MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                       FILED
this Memorandum Decision shall not be                                   Jul 05 2018, 5:43 am
regarded as precedent or cited before any
                                                                             CLERK
court except for the purpose of establishing                             Indiana Supreme Court
                                                                            Court of Appeals
the defense of res judicata, collateral                                       and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Kurt A. Young                                             Curtis T. Hill, Jr.
Nashville, Indiana                                        Attorney General of Indiana

                                                          Henry A. Flores, Jr.
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

David Johnson,                                            July 5, 2018
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-CR-70
        v.                                                Appeal from the Marion Superior
                                                          Court
State of Indiana,                                         The Honorable Lisa F. Borges,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause No.
                                                          49G04-1003-FA-24557



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-70 | July 5, 2018                       Page 1 of 7
                                        Statement of the Case
[1]   David Johnson appeals the trial court’s revocation of his probation. Johnson

      raises a single issue for our review, which we restate as whether he preserved his

      claim of error in the admission of evidence for appellate review. We affirm.


                                  Facts and Procedural History
[2]   On March 25, 2010, Johnson committed aggravated battery, as a Class B

      felony. Pursuant to an ensuing plea agreement, the trial court sentenced

      Johnson to twenty years, with eight years suspended and three years on formal

      probation. On May 26, 2016, Johnson began his term of probation.


[3]   Less than nine months after his release to probation, Johnson failed two drug

      screens when he tested positive for opiates and methamphetamine. Probation

      officers referred Johnson to a substance abuse treatment center. However, he

      did not enroll for treatment at the center, and he failed to appear at scheduled

      assessments in mid-May and early June of 2017.


[4]   On June 12, officers initiated a traffic stop of a stolen vehicle. According to the

      ensuing probable cause affidavit of Indianapolis Metropolitan Police

      Department (“IMPD”) Officer Tod Puletz:


              Officer [Catherine] Hedges observed David Johnson pay and put
              fuel into the gas tank of a [reported stolen] Chevy Tahoe and
              observed Austin Day with the Tahoe . . . . Officer Hedges has
              knowledge that Austin Day does not have a valid driver’s license
              nor does David Johnson.



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-70 | July 5, 2018   Page 2 of 7
                                                          ***


                 . . . Officers conducted a high risk stop and placed Austin Day
                (driver) and David Johnson (front passenger seat) into
                custody . . . .


                Visible indicators on the vehicle were punched steering column
                cover but a rubber piece was used to conceal damage. A “punch
                key or fake key” to turn the ignition as if it w[ere] a valid key for
                the vehicle, wires were broken, the gear shift would move freely
                without key, broken interior door locks, broken control panel on
                driver’s side panel, in the back rear, vents removed and damaged.
                Inside of the vehicle found were personal property belonging to
                the victim including the registration . . . .


                Before asking any questions, Officer Hedges read Miranda
                Warning . . . , to which both Austin Day and David Johnson
                understood the Miranda Warning. Under Miranda, Austin Day
                admitted to switching seats with David Johnson while in
                possession of the vehicle . . . .


                . . . The owner . . . stated[] he did not know Day or Johnson and
                did not give anyone a key to his vehicle or give anyone
                permission to take his vehicle . . . .


      Ex. Vol. 1 at 8-9.1


[5]   The State charged Johnson with auto theft, as a Level 6 felony, and separately

      filed a notice of probation violation. In its notice of probation violation, the




      1
          Our pagination of the Exhibits Volume refers to the .pdf pagination.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-70 | July 5, 2018        Page 3 of 7
      State alleged that Johnson’s probation should be revoked both because he had

      committed the new offense of auto theft and because he had failed to comply

      with required substance abuse treatment. At an ensuing evidentiary hearing on

      the notice of probation violation, IMPD Officer Derek Duvall, who had arrived

      at the scene of Johnson’s arrest after Johnson had already been placed in

      handcuffs, testified, without objection, as to the facts surrounding the traffic

      stop and Johnson’s arrest as relayed to Officer Duvall by other officers. During

      Officer Duvall’s testimony, the State requested that the charging information

      for auto theft and Officer Puletz’s supporting probable cause affidavit be

      admitted into evidence. In response, Johnson declared that he had “[n]o

      objection” to the admission of those documents. Tr. at 16.


[6]   Also during the evidentiary hearing, the State called Tara Olson, the Court

      Team Supervisor for the Marion County Probation Department. Olson

      testified that Johnson had tested positive for methamphetamine and opiates and

      that he had been referred to a substance abuse treatment center. She further

      testified that he then missed two scheduled appointments for treatment at that

      center “and still to date [has] not enrolled into treatment.” Id. at 18.


[7]   Following the evidentiary hearing, the trial court found that Johnson violated

      the conditions of his probation both when he committed the new offense of

      auto theft and when he “tested positive for meth and opiates.” Id. at 22.

      Accordingly, the court revoked Johnson’s probation and ordered him to serve

      six years in the Department of Correction. This appeal ensued.



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-70 | July 5, 2018   Page 4 of 7
                                     Discussion and Decision
[8]   On appeal, Johnson asserts that the trial court erred when it revoked his

      probation.


              “Probation is a matter of grace left to trial court discretion, not a
              right to which a criminal defendant is entitled.” Prewitt v. State,
              878 N.E.2d 184, 188 (Ind. 2007) (explaining that: “Once a trial
              court has exercised its grace by ordering probation rather than
              incarceration, the judge should have considerable leeway in
              deciding how to proceed. If this discretion were not afforded to
              trial courts and sentences were scrutinized too severely on
              appeal, trial judges might be less inclined to order probation to
              future defendants.”). A probation hearing is civil in nature, and
              the State must prove an alleged probation violation by a
              preponderance of the evidence. Braxton v. State, 651 N.E.2d 268,
              270 (Ind. 1995); see Ind. Code § 35-38-2-3(f) (2012). When the
              sufficiency of evidence is at issue, we 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.” Braxton,
              651 N.E.2d at 270.


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


[9]   Here, Johnson asserts that the trial court “erred in admitting and considering

      hearsay upon hearsay evidence”—specifically, Officer Duval’s testimony and

      Officer Puletz’s probable cause affidavit—and, without that evidence, “the

      evidence was insufficient to prove that Johnson violated his probation by

      committing auto theft.” Appellant’s Br. at 7. We reject Johnson’s arguments.



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-70 | July 5, 2018      Page 5 of 7
[10]   Johnson did not object in the trial court—at any point—during Officer Duval’s

       testimony. As such, his complaint on appeal that that testimony was

       inadmissible hearsay has not been preserved for appellate review. E.g., Sampson

       v. State, 38 N.E.3d 985, 992 (Ind. 2015). Johnson also did not object to the

       admission of Officer Puletz’s probable cause affidavit. Instead, Johnson

       affirmatively declared that he had no objection to that evidence. Accordingly,

       not only did Johnson not preserve the alleged error in the admission of the

       probable cause affidavit, he invited any such error. Invited error is not

       reversible error.


[11]   Neither are we persuaded by Johnson’s passing comment in his brief on appeal

       that the alleged evidentiary errors were fundamental error. Our trial courts

       rarely have the obligation to interject themselves on behalf of defendants in

       evidentiary matters. E.g., Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010). And

       fundamental error is not available when the defendant affirmatively states that

       he has “no objection” to proffered evidence and invites the alleged error in its

       admission. E.g., Halliburton v. State, 1 N.E.3d 670, 678-79 (Ind. 2013). That is,

       invited error is not fundamental error. In any event, we cannot say that the

       admission of the allegedly erroneous evidence made a fair trial for Johnson

       impossible.


[12]   Moreover, Johnson’s challenge to the revocation of his probation on the

       grounds that he had committed the new offense of auto theft fails to give any

       substantial consideration to the fact that the trial court separately revoked his

       probation based on his failed drug tests and refusal to comply with required

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-70 | July 5, 2018   Page 6 of 7
       substance abuse treatment. It is well established that the violation of a single

       condition of probation is sufficient to revoke probation. E.g., Pierce v. State, 44

       N.E.3d 752, 755 (Ind. Ct. App. 2015). Thus, even if the trial court had erred in

       its consideration of the evidence of Johnson’s auto theft, the evidence of his

       failed drug screens and treatment would be sufficient to affirm the trial court’s

       revocation of his probation.


[13]   In sum, Johnson has not preserved his evidentiary challenges for our review,

       and we affirm the trial court’s revocation of Johnson’s probation.


[14]   Affirmed.


       Vaidik, C.J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-70 | July 5, 2018   Page 7 of 7
