Preview:

FOR PUBLICATION

ATTORNEY FOR APPELLANT: ANTHONY S. CHURCHWARD Fort Wayne, Indiana

ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General of Indiana MONIKA PREKOPA TALBOT Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
ANTHONY Z. BANKS, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 02A03-0505-CR-205

APPEAL FROM THE ALLEN SUPERIOR COURT The Honorable Frances C. Gull, Judge Cause No. 02D04-0410-FC-173

December 29, 2005 OPINION - FOR PUBLICATION

VAIDIK, Judge

Case Summary Anthony Z. Banks appeals his conviction for Promoting Prostitution, a Class C felony. Specifically, he contends that the trial court erred in excluding his testimony concerning what a police officer told him during the undercover operation on grounds that it constituted hearsay. Because a statement made by a police officer within the scope of his employment constitutes a statement by a party opponent, the police officer's statements in this case are not hearsay and were improperly excluded. However, in light of the evidence that Banks was able to present to the jury regarding his version of the events, the error is harmless. We therefore affirm. Facts and Procedural History On the evening of October 19, 2004, Ft. Wayne Police Department Officer Mark Gerardot, who was a detective in the department's Vice and Narcotics Division, was conducting an undercover investigation in the 5400 block of Southern Court in Ft. Wayne because of suspected illegal activity in trailer number 53. As Officer Gerardot drove past the trailer in his unmarked car, Banks flagged him down. Officer Gerardot drove on past and alerted the other police officers in the area that someone had tried to flag him down. Officer Gerardot then activated his listening device and returned to the area where Banks was still standing. Officer Gerardot rolled down his passenger-side window and engaged Banks in conversation. Officer Gerardot was thrown off at first because he was "looking for prostitution in the area" and "didn't expect to run into a male subject." Tr. p. 43-44. At some point during their conversation, Banks asked Officer Gerardot what he wanted, and Officer Gerardot replied that he was looking for a girl. Banks then asked Officer 2

Gerardot what he wanted with a girl, and Officer Gerardot said he wanted a "blow job." Id. at 44. When Banks asked Officer Gerardot if he had any money, Officer Gerardot stated that he had ten dollars and showed him the money. After instructing Officer Gerardot where to park, Banks went to trailer number 53 and returned with a woman named Emma Busby. Busby entered the passenger side of Officer Gerardot's car and sat down. Banks walked to the driver's side, and Officer Gerardot rolled down his window. Officer Gerardot asked Busby if she was going to perform oral sex on him for ten bucks, and she agreed. Banks told Officer Gerardot to give Busby the money, and Officer Gerardot then drove off with Busby and gave her the money. After Officer Gerardot gave a predetermined signal, uniformed police officers pulled over his car and arrested Busby. Other officers then arrested Banks. The State subsequently charged Banks with Promoting Prostitution, a Class C felony. 1 At trial, when Banks started to testify regarding what Officer Gerardot told him during their first encounter, the State objected on hearsay grounds. Defense counsel responded that the statements were not hearsay because they were not being admitted for the truth of the matter asserted; rather, he wanted to present Banks' version of the events to the jury. The trial court sustained the State's objection. Banks then made an offer of proof, during which he testified that when Officer Gerardot first spoke to him, Officer Gerardot said that he just got off work, that he was from Decatur, that he was trying to

1

Ind. Code

Download Anthony Z. Banks v. State of Indiana.pdf

Indiana Law