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


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1819 | January 24, 2020   Page 2 of 14
      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

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1819 | January 24, 2020   Page 3 of 14
      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).

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1819 | January 24, 2020                 Page 4 of 14
       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

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1819 | January 24, 2020   Page 5 of 14
       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



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1819 | January 24, 2020   Page 6 of 14
       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

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1819 | January 24, 2020   Page 7 of 14
       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

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1819 | January 24, 2020   Page 8 of 14
       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



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1819 | January 24, 2020   Page 9 of 14
       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

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1819 | January 24, 2020   Page 10 of 14
       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,

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1819 | January 24, 2020   Page 11 of 14
       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


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1819 | January 24, 2020   Page 12 of 14
       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.
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1819 | January 24, 2020   Page 13 of 14
[26]   Affirmed.


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




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