MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any                            Feb 18 2020, 7:57 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.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Valerie K. Boots                                         Curtis T. Hill, Jr.
Suzy St. John                                            Attorney General of Indiana
Marion County Public Defender Agency
                                                         Megan M. Smith
Appellate Division                                       Deputy Attorney General
Indianapolis, Indiana                                    Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Joshua Walker,                                           February 18, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-1072
        v.                                               Appeal from the
                                                         Marion Superior Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff.                                      Clark Rogers, Judge
                                                         Trial Court Cause No.
                                                         49G25-1803-F6-7796



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1072 | February 18, 2020             Page 1 of 9
[1]   Joshua Walker (“Walker”) was convicted after a jury trial of possession of

      cocaine1 as a Level 6 felony and was adjudicated as an habitual offender. 2 He

      raises one issue on appeal, which we restate as whether the trial court abused its

      discretion when it denied Walker’s request to elicit testimony regarding a

      corrections officer who was accused of planting contraband on an inmate.


[2]   We affirm.


                                       Facts and Procedural History
[3]   In March 2018, Walker was residing at Duvall Residential Center (“Duvall”)

      through Marion County Community Corrections. Tr. Vol. 2 at 15. Duvall was

      understaffed at the time, as it still was at the time of trial, employing twenty-

      seven security officers instead a full staff of forty security officers. Id. at 23.

      Shortly before midnight on March 2, 2018, correctional officers Michael Nesbitt

      (“Nesbitt”) and Brian Ahmed (“Ahmed”) were conducting a security check in

      one of the bathrooms. Id. at 33. Nesbitt and Ahmed observed Walker sitting in

      one of the open toilet stalls. Id. at 34. Walker appeared to be concealing

      something in his hand, so Nesbitt confronted Walker and noticed plastic

      baggies in Walker’s hand. Id. Nesbitt asked Walker to step away from the

      toilet and place his hands behind his back. Id. Walker began cursing at Nesbitt




      1
          See Ind. Code § 35-48-4-6(a).
      2
          See Ind. Code § 35-50-2-8.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1072 | February 18, 2020   Page 2 of 9
      and Ahmed. Id. As Ahmed tried to handcuff Walker, Walker punched Ahmed

      and then fled to a sleeping dorm. Id. at 18, 34-36.


[4]   When Walker reached the dorm, Nesbitt observed Walker toss something, so

      Nesbitt stopped and retrieved the items that Walker had discarded. Id at 36;

      State’s Ex. 1. Nesbitt ordered Walker to get on the ground and put his hands

      behind his back. Tr. Vol. 2 at 36. When Walker refused to comply, Nesbitt

      warned that he would use his pepper spray. Id. Walker refused to comply and

      continued cursing at Nesbitt. Id. Nesbitt then squirted pepper spray at Walker

      several times, and Walker eventually surrendered. Id. at 36-37; State’s Ex. 1.

      The substance that Nesbitt retrieved tested positive for cocaine. Tr. Vol. 2 at 49-

      50; State’s Exs. 2-4.


[5]   On March 6, 2018, the State charged Walker with possession of cocaine as a

      Level 6 felony, battery against a public safety official as a Level 6 felony,

      resisting law enforcement as a Class A misdemeanor, and possession of a

      synthetic drug or synthetic drug lookalike as a Class A misdemeanor.

      Appellant’s App. Vol. II at 20-21. On October 3, 2018, the State filed an

      information alleging that Walker was an habitual offender. Id. at 66. The State

      later filed a motion to dismiss the charges for resisting law enforcement and

      possession of a synthetic drug; on February 21, 2019, the trial court granted the

      request. Id. at 87-88.


[6]   The jury trial commenced on February 26, 2019. During opening argument,

      Walker’s counsel stated that “Duvall Residential Facility is a Mickey Mouse


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1072 | February 18, 2020   Page 3 of 9
      Operation.” Supp. Tr. Vol. 2 at 25. He also contended that the video of the

      incident would contradict Nesbitt’s testimony: “Additionally, you’re not going

      to see, I guess, what Officer Nesbitt is going to testify to reflected in the video.”

      Id. at 26. During his cross-examination of Andrew Steagall (“Steagall”), Chief

      of Security at Duvall, Walker attempted to elicit testimony from Steagall that

      nearly a year after Walker’s incident, Elijah Taylor (“Taylor”), a former

      correctional officer at Duvall, was accused of planting drugs on a resident; the

      State objected. Tr. Vol. 2 at 13, 20-22. During testimony on Walker’s offer to

      prove, Steagall testified that Taylor was not yet employed by Duvall when the

      incident with Walker occurred, stating that Taylor began working at Duvall in

      August or September of 2018, five or six months after the incident with Walker.

      Id. at 22. Steagall also stated that he was aware that Taylor had been fired from

      Duvall, but Steagall explained that he did not know if the allegations about

      planting drugs was related to Taylor’s termination. Id. Steagall also testified

      that Taylor had not been charged with a crime related to the allegation. Id. at

      21-22. The trial court sustained the State’s objection. Id. at 22. During closing

      argument, Walker’s counsel reiterated his argument that Nesbitt lied on the

      stand: “Nesbitt’s statement of what happened is just complete and total

      fabrication.” Tr. Vol. 2 at 57. He also accused Nesbitt on planting cocaine on

      Walker: “I don’t know why Mr. Nesbitt did decide who, this guy Walker, I’m

      going to drop some cocaine on him.” Id. at 58.


[7]   The jury found Walker guilty of possession of cocaine but not guilty of battery

      against a public safety official. Id. at 62. Walker waived his right to a jury trial

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1072 | February 18, 2020   Page 4 of 9
       on the habitual-offender enhancement and admitted to being an habitual

       offender. Id. at 64-67. On April 11, 2019, the trial court sentenced Walker to

       365 days in the Indiana Department of Correction for possession of cocaine,

       enhanced by two years for being an habitual offender. Id. at 77-78. Walker

       now appeals. Additional facts will be presented as necessary.


                                      Discussion and Decision
[8]    Walker argues that the trial court abused its discretion when it ruled that

       Walker could not elicit Steagall’s testimony that Taylor had been accused of

       planting drugs on an inmate. Even though Taylor did not work at Duvall at the

       time of Walker’s incident, Walker argues this evidence was probative and vital

       to his defense, which was that Nesbitt planted the cocaine on Walker. Walker

       claims the exclusion of this evidence violated his constitutional right to present

       a defense.


[9]    We review evidentiary rulings for an abuse of discretion. Guilmette v. State, 14

       N.E.3d 38, 40 (Ind. 2014). An abuse of discretion occurs when the trial court’s

       judgment “is clearly against the logic and effect of the facts and circumstances

       and the error affects a party’s substantial rights.” Id. In determining whether

       an evidentiary ruling affected a party’s substantial rights, we assess the probable

       impact of the evidence on the trier of fact. Hyser v. State, 996 N.E.2d 443, 448

       (Ind. Ct. App. 2013), trans. denied.


[10]   Defendants are guaranteed a meaningful opportunity to present a complete

       defense. Crane v. Kentucky, 476 U.S. 683, 690 (1986). The right to present a

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1072 | February 18, 2020   Page 5 of 9
       defense is a fundamental element of due process. Kubsch v. State, 784 N.E.2d

       905, 924 (Ind. 2003). However, this right is not absolute. Marley v. State, 747

       N.E.2d 1123, 1132 (Ind. 2001). The defendant must also “comply with

       established rules of procedure and evidence designed to assure both fairness and

       reliability in the ascertainment of guilt and innocence.” Id. (emphasis added).

       “Evidence is relevant if: (a) it has any tendency to make a fact more or less

       probable than it would be without the evidence; and (b) the fact is of

       consequence in determining the action.” Ind. Evidence Rule 401. The two

       components of relevant evidence are materiality and probative value. Kubsch,

       784 N.E.2d at 924.


[11]   In greater detail, Walker contends that the evidence about Taylor was relevant

       because Duvall’s chronic understaffing suggested that Duvall was not hiring

       suitable employees. Walker contends this alleged inability to hire qualified

       employees made Duvall employees more susceptible to corruption.


               Had the jury been made aware of the corruption involving
               Taylor, it could have assessed that there are no mechanisms in
               place to prevent a dishonest person, who would go as far as
               framing a resident by planting drugs, from being hired into a
               position with daily contact with residents. The jury was entitled
               to determine whether a culture of corruption existed among
               Duvall correctional officers and whether Walker was a victim of
               that.


       Appellant’s Br. at 13.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1072 | February 18, 2020   Page 6 of 9
[12]   Here, the testimony Walker sought to elicit regarding Taylor was not relevant.

       Taylor did not work at Duvall at the time of Walker’s incident. Tr. Vol. 2 at 21-

       22. The accusation that Taylor planted contraband on an inmate several

       months after Walker’s incident does not make it more or less probable that

       Nesbitt planted drugs on Walker. Thus, testimony about Taylor was neither

       material nor probative, and the probable impact on the jury would have been

       low. See Evid. R. 401; Hyser, 996 N.E.2d at 448. Thus, the proffered evidence

       was irrelevant, and the trial court did not abuse its discretion in sustaining the

       State’s objection and excluding the evidence. See Guilmette, 14 N.E.3d at 40.

       This also disposes of Walker’s claim that the trial court’s ruling violated his

       right to present a defense because by proffering irrelevant evidence, Walker

       failed to “comply with established rules of procedure and evidence designed to assure

       both fairness and reliability in the ascertainment of guilt and innocence.” See

       Marley, 747 N.E.2d at 1132. Thus, by sustaining the State’s objection, the trial

       court did not violate Walker’s right to present a defense. See id.


[13]   Nonetheless, Walker likens the impact on his defense by the exclusion of

       testimony about Taylor to the situation in Hyser, 996 N.E.2d at 443. In Hyser,

       the defendant was deprived of a meaningful opportunity to present a complete

       defense when the trial court excluded his proffered testimony that a third person

       fabricated a child’s accusation that the defendant molested the child in

       retaliation against the defendant for reporting the third person’s physical abuse

       of the child. We determined that the evidence of alleged fabrication was

       relevant, exculpatory, unique, and critical to Hyser’s defense. Id. at 449-50.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1072 | February 18, 2020   Page 7 of 9
       We also observed that the defense Hyser wished to present “was not

       implausible and that the jury may have believed that his version of the facts was

       true.” Id. at 449.


[14]   Walker’s reliance on Hyser is misplaced. In Hyser, the defendant claimed the

       victim’s stepfather coached him into fabricating the allegations of child

       molesting in retaliation for the defendant reporting the stepfather to DCS for

       physical abuse. Hyser, 996 N.E.2d at 445-47. The defendant in Hyser provided

       a foundation for his theory, included evidence that other people had seen the

       stepfather physically abuse the child. Id. Here, Walker presented no evidence

       to support his theory that Nesbitt planted the cocaine or any evidence that

       connected Nesbitt to Taylor. Rather, Walker’s theory relies on speculation,

       which standing alone, does not make Walker’s theory relevant. See Hinkle v.

       State, 97 N.E.3d 654, 663-64 (Ind. Ct. App. 2018) (trial court did not abuse its

       discretion in refusing to allow defendant to present evidence of retaliation when

       there had been no question of retaliation and defendant relied solely on

       speculation to support claim that victim had invented the allegations), trans.

       denied.


[15]   We also reject Walker’s argument that Duvall’s staffing shortages were relevant

       to his claim that Nesbitt planted the cocaine. Without evidentiary foundation,

       Walker contends these staffing shortages helped create a culture of corruption at

       Duvall. This claim is groundless and wildly speculative. We concur with the

       State’s assessment: “one correctional officer being accused of planting drugs on

       a resident on one occasion does not establish a culture of corruption, impugn

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1072 | February 18, 2020   Page 8 of 9
       the hiring practices of Duvall, or determine the propensity of other officers to

       plant drugs; therefore, the accusations against Taylor were not relevant.”

       Appellee’s Br. at 11. The trial court did not abuse its discretion in ruling that

       Walker’s proffered evidence about Taylor planting evidence on an inmate was

       inadmissible.


[16]   Affirmed.


       Bailey, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1072 | February 18, 2020   Page 9 of 9
