Donald Reed, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

[1] Donald Reed (“Reed”) was convicted after a jury trial of sexual misconduct with a minor as a Level 5 felony ¹ and sentenced to an aggregate sentence of five years, with one year executed on Marion County Community Corrections Home Detention (“MCCC”) with four years suspended to probation. Reed appeals and raises the following restated issues:

I. Whether the trial court's admission of an officer's testimony regarding the effect of trauma on memory recall was harmless under the circumstances;

II. Whether the trial court erred by improperly delegating authority for the imposition of probation and community corrections fees to the probation and community corrections departments; and,

III. Whether the sentencing order requires correction for failing to include a count for which Reed was acquitted.

[2] We agree with the parties that the trial court abused its discretion by delegating its statutory duty to impose fees, and reverse and remand with respect to that issue. Otherwise, we find no error and affirm the trial court's judgment.

Facts and Procedural History

[3] In October of 2014, Ashley Thomas (“Ashley”) and her boyfriend, Reed—who was thirty-nine years old at the time—resided together along with their one-year-old child and Ashley's two older children. T.H. was Ashley's fifteen-year-old niece and also resided in the home. See Tr. Vol. 3 p. 8.

[4] On October 7, 2014, T.H. was at Ashley's home with Reed and her one-year-old cousin. See id. at 31. T.H. was in her cousin's room playing on a tablet when Reed entered the room and asked her if she wanted to watch a movie. T.H. declined but, after another request from Reed, T.H. relented and followed Reed into Ashley's bedroom, where there was a television and a couch located in front of the bed. See State's Exs. 3–4. T.H. sat on the couch and began watching the movie when Reed, who was on the bed, “started throwing pillows and just, you know, being childish toward [her].” Tr. Vol. 3 p. 11. Reed rolled from the bed to the couch “kind of flipping on top of [her].” Id. at 12. Reed then got up and took his one-year-old child out of the room and gave him crackers. See id. Reed returned to the room, shut the door, and asked T.H. to scratch his back. T.H. went to the bed and began to scratch Reed's back when Reed started to “rub [her] breasts” over her shirt. Id. T.H. could hear Reed “moaning and groaning a little” while he was rubbing T.H.’s breasts. Id.

[5] During the abuse, T.H. recalled that Reed did not have a shirt on and only had basketball shorts on where she could see “his penis ․ hard” through his shorts. Id. at 13. T.H. also alleged that Reed pulled her pants down and had sexual intercourse with her. T.H. repeatedly attempted to push Reed off of herself but was unable to do so. Reed kept telling T.H. “[p]lease don't tell [Ashley]. Please don't tell [Ashley].” Id. at 14. Once Reed got off of her, T.H. put her pants back on and ran out of the room.

[6] T.H. went to her cousin's room and asked a family friend if she could “come over there.” Id. Meanwhile, Reed entered the room, told T.H. “not to tell [Ashley,]” and was “trying to make amends for what he just did.” Id. T.H. went to the bathroom, changed her clothing, and then left the residence. T.H. later disclosed the sexual abuse to her family friend and her father. See id. at 15.

[7] While Ashley was on her way home she received a phone call from T.H.’s father, who “shared some really disturbing news that he had heard from T.H.” Id. at 33. Once Ashley arrived home, and while still on the phone with T.H.’s father, she confronted Reed. Reed took the phone and explained his version of the events to T.H.’s father, stating that “T.H. presented herself to him, came into the room ․ with her clothes off[.]” Id. at 35. Reed explained that he said to T.H., “Baby girl, you don't have to do this ․ Baby girl, you don't have to do this, put your clothes on[.]” Id. Reed stated that T.H. got scared and ran off. Ashley called 911 to report the incident. Before Ashley had completed her call to 911, Reed had already left the home without taking any of his possessions with him. See id. at 38, 39. This was the last time Ashley saw Reed prior to trial.

[8] Later that evening, T.H.’s grandmother took her to the hospital for a sexual assault examination. At the hospital, T.H. disclosed that Reed had kissed her on the neck. Tr. Vol. 2 pp. 167, 168. The nurse swabbed T.H.’s neck and subsequent laboratory testing indicated that Reed's DNA was present on T.H.’s neck. See id. at 191 (explaining “[t]he DNA profile is at least 1 trillion times more likely if it originated from T.H., [Reed], and one unknown individual than if it had originated from T.H. and two unknown unrelated individuals.”).

[9] On April 8, 2016, the State charged Reed with Count I: Level 4 felony sexual misconduct with a minor and Count II: Level 5 felony sexual misconduct with a minor. A warrant for Reed's arrest was issued the same day. On November 18, 2022, Reed's arrest warrant was served. A jury trial was held on April 23 and 24, 2024.

[10] During the trial, the State called Detective Smith ² (“Det. Smith”) to the stand. Det. Smith had more than two decades of experience policing in units like: sex crimes, child abuse, internet crimes against children, and homicide. Det. Smith also taught a course dozens of times on “neurobiology of trauma” which included a “presentation involving memory recall and interviewing victims and witnesses of traumatic incidents.” Tr. Vol. 3 p. 62. The State then posed the following question to Det. Smith: “based on your training and experience, how does the brain react to trauma?”, to which Reed objected. Id. After a sidebar conference with counsel, in which the State argued that Det. Smtih was a “skilled witness[,]” the trial court took the objection under advisement and explained that “I do think there needs to be more questioning on the scope of [the interaction between Det. Smith and T.H].” Id. at 69, 70. After the sidebar conference concluded, Det. Smith explained that he interviewed T.H. pursuant to the “Child First” child forensic interviewing technique. Id. at 72. He explained that the technique “talks about the methods of processing trauma and how to potentially formulate questions[.]” Id. at 71. The State again asked Det. Smith how trauma affects memory, and Reed again objected. This time the trial court overruled the objection, and Det. Smith proceeded to explain that “a traumatic incident will activate [a] certain process in the brain that releases hormones. And those hormones are [sic] particularly impact memory and recall.” Id. at 74. Thereafter, the State and defense both rested their cases, and the jury retired for deliberations and eventually returned a not guilty verdict as to Count I and a guilty verdict as to Count II.

[11] On May 8, 2024, the trial court sentenced Reed to an aggregate sentence of five years, with one year executed on MCCC and four years suspended to probation, where two and a half years of the four years would be on sex offender probation. The trial court also required Reed to register on the sex offender registry for ten years. The trial court found Reed to be indigent and waived court costs and fines, then declined to impose fees for probation or community corrections, instead directing “the Probation and Community Corrections departments to assess [Reed] for fines, fees, and costs.” Id. at 148. Reed now appeals.

Discussion and Decision

I. Admission of Trial Testimony

[12] Reed argues that the trial court abused its discretion in admitting Det. Smith's testimony about the impact of trauma on a victim's memory. “Trial courts have broad discretion to admit or exclude evidence, and our review is limited to whether the trial court abused that discretion.” Satterfield v. State, 33 N.E.3d 344, 352 (Ind. 2015). A trial court abuses its discretion when the evidentiary ruling is “clearly against the logic and effect of the facts and circumstances.” Taylor v. State, 236 N.E.3d 700, 708 (Ind. Ct. App. 2024) (quoting Blount v. State, 22 N.E.3d 559, 564 (Ind. 2014)).

[13] Indiana Evidence Rule 701 ³ and Rule 702 each concern opinion testimony. Rule 701 deals with testimony by a “skilled witness” and Rule 702 deals with testimony by an expert witness. Both parties agree that the opinion offered by Det. Smith was that of a skilled witness and not an expert opinion. At issue is Det. Smith's opinion testimony about how trauma affects memory, where Det. Smith testified that “a traumatic incident will activate [a] certain process in the brain that releases hormones. And those hormones are [sic] particularly impact memory and recall.” Tr. Vol. 3 p. 74.

[14] A skilled witness is a person with “a degree of knowledge short of that sufficient to be declared an expert under [Indiana Evidence] Rule 702, but somewhat beyond that possessed by the ordinary jurors.” Kubsch v. State, 784 N.E.2d 905, 922 (Ind. 2003) (quoting 13 Robert Lowell Miller, Jr., Indiana Evidence § 701.105, at 318 (2d ed.1995)). A skilled witness's opinion “must be rationally based on the witness's perception and helpful to a clear understanding of the witness's testimony or a determination of a fact in issue.” Davis v. State, 948 N.E.2d 843, 847 (Ind. Ct. App. 2011), trans. denied. Ultimately, these facts are received “directly through any of the [witness's own] senses[.]” Satterfield, 33 N.E.3d at 352 (quoting Ashworth v. State, 901 N.E.2d 567, 572 (Ind. Ct. App. 2009), trans denied.).

[15] Reed argues that the testimony is not admissible because the opinion expressed by Det. Smith was not rationally based upon the detective's perceptions, or personal observations. Even if we were to conclude that the trial court abused its discretion in admitting Det. Smith's opinion testimony, any such error was harmless.

[16] A non-constitutional error is deemed harmless when “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.” Hayko v. State, 211 N.E.3d 483, 491 (Ind. 2023) (internal quotations omitted) (quoting Ind. Appellate Rule 66(A)), cert. denied; see also Ind. Evidence Rule 103(a). “[W]hen conducting that review, we consider the likely impact of the improperly admitted or excluded evidence on a reasonable, average jury in light of all the evidence in the case.” Id. at 492. Ultimately, “the error's probable impact is sufficiently minor when—considering the entire record—our confidence in the outcome is not undermined.” Id.

[17] Here, the probable impact of Det. Smith's opinion testimony was sufficiently minor considering the entirety of the record. The case against Reed consisted of T.H.’s testimony and certain corroborating evidence, such as the presence of Reed's DNA on T.H.’s neck. The State also presented evidence of Reed's consciousness of guilt. Reed denied he engaged in any inappropriate conduct and instead claimed that T.H. came on to him. After he was confronted by Ashley, Reed fled the home and never returned, leaving behind his personal belongings and his one-year-old child.

[18] Reed argues that because of inconsistencies in T.H.’s testimony, Det. Smith's opinion testimony about the affects of trauma was likely to have had significant influence upon the jury. Reed points to the inconsistency between T.H.’s deposition and trial testimony regarding the presence or absence of T.H.’s cousin in the home prior to the abuse. T.H.’s deposition was taken nine years after the incident. Prior to T.H.’s participation in the deposition, she was not permitted to review the statement she made to law enforcement in 2014. At trial, T.H's description of Reed's conduct and the sexual abuse remained consistent with the description she provided to law enforcement in 2014 and her deposition testimony. Moreover, during final argument, the State did not highlight or comment on Det. Smith's opinion testimony but rather emphasized T.H.’s consistent testimony, her lack of motive to fabricate the sexual abuse, the presence of Reed's DNA on T.H.’s neck, and that Reed fled the home before Ashley finished her call with the police.

[19] We conclude that even if the trial court abused its discretion in admitting Det. Smith's opinion testimony, the admission was harmless and did not affect Reed's substantial rights.

II. Assessment of Probation and Community Correction Fees

[20] Reed argues, and the State concedes, that remand is appropriate to permit the trial court the opportunity to determine the imposition of Reed's probation and community correction fees. “Sentencing decisions include decisions to impose fees and costs.” Ross v. State, 150 N.E.3d 233, 234 (Ind. Ct. App. 2020). An abuse of discretion occurs “when the decision is clearly against the logic and effect of the facts and circumstances before the court, or the reasonable, probable, and actual deductions to be drawn therefrom.” Id.

[21] Home detention fees are governed by Indiana Code section 35-38-2.5-6(7), which provides in part that “the offender pay a home detention fee set by the court in addition to the probation user's fee required under [Indiana Code section] 35-38-2-1[.]” (emphasis added). Conditions of probation, including probation fees, are governed by Indiana Code section 35-38-2-1(b), which provides in part that “if the person was convicted of a felony and is placed on probation, the court shall order the person to pay to the probation department the user's fee prescribed under subsection (d).” Ind. Code § 35-38-2-1(b). Whereas subsection (d) provides in part “[i]n addition to any other conditions of probation, the court shall order each person convicted of a felony to pay [,]” a probation user fee. I.C.§ 35-38-2-1(d) (emphasis added).

[22] Reed was convicted of a felony, which required the trial court, and not probation or community corrections, to impose the fees for his community corrections and probation. The trial court failed to order probation or community correction fees and instead delegated its statutory obligation to the probation and community corrections departments. See Amick v. State, 126 N.E.3d 909, 911 (Ind. Ct. App. 2019) (explaining the required fees for direct placement on community corrections); see also Polk v. State, 88 N.E.3d 226, 231 (Ind. Ct. App. 2017) (requiring the trial court to impose probation fees).

[23] The trial court abused its discretion by delegating to the probation department and community corrections department its statutory duty to impose probation and home detention fees. Therefore, we remand with instructions for the trial court to impose the probation and home detention fees.⁴

III. Sentencing Order

[24] Reed argues that the trial court's failure to include in its sentencing order the jury's acquittal of Reed under Count I (Level 4 felony sexual misconduct with a minor) is error. Reed claims the trial court abused its discretion because it failed to enter a complete sentencing order. Reed relies upon portions of the Indiana Trial Court Administration Manual for Judges and Clerks in support of his argument, explaining that the disposition of each count must be included in the abstract of judgment and that the sentencing order should mirror the abstract of judgment.

[25] A trial court abuses its discretion if its decision is “clearly against the logic and effect of the facts and circumstances before the court, or the reasonable, probable, and actual deductions to be drawn therefrom.” Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh'g, 875 N.E.2d 218 (Ind. 2007). We review questions of law de novo. Russell v. State, 234 N.E.3d 829, 857 (Ind. 2024), cert. denied; see also Baker v. State, 255 N.E.3d 1199, 1204 (Ind. Ct. App. 2025).

[26] There is no statutory requirement that the sentencing order must include Reed's acquittal as to Count I. Indiana Code section 35-38-3-2(b)(1), requires only that the judgment of conviction include “the crime for which the convicted person is adjudged guilty and the classification of the criminal offense[.]” (emphasis added). See also Baker, 255 N.E.3d at 1205 (explaining that “[t]he only requirements relevant to [defendant's] claim are that the order includes the crimes of which [defendant] was found guilty and clearly expresses the sentence imposed on those convictions.”). Even though Reed's acquittal as to Count I is clearly reflected in the trial court's abstract of judgment, CCS, verdict forms, and jury trial minutes, the better practice would be for the sentencing order to include the disposition of all counts for which the defendant was tried.⁵ On remand we invite the trial court to consider including the disposition of the acquitted count in its sentencing order.

Conclusion

[27] All in all, we conclude that even if the trial court abused its discretion in admitting Det. Smith's testimony, the admission was harmless under the circumstances and did not affect Reed's substantial rights. Next, we do find that the trial court abused its discretion in delegating to the probation department and community corrections department its statutory duty to order fees but otherwise find no error in the trial court's sentencing order. We affirm in part, reverse in part, and remand with instructions for the trial court to impose probation and home detention fees, and consider any other modifications to the sentencing order.

[28] Affirmed in part, reversed in part, and remanded with instructions.

FOOTNOTES

1.   Ind. Code § 35-42-4-9(b)(1).

2.   We note since the initial investigation began in this case, Detective Smith has since been promoted to Lieutenant. For purposes of this appeal, we will refer to Lieutenant Smith as “Detective Smith.”

3.   Indiana Evidence Rule 701 provides that:If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is:(a) rationally based on the witness's perception; and(b) helpful to a clear understanding of the witness's testimony or to a determination of a fact in issue.Ind. Evidence Rule 701.

4.   We decline Reed's request that on remand we order the trial court to conduct an indigency hearing and instead leave the timing of any necessary indigency hearing to the discretion of the trial court. It is well established that a trial court “acts within its authority when it chooses to wait and see if a defendant can pay probation fees before it finds the defendant indigent.” Johnson v. State, 27 N.E.3d 793, 795 (Ind. Ct. App. 2015). “At the latest, an indigency hearing for probation fees should be held at the time a defendant completes his sentence.” Id.

5.   Although we agree with the court in Crane v. State that “[t]he better practice is for sentencing orders to be complete and accurate with respect to the charges that were tried and the disposition of each, not just the charges that were reduced to a conviction[,]” due to the absence of a statutory obligation, the trial court is under no obligation to include the acquitted count in its order. 147 N.E.3d 424, 425 (Ind. Ct. App. 2020) (emphasis in original); see also Goff v. State, No. 24A-CR-1304, at *2 (Ind. Ct. App. Dec. 18, 2024) (mem.), (The State conceded the omission of the acquitted charge was error.). We note, as does the court in Baker, that “[t]he statutory requirements were not addressed in Crane, and the State does not concede the sentencing order should be amended here.” Baker, 255 N.E.3d at 1205 n.10.

Foley, Judge.

Judges Mathias and Felix concur. Mathias, J. and Felix, J., concur.