Walker was convicted in LaPorte County, Indiana, of
child molesting, a Class B felony, I.C. § 35-42-4-3 (2004). He was subsequently
incarcerated in the Indiana Department of Correction (DOC) until July 27,
2011. Pursuant to Indiana’s Sex Offender Registration Act (Act), upon his
release from incarceration, Walker was required to register with the Indiana Sex
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and Violent Offender Registry for a period of ten years.1 Accordingly, in
August of 2011, Walker appeared at the Elkhart County Sheriff’s Department
to complete his initial registration. On March 6, 2012, Walker renewed his
annual registration.
[5] At some point thereafter, Walker was arrested and detained in the Elkhart
County Jail. Upon his release on April 12, 2013, Walker received a Notice of
Obligation to Register (Notice). Specifically, the Notice informed Walker that
he was “required to report IN PERSON AND REGISTER WITH the Sheriff’s
Department in the County of your residence within [seven] days of your
release.” (State’s Exh. 4). Walker signed the Notice to acknowledge that he
would be subject to prosecution for a Class D felony if he failed to comply.
[6] On April 15, 2013, Walker appeared to complete his registration and submitted
a change form, whereby he indicated that his former address was “819
[T]ipton” in Elkhart, Indiana, and that his new address was “511 [H]igh St[.]
B” in Elkhart. (State’s Exh. 5). Soon thereafter, the Sheriff’s Department
conducted a house check and found that Walker’s address, as it was written,
“did not exist.” (Tr. p. 153). Specifically, there was no apartment “B” in the
building; rather, the four units were addressed as 509, 509 ½, 511, and 511 ½
West High Street. On June 11, 2013, Walker completed a second change of
1
When seventeen-year-old Walker committed the sex offense in 2004, his obligation to register was codified
at Indiana Code section 5-2-12-13(a)(4). Effective July 1, 2006, the Act was repealed and recodified at
Indiana Code chapter 11-8-8.
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address form, listing his former address as “Tipton St. 819” and his new address
as “511 West High St.” (State’s Exh. 8).
[7] Unable to verify Walker’s address, Detective Brandon Denesuk (Detective
Denesuk) contacted United States Marshall William Boothe (Marshall Boothe),
who “assist[s] state and local authorities to locate [and] apprehend
noncompliant and fugitive sex offenders.” (Tr. p. 178). On June 18, 2013,
Marshall Boothe attempted to locate Walker at 511 West High Street. He
“interviewed the neighbors and was [only able] to find one individual in 511
that even knew Mr. Walker”—Dawn Harris (Harris), Walker’s former step-
sister. (Tr. p. 180). With Harris’ consent, Marshall Boothe searched the
apartment and found no “evidence of domain of Mr. Walker at the address.”
(Tr. p. 182). Also present during the house check was Pierre Fleming
(Fleming)—who was Harris’ boyfriend at the time and is Walker’s brother.
Fleming lived with Harris at 511 West High Street from February through June
of 2013, but he did not provide any information to Marshall Boothe about
Walker or his living arrangements. Marshall Boothe also attempted to locate
Walker at 819 Tipton Street, but a female answered the door and would not
allow him to come inside.
[8] On July 24, 2013, Detective Denesuk and Marshall Boothe conducted another
house check at 511 West High Street. When they entered Harris’ apartment,
Detective Denesuk noticed several pieces of mail addressed to Walker on the
table but observed nothing else to indicate that Walker was living there. Harris
confirmed that Walker “was not living there and he had never lived there but he
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had used the address for mailing purposes only.” (Tr. p. 183). Harris signed
an affidavit, averring that Walker had never lived at 511 West High Street.
[9] On August 20, 2013, the State filed an Information, charging Walker with one
Count of failure to register as a sex or violent offender, a Class D felony, I.C. §
11-8-8-17(a)(5) (2013). On May 22-23, 2014, the trial court conducted a jury
trial. At the close of the evidence the jury returned a guilty verdict. At the
sentencing hearing on June 16, 2014, the trial court sentenced Walker to
eighteen months, fully executed in the DOC.
[10] Walker now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Admission of Evidence
[11] At trial, the State offered into evidence the Notice, which was signed by Walker
upon his release from the Elkhart County Jail and apprised him of his duty to
register. Walker objected to the admission of the exhibit, arguing that “the
same information could be conveyed to the jury with a redacted copy that
deletes references to him being incarcerated.” (Tr. p. 144). The trial court
overruled the objection and admitted the Notice without redaction. Walker
now claims that the admission of this evidence was contrary to Indiana Rule of
Evidence 403.
[12] A trial court is vested with broad discretion in admitting and excluding
evidence, and we review admissibility decisions only for an abuse of that
discretion. Halliburton v. State, 1 N.E.3d 670, 675 (Ind. 2013). It is an abuse of
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discretion if the trial court’s ruling “is clearly against the logic and effect of the
facts and circumstances before it.” Id. On review, our court does not reweigh
evidence and we consider only the evidence most favorable to the trial court’s
ruling. Harris v. State, 19 N.E.3d 298, 301 (Ind. Ct. App. 2014), trans. denied.
We may affirm the trial court’s ruling on any legal basis that is supported by the
record. Id. Even if we find that the trial court has abused its discretion, we will
not disturb the judgment if the admissibility decision amounts to harmless error.
Duvall v. State, 978 N.E.2d 417, 422 (Ind. Ct. App. 2012), trans. denied.
[13] In general, evidence is admissible so long as it is relevant. Herrera v. State, 710
N.E.2d 931, 935 (Ind. Ct. App. 1999) (citing Ind. Evidence Rule 402), trans.
denied. Evidence is relevant if it tends to make a material fact “more or less
probable than it would be without the evidence.” Evid. R. 401. However,
Evidence Rule 403 provides that the trial court “may exclude relevant evidence
if its probative value is substantially outweighed by a danger of one or more of
the following: unfair prejudice, confusing the issues, misleading the jury, undue
delay, or needlessly presenting cumulative evidence.” A trial court has broad
“latitude in weighing the probative value of the evidence against the possible
prejudice of its admission.” Herrera, 710 N.E.2d at 935.
[14] Walker contends that the fact of his incarceration was irrelevant to his charge of
failing to register as a sex offender. We disagree. As the State points out,
Walker was released from prison on his child molesting conviction in July of
2011, at which point he became obligated to register annually as a sex offender
for a period of ten years. Thereafter, he registered with the Elkhart County
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Sheriff’s Department in August of 2011 and again in March of 2012. The
Information charged him with “knowingly fail[ing] to reside at his registered
address” between April 15, 2013 and July 24, 2013. (Appellant’s Conf. App. p.
12). See I.C. § 11-8-8-17(a)(5). More than a year had passed between Walker’s
last registration and his address change on April 15, 2013. By indicating that
Walker was incarcerated until April 12, 2013, the Notice serves to “clarify the
timeline for the jury” and is therefore relevant. (State’s Br. p. 6). Furthermore,
we find that the Notice is relevant for the purpose of proving that Walker
knowingly violated the Act because it specifically notified him that he must
register his “place of residence.” (State’s Exh. 4).
[15] Walker next asserts that the Notice was unfairly prejudicial because he was
convicted of child molesting in LaPorte County, so “the information about his
incarceration [in Elkhart County] likely misled the jury as to the relationship
between the incarceration and the obligation of registering.” (Appellant’s Br. p.
10). Again, we disagree. In evaluating “the likely unfair prejudicial impact,
courts will look for the dangers that the jury will (1) substantially overestimate
the value of the evidence or (2) that the evidence will arouse or inflame the
passions or sympathies of the jury.” Duvall, 978 N.E.2d at 428. Here, it was
made clear to the jury that Walker’s obligation to register stemmed from his
2004 conviction in LaPorte County. The reason for Walker’s subsequent
incarceration in the Elkhart County Jail was not discussed; nor was the fact of
the incarceration itself emphasized. The jury was well aware of Walker’s child
molesting conviction, and any evidence that he may have committed a
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subsequent offense was unlikely to impact its determination as to whether
Walker did or did not reside at the registered address. Thus, we find no abuse
of discretion in the trial court’s conclusion that the danger of unfair prejudice
did not outweigh the probative value of the evidence.
II. Sufficiency of the Evidence
[16] Walker also claims that the State presented insufficient evidence to uphold his
conviction for failure to register as a sex offender. When reviewing a challenge
of the sufficiency of the evidence, our court considers only the probative
evidence and any inferences that may reasonably be derived therefrom that are
most favorable to the verdict. Harris v. State, 985 N.E.2d 767, 784 (Ind. Ct.
App. 2013), trans. denied. We will affirm the conviction unless a reasonable trier
of fact could not find that each element of the crime has been proven beyond a
reasonable doubt. Id.
[17] In order to sustain Walker’s conviction, the State was required to prove beyond
a reasonable doubt that he knowingly or intentionally did “not reside at [his]
registered address or location.” I.C. § 11-8-8-17(a)(5) (2013). Upon his release
from jail, Walker informed the Elkhart County Sheriff’s Department that his
address was “511 [H]igh St[.] B.” (State’s Exh. 5). A subsequent house check
revealed that there was no apartment “B” at the given address. Two months
later, Walker amended his address to simply “511 West High St.” (State’s Exh.
8). When Detective Denesuk and Marshall Boothe attempted to verify
Walker’s address, they learned that the apartment at 511 West High Street was
leased by Harris, who confirmed that Walker did not live with her, but he
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utilized her address to receive mail. During the trial, Harris testified that she
had known Walker “since he was a kid,” and although he was welcome to
“hang out” at her apartment, she unequivocally stated that Walker did not live
there. (Tr. pp. 196, 200).
[18] Furthermore, on both of his change of address forms, Walker had listed his
former address as 819 Tipton Street. Yet, on April 16, 2013, just one day after
submitting the first change form to the Sheriff’s Department to register 511
West High Street as his address, Walker updated his information with the
Bureau of Motor Vehicles and listed 819 Tipton Street as both his legal and
mailing address. During the trial, Detective Denesuk explained that Walker’s
sex offender status precludes him from living within 1,000 feet of a school or
public park, and “819 Tipton Street is approximately seven hundred and
twenty-five (725) feet [from] Beck Elementary and it is less than two hundred
fifty feet (250) east of [a youth baseball field].” (Tr. p. 152). According to
Harris, Walker was living with his girlfriend “on Tip – Tip – Tenth – it start[s]
with a T.” (Tr. p. 200). Fleming also testified that Walker’s girlfriend lived on
Tipton Street and that Walker stayed with her several nights per week.
[19] We find it clear from the evidence that Walker attempted to circumvent the
restrictions of the Act. He falsely registered the address of his former step-sister
and his brother in order to disguise the fact that he was actually living with his
girlfriend in the vicinity of an elementary school and a youth public park.
Detective Denesuk and Marshall Boothe collectively made several attempts to
verify Walker’s address, but they never found more than a few pieces of mail to
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connect Walker to 511 West High Street. In support of his claim of insufficient
evidence, Walker relies on Fleming’s testimony that Walker did live at the
registered address. However, it is well established that our court does not
interfere with the jury’s determination of evidentiary weight, and it was
certainly within the province of the jury to find the testimony of Detective
Denesuk, Marshall Boothe, and Harris more credible than that of Fleming. See
Kelsie v. State, 354 N.E.2d 219, 222 (Ind. 1976). Therefore, we find that there is
sufficient evidence to support the determination that Walker was not living at
his registered address.
CONCLUSION
[20] Based on the foregoing, we conclude that the trial court acted within its
discretion in admitting into evidence the Notice of Walker’s obligation to
register as a sex offender. We further conclude that the State presented
sufficient evidence beyond a reasonable doubt to support Walker’s conviction
of Class D felony failure to register as a sex offender.
[21] Affirmed.
[22] Vaidik, C. J. and Baker, J. concur
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