Krisean Porter v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Dec 08 2020, 8:48 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
Cynthia Carter Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Sierra A. Murray
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Krisean Porter, December 8, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-2777
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Shatrese M.
Appellee-Plaintiff, Flowers, Judge
Trial Court Cause No.
49G02-1806-F3-17965
Robb, Judge.
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Case Summary and Issues
[1] Following a jury trial, Krisean Porter was convicted of promotion of human
trafficking, a Level 3 felony, and sexual misconduct with a minor, a Level 4
felony. Porter was sentenced to an aggregate of fifteen years in the Indiana
Department of Correction with three years suspended. Porter now appeals
raising multiple issues which we restate as: (1) whether the trial court erred by
denying Porter’s proposed jury instruction; and (2) whether the trial court erred
in admitting certain evidence over Porter’s objection.1 Concluding the trial
court did not err in instructing the jury or in the admission of evidence, we
affirm.
Facts and Procedural History
[2] In June of 2017, S.M. was fourteen years old and living at the Lutherwood
Children’s Home. On June 2, S.M. found out that she was going to be placed in
a group home and decided to run away and stay at a friend’s house. That same
day, S.M. placed an ad on Backpage offering herself for prostitution and S.M.’s
1
Porter also raises a sufficiency of evidence claim with regard to charges of promoting prostitution, alleging
that the State failed to prove beyond a reasonable doubt that S.M. became a prostitute because of Porter. A
conviction under Indiana Code section 35-45-4-4(b)(1) requires proof that a person “knowingly or
intentionally” entices or compels “another person to become a prostitute or juvenile prostitution victim.”
Porter argues that the State failed to present sufficient evidence to convict him under Indiana Code section
35-45-4-4 because S.M. became a prostitute prior to meeting Porter. Our supreme court has rejected this
argument. See Nation v. State, 445 N.E.2d 565, 569-70 (Ind. 1983). Further, although the jury found Porter
guilty of two counts of promoting prostitution, the trial court vacated both counts of promoting prostitution
and did not enter judgment of conviction on those counts, so we need not address the issue.
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friend introduced her to Porter. Porter picked S.M. up that night and S.M.
began staying with him.
[3] S.M. continued to post prostitution ads on Backpage with Porter. S.M. testified
that Porter was posting ads “every few hours” and that she began making “[c]ar
plays and in calls at hotels.” Transcript of Evidence, Volume II at 136. Porter
began paying for hotels where S.M. made these “plays,” he set the prices for the
sex acts performed by S.M., and he kept all the money. In addition to Backpage
ads, Porter was also setting up “plays” with people he knew personally.
[4] After running away, S.M. lived primarily with Porter; however, S.M. and
Porter were separated for a little over a week following an altercation. During
this time, S.M. continued to engage in prostitution. S.M. then returned to live
with Porter. While S.M. was living with Porter, he engaged in intercourse with
her frequently. And while with Porter, S.M. used cocaine, methamphetamine,
marijuana, alcohol, and Xanax.
[5] On July 11, 2017, Detective Brandon Davenport of the Indiana State Police set
up a meeting with S.M. through Backpage for a car play. Detective Davenport
had been investigating the potential sex trafficking of a different minor whom
he believed at the time to be S.M. based on her Backpage ad. Detective
Davenport picked up S.M. from Porter’s residence. Detective Davenport then
realized that S.M. was not the minor he had been investigating; however, he
still took S.M. into custody.
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[6] Detective Davenport questioned S.M. that night. S.M. told Detective
Davenport that she had been living with Porter and implicated him in posting
Backpage ads for her, booking hotels, and handling all the money from her
prostitution. See Appendix of Appellant, Volume 2 at 25-26. Following the
interview, S.M. was taken into custody and Detective Davenport and other
investigators from the Indiana State Police returned to the home where
Detective Davenport had picked S.M. up. They spoke to Porter’s roommate
Kevin Smith who gave consent to search the home. Porter was not home;
however, they did find a clip board with the name “Porter” written across the
back which contained loose papers. Written on the papers were what Detective
Davenport described as rules for a trafficked victim to follow as well as written
out ads. App. of Appellant, Vol. 2 at 26; see also Tr., Vol. III at 97.
[7] On June 5, 2018, supported by a probable cause affidavit completed by
Detective Davenport, the court issued a warrant for Porter’s arrest. Porter was
arrested the same day and the State charged him with promotion of human
trafficking, a Level 3 felony; promoting prostitution, a Level 4 felony; sexual
misconduct with a minor, a Level 4 felony; promoting prostitution, a Level 5
felony; and corrupt business influence, a Level 5 felony.
[8] During the trial, the State sought to admit Exhibits 27A, 27B, and 27C. These
exhibits were electronic messages that the Indiana State Police had pulled from
Porter’s phone containing conversations between Porter and three other
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individuals.2 Porter objected to admitting the incoming messages on hearsay
grounds. See Tr., Vol. III at 72. The trial court admitted the exhibits over
objection. See id. at 82. However, the trial court did instruct the jury as follows:
Ladies and Gentlemen of the Jury, you all have just reviewed
State’s Exhibits 27-A, 27-B and 27-C that contained accusations
in those documents by a third party. The accusations of the third
party are admissible, not as evidence of their truth, but only for
the limited purposes of enabling you to determine if the accused,
by his conduct upon receiving them, had, in fact, admitted guilt.
Id. at 96, 124 (re-reading the limiting instruction).
[9] Following the conclusion of the State’s case, Porter moved for judgment on the
evidence on the charge of promoting prostitution as a Level 4 felony, arguing
that the uncontested evidence showed that S.M. became a prostitute before
meeting Porter. The trial court denied Porter’s motion.
[10] Porter tendered Proposed Jury Instruction 6 which stated the following:
A person engages in conduct “knowingly” if, when he engages in
the conduct, he is aware of a high probability that he is doing so.
When a kind of culpability is required for commission of an
offense, it is required with respect to every material element of
the prohibited conduct.
2
The exhibits contain text message conversations between Porter and individuals identified only as “Draino”
and “My Sweet” and one Facebook messenger conversation between Porter and Baron Andrews.
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I.C. 35-41-2-2.
App. of Appellant, Vol. 2 at 124. The trial court denied this instruction over
Porter’s objection. See Tr., Vol. III at 158.
[11] The jury found Porter guilty of promotion of human trafficking of a minor, two
counts of promoting prostitution, and sexual misconduct with a minor. Porter
was found not guilty of corrupt business influence. The trial court subsequently
vacated both convictions for promoting prostitution due to double jeopardy
concerns and entered judgment of conviction on the remaining counts. Porter
now appeals.
Discussion and Decision
I. Proposed Jury Instruction
[12] Porter argues that the trial court erred by denying his Proposed Instruction 6.
When we review a trial court’s decision to give or refuse a party’s tendered
instruction, we consider whether: 1) the tendered instruction correctly states the
law; 2) the evidence in the record supports giving the instruction, and 3) the
substance of the instruction is covered by other instructions. Kane v. State, 976
N.E.2d 1228, 1230-31 (Ind. 2012). The trial court has broad discretion in
instructing the jury, and as a result, we review the trial court’s decision to give
or refuse a party’s tendered instruction for an abuse of discretion. Id. at 1231.
When reviewing the jury instructions, we consider them as a whole and in
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reference to each other. Patton v. State, 837 N.E.2d 576, 579 (Ind. Ct. App.
2005).
[13] Further, any error in instructing the jury is subject to a harmless error analysis.
Dixson v. State, 22 N.E.3d 836, 840 (Ind. Ct. App. 2014), trans. denied. An error
is to be disregarded as harmless unless it affects the substantial rights of a
party. Oatts v. State, 899 N.E.2d 714, 727 (Ind. Ct. App. 2009); Ind. Trial Rule
61. And “[e]rrors in the giving or refusing of instructions are harmless where a
conviction is clearly sustained by the evidence and the jury could not properly
have found otherwise.” Dill v. State, 741 N.E.2d 1230, 1233 (Ind. 2001).
[14] Porter’s Proposed Jury Instruction 6 stated, in relevant part: “When a kind of
culpability is required for commission of an offense, it is required with respect
to every material element of the prohibited conduct. I.C. 35-41-2-2.” App. of
Appellant, Vol. 2 at 124. Both Porter and the State argue that this instruction is
significant because it could dictate the jury’s interpretation of Porter’s
promotion of human trafficking of a minor charge. Under Indiana Code section
35-42-3.5-13:
(b) A person who knowingly or intentionally recruits, harbors, or
transports a child less than:
(1) eighteen (18) years of age with the intent of:
3
Currently Indiana Code section 35-42-3.5-1.2.
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***
(B) inducing or causing the child to:
(i) engage in prostitution or juvenile prostitution[]
commits promotion of human trafficking of a minor, a Level 3
felony.
Ind. Code § 35-42-3.5-1(b)(1) (2017) (emphasis added).
[15] Porter argues that the word “intent” in Indiana Code section 35-42-3.5-1(b)(1)
is merely a place holder for culpability. Reply Brief at 5. Porter states that not
only must a person “knowingly or intentionally recruit[], entice, harbor, or
transport a child less than eighteen” but they must also “knowingly and
intentionally” cause the child to engage in prostitution. Id. Porter argues that
his Proposed Jury Instruction 6 would have instructed the jury to apply the
“knowingly or intentionally” culpability to the entire statute. Further, Porter
argues that the second portion of Proposed Jury Instruction 6 comes directly
from Indiana Code section 35-41-2-2(d); however, he fails to acknowledge that
his proposed instruction omits the beginning of the sentence. The full
subsection states, “Unless the statute defining the offense provides otherwise, if a kind
of culpability is required for commission of an offense, it is required with
respect to every material element of the prohibited conduct.” Ind. Code § 35-41-
2-2(d) (emphasis added).
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[16] We find Porter’s argument unpersuasive and conclude that Porter’s Proposed
Jury Instruction 6 was an incomplete statement of law because it omitted the
qualifying statement of “[u]nless the statute defining the offense provides
otherwise.” Ind. Code § 35-41-2-2(d); see Washington v. State, 997 N.E.2d 342,
350 (Ind. 2013) (holding that an instruction was properly refused because it was
“misleadingly incomplete”); see also Matheny v. State, 983 N.E.2d 672, 679-80
(Ind. Ct. App. 2013), trans. denied.
[17] This court has held that a tendered jury instruction was incomplete when a
“prerequisite was not included in the tendered instruction.” Challenger Wrecker
Mfg. Inc. v. Estate of Boundy, 560 N.E.2d 94, 97 (Ind. Ct. App. 1990). In
Challenger Wrecker, the following instruction was tendered:
You are instructed that Challenger Wrecker Manufacturing, Inc.
was entitled to assume that the purchaser of the wrecker,
[Purchaser] would instruct its employees in the operation and use
of the 4800T wrecker.
Id. Our supreme court had previously determined that before a manufacturer
may assume a purchaser will adequately warn or instruct its employees, the
manufacturer must first have given adequate warnings to the purchaser. See id.(citing Hoffman v. E.W. Bliss Co., 448 N.E.2d 277, 281 (Ind. 1983)). Thus, we
held that the Challenger Wrecker instruction was incomplete because it allowed
the jury to “assume” that a purchaser would instruct its employees as to proper
use of machinery, whereas the jury must first make a factual determination that
adequate warnings were given from the manufacturer. Id.Court of Appeals of Indiana | Memorandum Decision 19A-CR-2777 | December 8, 2020 Page 9 of 16
[18] Similarly, we conclude that Proposed Jury Instruction 6’s failure to include the
qualifying statement of “[u]nless the statute defining the offense provides
otherwise[,]” Ind. Code § 35-41-2-2(d), would improperly lead the jury to
require the “knowingly and intentionally” culpability for the entirety of Indiana
Code section 35-42-3.5-1(b) (2017).
[19] However, even if Proposed Jury Instruction 6 did not constitute an incomplete
statement of law, the substance of the proposed instruction was covered by
other instructions tendered to the jury. See O’Connell v. State, 970 N.E.2d 168,
173-74 (Ind. Ct. App. 2012) (holding that “[e]ven if an instruction is a
correct statement of the law and finds some support in the evidence, a trial
court may in its discretion refuse a tendered instruction if it is covered in
substance by other instructions”) (footnote omitted). In O’Connell, we found that
an appellant’s tendered instruction regarding voluntariness was not an incorrect
statement of law. Id. However, we held that the jury was adequately informed
when the trial court instructed the jury with regard to the elements of the crime,
including the respective mens rea requirements; the State’s burden of proof; the
requirement that all the elements must be proved; and that “[a] person commits
an offense only if he voluntarily engages in conduct in violation of the statute
defining the offense.” Id. at 173.
[20] Here, Final Instruction No. 3 instructed the jury that “the State must prove the
Defendant guilty of each element of the crime charged[.]” App. of Appellant,
Vol. 2 at 137. The definition of when a person engages in conduct that is
“knowing” or “intentional” was given in Final Instruction No. 14. Id. at 148.
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And Final Instruction No. 6 recites Indiana Code section 35-42-3.5-1(b) and
lists each element needed to be proved to find Porter guilty of promotion of
human trafficking of a minor. See id. at 140. The trial court’s final instructions
sufficiently covered the substance of Proposed Jury Instruction 6. Thus, we
conclude that the trial court properly refused to give the proposed instruction. 4
II. Admission of Evidence
[21] Porter argues that the trial court erred in admitting Exhibits 27A, 27B and 27C.
The trial court has broad discretion in ruling on the admissibility of evidence.
Small v. State, 632 N.E.2d 779, 782 (Ind. Ct. App. 1994), trans. denied. We will
disturb its ruling only upon a showing of abuse of that discretion. Id. An abuse
of discretion may occur if the trial court’s decision is clearly against the logic
and effect of the facts and circumstances before the court, or if the court has
misinterpreted the law. Baxter v. State, 734 N.E.2d 642, 645 (Ind. Ct. App.
2000). But even if a trial court abuses its discretion by admitting challenged
evidence, we will not reverse the judgment if the admission of evidence
constituted harmless error. Sugg v. State, 991 N.E.2d 601, 607 (Ind. Ct. App.
2013), trans. denied.
4
Even if the trial court did err in refusing Porter’s proposed instruction, we have held that errors in the giving
or refusing of instructions are harmless where a conviction is clearly sustained by the evidence, and the
instruction would not likely have impacted the jury’s verdict. Eberle v. State, 942 N.E.2d 848, 861 (Ind. Ct.
App. 2001), trans. denied. The record here reveals that the State presented substantial evidence of Porter’s
intent and guilt; therefore, Porter’s proposed instruction would not have had an impact on the verdict and
any error in jury instruction was harmless.
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[22] Error in the admission of evidence is harmless if it does not affect the
substantial rights of the defendant. McVey v. State, 863 N.E.2d 434, 440 (Ind. Ct.
App. 2007), trans. denied. In determining whether an evidentiary ruling has
affected a defendant’s substantial rights, we assess the probable impact of the
evidence on the factfinder. Mathis v. State, 859 N.E.2d 1275, 1280 (Ind. Ct.
App. 2007).
[23] Porter contends that incoming messages contained in Exhibits 27A, 27B, and
27C constituted inadmissible hearsay. Hearsay is a statement that “is not made
by the declarant while testifying at the trial or hearing . . . and is offered in
evidence to prove the truth of the matter asserted.” Ind. Evidence Rule 801(c).
However, a statement is not hearsay if it is not used to prove the truth of the
matter asserted. Smith v. State, 721 N.E.2d 213, 216 (Ind. 1999). A statement is
offered to prove the truth of the matter asserted when it is introduced to prove
an element of the crime charged. Johnson v. State, 881 N.E.2d 10, 12 (Ind. Ct.
App. 2008), trans. denied.
[24] Porter argues that the admitted Facebook and text messages constituted
inadmissible hearsay not subject to the adopted admissions doctrine. 5 Indiana
5
During the jury trial, the State offered Exhibits 27A, 27B and 27C and argued that the incoming messages
were adoptive admissions and that the whole conversations should be admitted for context. See Tr., Vol. III
at 72. Porter’s argument is premised on the exhibits erroneously being admitted pursuant to this doctrine.
The State does not specifically address whether or not the messages contained in the exhibits were adopted
admissions in its brief, instead arguing the messages were not hearsay at all. See Brief of Appellee 23-26.
However, we may affirm a trial court’s judgment on any theory supported by the evidence. Ratliff v. State, 770
N.E.2d 807, 809 (Ind. 2002).
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Rule of Evidence 801(d)(2)(B) provides that when “[a] statement is offered
against an opposing party and . . . is one the party manifested that it adopted or
believed to be true[,]” the statement is not hearsay. However, this is
“[n]otwithstanding Rule 801(c),” meaning the statement must be offered for the
truth of the matter asserted to fall within the adopted admission exclusion. Ind.
Evidence Rule 801(d); cf. Jethroe v. State, 262 Ind. 505, 511, 319 N.E.2d 133, 138
(1974) (stating “[a] conversation was introduced to show the truth of her
assertion[;] [n]evertheless, it was admissible, because of the hearsay exception
for admissions”). If a statement is not offered for the truth of the matter
asserted, it need not rely on a hearsay exclusion under Indiana Rule of
Evidence 801(d) to be admissible. We conclude that the incoming messages
contained in Exhibits 27A, 27B and 27C were not offered for the truth of the
matter asserted.
[25] “Statements providing context for other admissible statements are not hearsay
because they are not offered for their truth.” Williams v. State, 930 N.E.2d 602,
609 (Ind. Ct. App. 2010) (quoting United States v. Tolliver, 454 F.3d 660, 666 (7th
Cir. 2006), cert. denied, 549 U.S. 1149 (2007)), trans. denied. In Williams, we
stated that a confidential informant’s statements recorded during a drug buy
were non-hearsay because they merely provided context for the defendant’s
own statements as well as the lengthy periods of silence that were also recorded.
Id. Our supreme court has held that an informant’s statements in these
circumstances are context evidence and that “[i]t was the statements made by
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[the defendant] that really constituted the evidentiary weight of the
conversation.” Id. (quoting Williams v. State, 669 N.E.2d 956, 958 (Ind. 1996)).
[26] Here, Porter concedes that the outgoing messages from Porter contained in
Exhibits 27A, 27B, and 27C were admissible. And while none of the
messengers in Exhibits 27A, 27B and 27C are confidential informants, their
messages do provide context to Porter’s outgoing messages. Throughout the
exhibits at issue Porter sends messages implicating that S.M. was involved in
prostitution with references to “making plays” and “all pimpin.” App. of
Appellant, Vol. 3 at 70-73. Other messages from Porter suggest he was aware
that she was underage such as “[s]he is at work over here no babysitting[,]” and
“I was talking about you being her big sister[.]” Id. at 70, 77. The incoming
messages provide context to Porter’s outgoing statements.
[27] Further, our supreme court has held that when “the jury receive[s] no limiting
instruction, the assumption must be that the jury considered the testimony as
evidence of the truth of the matters asserted in that testimony.” Jethroe, 262 Ind.
at 511, 319 N.E.2d at 138. However, in this case the trial court gave the jury a
limiting instruction regarding the exhibits at issue:
Ladies and Gentlemen of the Jury, you all have just reviewed
State’s Exhibits 27-A, 27-B and 27-C that contained accusations
in those documents by a third party. The accusations of the third
party are admissible, not as evidence of their truth, but only for the
limited purposes of enabling you to determine if the accused, by
his conduct upon receiving them, had, in fact, admitted guilt.
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Tr., Vol. III at 96 (emphasis added). The incoming messages in Exhibits 27A,
27B and 27C are not hearsay because they were not offered for the truth of the
matter asserted. And because the jury was instructed that they were not
admissible “as evidence of their truth” the jury should not have used them
improperly. Id.; see Weisheit v. State, 26 N.E.3d 3, 20 (Ind. 2015) (stating “we
presume the jury correctly follow[s] instructions”).
[28] Even if 27A, 27B, and 27C were hearsay, such an erroneous admission would
not warrant reversal because any alleged error was harmless. See Hunter v. State,
72 N.E.3d 928, 932 (Ind. Ct. App. 2017) (noting the “improper admission of
evidence is harmless error when the erroneously admitted evidence is
merely cumulative of other evidence before the trier of fact”), trans. denied.
Further, “the improper admission of evidence is harmless error when the
conviction is supported by substantial independent evidence of guilt as to satisfy
the reviewing court that there is no substantial likelihood that the questioned
evidence contributed to the conviction.” Id. (quoting Cook v. State, 734 N.E.2d
563, 569 (Ind. 2000)).
[29] Here, none of the incoming messages present information not already
contained in the record. Evidence such as Porter’s outgoing messages, S.M.’s
testimony, and physical evidence found at Porter’s residence by the Indiana
State Police was sufficient for a jury to determine that Porter was guilty.
Further, to the extent that Porter argues that the messages were the sole
evidence that he was aware S.M. was underage they provide no concrete
evidence that Porter knew S.M.’s age and do not provide any more insight into
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Porter’s knowledge regarding S.M.’s age than other evidence presented. The
messages merely add to the circumstantial evidence that Porter was aware that
S.M. was underage and that he was an active participant in her prostitution.
The exhibits at issue were merely cumulative of other evidence and Porter’s
conviction was supported by substantial independent evidence of guilt as to
satisfy us that there is no substantial likelihood that the alleged hearsay
evidence contributed to the conviction.
[30] We conclude that Exhibits 27A, 27B, and 27C were not admitted for the truth
of the matter asserted and thus are not hearsay. Furthermore, had the
statements contained in Exhibits 27A, 27B and 27C been hearsay, we would
find no reversible error as the evidence was merely cumulative of other properly
admitted evidence.
Conclusion
[31] We conclude that the trial court did not err in instructing the jury or in its
admission of evidence. Therefore, we affirm.
[32] Affirmed.
Crone, J., and Brown, J., concur.
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