Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
                                                                              May 28 2014, 9:46 am
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:                             ATTORNEYS FOR APPELLEE:

JANE H. CONLEY                                      GREGORY F. ZOELLER
Indianapolis, Indiana                               Attorney General of Indiana

                                                    LARRY D. ALLEN
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

KEVIN A. DEUBNER,                                   )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )      No. 49A05-1309-CR-439
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                     APPEAL FROM THE MARION SUPERIOR COURT
                           The Honorable Lisa F. Borges, Judge
                      The Honorable Anne M. Flannelly, Commissioner
                            Cause No. 49G04-1302-FD-11821



                                           May 28, 2014

                MEMORANDUM DECISION - NOT FOR PUBLICATION

KIRSCH, Judge
       Kevin A. Deubner appeals the revocation of his placement in a community

corrections program (“Community Corrections”), contending that it was error for the trial

court to admit an out-of-court statement of the alleged victim under the “excited utterance”

exception to the hearsay rule.

       We affirm.

                           FACTS AND PROCEDURAL HISTORY

       On March 28, 2013, as part of a combined plea agreement, Deubner pleaded guilty

to theft,1 a Class D felony (“Cause No. 11821”), and auto theft,2 a Class D felony (“Cause

No. 84623”). He was sentenced to 545 days for the theft conviction and 365 days for the

auto theft conviction, to be served consecutively in Community Corrections.

       On April 30, 2013, Indianapolis Metropolitan Police Department (“IMPD”) officers

were called to South Sheffield Avenue in Indianapolis on a report of individuals fighting.

IMPD Officers Eric Stevenson and David Smiley were the first to arrive. About “a minute”

later, Officer Monica Hodge joined them at the scene. Tr. at 20. Upon arriving, the officers

found a distraught woman in the street, who was speaking too quickly for the officers to

understand her. Id. at 34. Officer Hodge observed that the woman’s face was red, she had

blood on her shirt and cuts on her fingertips, and she was crying and pacing back and forth.

Id. at 19.

       From previous interactions, Officer Hodge knew the woman was Amber. Tr. at 16.

Amber told the officers that her boyfriend, Deubner, had hit her and that she was pregnant.


       1
           See Ind. Code § 35-43-4-2.
       2
           See Ind. Code § 35-43-4-2.5.

                                             2
Amber pointed to the house where Deubner lived. Officers walked to the front door of the

house and knocked. Deubner answered the door and immediately claimed that he had not

hurt Amber but merely grabbed her to try and calm her down after she fell on the ground.

Officer Stevenson handcuffed Deubner and read him his Miranda rights.

       Deubner, who was at that time on Community Corrections for the theft and auto

theft convictions, was charged under cause No. 49-G04-1305-MC-28297 (“Cause No.

28297”) with the following offenses against Amber: battery, a Class D felony; domestic

battery, a Class D felony; strangulation, a Class D felony; criminal confinement, a Class C

felony; and intimidation, a Class C felony. On May 2, 2013, Deubner was notified of a

Community Corrections violation in Cause No. 11821 for having been arrested and charged

under Cause No. 28297. Appellant’s App. at 33.

       Cause No. 28297 and the Community Corrections violation were set for jury trial

on August 15, 2013. On that date, however, the State was not ready for trial and dismissed

all charges in Cause No. 28297 without prejudice. With regard to the Community

Corrections violation, the State offered Deubner a “no recommendation” plea if he would

admit to violating the rules governing his Community Corrections; Deubner declined the

State’s offer. The State also offered not to oppose Deubner’s continuance in Community

Corrections if he would admit having violated the rules; again, Deubner refused.

       The trial court held a hearing on the Community Corrections violation, and Officers

Hodge and Stevenson testified.      Officer Hodge’s testimony included a reference to

Amber’s out-of-court statements that “she was hit by her boyfriend” and “she was

pregnant.” Tr. at 22. Amber was not in court, and Deubner objected on the grounds that

                                            3
the statements were hearsay and did not fall within the excited utterance exception to the

rule because “there was a period of time between any alleged incident and when this

statement was made.” Tr. at 21. Over Deubner’s objection, Amber’s statements were

admitted.

       Officer Hodge testified that when Deubner answered his door, he immediately

began talking.

       [Deubner] said that he didn’t hurt his girlfriend, that she’s the one that came
       over and wanted to talk to him, she came in his house, or he let her in the
       house, she was screaming at him, he wanted her to calm down so he kind of
       grabbed her, gave her a hug to calm her down and she continued to scream
       and then she fell to the ground.

Id. at 24. After Deubner was placed in handcuffs and read his Miranda rights, Amber

started walking down the street where Deubner could see her. Id. at 25. Deubner became

agitated and yelled at Amber to tell the police not to arrest him. Id. at 26. Officer Stevenson

and Officer Hodge both testified, without objection, that Deubner said that Amber wanted

him arrested because that would allow her to come and take his possessions out of his

house. Id. at 29, 41. The trial court revoked Deubner’s placement in Community

Corrections and proceeded to sentencing.

       After calculating his credit time, the court sentenced Deubner to the Department of

Correction (“DOC”), but finding that his credit time made this time served, the trial court

ordered him released. The State agreed with the sentence and calculation of time. Four

days later, on August 19, 2013, the trial court called Deubner back and said his credit time

had been calculated incorrectly. The trial court ordered him to serve a revised sentence of



                                              4
303 days, “which actual time is 151 and a half actual days,” in the DOC. Id. at 66. Deubner

now appeals.3 Additional facts will be added where necessary.

                                  DISCUSSION AND DECISION

        Deubner argues that the trial court abused its discretion when it revoked his

placement in Community Corrections and ordered the remainder of his sentence be served

in the DOC. “[T]here is no right to probation: the trial court has discretion whether to

grant it, under what conditions, and whether to revoke it if conditions are violated.” Reyes

v. State, 868 N.E.2d 438, 440 (Ind. 2007). “A reviewing court treats a petition to revoke a

placement in a community corrections program the same as a petition to revoke

probation.”4 Bass v. State, 974 N.E.2d 482, 488 (Ind. Ct. App. 2012). The burden of proof

in probation revocation proceedings is upon the State to prove the violation of a condition

of probation by a preponderance of the evidence. Jaynes v. State, 437 N.E.2d 137, 139

(Ind. Ct. App. 1982). Criminal conduct is always a violation of probation. Gardner v.

State, 678 N.E.2d 398, 401 (Ind. Ct. App. 1997). However, the State is not required to

prove conviction of another crime. Jaynes, 437 N.E.2d at 139. Rather, it is sufficient, for

probation revocation purposes, if the trial judge, after a hearing, finds that unlawful conduct

occurred. Id. at 139-40.




        3
          The record before us contains no information regarding Deubner’s release date from the DOC.
Noting that he received a 303-day sentence, with good behavior, Deubner may have been released prior to
this opinion.
        4
           Because a petition to revoke placement in a community corrections program is treated the same
as a petition to revoke probation, for ease of reference, we will also refer to the instant action as a probation
revocation proceeding.

                                                       5
       Probation revocation is a two-step process. Cox v. State, 850 N.E.2d 485, 488 (Ind.

Ct. App. 2006). First, the court must make a factual determination that a violation of a

condition of probation actually has occurred. Id. If a violation is proven, then the trial

court must determine if the violation warrants revocation of the probation. Id. In making

the determination of whether the violation warrants revocation, the probationer must be

given an opportunity to present evidence that explains and mitigates his violation. Id.

       Deubner insists that it was error for the trial court to admit Amber’s out-of-court

statements under the excited utterance exception to the rule excluding hearsay.

Specifically, he asserts that admitting Amber’s statement violated his right to confront

Amber. Appellant’s Br. at 4.

       Our court recently explained that a probation revocation hearing is not equivalent

to an adversarial criminal proceeding. Cox v. State, 706 N.E.2d 547, 550 (Ind. 1999).

       Because probation revocation procedures “are to be flexible, strict rules of
       evidence do not apply.” Id. The scope of the right to confrontation as defined
       in Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed.2d 177
       (2004), does not apply in such proceedings. Reyes[, 868 N.E.2d at 440 n.1].
       In Cox, the Court held that judges could consider hearsay “bearing some
       substantial indicia of reliability,” but declined to adopt a particular approach
       to determining that reliability. 706 N.E.2d at 551. Subsequently, in Reyes,
       the Indiana Supreme Court adopted a “substantial trustworthiness” test. [868
       N.E.2d at 440].

Wann v. State, 997 N.E.2d 1103, 1105 (Ind. Ct. App. 2013). In reaching its decision, the

Supreme Court observed that hearsay evidence may not be admitted “willy-nilly.” Reyes,

868 N.E.2d at 440. Instead, the trial court “must evaluate the reliability of the hearsay

evidence and, ideally, the trial court should explain on the record why the hearsay is reliable



                                              6
and why that reliability is substantial enough to supply good cause for not producing live

witnesses.” Id. at 442.

        An excited utterance, as an exception to the hearsay rule under Indiana Evidence

Rule 803(2), is admissible even if the declarant is available as a witness. Jones v. State,

800 N.E.2d 624, 627 (Ind. Ct. App. 2003). “In order for a hearsay statement to be admitted

as an excited utterance, three elements must be present: (1) a startling event has occurred;

(2) a statement was made by a declarant while under the stress of excitement caused by the

event; and (3) the statement relates to the event.” Id. (citing Ind. Evidence Rule 803(2)).

“This is not a mechanical test; admissibility turns on whether the statement was inherently

reliable because the witness was under the stress of the event and unlikely to make

deliberate falsifications.” Id. (citing Jenkins v. State, 725 N.E.2d 66, 68 (Ind. 2000)). The

heart of the inquiry is whether the declarant was incapable of thoughtful reflection.

Marcum v. State, 772 N.E.2d 998, 1001 (Ind. Ct. App. 2002). Additionally, while a

statement is generally less likely to be admitted as an excited utterance if it is made long

after the startling event, the amount of time that has passed is not dispositive. Jones, 800

N.E.2d at 627 (citing Holmes v. State,5 480 N.E.2d 916, 918 (Ind. 1985) (upholding trial

court’s determination that statement was excited utterance even though time frame for

statement was not clear from record).

        The evidence regarding the violation of Community Corrections was heard during

Deubner’s probation revocation hearing. Officers Hodge and Stevenson testified that they



        5
         Holmes v. State, 480 N.E.2d 916, 918 (Ind. 1985) was decided prior to the adoption of the Indiana
Rules of Evidence.

                                                    7
arrived at the scene in response to a call to IMPD dispatch on a report of individuals

fighting. At the scene, the officers found a distraught woman in the street who was

speaking too quickly for the officers to understand her. Officer Hodge, who recognized

the woman as Amber, observed that Amber’s face was red, she had blood on her shirt and

cuts on her fingertips, and she was crying and pacing back and forth. Amber said that

Deubner had hit her and that she was pregnant. While there was no evidence regarding

when the altercation occurred, the officers arrived about one minute after dispatch received

the 911 call. From Amber’s reaction, it was reasonable for the trial court to believe that

Amber was incapable of thoughtful reflection and that her statement that Deubner hit her

satisfied the substantial trustworthiness test. See Wann, 997 N.E.2d at 1105. The trial

court did not abuse its discretion in admitting Amber’s out-of-court statement.

       While not explicitly argued, we must also address whether the trial court abused its

discretion in finding sufficient evidence to support the revocation of Deubner’s placement

in Community Corrections. Cox, 850 N.E.2d at 488. During the probation revocation

hearing, the trial court heard a version of the events from both sides. Testimony revealed

that officers arrived on the scene to find Amber red faced, unable to be consoled, standing

in the street with blood on her shirt and cuts on her fingertips. Tr. at 19. Amber told

officers that Deubner hit her. Id. at 22. Testimony also revealed that Deubner did not deny

touching Amber; instead, he admitted that Amber came to his house screaming, “[H]e kind

of grabbed her, gave her a hug to calm her down and . . . then she fell on the ground.” Id.

at 24. Deubner told officers that Amber wanted him to violate his probation and go to jail

so that she could take items from his house. Id. at 29, 41.

                                             8
      At the close of the probation revocation hearing, the trial court stated:

      Evidence and arguments heard and concluded and the court notes that Officer
      Hodge testified that when she arrived at the scene, she arrived within a few
      minutes of dispatch, she saw two officers on the scene, she recognized the
      female on that date, . . . she knew the female and she personally observed her
      to be crying, face red, pacing back and forth, talking quickly, blood on her
      fingertips and shirt and that she was upset. She had said she was hit by her
      boyfriend, she identified who her boyfriend was, she identified she was
      pregnant and the officer testified she did observe injury to Amber . . . and the
      court also notes that Officer Stevenson arrived almost simultaneously as
      Officer David Smiley was there. . . . He tried to calm her down, she was
      crying, upset, talking quickly and that she identified her boyfriend. He
      noticed blood on the shirt and she had reported a crime. And based on all of
      the evidence that’s been presented today, the court finds that the State has
      presented proof by a preponderance of the evidence that the defendant
      committed battery, a felony battery on pregnant Amber . . . on April 30,
      2013.

Id. at 47-48. The State had the burden of proving the violation of a condition of probation

by a preponderance of the evidence. Jaynes, 437 N.E.2d at 139. Criminal conduct is

always a violation of probation. Gardner, 678 N.E.2d at 401. As the finder of fact, the

trial court had to weigh the evidence and determine whether to believe Amber or Deubner.

It was well within the trial court’s discretion to find by a preponderance of the evidence

that Deubner had committed battery and, therefore, violated his placement in Community

Corrections. The trial court did not abuse its discretion when it placed Deubner in the DOC

after finding that he had violated a term of Community Corrections.

      Affirmed.

MAY, J., and BAILEY, J., concur.




                                             9
