Robert A. Wilson, Jr. v. State of Indiana (mem. dec.)

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D),

this Memorandum Decision shall not be FILED

regarded as precedent or cited before any Jan 24 2020, 9:15 am

court except for the purpose of establishing CLERK

Indiana Supreme Court

the defense of res judicata, collateral Court of Appeals

and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE

David W. Stone, IV Curtis T. Hill, Jr.

Anderson, Indiana Attorney General of Indiana

Courtney Staton

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Robert A. Wilson, Jr., January 24, 2020

Appellant-Defendant, Court of Appeals Case No.

19A-CR-1819

v. Appeal from the Madison Circuit

Court

State of Indiana, The Honorable Mark Dudley,

Appellee-Plaintiff. Judge

Trial Court Cause No.

48C06-1504-F3-524

Riley, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1819 | January 24, 2020 Page 1 of 14

STATEMENT OF THE CASE

[1] Appellant-Defendant, Robert Wilson (Wilson), appeals the trial court’s

revocation of his probation and the sanction it imposed following that

revocation.

[2] We affirm.

ISSUES

[3] Wilson presents two issues on appeal, which we restate as the following three:

(1) Whether the trial court abused its discretion when it admitted

certain hearsay evidence;

(2) Whether the State proved by a preponderance of the evidence

that Wilson violated his probation; and

(3) Whether the trial court abused its discretion when it ordered

Wilson to execute six years of his previously-suspended

sentence.

FACTS AND PROCEDURAL HISTORY

[4] On April 8, 2015, the State filed an Information, charging Wilson with Level 3

felony armed robbery, Level 6 felony possession of cocaine, and Class A

misdemeanor false informing. On October 13, 2015, Wilson pleaded guilty as

charged, and on November 23, 2015, the trial court imposed an aggregate

sentence of twelve years, with seven years suspended to probation. As part of

the conditions of his probation, Wilson was required to refrain from committing

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new offenses and possessing illegal substances. While incarcerated, Wilson was

admitted to a purposeful incarceration program to address his substance abuse.

Wilson was terminated from the program for uncompleted treatment.

[5] Wilson was released from incarceration on September 27, 2018, and began his

probation. On October 26, 2018, Officer Matthew Kopp (Officer Kopp) of the

Anderson Police Department (APD) responded to a call of a domestic battery

at a home in the 1500 block of Arrow Avenue in Anderson, Indiana. Officer

Kopp encountered Wilson and the mother of Wilson’s child, Sadie Cosby

(Cosby), at the residence. Officer Kopp arrested Wilson, who was charged

subsequently with domestic battery. As part of that criminal case, a no-contact

order was entered against Wilson in favor of Cosby. On November 8, 2018, the

State filed a Notice of Probation Violation, alleging that Wilson had committed

the new offense of domestic battery on Cosby on October 26, 2018. Wilson

failed to appear for his initial hearing on the State’s first Notice, and a warrant

was issued for his arrest.

[6] On December 19, 2018, Cosby called 9-1-1 and reported that Wilson was in

violation of the no-contact order and that he had choked her. A few minutes

after receiving the dispatch, Officer Mark Dawson (Officer Dawson) of the

APD responded to the call at the same home in the 1500 block of Arrow

Avenue in Anderson. Wilson, who had been seen by Cosby’s Mother in the

back yard of the home, departed before Officer Dawson arrived. When Officer

Dawson encountered Cosby, she was visibly upset, breathing heavily, and

appeared to have been crying. Cosby reported to Officer Dawson that Wilson

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had battered and choked her. Cosby had visible redness around her neck.

Officer Dawson observed that Cosby had difficulty speaking, breathing, and

swallowing, which Officer Dawson had been trained to recognize as indicia of

strangulation. On December 28, 2018, the State filed its Amended Notice of

Violation of Probation, alleging that on December 19, 2018, Wilson had taken

substantial steps toward the commission of the new offenses of domestic

battery, strangulation, criminal confinement, and invasion of privacy. On

January 18, 2019, the State filed an Information, charging Wilson with those

offenses. 1 On April 17, 2019, Wilson was taken into custody, and he was

released from custody on June 3, 2019.

[7] On June 14, 2019, Wilson reported to his probation officer. Wilson took a drug

screen which was positive for illegal substances. On June 26, 2019, the State

filed its Second Amended Notice of Violation of Probation, alleging that on

June 14, 2019, Wilson had committed the new offenses of possession of

methamphetamine/amphetamine, cocaine, and cannabinoids by providing a

positive drug screen.

[8] The hearing on the State’s Second Amended Notice of Violation of Probation

was scheduled for July 12, 2019. Cosby was subpoenaed as a witness for the

hearing and met with the State’s investigator, Randy Tracy, prior to the

hearing. As the two met, Wilson contacted Cosby, who was pregnant with

1

The domestic battery was charged as domestic battery resulting in moderate bodily injury, a Level 6 felony,

Ind. Code §§ 35-42-2-1.3 (a)(1), -(b)(3).

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Wilson’s child at the time, on her cell phone and directed her to inform the

State that she and her mother would not testify against Wilson.

[9] At the probation violation hearing, Wilson admitted that he had committed the

June 14, 2019, offenses by providing a positive drug screen as alleged by the

State. Because Wilson denied the other allegations against him, the trial court

conducted an evidentiary hearing. The trial court initially allowed Officer

Kopp to testify over Wilson’s hearsay objection that Cosby had reported on

October 26, 2018, that Wilson had battered her, finding that her report to law

enforcement was substantially trustworthy hearsay admissible in the revocation

proceeding. Officer Kopp then testified that, as he attempted to place Wilson

under arrest, Cosby had recanted her report. The trial court sustained Wilson’s

objection to this hearsay testimony, finding that Cosby’s recantation rendered

all hearsay testimony regarding her statements on October 26, 2018,

untrustworthy. The trial court struck the previously-admitted hearsay

statements from the record.

[10] Officer Dawson testified regarding Cosby’s statements to him on December 19,

2018. The trial court admitted those statements over Wilson’s hearsay

objection, finding that they were excited utterances excepted from the hearsay

rule. Photographs depicting injuries to Cosby’s neck were also admitted as

Exhibits 3 through 5. At the close of the evidence, the trial court found that the

State had failed to prove that Wilson committed the October 26, 2018, domestic

battery because there was no evidence in the record as to who had battered

Cosby on that day. The trial court also found that the State had failed to prove

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that Wilson had committed criminal confinement on December 19, 2018, but

that the State had shown by a preponderance of the evidence that Wilson had

violated the terms of his probation by committing the other December 19, 2018,

offenses and, by his own admission, by committing the June 14, 2019, drug

possession offenses. The trial court revoked Wilson’s probation.

[11] The trial court then proceeded to a hearing on what sanction to impose as a

result of the violations. Wilson was sworn in and testified that the reason that

he tested positive for illegal substances on June 14, 2019, was that he was using

drugs in jail after he was taken into custody for the December 19, 2018,

offenses. Wilson maintained that he had just procured employment and was to

start substance abuse treatment that day. As to his relationship with Cosby,

Wilson testified that they were attempting to work out their difficulties.

Wilson’s counsel requested that the trial court sanction Wilson with a

community corrections, Continuum of Sanctions (COS), or some other form of

probation as an alternative to the Department of Correction.

[12] The trial court noted the short period of time between Wilson’s release from

incarceration for the underlying offenses and his commission of the December

19, 2018, new offenses. The trial court also observed that, after being released

from custody on June 3, 2019, Wilson was abusing illegal substances eleven

days later, Wilson had not sought substance abuse treatment until just before

the hearing, and that Wilson had pressured Cosby not to testify at the probation

revocation hearing. The trial court concluded that these circumstances did not

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reflect well on Wilson’s character and ordered him to serve six years of his

previously-suspended sentence.

[13] Wilson now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Admission of Evidence

[14] Although Wilson styles his first argument as a challenge to the sufficiency of

the evidence supporting the revocation of his probation, his argument also

contains a contention that the trial court abused its discretion when it admitted

Cosby’s December 19, 2018, hearsay statements to Officer Dawson. We begin

by observing that it is well-established that “probation may be revoked on

evidence of violation of a single condition.” Heaton v. State, 984 N.E.2d 614,

618 (Ind. 2013). Wilson does not appeal the trial court’s determination that he

violated his probation by committing the new drug possession offenses on June

14, 2019. Therefore, we would affirm the trial court’s revocation of Wilson’s

probation even if the challenged evidence was improperly admitted. See Menifee

v. State, 600 N.E.2d 967, 970 (Ind. Ct. App. 1992) (upholding trial court’s

revocation decision even where the State conceded that insufficient evidence

was presented on some violations because other violations were adequately

supported by the evidence).

[15] Regarding the merits of Wilson’s argument, we conclude that the trial court did

not abuse its discretion in admitting Cosby’s statements to Officer Dawson.

There is no right to probation, the trial court having discretion to grant it and to

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revoke it if the conditions it placed on probation are violated. Reyes v. State, 868

N.E.2d 438, 440 (Ind. 2007). Because of this discretion, although the Due

Process Clause applies to probation revocation proceedings, probationers do

not receive the full panoply of protections that defendants receive at trial. Id.

Indeed, the Indiana Rules of Evidence do not strictly apply to probation

revocation hearings. Cox v. State, 706 N.E.2d 547, 550-51 (Ind. 1999). Courts

may admit evidence during a probation revocation that would be inadmissible

in a criminal trial, including hearsay, if the trial court determines that the

hearsay is substantially trustworthy. Reyes, 868 N.E.2d at 440-41. We review a

trial court’s admission of evidence at a probation revocation hearing for an

abuse of its discretion, which only occurs if the trial court’s decision is clearly

against the logic and effect of the facts and circumstances before it. Robinson v.

State, 955 N.E.2d 228, 231 (Ind. Ct. App. 2011).

[16] The trial court found the challenged hearsay to be admissible pursuant to the

excited utterance exception to the hearsay rule which provides for the

admission of “[a] statement relating to a startling event or condition, made

while the declarant was under the stress of excitement that it caused.” See Ind.

Evidence Rule 803(2). In order to meet the exception, three circumstances

must be present: (1) a “startling event or condition” must have occurred; (2) the

declarant must have made the statement “while under the stress of excitement

caused by the event or condition,” and (3) the statement must be related to the

event or condition.” Ramsey v. State, 122 N.E.3d 1023, 1032 (Ind. Ct. App.

2019), trans. denied. The test is not mechanical, and admissibility turns “on

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whether the statement was inherently reliable because the witness was under

the stress of the event and unlikely to make deliberate falsifications.” Id.

[17] Here, Officer Kopp encountered Cosby minutes after receiving the 9-1-1

dispatch. While Cosby reported that Wilson had battered and strangled her,

she was visibly upset, breathing heavily, and appeared to have been crying.

Cosby had visible wounds around her neck and exhibited the indicia of having

been strangled. This was sufficient evidence to show that (1) Cosby had been

battered and strangled, a startling event; (2) Cosby was still under the stress of

that startling event when she made her report to Officer Kopp; and (3) that her

report related to being battered and strangled. See id. (holding that victim’s

report to officer was admissible as an excited utterance where victim appeared

to have been through a traumatic ordeal, was upset and “visibly shaken,” and

had severe injuries). As such, the challenged hearsay testimony was

substantially trustworthy and admissible at Wilson’s probation revocation

hearing.

[18] Nevertheless, Wilson argues that Cosby’s hearsay statements were not

substantially trustworthy because, during the previous domestic battery incident

on October 26, 2018, Cosby recanted her report that Wilson had battered her.

However, the challenged evidence pertained to an entirely different incident on

a different date, and Cosby never retracted her report that Wilson had battered

and strangled her on December 19, 2018. It was within the discretion of the

trial court to find Cosby to be incredible on October 26, 2018, but credible as to

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an entirely separate incident on December 19, 2018. Accordingly, we find no

error in the trial court’s admission of Cosby’s hearsay statements.

II. Sufficiency of the Evidence

[19] Wilson challenges the sufficiency of the evidence supporting the trial court’s

determination that he committed the new offense of domestic battery on

December 19, 2018. A probation violation hearing is a civil proceeding, and

the State must prove the alleged probation violation by a preponderance of the

evidence. Murdock v. State, 10 N.E.3d 1265, 1267 (Ind. 2014). Our standard of

review of the sufficiency of the evidence supporting the revocation of probation

is similar to our standard of review for other matters: “[W]e consider only the

evidence most favorable to the judgment—without regard to weight or

credibility—and will affirm if ‘there is substantial evidence of probative value to

support the trial court’s conclusion that a probationer has violated any

condition of probation.’” Id. (quoting Braxton v. State, 651 N.E.2d 268, 270

(Ind. 1995)).

[20] The State alleged that Wilson violated his probation by committing domestic

battery on December 19, 2018. The offense of domestic battery occurs when a

person knowingly or intentionally touches a family or household member in a

rude, insolent, or angry manner. I.C. § 35-42-2-1.3(a)(1). The evidence showed

that Cosby, with whom Wilson had a child, reported on December 19, 2018,

that Wilson had battered her, and she had visible injuries on her face. This

evidence proved by a preponderance of the evidence that Wilson had battered

Cosby. See Steele v. State, 42 N.E.3d 138, 144 (Ind. Ct. App. 2015) (upholding

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Steele’s conviction for Class D felony domestic battery where victim suffered an

injury to her eye and had reported during treatment that Steele caused the

injury).

[21] Wilson argues that the evidence was insufficient because Cosby was not a

credible witness. Relying on the fact that Cosby had recanted her report of the

October 26, 2018, domestic battery, Wilson contends that the evidence is

insufficient because the trial court did not explain “how a person who admitted

fabricating her earlier allegation to the officer who responded to the first claim

of domestic battery was found credible with respect to the second claim.”

(Appellant’s Br. p. 9). However, the trial court specifically noted when it struck

Cosby’s October 26, 2018, statements that it was doing so because she recanted

them. Cosby never recanted her December 19, 2018, statements to Officer

Dawson, and it was within the discretion of the trial court to believe that

testimony. Wilson essentially requests that we reassess Cosby’s credibility on

appeal, which is contrary to our standard of review. See Murdock, 10 N.E.3d at

1267. In addition, Wilson does not contest that he committed the June 13,

2019, drug offenses, so we would affirm the trial court’s revocation

determination even if we found the evidence of the December 19, 2018,

domestic battery to be lacking. See Menifee, 600 N.E.2d at 970.

III. Sanction

[22] Wilson argues that the trial court abused its discretion when it ordered him to

execute six years of his previously-suspended sentence. It is well-settled that

probation is a matter of grace which is left to the trial court’s discretion. Heaton,

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984 N.E.2d at 616. If a trial court revokes probation, it may continue the

person on probation, extend the probationary period for not more than one

year, or order the execution of all or part of the previously-suspended sentence.

I.C. § 35-38-2-3(h). The trial court has considerable leeway in deciding how to

proceed in probation matters. Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007).

If this were not so, trial court judges would be less inclined to order probation

for defendants. Id. In light of this considerable leeway, “a trial court’s

sentencing decisions for probation violations are reviewable using the abuse of

discretion standard.” Id. An abuse of discretion occurs where the trial court’s

decision is clearly against the logic and effect of the facts and circumstances

before it. Id.

[23] Here, the trial court found that imposition of six years of Wilson’s previously-

suspended sentence was merited because Wilson began committing new crimes

less than three months after beginning his probation, he continued to abuse

drugs and tested positive for illegal substances eleven days after being on

conditional release, and he attempted to subvert justice by pressuring Cosby not

to testify at his revocation hearing. In addition, as he acknowledges on appeal,

Wilson has a poor history of probation compliance. The pre-sentence

investigation report filed in the underlying armed robbery case revealed that, as

a juvenile, Wilson was found to have violated his probation on nine occasions.

As an adult, Wilson had his probation, work release, and other community

corrections placements revoked on six occasions. Wilson was also plainly and

repeatedly violating the no-contact order in place for Cosby, who was pregnant

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with his child by the time of the revocation hearing. None of these

circumstances reflect well on Wilson’s character. It was within the trial court’s

considerable discretion to conclude that Wilson did not merit any additional

conditional freedom and that he should execute most his previously-suspended

sentence.

[24] Wilson contends that “[d]rug court would give the defendant a final

opportunity to reform and spare the public the cost of incarceration.”

(Appellant’s Br. p. 13). We observe that Wilson did not specifically request this

sanction at his revocation hearing. Rather, Wilson argued that he should be

placed in “community corrections, could be in COS, um [sic] some form of

probation.” (Tr. Vol. II, p. 75). A trial court cannot be said to have abused its

discretion in declining to impose a sanction that was not requested. In

addition, there is no evidence in the record that Wilson qualified for the

sanction he now seeks. Be that as it may, Wilson had been terminated from

substance abuse treatment when he was incarcerated for the underlying offense,

and the trial court was under no obligation to credit his late-breaking

enrollment in treatment prior to the revocation hearing. Finding no abuse of

discretion, we affirm the trial court’s sanction.

CONCLUSION

[25] Based on the foregoing, we conclude that the trial court did not abuse its

discretion when it admitted Cosby’s hearsay statements, sufficient evidence

supported its revocation determination, and that its imposition of six years of

Wilson’s previously-suspended sentence was within its discretion.

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[26] Affirmed.

[27] Baker, J. and Brown, J. concur

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