Court of Appeals of Indiana | Memorandum Decision 19A-JV-1793 | Febraury 28, 2020 Page 1 of 10

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this 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

Rory Gallagher

Marion County Public Defender

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Benjamin J. Shoptaw

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

A.W.,

Appellant-Respondent,

v.

State of Indiana,

Appellee-Petitioner

February 28, 2020

Court of Appeals Case No.

19A-JV-1793

Appeal from the Marion Superior 

Court

The Honorable Marilyn A. 

Moores, Judge

The Honorable Geoffrey A. 

Gaither, Magistrate

Trial Court Cause No.

49D09-1902-JD-215

May, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-JV-1793 | Febraury 28, 2020 Page 2 of 10

[1] The trial court adjudicated A.W. delinquent for an act that would constitute 

Level 6 felony escape1 if committed by an adult. He raises one issue on appeal, 

which we revise and restate as whether the trial court abused its discretion in

admitting testimony regarding whether the tracking device in question had been 

assigned to A.W. We affirm.

Facts and Procedural History

[2] On February 25, 2019, David Akers, a Community Adjustment Supervisor with 

the Marion County Juvenile Probation Department, was monitoring a 

computer that kept track of all juveniles placed on electronic monitoring in 

Marion County. Akers noticed a “tamper alert” and he viewed a mapping 

screen to identify the tampered device’s location. (Tr. Vol. II at 11.) The screen 

notified Akers that the tampered monitoring device was at North Central High 

School in Indianapolis. Akers went to the school and located the tracking 

device in the parking lot behind the school. The tracking device’s strap had 

been cut. 

[3] On February 26, 2019, the State alleged A.W. was a delinquent child for 

committing an act that would constitute Level 6 felony escape if committed by 

an adult. The court held a fact-finding hearing on May 23, 2019. Akers was 

the only witness to testify at the hearing. The trial court entered a true finding 

1 Ind. Code § 35-44.1-3-4.
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on the charge of escape. The trial court held a dispositional hearing in July 

2019 on the escape charge and two unrelated cases. The court placed A.W. in 

the custody of the Indiana Department of Correction (“DOC”) until the age of 

twenty-one unless released sooner by the DOC, with a recommended 

commitment of six months.

Discussion and Decision

[4] We evaluate a decision to admit or exclude evidence using an abuse of 

discretion standard because such decisions are within the trial court’s “sound 

discretion” and are “afforded great deference” on appeal. Fugett v. State, 812 

N.E.2d 846, 848 (Ind. Ct. App. 2004). We will reverse a decision to admit 

evidence only where the admission is a “manifest abuse of discretion by the trial 

court resulting in the denial of a fair trial.” Johnson v. State, 831 N.E.2d 163, 

168-69 (Ind. Ct. App. 2005), trans. denied. “A decision is an abuse of discretion 

if it is clearly against the logic and effect of the facts and circumstances before 

the court. Id. at 169. A.W. argues Akers’ testimony that the electronic 

monitoring device he found belonged to A.W. was inadmissible hearsay, and 

he argues the State failed to lay an adequate foundation for admission of the 

testimony.

[5] Generally, a party waives an argument or issue on appeal by failing to raise the 

argument or issue before the trial court. Long v. State, 121 N.E.3d 1085, 1088

(Ind. Ct. App. 2019), trans. denied. The State argues A.W. did not object to 

Akers’ testimony that the serial number for the tracking device he recovered at 
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the high school matched the serial number for the device issued to A.W., and 

therefore, his argument is waived. 

[6] Here, A.W. did object to Akers’ testimony multiple times on hearsay grounds. 

The Court overruled Akers’ first objection but did not formally rule when A.W. 

subsequently objected. The argument A.W. raised before the trial court and the 

argument he raises on appeal both challenge Akers’ testimony connecting the 

tracking device Akers found at the high school to A.W. Therefore, we hold 

A.W.’s argument is not waived and proceed to the merits.2 See Omni Ins. Group 

v. Poage, 966 N.E.2d 750, 753 (Ind. Ct. App. 2012) (“We prefer to decide a case 

on the merits whenever possible.”), trans. denied; see also State v. Hancock, 530 

N.E.2d 106, 107 (Ind. Ct. App. 1988) (“This court repeatedly has stressed its 

preference for deciding an issue on the merits rather than invoking waiver.”), 

reh’g denied, trans. denied.

[7] Indiana Rule of Evidence 801 defines hearsay as “a statement that: (1) is not 

made by the declarant while testifying at the trial or hearing; and (2) is offered 

in evidence to prove the truth of the matter asserted.” Hearsay is inadmissible 

unless it meets one of several exceptions. Ind. R. Evid. 802. Many of these 

exceptions are found in Evidence Rules 803 and 804. 

2 It is important for trial courts to rule on objections. If a trial court fails to do so, objecting parties are left to 

wonder whether they have adequately preserved an issue for appeal. See Ind. R. Evid. 103(b) (“Once the 

court rules definitively on the record at trial a party need not renew an objection or offer of proof to preserve a 

claim of error for appeal”) (emphasis added). Failing to rule on an objection is unfair to the parties and 

reduces trust in the criminal justice system. 
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[8] A.W. objected first to Akers’ testimony that he was monitoring a computer 

with the location of all juveniles on home detention in Marion County on 

February 25, 2019, and that he received a tamper alert on the grounds that the 

information Akers’ learned from monitoring his computer was hearsay. The 

State argued Akers “can testify as to what he saw on the screen and what 

happened afterwards.” (Tr. Vol. II at 9.) The trial court properly overruled 

A.W.’s objection because that testimony was not hearsay because it was not

being offered for “the truth of the matter asserted.” Ind. R. Evid. 801. Rather, 

it explains why Akers took the investigative steps that he did, and “[a]n out-ofcourt statement introduced to explain why a particular course of action was 

taken during a criminal investigation is not hearsay because it is not offered to 

prove the truth of the matter asserted.” Goodson v. State, 747 N.E.2d 1181, 1185 

(Ind. Ct. App. 2001), trans. denied. Therefore, the trial court did not err when it 

overruled A.W.’s objection. See Bates-Smith v. State, 108 N.E.3d 399, 405 (Ind. 

Ct. App. 2018) (holding detective’s testimony was not hearsay because it was 

offered to explain the course of his investigation and the reason officers stopped 

the defendant’s vehicle). 

[9] A.W.’s second objection was to the State’s question, “Who was supposed to be 

wearing that GPS monitoring?” (Tr. Vol. II at 9.) A.W. objected stating:

Judge I am going to ask the Court not to allow Mr. Akers to 

testify about who was supposed to be wearing that monitor. He 

got that information from another source. He didn’t put it on 

him. He doesn’t know if that one was one that was actually 

put—supposed to be on [A.W.]. All of that is based on hearsay. 

Uh, he is just telling the Court what somebody else told him.
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(Id. at 9-10.) The judge did not rule on this objection and allowed the State to 

continue to question Akers.

[State:] Is it standard practice by your department that you 

supervise to ask and inform uh juveniles who get put on GPS, 

what their rules are?

[Akers:] My staff does that, yes.

[State:] So that is standard practice?

[Akers:] Yes.

[State:] And is it fair to say that your staff have been trained—

[A.W.’s Counsel:] Judge I am going to object as to—it doesn’t 

matter what happens in everybody else’s case. It only matters 

what happened in [A.W.’s] case. Can Mr. Akers definitively say 

that this specific monitor was put on [A.W.’s] ankle and this is 

the one that [A.W.] had on and this is [the] one that made the 

alert. Maybe the probation officer mixed them up, maybe it was 

somebody else’s monitor but Mr. Akers has no personal 

knowledge as to this specific monitor being on [A.W.’s] foot or 

anything that was went [sic] over with [A.W.] or any evidence. 

Standard practice is not evidence.

[Court:] Uh huh but he was asking more questions. Go ahead.

(Id. at 10.)
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[10] The State then proceeded to continue to question Akers about his receipt of the 

tamper alert and decision to go to North Central High School. Later in Akers’ 

testimony, the following exchange occurred:

[State:] And when you were [at the high school] what did you 

find?

[Akers:] The GPS tracker that we had placed on [A.W.], and the 

reason that I could—

[A.W.’s Counsel:] Judge I am going to object to the 

characterization that we had placed. Mr. Akers did not place it.

[Court:] Okay.

[A.W.’s Counsel:] And he was not there when it happened. He 

can’t testify as to how that happened or when that happened. It 

is information he got from someone else, which is hearsay.

[Court:] Okay we will note your objection. Go ahead.

[State:] How did the GPS tracker appear to you?

[Akers:] When I drove to the parking lot, I was basically going 

off of the last GPS points that I saw so I went to that area of 

North Central, the parking lot which is behind the school near 

the soft ball [sic] field and I retrieved at that time a GPS tracker 

with a serial number [that] matches the same number that we 

have input into the system for [A.W.] 

(Id. at 11-12.)
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[11] A.W. argues Akers’ testimony that the specific device Akers found was the 

device assigned to A.W. was inadmissible hearsay, and without that evidence,

there is insufficient evidence to support the true finding. The Rules of Evidence 

recognize an exception to the rule against hearsay for the record of a regularly 

conducted activity. Ind. R. Evid. 803(6). However, a proper foundation must 

be laid before the exhibit can be admitted, which requires the proponent of the 

exhibit to establish:

 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(9) or (10) 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.

Id. The State did not put into evidence the record indicating the serial number 

of the device Akers recovered at North Central High School or the record of the
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serial number recorded in the probation departments’ system for A.W.’s 

device.3

[12] Nevertheless, Indiana Code Section 35-44.1-3-4 provides: “A person who 

knowingly or intentionally violates a home detention order or intentionally 

removes an electronic monitoring device or GPS tracking device commits 

escape, a Level 6 felony.” The State was not required to produce the specific 

person who put the electronic monitoring device on A.W. in order to prove the 

offense. The Probation Officer’s Report of Preliminary Inquiry indicates A.W. 

was on pre-dispositional electronic monitoring on February 25, 2019, in Cause 

Number 49D09-1902-JD-000146. Akers testified he discovered an electronic 

monitoring device with a cut strap at North Central High School. On crossexamination, A.W. asked Akers, “And although those numbers were input, 

you don’t know if they were properly imputed [sic] and assigned to [A.W.]?” 

(Tr. Vol. II at 12.) Akers answered, “I would say they were because the GPS 

points prior to that always lead [sic] to wear [sic] [A.W.’s] locations were, as 

did this location at North Central HS where [A.W.] was that day.” (Id.) 

Therefore, A.W. was required to wear an electronic monitoring device on the 

3 The Rules of Evidence are meant to ensure that judicial proceedings are conducted fairly and with an eye 

towards ascertaining the truth. See Ind. R. Evid. 102. To this end, parties need to be mindful of the Rules of 

Evidence and proffer evidence in accordance with the Rules. Business records are excepted from the hearsay 

rule because they bear independent indicia of trustworthiness. Embry v. State, 989 N.E.2d 1260, 1264 (Ind. 

Ct. App. 2013). In the case at bar, the State could have anticipated and addressed A.W.’s objections by 

producing and laying the foundation for admission of the records indicating the serial number of the device 

assigned to A.W. 
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date of the offense, Akers found a monitoring device with a cut strap on that 

date, and the electronic monitoring device Akers found consistently had led to 

A.W.’s location.

[13] “In bench trials, we presume that the court disregarded inadmissible evidence 

and rendered its decision solely on the basis of relevant and probative 

evidence.” Berry v. State, 725 N.E.2d 939, 943 (Ind. Ct. App. 2000). Therefore, 

even if any evidence was inadmissible here, we hold the State presented 

sufficient admissible evidence to support the trial court’s true finding for escape. 

See Keith v. State, 91 N.E.3d 1029, 1033 (Ind. Ct. App. 2018) (holding sufficient 

evidence supported defendant’s escape conviction when she was supposed to go 

directly home after picking up her monitoring device but she drove to numerous 

other locations instead), trans. denied. 

Conclusion

[14] It was not an abuse of discretion for the trial court to admit evidence of Akers’ 

investigative activities. Further, the State presented sufficient evidence to 

support the true finding even without Akers’ testimony matching the serial 

number of the device he recovered at the high school to the serial number listed 

in the probation department’s records. Therefore, we affirm the juvenile court.

[15] Affirmed.

Crone, J., and Pyle, J., concur.