APPEAL FROM THE MARION SUPERIOR COURT. The Honorable Amy M. Jones, Judge. Cause No. 49F08-1212-CM-81946.
ATTORNEY FOR APPELLANT: JOEL M. SCHUMM, Clinical Professor of Law; DANIELLE M. TEAGARDEN, Certified Legal Intern, Appellate Clinic, I.U. Robert H. McKinney School of Law, Indianapolis, Indiana.
ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER, Attorney General of Indiana; LARRY D. ALLEN, Deputy Attorney General, Indianapolis, Indiana.
VAIDIK, Chief Judge. NAJAM, J., and BROWN, J., concur.
VAIDIK, Chief Judge.
Wayne Hurd was convicted of Class B misdemeanor battery following a nighttime incident at an Indianapolis bus stop. At his bench trial, the trial court prohibited him from calling his mother as a witness because she was not disclosed until the day of trial. The trial court sentenced Hurd to probation, which included a condition that prohibited him from going between 48th Street to the north, 28th Street to the south, Fall Creek Parkway to the east, and Martin Luther King Jr. Street to the west.
We find that even if the trial court abused its discretion in excluding Hurd's mother as a witness, the error was harmless because the offer of proof was not specific as to the substance of Hurd's mother's testimony, she was not present at the bus stop, and the trial court found the victim's testimony credible and Hurd's testimony to have gaps. However, we find that the trial court abused its discretion in imposing the probation condition because it was not reasonably related to Hurd's treatment and the protection of the public safety. We therefore affirm in part and reverse and remand in part.
Facts and Procedural History
In November 2012, Susan Schneider took an IndyGo bus home from work as she had done many times before. She got off the bus at 39th Street and College Avenue in Indianapolis around 8:45 p.m. As Susan started walking home, which was about one block away from the bus stop, Hurd approached her from behind, grabbed her right shoulder, and swung her around. Susan did not know Hurd. Hurd used enough force that Susan almost lost her footing. Susan kicked Hurd in the groin, causing him to fall to the ground. Frightened, Susan ran home and barricaded herself inside. She immediately called her long-term, live-in boyfriend Douglas Forrest, who was on duty at the time as a sergeant for the Indianapolis Metropolitan Police Department.
Because Sergeant Forrest was nearby, he drove by the bus stop. Based on Susan's description, Sergeant Forrest apprehended Hurd, handcuffed him, and called for another officer. Officer Christopher Cooper responded and spoke with Susan. Officer Cooper then drove Susan to Sergeant Forrest's location. Susan identified Hurd as the person who had assaulted her. Tr. p. 21. Hurd told Officer Cooper that he thought Susan was somebody else. Id.
The State charged Hurd with Class B misdemeanor battery. Hurd was represented by a public defender.
A bench trial was held on August 7, 2013. The day before trial, a different public defender took over Hurd's case. At the beginning of trial, the trial court ordered anyone who was going to be a witness to stand and be sworn in. When a woman stood up, the trial court said, " I'm not sure who this lady is." Id. at 5. Defense counsel said it was Hurd's mother and he was not sure if he was going to call her as a witness. Id.
Hurd testified in his own defense that he was in the area of 39th and College on the night in question because he was going to Church's Chicken to eat. He said he saw Susan, who was the only person at the bus stop, and approached her from the front to ask her what time the bus came. Hurd, who lived on the east side of Indianapolis, needed to take the bus home. Hurd said as soon as he asked Susan what time the bus came, she ran away. Hurd denied touching Susan and denied that Susan kneed him in the groin. Id. at 26. Hurd explained that he had been diagnosed with
paranoid schizophrenia and was taking medication in ...