MEMORANDUM DECISION
                                                                    Mar 30 2015, 9:55 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be 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
Matthew J. McGovern                                      Gregory F. Zoeller
Anderson, Indiana                                        Attorney General of Indiana
                                                         Eric P. Babbs
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana




                                             IN THE
    COURT OF APPEALS OF INDIANA

Leroy D. Brown,                                          March 30, 2015

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         22A01-1407-CR-333
        v.                                               Appeal from the Floyd Superior
                                                         Court
State of Indiana,                                        The Honorable Susan L. Orth, Judge
                                                         Cause No. 22D01-0504-FB-237
Appellee-Plaintiff.




Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 22A01-1407-CR-333 | March 30, 2015       Page 1 of 16
[1]   Leroy D. Brown appeals the revocation of his probation. Brown raises two

      issues, which we revise and restate as:


        I.    Whether the trial court committed fundamental error by admitting
              certain hearsay testimony at the revocation hearing; and

       II.    Whether the trial court abused its discretion in ordering Brown to serve
              his previously suspended sentence.

      We affirm.


                                      Facts and Procedural History

[2]   On August 17, 2005, Brown and the State entered into a plea agreement

      whereby Brown agreed to plead guilty to conspiracy to commit dealing in

      cocaine as a class B felony. On January 25, 2006, he was sentenced pursuant to

      the plea agreement and was placed on supervised probation for five years and

      four months. The terms of his probation included the following:

              1. Maintain good behavior
              2. You shall make an appointment with the Probation Officer of this
              Court within 7 days from sentencing or release date. Thereafter, you
              shall report to her as she shall direct.
              3. You must not commit another criminal offense.
                                                   *****
              10. You shall not possess any firearm or other deadly weapon . . . .
                                                   *****
              12. You shall remain within the jurisdiction of this court unless
              granted written permission to leave by your probation officer.


      State’s Exhibit 1 at 3. He further was required to perform forty-eight hours of

      community service and pay a monthly probation user fee of thirty dollars.



      Court of Appeals of Indiana | Memorandum Decision 22A01-1407-CR-333 | March 30, 2015   Page 2 of 16
[3]   A petition to revoke probation was filed against Brown on February 24, 2006,

      for failing to maintain good behavior, to report to his probation officer as

      directed, to complete community service, and to remain in the jurisdiction of

      the court without permission to leave from his probation officer. A revocation

      hearing was held on May 9, 2007, and four months of Brown’s probation was

      revoked, leaving a remaining suspended sentence of five years to be served on

      probation. On February 2, 2009, a notice of probation violation was filed

      against Brown for failing to report to probation as directed, noting that he had

      not reported since October 2, 2008, to complete community service hours, and

      to pay delinquent probation fees totaling $540. On March 2, 2011, Brown

      stipulated to the violation of probation, and the trial court continued him on

      probation with all conditions remaining the same.


[4]   On March 19, 2012, another petition to revoke probation was filed against

      Brown stating that Brown failed to maintain good behavior, that he violated

      state or federal law and referencing an October 2011 guilty plea to fourth-degree

      assault occurring on September 26, 2011, in Kentucky, that he failed to report

      to probation as directed, and that he was delinquent in his payment of fees,

      including owing $780 in probation fees and $250 in alcohol and drug program

      fees. On June 18, 2012, an amended notice of probation violation was filed

      against Brown which included new charges against him. Specifically, the new

      charges were also filed in Kentucky and included convicted felon in possession

      of a handgun, receiving stolen property (firearm), and tampering with physical

      evidence. The amended notice also indicated that Brown owed $880 in


      Court of Appeals of Indiana | Memorandum Decision 22A01-1407-CR-333 | March 30, 2015   Page 3 of 16
      probation monthly fees. On September 17, 2012, a second amended notice of

      probation violation was filed against Brown to include a charge of attempted

      murder as a class A felony committed on September 11, 2012, in Floyd County,

      Indiana.


[5]   On July 16, 2014, the court held a revocation hearing at which, at the outset,

      Brown moved to continue the hearing until after trial on the attempted murder

      charge, and the court denied his motion, stating that “if the only . . . allegation

      for a probation violation was the pending case I would certainly . . . entertain

      your request . . . . But because there are other allegations I’m gonna deny the

      request . . . .” Transcript at 5-6. Rexann Farris, the Chief Probation Officer for

      the Floyd County Probation Department, testified that the last contact between

      Brown and the probation department occurred on August 23, 2012, and that he

      missed his appointment on September 20, 2012. During Farris’s testimony, the

      State offered and the court admitted an arrest warrant issued by the

      Commonwealth of Kentucky for assault in the fourth degree regarding the

      September 26, 2011 incident indicating that Brown followed the victim to her

      home and a physical altercation took place in which the victim “received two

      black eyes, bruised nose from fist strikes from [Brown] and has bruising on back

      from where she was dragged into courtyard of apartment by” Brown. State’s

      Exhibit 2 at 8. The warrant also indicated that “[t]here is an active court case . .

      . against [Brown] where [he] was ordered to have no contact with victim as a

      condition of release.” Id. She also testified that Brown was delinquent in his

      payment of fees and that he had been charged with attempted murder.


      Court of Appeals of Indiana | Memorandum Decision 22A01-1407-CR-333 | March 30, 2015   Page 4 of 16
[6]   The State next called Sergeant Gary Humphrey of the New Albany Police

      Department who testified that he was on call an evening in September 2012

      when a man named Allen Vancliff had been shot and, when he arrived on the

      scene, he was notified by Officer Paul Haub that Vancliff had been shot in the

      left cheek at Zack’s Food Mart and that they found a bullet and a tooth at the

      scene. Sergeant Humphrey testified that he went to the hospital to speak with

      Vancliff within an hour of the shooting, and he again spoke with him at the

      hospital the next day, as well as in a recorded statement given at the police

      station. He testified that the doctor told him that the doctor believed a small

      caliber handgun caused the injury to the cheek and the missing tooth. He

      testified that Vancliff told him that Brown “approached him in the parking lot

      of Zack’s and . . . said, ‘I heard you got a problem with me,’” that “Vancliff

      said, ‘I don’t have a problem with you,’” and that, in Vancliff’s estimation,

      Brown then fired about six shots during which he was shot in the cheek.

      Transcript at 24. He testified that Vancliff told him he then ran inside Zack’s

      Food Mart. Vancliff also told Sergeant Humphrey that he had known Brown

      for several years.


[7]   Sergeant Humphrey also testified that officers spoke with other witnesses,

      including Breia McBirth who “had been a girlfriend of Leroy Brown’s for

      sometime and she stated that she was on the parking lot and saw . . . Brown

      approach [Vancliff] and heard him saying basically what we already been told,

      ‘You got a problem with me?’ ‘I don’t have a problem with you.’” Id. at 25.

      McBirth stated that she “heard several shots [] ring out and that she took off.”


      Court of Appeals of Indiana | Memorandum Decision 22A01-1407-CR-333 | March 30, 2015   Page 5 of 16
      Id. Sergeant Humphrey testified that he also completed a taped interview of a

      woman named Kayla Roberts within two days of the shooting, who stated that

      she knew both Brown and Vancliff and that Brown was at the scene, and

      Roberts corroborated the stories of Vancliff and McBirth. Roberts told him that

      she saw Brown shoot Vancliff and specifically that she “saw a small black

      handgun [] in Leroy Brown’s hand” and saw that Vancliff “kind of fell back and

      grabbed his face and then ran into Zack’s.” Id. at 28.


[8]   Sergeant Humphrey testified that he located Brown by working with “the

      cellphone company” to locate Brown’s cellphone. Id. During the search of the

      residence where Brown was found, Sergeant Humphrey found a duffle bag

      belonging to Brown containing several “.22 unspent shell bullets,” which were

      “consistent with the small caliber weapon that . . . was fired at” Vancliff, and

      Brown admitted that they belonged to him. Id. at 29. Sergeant Humphrey

      testified that he took a statement from Brown at the police station and that,

      although Brown admitted to having “bad blood” between him and Vancliff, “he

      would not admit to the shooting” or being at the scene of the shooting. Id. at

      30. He testified that Brown initially denied owning either a gun or bullets, but

      he eventually admitted that he owned the bullets. On cross-examination,

      Sergeant Humphrey testified that he had not spoken with Vancliff regarding the

      shooting for “[a]bout a year and a half,” that he had not “had any

      conversations with Ms. Roberts,” and that he did not interview McBirth but

      was familiar with her story from another officer’s report. Id. at 33, 36.




      Court of Appeals of Indiana | Memorandum Decision 22A01-1407-CR-333 | March 30, 2015   Page 6 of 16
[9]   The court ordered that Brown serve the previously-suspended five year term in

      the Department of Correction, stating as follows:

              [T]wo (2) of the most serious violations, in my opinion, are first,
              failing to report. Uh, when you fail to report your probation officer
              has no idea what you’re doing and has no ability to monitor or guide
              your behavior. Uh, and in this regard you had not reported since
              August of 2012. Uh, I am considering as mitigating the length of time
              in which you did successfully report, and that is, albeit, a number of
              years. Uh, but when you dropped off the radar you dropped off the
              radar and that’s when everything really . . . went south.
              [T]he second, uh, thing I consider as a serious violation is the
              commission of a new offense, and that was in October of 2011, uh,
              which is obviously a serious violation and-and defeats the purpose of
              probation. Uh, and in your regard it was also a conviction of violence,
              uh, with an injury. Uh, and secondly, was a violation of conditions of
              release. . . . [T]here was a no contact order and the victim in that
              matter was the person that was subject to the no contact order, uh,
              which I find to be a serious violation. It shows me that-that not only
              can you not follow court orders or choose not to, that you cannot
              comply with conditions of release or conditions of probation. Uh, and
              this is not just a conviction, but it’s one that is outside the jurisdiction
              and outside of this state, which I also do take note.
              Uh, I’m also considering the Floyd County arrest of 2012, uh, where
              you were identified as shooting a man in the face. The allegations that
              six (6) shots were fired at this person, which to me shows intent to
              harm and not something that’s incidental or accidental. Also shows
              possession of a handgun, uh, which is a violation. And uh, firing shots
              at a person causing injury. Uh, this also occurred across the street
              from public housing and next to a school. Uh, it’s an area that is very,
              very high traffic area no matter what time of the day or night. Um,
              and based upon the testimony of Officer Humphrey I find by a
              preponderance of the evidence that you were the shooter of Mr.
              Vancliff.


      Id. at 47-48.


      Court of Appeals of Indiana | Memorandum Decision 22A01-1407-CR-333 | March 30, 2015   Page 7 of 16
                                                   Discussion

                                                         I.


[10]   The first issue is whether the court committed fundamental error by admitting

       hearsay testimony by Sergeant Humphrey at the revocation hearing. Brown

       argues that “[t]he State failed to establish the reliability of” Vancliff and

       Roberts, noting that Sergeant Humphrey had not spoken with Vancliff for

       approximately one and one-half years and “defense counsel had been unable to

       locate Vancliff to take his deposition in anticipation of trial,” and that Roberts’s

       credibility had not been established because “[t]he only evidence offered by the

       State . . . is that she ‘knew the parties involved’ . . . .” Appellant’s Brief at 7-8.

       He asserts that “the trial court failed to make a record regarding the reliability

       of Officer Humphrey’s hearsay evidence as recommended by our Supreme

       Court in” Reyes v. State, 868 N.E.2d 438, 442 (Ind. 2007), reh’g denied. Id. at 8.

       He further argues that this error constituted fundamental error because “the

       only evidence to support that Brown shot Vancliff, the most serious accusation

       against Brown in this revocation proceeding, was the hearsay testimony of

       Officer Humphrey.” Id. at 9.


[11]   The State argues that the “court did not commit any error, much less

       fundamental error, by admitting hearsay to substantiate one of the several

       violations of Brown’s probation.” Appellee’s Brief at 10. It asserts that

       “Brown’s claim that the witness statements related in Officer Humphrey’s

       testimony were unreliable is wholly unpersuasive,” noting specifically that the

       various statements’ trustworthiness “was shown by the fact that the witnesses
       Court of Appeals of Indiana | Memorandum Decision 22A01-1407-CR-333 | March 30, 2015   Page 8 of 16
       all gave Officer Humphrey consistent accounts of the shooting.” Id. The State

       further notes that .22-caliber ammunition was found in Brown’s duffle bag,

       which was consistent with Vancliff’s injury and the description of the weapon

       provided by Roberts. The State argues that “Brown also displayed

       consciousness of guilt when he falsely told the officers that he did not own any

       shells.” Id. at 11. The State maintains that “the admission of the hearsay did

       not even affect Brown’s substantial rights because the trial court relied upon

       other violations of probation to support its decision . . . .” Id. at 12.


[12]   As the State observes and Brown concedes, Brown did not object to this

       testimony at the hearing. Generally, the failure to object to evidence results in

       waiving a challenge to its admission on appeal. See Marsh v. State, 818 N.E.2d

       143, 145 (Ind. Ct. App. 2004) (noting that failure to object to hearsay evidence

       at probation revocation hearing waives issue for appeal). Seeking to avoid

       procedural default, Brown claims that the trial court’s admission of the

       testimony constitutes fundamental error. The fundamental error doctrine is

       extremely narrow and applies only when the error amounts to a blatant

       violation of basic principles, the harm or potential for harm is substantial, and

       the resulting error denies the defendant fundamental due process. Lehman v.

       State, 926 N.E.2d 35, 38 (Ind. Ct. App. 2010), reh’g denied, trans. denied.


[13]   Indiana Evidence Rule 101(c)(2) allows for the admission of evidence during

       probation revocation hearings that would not be permitted in a full-blown

       criminal trial. Yet, “[t]his does not mean that hearsay evidence may be

       admitted willy-nilly in a probation revocation hearing.” Reyes, 868 N.E.2d at

       Court of Appeals of Indiana | Memorandum Decision 22A01-1407-CR-333 | March 30, 2015   Page 9 of 16
       440. In Reyes, the Indiana Supreme Court adopted the substantial

       trustworthiness test as the means for determining whether hearsay evidence

       should be admitted at a probation revocation hearing. In applying the

       substantial trustworthiness test, “‘ideally [the trial court should explain] on the

       record why the hearsay [is] reliable and why that reliability [is] substantial

       enough to supply good cause for not producing . . . live witnesses.’” Id. at 442

       (quoting United States v. Kelley, 446 F.3d 688, 693 (7th Cir. 2006)). Failure to

       provide an explanation on the record is not fatal where the record supports such

       a determination. Id.


[14]   In this case, Brown’s failure to object deprived the court of the opportunity to

       make a substantial trustworthiness determination. Nevertheless, the transcript

       of the revocation hearing reveals that the evidence would support a

       determination that the testimony offered by Sergeant Humphrey was

       substantially trustworthy. He testified that he interviewed Vancliff multiple

       times and took a recorded statement regarding the events of the shooting.

       Vancliff’s doctor told Sergeant Humphrey that he believed a small caliber

       handgun caused the injury to the cheek and the missing tooth. Sergeant

       Humphrey testified that Vancliff and Roberts each recounted that a verbal

       exchange between Brown and Vancliff took place in which Brown stated “I

       heard you got a problem with me” and Vancliff responded “I don’t have a

       problem with you,” and that McBirth further corroborated this story to another

       officer. See Transcript at 24-27. Roberts also told Sergeant Humphrey that she

       “saw a small black handgun [] in Leroy Brown’s hand” and saw Vancliff “kind


       Court of Appeals of Indiana | Memorandum Decision 22A01-1407-CR-333 | March 30, 2015   Page 10 of 16
       of fell back and grabbed his face and then ran into Zack’s.” Id. at 28. The

       trustworthiness of these statements is further corroborated by the fact that when

       Sergeant Humphrey came upon Brown he was found to have “.22 unspent shell

       bullets” in a duffle bag which were “consistent with the small caliber weapon

       that . . . was fired at” Vancliff, and Brown admitted that they belonged to him.

       Id. at 29. Brown initially denied owning either a gun or bullets, but he

       eventually admitted to Sergeant Humphrey that he owned the bullets.


[15]   Even if we were to determine that the statements admitted into evidence during

       Sergeant Humphrey’s testimony were not substantially trustworthy, however,

       we would not find that such error amounted to fundamental error. The trial

       court, in revoking Brown’s probation and imposing five years as executed time,

       began by stating that, in its opinion, “two (2) of the most serious violations”

       were for failing to report and the commission of the October 2011 fourth-degree

       assault in Kentucky. Id. at 47. The challenged statements do not relate to

       either of these violations of Brown’s probation, which technically amounted to

       three violations of the terms of his probation because the Kentucky offense

       constituted both the commission of a criminal offense as well as leaving

       Indiana. We cannot say that Sergeant Humphrey’s testimony, even assuming it

       constituted inadmissible hearsay, prejudiced Brown’s substantial rights. Cf.

       Carden v. State, 873 N.E.2d 160, 164 (Ind. Ct. App. 2007) (holding that the

       admission of certain hearsay statements constituted fundamental error where

       such statements were not substantially trustworthy and were “the only evidence

       used to revoke Carden’s probation”).


       Court of Appeals of Indiana | Memorandum Decision 22A01-1407-CR-333 | March 30, 2015   Page 11 of 16
                                                         II.


[16]   The next issue is whether the trial court abused its discretion in ordering Brown

       to serve his previously suspended sentence. Brown argues that this court may

       “determine[] the reasonableness of the revocation order by examining the

       character of the probationer and the nature of the probation violation.”

       Appellant’s Brief at 11 (citing Sanders v. State, 825 N.E.2d 952, 957 (Ind. Ct.

       App. 2005), trans. denied). He argues “[w]ith regard to the nature of Brown’s

       probation violations, this Court should conclude that the revocation of all of

       [his] suspended sentence constitutes an abuse of discretion” and that “[a]s noted

       above, the trial court considered a probation violation that was based entirely

       on unreliable hearsay evidence” which was “by far the most serious charge

       against” him. Id. He states that the Kentucky offense “was only . . . a

       misdemeanor offense.” Id. He further contends that “[t]here is little evidence

       of [his] character in the record; however, as noted above, with the exception of

       the shooting offense that should not have been considered, there is no

       indication that [his] character is sufficiently lacking to justify the revocation of

       his entire sentence.” Id. at 12. He requests that this court “revoke only three

       and one-half years . . . and reinstate one and one-half years of probation . . . .”

       Id.


[17]   The State argues that “Brown does not seriously dispute that he violated his

       probation” and indeed concedes several of the violations, including the failure

       to report and the conviction for fourth-degree assault in Kentucky. Appellee’s

       Brief at 8. The State notes that the Kentucky conviction was a crime of

       Court of Appeals of Indiana | Memorandum Decision 22A01-1407-CR-333 | March 30, 2015   Page 12 of 16
       violence and occurred in a different state, which is a violation in and of itself.

       Id. The State asserts that he further violated his probation when he shot

       Vancliff in the face, which violated his probation by not maintaining good

       behavior nor committing another criminal offense, and further by possessing a

       firearm in violation of his probation.


[18]   Ind. Code § 35-38-2-3(h) sets forth a trial court’s sentencing options if the trial

       court finds a probation violation and provides:

               If the court finds that the person has violated a condition at any time
               before termination of the period, and the petition to revoke is filed
               within the probationary period, the court may impose one (1) or more
               of the following sanctions:
                       (1) Continue the person on probation, with or without
                       modifying or enlarging the conditions.
                       (2) Extend the person’s probationary period for not more than
                       one (1) year beyond the original probationary period.
                       (3) Order execution of all or part of the sentence that was
                       suspended at the time of initial sentencing.


[19]   The Indiana Supreme Court has held that a trial court’s sentencing decisions for

       probation violations are reviewable using the abuse of discretion standard.

       Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). The Court explained that

       “[o]nce a trial court has exercised its grace by ordering probation rather than

       incarceration, the judge should have considerable leeway in deciding how to

       proceed” and that “[i]f 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. An abuse of discretion


       Court of Appeals of Indiana | Memorandum Decision 22A01-1407-CR-333 | March 30, 2015   Page 13 of 16
       occurs where the decision is clearly against the logic and effect of the facts and

       circumstances. Id. (citation omitted). As long as the proper procedures have

       been followed in conducting a probation revocation hearing, “the trial court

       may order execution of a suspended sentence upon a finding of a violation by a

       preponderance of the evidence.” Goonen v. State, 705 N.E.2d 209, 212 (Ind. Ct.

       App. 1999).


[20]   Initially, to the extent that Brown suggests that this court should apply a nature

       of the offense and character of the offender analysis akin to reviewing a

       sentence under Ind. Appellate Rule 7(B), we note that this court in Sanders

       observed that the Indiana Supreme Court in Stephens v. State, 818 N.E.2d 936

       (Ind. 2004), “reviewed whether the defendant’s sentence imposed following the

       revocation of his probation was ‘unreasonable given the nature of the violations

       and the character of the offender.’” Sanders, 825 N.E.2d at 957 (quoting

       Stephens, 818 N.E.2d at 943). Against the defendant’s urging, this court refused

       to apply the Ind. Appellate Rule 7(B) standard, holding that “we believe—given

       our existing caselaw . . . that the standard of review used when reviewing

       whether a defendant’s probation revocation sentence is unreasonable is an

       abuse of discretion.” Id. Soon after, the Indiana Supreme Court in Prewitt cited

       Sanders approvingly for the proposition that “a trial court’s sentencing decisions

       for probation violations are reviewable using the abuse of discretion standard.”

       Prewitt, 878 N.E.2d at 188. Thus, we apply an abuse of discretion standard.


[21]   The record reveals that Brown has violated his probation numerous times. He

       previously had his probation revoked on this same conviction on May 9, 2007,

       Court of Appeals of Indiana | Memorandum Decision 22A01-1407-CR-333 | March 30, 2015   Page 14 of 16
and was ordered to serve four months of his previously-suspended sentence.

On March 2, 2011, Brown stipulated to violating his probation for failing to

report, and the trial court continued him on probation with all conditions

remaining the same. He again failed to maintain contact with the probation

department after August 23, 2012, and missed an appointment on September

20, 2012. Also, Brown pled guilty to assault in the fourth degree in October

2011 in Kentucky regarding an episode of domestic violence. The arrest

warrant admitted into evidence indicates that on September 26, 2011, Brown

followed the victim to her home and a physical altercation took place in which

the victim “received two black eyes, bruised nose from fist strikes from [Brown]

and has bruising on back from where she was dragged into courtyard of

apartment by” Brown. State’s Exhibit 2 at 8. The warrant also indicated that

“[t]here is an active court case . . . against [Brown] where [he] was ordered to

have no contact with victim as a condition of release.” Id. Brown was also

delinquent in his payment of probation user fees and alcohol and drug program

fees. Further, as discussed, Brown was found by a preponderance of the

evidence to have committed attempted murder against Vancliff when he fired a

handgun about six times at Vancliff which resulted in Vancliff being shot

through the cheek and losing a tooth. Given the circumstances as set forth

above and in the record, we cannot say that the court abused its discretion in

ordering Brown to serve his previously suspended sentence. See Milliner v. State,

890 N.E.2d 789, 793 (Ind. Ct. App. 2008) (holding that the trial court did not

abuse its discretion in reinstating the probationer’s previously suspended

sentence), trans. denied.
Court of Appeals of Indiana | Memorandum Decision 22A01-1407-CR-333 | March 30, 2015   Page 15 of 16
                                                   Conclusion

[22]   For the foregoing reasons, we affirm the trial court’s order revoking Brown’s

       probation and ordering that he serve his previously suspended sentence in the

       Department of Correction.


[23]   Affirmed.


       Bailey, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 22A01-1407-CR-333 | March 30, 2015   Page 16 of 16
