MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                    FILED
regarded as precedent or cited before any                      Dec 06 2016, 6:22 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
John T. Wilson                                          Gregory F. Zoeller
Anderson, Indiana                                       Attorney General
                                                        Jesse R. Drum
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Arthur Scott,                                           December 6, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        48A05-1605-CR-1152
        v.                                              Appeal from the Madison Circuit
                                                        Court
State of Indiana,                                       The Hon. Thomas Newman Jr.,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        48C03-1302-FC-457



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 48A05-1605-CR-1152 | December 6, 2016   Page 1 of 7
                                           Case Summary
[1]   On February 28, 2013, Appellee-Plaintiff the State of Indiana (“the State”)

      charged Appellant-Defendant Arthur Scott with Class C felony criminal

      confinement, Class D felony resisting law enforcement, Class A misdemeanor

      battery resulting in bodily injury, and Class B misdemeanor reckless driving.

      On April 8, 2013, Scott pled guilty as charged without the benefit of a plea

      agreement. On April 22, 2013, the trial court sentenced Scott to three years of

      work release and two years of probation for an aggregate sentence of five years.


[2]   On February 10, 2015, an agreement to modify from work release to probation

      was filed. Scott was released from work release to probation by the court on

      February 12, 2015. On February 7, 2016, Scott was arrested for battery. On

      February 12, 2016, the State filed a notice of probation violation. On April 17,

      2016, Scott resisted law enforcement as officers were trying to execute an arrest

      warrant. An amended notice of probation violation was filed on April 20,

      2016. On May 2, 2016, the trial court held an evidentiary hearing, after which

      the trial court found that Scott violated the terms his probation, revoked his

      probation, and ordered him to serve his sentence with the Department of

      Correction (“DOC”).


[3]   Scott raises two issues, which we restate as follows: (1) whether the trial court

      abused its discretion when it admitted hearsay evidence at Scott’s probation-

      revocation hearing and (2) whether the trial court abused its discretion when it

      ordered Scott to serve his suspended sentence in the DOC. Concluding that the


      Court of Appeals of Indiana | Memorandum Decision 48A05-1605-CR-1152 | December 6, 2016   Page 2 of 7
      trial court did not abuse its discretion when it admitted substantially

      trustworthy hearsay evidence at the probation revocation hearing and ordered

      Scott to serve his suspended sentence with the DOC after he violated the terms

      of his probation, we affirm.


                                     Statement of the Facts
[4]   After Scott pled guilty on April 8, 2013, he was sentenced to work release and

      probation. As a condition of his probation, among other things, Scott was not

      supposed to commit any new crimes. Scott started his probation on February

      12, 2015.


[5]   On February 7, 2016, Anderson Police Officer Andrew Brunett (“Officer

      Brunett”) responded to a dispatch for a battery. When Officer Brunett arrived,

      he observed Nikki Justice sitting on the curb. Justice appeared to be very upset

      and her left eye was bruised. As Officer Brunett spoke to Justice, he learned

      that Justice and Scott had been in an argument in his car when he bit her near

      her left eye. Justice thought that Scott bit her there “because it was already

      bruised and she believed that it was done in an effort to conceal any sort of bite

      marks around the bruising that was already there.” Tr. p. 7. Justice indicated

      that the bite was painful. Scott was subsequently located and arrested for

      battery. On February 12, 2016, the State filed a notice of probation violation.


[6]   On April 17, 2016, Anderson Police Officer Travis Thompson (“Officer

      Thompson”) responded to a dispatch for a warrant to arrest Scott. Officer

      Thompson was already familiar with Scott. When Officer Thompson located

      Court of Appeals of Indiana | Memorandum Decision 48A05-1605-CR-1152 | December 6, 2016   Page 3 of 7
      Scott, he was sitting in the passenger seat of a vehicle. Officer Thompson

      subsequently initiated a traffic stop and Scott exited the vehicle. Contrary to

      Officer Thompson’s orders to return to the vehicle, Scott fled on foot. Officer

      Thompson pursued Scott while ordering him to stop. Scott, however,

      continued to run, at which point Officer Thompson tased Scott in the leg. Even

      then, Scott tried to pull the probes from his leg and disregarded Officer

      Thompson’s orders to lay on his stomach. Due to Scott’s continuous efforts to

      resist, it took three officers to secure and handcuff Scott. The State

      subsequently charged Scott with resisting law enforcement.


[7]   On April 20, 2016, the State filed an amended notice of probation violation.

      The State alleged that Scott violated his probation by committing battery,

      resisting law enforcement, and failing to pay fees. Additionally, the State

      subpoenaed Justice to testify at the evidentiary hearing, but she failed to appear.

      At the evidentiary hearing on May 2, 2016, over Scott’s hearsay objection, the

      trial court admitted Officer Brunett’s testimony regarding his conversation with

      Justice. The trial court subsequently found that Scott had violated his

      probation by committing battery and resisting law enforcement, revoked his

      probation, and ordered Scott to serve his previously-suspended sentence in the

      DOC.




      Court of Appeals of Indiana | Memorandum Decision 48A05-1605-CR-1152 | December 6, 2016   Page 4 of 7
                                    Discussion and Decision
                                        I.    Admission of Evidence
[8]    We review the trial court’s decision to admit or exclude evidence in a probation

       revocation hearing for an abuse of discretion. Robinson v. State, 955 N.E.2d 228,

       231 (Ind. Ct App. 2011). We will only reverse if the trial court’s decision was

       “clearly against the logic and effect of the facts and circumstances before it.” Id.


[9]    The Indiana Supreme Court has recognized that “persons facing revocation of

       their community-corrections placements are entitled to certain due process

       rights at their revocation hearings, including a right to confrontation.” Smith v.

       State, 971 N.E.2d 86, 89 (Ind. 2012). Revocation hearings, however, are not

       criminal prosecutions and therefore the Confrontation Clause of the Sixth

       Amendment and Crawford v. Washington, 541 U.S. 36 (2004), do not apply. Id.

       Moreover, due to the fact that probation-revocation procedures are to be

       flexible, strict rules of evidence do not apply. Ind. Evidence Rule 101(d)(2).

       Consequently, hearsay is admissible at a revocation hearing if the evidence is

       substantially trustworthy. Smith, 971 N.E.2d at 90.


[10]   Scott argues that the trial court abused its discretion in admitting Officer

       Brunett’s testimony regarding what Justice told him over his objection on the

       grounds of hearsay. In a criminal prosecution, such testimony would have been

       barred by the rules of evidence on the grounds that it constituted hearsay.

       However, probation-revocation hearings are more flexible and hearsay can be

       admitted if it is substantially trustworthy. Justice did not appear to testify


       Court of Appeals of Indiana | Memorandum Decision 48A05-1605-CR-1152 | December 6, 2016   Page 5 of 7
       despite efforts to subpoena her. Consequently, the trial court allowed Officer

       Brunett to testify about his conversation with Justice on the night in question.

       Officer Brunett was dispatched to the scene for a battery. When he arrived,

       Justice appeared visibly upset and Officer Burnett observed bruising around her

       left eye. Justice corroborated Officer Brunett’s observations when she informed

       him that Scott had battered her. Moreover, it was in Justice’s best interest to be

       truthful to Officer Brunett because it is illegal to falsely report a crime. Officer

       Brunett’s testimony was under oath and subject to cross-examination. There is

       no evidence to cast doubt upon the trustworthiness of his testimony.


                                       II.     Probation Revocation
[11]   Scott also challenges the trial court’s order to serve his previously suspended

       sentence in the DOC. He argues that the trial court should have considered the

       evidence he presented of an alternative to incarceration.


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

       a criminal defendant is entitled.” Prewitt v. State, 878 N.E.2d 184, 188 (Ind.

       2007). Scott’s sentence was not an abuse of discretion. In addition to the

       crimes mentioned above, Scott committed a second crime while on probation.

       According to the evidence, Scott resisted law enforcement on April 17, 2016. It

       took three officers to secure and handcuff Scott.


[13]   The undisputed evidence shows that Scott has committed at least one, if not

       two, probation violations. The trial court did not abuse its discretion when it

       ordered him to serve his previously-suspended sentence with the DOC.

       Court of Appeals of Indiana | Memorandum Decision 48A05-1605-CR-1152 | December 6, 2016   Page 6 of 7
[14]   We affirm the trial court’s judgment.


       Vaidik, C.J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 48A05-1605-CR-1152 | December 6, 2016   Page 7 of 7
