                                                                                   FILED
                                                                               Apr 16 2019, 5:46 am

                                                                                   CLERK
                                                                               Indiana Supreme Court
                                                                                  Court of Appeals
                                                                                    and Tax Court




      ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEE
      Richard B. Walker                                           Curtis T. Hill, Jr.
      Anderson, Indiana                                           Attorney General of Indiana

                                                                  Ian A. T. McLean
                                                                  Supervising Deputy Attorney
                                                                  General
                                                                  Indianapolis, Indiana


                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Mark Lee Votra,                                             April 16, 2019
      Appellant-Defendant,                                        Court of Appeals Case No.
                                                                  18A-CR-1337
              v.                                                  Appeal from the Madison Circuit
                                                                  Court
      State of Indiana,                                           The Honorable David A. Happe,
      Appellee-Plaintiff.                                         Judge
                                                                  Trial Court Cause No.
                                                                  48C04-1210-FB-2003



      Darden, Senior Judge.


                                       Statement of the Case
[1]   Mark Lee Votra appeals the trial court’s imposition of the balance of his

      previously suspended sentence after concluding that Votra had violated the

      terms of his probation on two occasions. We affirm.

      Court of Appeals of Indiana | Opinion 18A-CR-1337 | April 16, 2019                               Page 1 of 16
                                                          Issue
[2]   Votra presents two issues for our review which we consolidate and restate as the

      following question: Did the trial court abuse its discretion in the admission of

      certain evidence at the hearing for the alleged probation violations?


                                  Facts and Procedural History
[3]   On February 11, 2013, Votra pleaded guilty to dealing in methamphetamine, a

      Class B felony, pursuant to a plea agreement. The trial court sentenced him to

      eighteen years in the Department of Correction, with eight years suspended to

      probation, and with credit for 111 actual days served. Among the terms of

      Votra’s conditions of probation was the requirement that he not violate the laws
                                                                                                   1
      of Indiana or the United States and that he behave well in society. Votra

      served the executed portion of his sentence and was released to probation.


[4]   On January 11, 2018, the probation department filed a notice of violation of the

      terms of Votra’s probation. That notice, as amended, alleged that on January 9,

      2018, Votra violated the conditions of his probation by committing the new

      criminal offenses of dealing in cocaine, a Level 2 felony; possession of a

      narcotic drug, a Level 4 felony; possession of methamphetamine, a Level 4

      felony; and possession of paraphernalia, a Class C misdemeanor. Defendant




      1
        “The law of this state is well-established that although a trial court must specify the conditions of probation
      in the record, it is always a condition of probation that a probationer not commit an additional crime.”
      Braxton v. State, 651 N.E.2d 268, 270 (Ind. 1995) (internal citations omitted). Here, that condition was
      explicitly included as a condition of Votra’s probation.

      Court of Appeals of Indiana | Opinion 18A-CR-1337 | April 16, 2019                                   Page 2 of 16
      was arrested on January 9, 2018. These charges against Votra were filed in

      Madison County under cause number 48C04-1801-F2-84 (F2-84) on January

      10, 2018.


[5]   The notice further alleged that on March 14, 2018, Votra had violated the

      conditions of his probation by committing the new criminal offenses of

      possession of methamphetamine, a Level 6 felony; maintaining a common

      nuisance, a Level 6 felony; possession of marijuana, a Class B misdemeanor;

      unlawful possession of a syringe, a Level 6 felony; possession of a controlled

      substance, a Level 6 felony; and possession of paraphernalia, a Class C

      misdemeanor. These charges were also filed in Madison County, but under

      cause number 48C05-1803-F6-754 (F6-754) on March 20, 2018.


[6]   On May 1, 2018, the trial court held an evidentiary hearing on the amended

      petition. During the hearing, the State offered Exhibit 1, the affidavit of

      probable cause in F2-84. The affidavit set forth allegations of an encounter

      between Votra and law enforcement officers outside Votra’s apartment on

      January 9, 2018. Votra was found to be in possession of a Crown Royal bag.

      When law enforcement officers examined the bag, they discovered numerous

      bags of a crystal substance, crystal rocks, a white powder substance, and cut

      straws with residue. Additionally, the bag contained a digital silver scale and a

      plastic container in which there were numerous bags of a crystal substance and

      crystal rocks.




      Court of Appeals of Indiana | Opinion 18A-CR-1337 | April 16, 2019        Page 3 of 16
[7]    Officer Matthew Mills of the Elwood Police Department prepared the probable

       cause affidavit. He stated that he had field tested the crystal substance, which

       tested positive for methamphetamine. He also tested the white powder, which

       tested positive for cocaine. Officer Mills used a digital scale and found that the

       crystal substance weighed approximately 45.24 grams. The white powder

       weighed approximately 11.3 grams. Officer Mills stated that Votra admitted he

       knew the Crown Royal bag contained methamphetamine when he took

       possession of it, but claimed that the bag had been placed in his jacket pocket by

       someone else.


[8]    Later with respect to F2-84, officers obtained a search warrant for Votra’s

       apartment. They found numerous items of paraphernalia, including smoking

       devices (some containing residue), and two of which contained residue that

       field tested positive for methamphetamine. They also discovered 215 capsules,

       later identified as Gabapentin, a prescription-only medication.


[9]    The State also offered Exhibit 2 at the evidentiary hearing. The exhibit was the

       affidavit of probable cause filed in F6-754. The affidavit, prepared by Officer

       Matthew Walker of the Elwood Police Department, described his encounter

       with Votra on March 14, 2018. Officer Walker was accompanying the

       Madison County Unified Courts Adult Probation Services Department during a

       home visit on that date.


[10]   Officer Walker was shown a box found in one of two bedrooms in the

       residence. The box contained narcotics and paraphernalia. In the back


       Court of Appeals of Indiana | Opinion 18A-CR-1337 | April 16, 2019       Page 4 of 16
       bedrooms of the residence, probation officers located ten clear plastic baggies

       containing marijuana, which appeared to be packaged for sale; a clear plastic

       baggie and a clear container holding multiple burnt marijuana cigarettes; a clear

       plastic baggie containing four green tablets labeled MYLAN 457, (later

       identified as one-milligram tablets of Lorazepam, a Schedule IV Controlled

       Substance); a clear plastic baggie containing four and a half white tablets

       labeled 54 411, later identified as buprenorphine hydrochloride 8M6 (also

       known as Suboxone, a Schedule III Controlled Substance); five clear baggies

       containing a white powdery substance which field tested positive for

       methamphetamine; four marijuana smoking devices, including three devices

       containing burnt marijuana; several packages of rolling papers; three glass

       smoking devices typically used to consume methamphetamine, which held a

       white powdery substance; and a hypodermic syringe.


[11]   Votra told the officers he lived at the residence located at 121 S. K Street since

       his release from jail. He claimed that he did not sleep in either of the bedrooms

       but, instead, slept in the living room. He claimed that the woman present at the

       residence, Lorrie Wyatt (who happened to be his girlfriend), slept in one of the

       bedrooms. He denied that any of the contraband belonged to him. Wyatt, on

       the other hand, told officers that Votra slept with her in the back bedroom.

       Property belonging to both Votra and Wyatt was found in the south back

       bedroom where most of the contraband had also been found. Officers arrested

       both Votra and Wyatt and transported them to jail on March 14, 2018.




       Court of Appeals of Indiana | Opinion 18A-CR-1337 | April 16, 2019        Page 5 of 16
[12]   Votra objected as follows when the exhibits were offered by the State at the

       hearing:


               [State]: The State is going to admit State’s Exhibit 1 and 2. It’s
               the probable cause affidavits for causes ending in 754 and 84.


               [Defense]: We would object to the admission of those, Your
               Honor, uh, confrontation clause. Also I believe there is hearsay
               in there where the other occupant of the residence there stating
               [sic] that Mr. Votra slept in that back bedroom there, um, where
               all those items were found.


               [Court]: All right. May I see the exhibits? Which one contains
               the hearsay statement you were talking about, someone talking
               about using a back bedroom?


               ****


               [Court]: All right. The Court finds, um, –Well first of all I’ll
               note that the rules of evidence don’t strictly apply on probation
               violation proceedings. The issue is primarily one of reliability.
               And the court finds that State’s 1 and 2 do contain adequate
               indicia of reliability. These are sworn probable cause affidavits
               filled out by law enforcement officers and the hearsay statements
               from declarant Wyatt that are contained in State’s Exhibit 2 were
               made in the context of a home visit involving probation officers
               and police officers present at a home where Ms. Wyatt was
               present. So the court finds that a person being confronted with
               officers in the course of conducting an official function like that
               have a strong motivation to speak truthfully because they’re
               subject to legal consequences if they do provide untruthful
               information. So those provide adequate indicia of reliability for
               these to be admitted in this proceeding. So I’m going to take a
               moment to review both of these now, more fully.

       Court of Appeals of Indiana | Opinion 18A-CR-1337 | April 16, 2019           Page 6 of 16
       Tr. pp. 52-53.


[13]   The trial court admitted the exhibits over objection, and the State presented no

       other evidence.


[14]   Votra testified at the sanctions portion of the hearing during which he discussed

       his criminal history, his behavior while incarcerated, and his request to remain

       on supervised release or community corrections as a sanction for any violations

       the court might find. Votra was also cross-examined by the State. Votra

       testified that he had been given opportunities to rehabilitate himself. However,

       he testified that he had not pursued aftercare for his addiction and did not deny

       that he had been charged with additional crimes involving contraband. After

       hearing Votra’s testimony and the arguments of counsel, the trial court

       concluded, “there’s just nothing left that we have in the system for you. You

       just need to go and do your time.” Id. at 62. Votra now appeals.


                                     Discussion and Decision
[15]   Votra presents two challenges to the admission of Exhibits 1 and 2 at the

       evidentiary hearing. First, Votra contends that the trial court abused its

       discretion by admitting both exhibits because it violated his right of

       confrontation. Next, Votra claims that Exhibit 2 was inadmissible because it

       “contained the hearsay statement of a non police witness who was present at

       the time of the arrest at her apartment.” Appellant’s Br. p. 13.


[16]   Reviewing courts evaluate a trial court’s decision to revoke probation for an

       abuse of discretion. Whatley v. State, 847 N.E.2d 1007, 1009 (Ind. Ct. App.
       Court of Appeals of Indiana | Opinion 18A-CR-1337 | April 16, 2019        Page 7 of 16
       2006). As we have often stated, an abuse of discretion occurs if the decision is

       against the logic and effect of the facts and circumstances before the court. Id.


[17]   “Probation is a matter of grace left to trial court discretion, not a right to which

       a criminal defendant is entitled.” Murdock v. State, 10 N.E.3d 1265, 1267 (Ind.

       2014). “The trial court ‘enjoys wide latitude in fashioning the terms of a

       defendant’s probation.’” Kays v. State, 963 N.E.2d 507, 509 (Ind. 2012)

       (quoting Bailey v. State, 717 N.E.2d 1, 4 (Ind. 1999)). “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.” Prewitt v. State,

       878 N.E.2d 184, 188 (Ind. 2007). “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.” Id.


[18]   Probation hearings are civil in nature, and the State must prove an alleged

       probation violation by a preponderance of the evidence. Ind. Code § 35-38-2-

       3(f) (2015); Murdock, 10 N.E.3d at 1267. If sufficiency of the evidence of the

       probation violation is at issue, then a reviewing court will 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. Murdock, 10 N.E.3d at 1267.


[19]   “Challenges to the admission of evidence are ordinarily reviewed for an abuse

       of trial court discretion.” Fansler v. State, 100 N.E.3d 250, 253 (Ind. 2018). A




       Court of Appeals of Indiana | Opinion 18A-CR-1337 | April 16, 2019         Page 8 of 16
       court on appeal will reverse only where the decision of the trial court is clearly

       against the logic and effect of the facts and circumstances. Id.


[20]   However, in terms of the admissibility of evidence in certain circumstances, we

       observe that Indiana Evidence Rule 101(d)(2) provides that except for the rules

       involving privileges, the rules of evidence do not apply in probation

       proceedings. Indiana Code section 35-38-2-3(f) further informs us though that

       the probationer in a revocation proceeding “is entitled to confrontation, cross-

       examination, and representation by counsel.”


[21]   Initially, we note that Votra does not specify whether he is arguing a right of

       confrontation based in federal law, or a right guaranteed by the Indiana
                        2
       constitution. As such, we consider Votra’s claim in terms of the rights

       conferred under the U.S. Constitution. See e.g. Dye v. State, 717 N.E.2d 5, 10

       n.2 (Ind. 1999) (“‘Due process’ is a term found in the Fourteenth Amendment

       of the U.S. Constitution. It does not appear in the Indiana Constitution. The

       closest state analog is the ‘due course of law’ provision in Article I, Section 12.

       Dye does not cite that provision, let alone offer a separate analysis based on the

       state constitution. Accordingly, any state constitution claim is waived. Valentin

       v. State, 688 N.E.2d 412 (Ind. 1997)”).




       2
        When the State offered Exhibit 1 and Exhibit 2 at the hearing, the defense stated as recited above, “We
       would object to the admission of those, Your Honor, uh, confrontation clause.” Tr. p. 52. The
       Confrontation Clause contained in the Sixth Amendment to the United States Constitution finds its
       counterpart in article 1, §13 of the Indiana Constitution.

       Court of Appeals of Indiana | Opinion 18A-CR-1337 | April 16, 2019                              Page 9 of 16
[22]   Turning then to the application of federal law, in Morrissey v. Brewer, 408 U.S.

       471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), the United States Supreme Court

       considered Due Process considerations in the context of parole revocation

       hearings. The United States Supreme Court held that the Due Process Clause

       was applicable to parole revocation proceedings; however, because it was not

       part of a criminal prosecution, the full panoply of rights due a defendant was

       not applicable. 408 U.S. at 480, 92 S.Ct. at 2600. A panel of this court

       summarized those minimum requirements of due process explained in Morrissey

       as follows:


               (a) written notice of the claimed violations of probation; (b)
               disclosure to the probationer of evidence against him; (c)
               opportunity to be heard in person and to present witnesses and
               documentary evidence; (d) the right to confront and cross-
               examine witnesses (unless the hearing officer specifically finds
               good cause for not allowing confrontation); (e) a neutral and
               detached hearing body; and (f) a written statement by the factfinder
               as to the evidence relied on and reasons for revoking probation.


       Terrell v. State, 886 N.E.2d 98, 100-01 (Ind. Ct. App. 2008), trans. denied.


[23]   In Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S.Ct. 1756, 1760, 36 L.Ed.2d 656

       (1973), the United States Supreme Court concluded that the same due process

       guarantees afforded in parole revocation hearings should be afforded during

       probation revocation proceedings. In Isaac v. State, 605 N.E.2d 144 (Ind. 1992),

       our Supreme Court, in a probation revocation case and in recognition of

       Morrissey and Gagnon, connected the requirements from federal caselaw with the

       state statutory due process guarantees provided probationers in revocation

       Court of Appeals of Indiana | Opinion 18A-CR-1337 | April 16, 2019             Page 10 of 16
       proceedings. The Court noted when commenting on a prior version of the

       statute that Indiana Code section 35-38-2-3(f) (2015), provides that the

       probationer “is entitled to confrontation, cross-examination, and representation

       by counsel.”


[24]   Importantly, though, in a footnote in Gagnon, the Court explained the following

       as respects the right to present witnesses and to confront and cross-examine

       adverse witnesses:


               An additional comment is warranted with respect to the rights to
               present witnesses and to confront and cross-eamine adverse
               witnesses. Petitioner’s greatest concern is with the difficulty and
               expense of procuring witnesses from perhaps thousands of miles
               away. While in some cases there is simply no adequate
               alternative to live testimony, we emphasize that we did not in
               Morrissey intend to prohibit use where appropriate of the
               conventional substitutes for live testimony, including affidavits,
               depositions, and documentary evidence. Nor did we intend to
               foreclose the States from holding both the preliminary and the
               final hearings at the place of violation or from developing other
               creative solutions to the practical difficulties of the Morrissey
               requirements.


       411 U.S. at 783, 93 S.Ct. at 1760 n.5.


[25]   In Cox v. State, 706 N.E.2d 547 (Ind. 1999), our Supreme Court compared the

       due process requirements of community corrections revocation proceedings

       with probation revocation proceedings, concluding that “judges may consider

       any relevant evidence bearing some substantial indicial of reliability,” including

       “reliable hearsay.” 706 N.E.2d at 551 (footnote omitted). Further, on the issue

       Court of Appeals of Indiana | Opinion 18A-CR-1337 | April 16, 2019       Page 11 of 16
       of reliable hearsay, in Whatley, a panel of this court considered whether it was

       proper for a trial court in a probation revocation proceeding to take judicial

       notice of a probable cause affidavit challenged on hearsay grounds that it lacked

       indicia of reliability. We acknowledged that the probable cause affidavit was

       hearsay because it was an out of court statement offered for the truth of the

       matter asserted, but that a probable cause affidavit prepared and signed under

       oath by an officer bore substantial indicia of reliability such that the trial court

       did not err in taking judicial notice of the affidavit. 847 N.E.2d at 1010.


[26]   Later, in Reyes v. State, 868 N.E.2d 438 (Ind. 2007), our Supreme Court

       addressed the issues of both confrontation rights and the admission of hearsay

       in probation revocation proceedings. Our Supreme Court acknowledged the

       existence of multiple tests employed by courts to decide whether the admission

       of specific hearsay evidence may be done without violating a probationer’s

       confrontation rights. However, the Supreme Court concluded that the

       substantial trustworthiness test was “the more effective means for determining

       the hearsay evidence that should be admitted at a probation revocation

       hearing.” Id. at 441.


[27]   The substantial trustworthiness test provides for a trial court determination of

       whether the evidence reaches “a certain level of reliability, or if it has a

       substantial guarantee of trustworthiness.” Id. Additionally, our Supreme Court

       noted “the substantial trustworthiness test implicitly incorporates good cause

       into its calculus.” Id. Good cause is a component of another test known as the

       balancing test. Id.

       Court of Appeals of Indiana | Opinion 18A-CR-1337 | April 16, 2019         Page 12 of 16
[28]   Here, Exhibit 1 is the probable cause affidavit in F2-84. It is sworn under the

       penalities of perjury and signed by Officer Mills of the Elwood Police

       Department. The affidavit contained the field test results of suspected

       controlled substances. Additionally, the affidavit contained Officer Mills’

       statement that Votra admitted he knew the Crown Royal bag contained

       methamphetamine when he took possession of it. A silver digital scale was also

       discovered in the Crown Royal bag. Police officers obtained a search warrant

       for Votra’s apartment where they later discovered items of paraphernalia and

       prescription-only pills.


[29]   Exhibit 2 is the probable cause affidavit in F6-754. The affidavit, prepared and

       signed by Officer Matthew Walker of the Elwood Police Department and

       sworn under penalties of perjury, described a subsequent encounter with Votra

       involving controlled substances. During a home search, Officer Walker, who

       accompanied probation officers, was shown controlled substances and

       paraphernalia found on the premises. Included in the affidavit is Votra’s

       girlfriend Lorrie Wyatt’s statement, contradicting Votra’s denial that he slept in

       the bedroom where most of the contraband was found. She claimed that Votra

       did, in fact, sleep in that bedroom with her.


[30]   First, these exhibits are both sworn affidavits signed by the law enforcement

       officers involved in each of the encounters with Votra. We have held that a

       probable cause affidavit prepared and signed by an officer under oath bears

       substantial indicia of reliability. Whatley, 847 N.E.2d at 1010. Furthermore,

       Votra admitted that he knew there were controlled substances contained in the

       Court of Appeals of Indiana | Opinion 18A-CR-1337 | April 16, 2019        Page 13 of 16
       Crown Royal Bag, and had informed the trial court at his bond reduction

       hearing that he planned to live with Lorrie Wyatt upon his release from prison.

       Those acknowledgements add to the reliability of the exhibits. Therefore,

       Votra’s challenge to the admissibility of those exhibits fails on those grounds.


[31]   In Whatley, we stated, “When, as here, the alleged probation violation is the

       commission of a new crime, the State does not need to show that the

       probationer was convicted of a new crime.” 847 N.E.2d at 1010. “The trial

       court only needs to find that there was probable cause to believe that the

       defendant violated a criminal law.” Id. The evidence showed that probable

       cause was found to file new charges under two different cause numbers based

       on Votra’s criminal activity. Further, his challenge based on Indiana Evidence

       Rule 702, contesting the lack of expert evidence to support the admission of the

       field test results fails because the rules of evidence do not apply to probation

       revocation proceedings. Evid. R. 101(d)(2).


[32]   Votra also challenged Exhibit 2 because it contained a hearsay statement. In

       Beasley v. State, 46 N.E.3d 1232, 1238 (Ind. 2016), our Supreme Court, in a

       criminal direct appeal, concluded that although “corroborating evidence is not

       strictly required by our Rule 804(b)(3),” such corroboration can support a trial

       court’s determination that the hearsay testimony was reliable. While the rules

       of evidence do not strictly apply in probation revocation proceedings, for clarity

       we explain that Evidence Rule 804(b)(3) pertains to statements against interest.

       Those statements are made only if a reasonable person believed it to be true

       because, “when made, it was so contrary to the declarant’s proprietary or

       Court of Appeals of Indiana | Opinion 18A-CR-1337 | April 16, 2019        Page 14 of 16
       pecuniary interest or had so great a tendency to invalidate the declarant’s claim

       against someone else or to expose the declarant to civil or criminal liability.”


[33]   In this case, Wyatt told probation and police officers during a home visit that

       both she and Votra shared the bedroom in which the bulk of the contraband

       was found. Her statement not only implicated Votra, but also implicated her in

       illegal possession of contraband. Her statements were corroborated by Votra’s

       own earlier statements given under oath at his bond reduction hearing on

       February 27, 2018, wherein he testified that he planned to live with Wyatt, his

       girlfriend, upon his release on bond at 121 S. K Street, which was the site of his

       arrest and where the drugs were found. Votra has failed to establish reversible

       error in the trial court’s determination of admissibility on these grounds in his

       probation revocation proceedings.


[34]   The trial court accepted Votra’s original guilty plea, sentenced him, and

       imposed the specific conditions of his probation at that time. The trial court

       also evaluated and denied Votra’s request for sentence modification and other

       requests filed by Votra with the court. That same judge ordered Votra’s

       incarceration based upon the notice of probation violation. The trial court also

       heard the arguments and reviewed the evidence in support of the petition for

       probation revocation. Although the better practice might have been to present

       live testimony in support of the documentary evidence, given the trial court’s

       familiarity with this defendant and the rules with which he was required to

       comply during probation, we conclude that under the totality of the facts and

       circumstances of this case, the trial court did not err.

       Court of Appeals of Indiana | Opinion 18A-CR-1337 | April 16, 2019       Page 15 of 16
                                                  Conclusion
[35]   In light of the foregoing, we affirm the trial court’s determination that Votra

       violated the conditions of his probation and did not abuse its discretion by

       imposing the balance of Votra’s previously suspended sentence.


[36]   Affirmed.


       Mathias, J, and Crone, J., concur.




       Court of Appeals of Indiana | Opinion 18A-CR-1337 | April 16, 2019       Page 16 of 16
