MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                FILED
this Memorandum Decision shall not be                            Nov 23 2016, 8:48 am

regarded as precedent or cited before any                             CLERK
court except for the purpose of establishing                      Indiana Supreme Court
                                                                     Court of Appeals
                                                                       and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Donald E.C. Leicht                                      Gregory F. Zoeller
Kokomo, Indiana                                         Attorney General of Indiana

                                                        Richard C. Webster
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

William Epperly,                                        November 23, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        34A02-1604-CR-731
        v.                                              Appeal from the Howard Superior
                                                        Court
State of Indiana,                                       The Honorable George A.
Appellee-Plaintiff.                                     Hopkins, Judge
                                                        Trial Court Cause No.
                                                        34D04-1508-F6-117



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 34A02-1604-CR-731 | November 23, 2016   Page 1 of 14
[1]   William Epperly appeals the revocation of his probation. He presents three

      issues for our review:

                 1.       Whether the trial court abused its discretion when it
                          admitted alleged hearsay statements into evidence;


                 2.       Whether the State presented sufficient evidence to prove
                          Epperly violated the terms of his probation; and


                 3.       Whether the trial court properly determined the number of
                          days Epperly was to serve for his probation violation.


      We affirm and remand.



                                Facts and Procedural History
[2]   On November 13, 2015, after earlier being charged with Level 6 felony

      residential entry 1 and Class A misdemeanor battery, 2 Epperly pled guilty to

      Level 6 felony residential entry. His plea agreement with the State provided the

      State would dismiss the Class A misdemeanor battery charge in exchange for

      Epperly’s guilty plea, and the parties would recommend Epperly be sentenced

      to 30 months imprisonment, with 120 days executed, and the remainder

      suspended to probation.




      1
          Ind. Code § 35-43-2-1.5 (2014).
      2
          Ind. Code § 35-42-2-1(d).


      Court of Appeals of Indiana | Memorandum Decision 34A02-1604-CR-731 | November 23, 2016   Page 2 of 14
[3]   The trial court reviewed Epperly’s plea agreement on December 18, 2015,

      entered a conviction of Level 6 felony residential entry, and sentenced Epperly

      to 30 months imprisonment with 132 days executed and the remainder

      suspended to supervised probation. On December 22, 2015, the trial court

      “clarifie[d] for the Clerk’s office that the suspended portion of the Defendant’s

      sentence is seven-hundred and eighty (780) days.” (App. Vol. 1 at 4.) As part

      of the conditions of his probation, Epperly was not to commit any further

      violations of the law.


[4]   On January 20, 2016, Officer Roy Smith responded to a dispatch reporting a

      vehicle accident with injury. When he arrived at the scene, Officer Smith spoke

      with the woman involved in the accident and a woman who had stopped to

      assist. Both women told Officer Smith “the driver of the other vehicle left the

      area on foot, walking or traveling westbound on foot into a trailer addition.”

      (Tr. at 9.) Officer Smith testified they described the driver as a “heavyset white

      male.” (Id.)


[5]   Officer Dan Hunkler then arrived on the scene. He received the description of

      the man who had left the scene of the accident and drove in the direction the

      women indicated he had fled. While driving through the trailer park, Officer

      Hunkler was flagged down by Melissa Boruff, who informed him “that the

      male that [Officer Hunkler] was looking for was inside of her house or her

      trailer and he was highly intoxicated.” (Id. at 18.) Officer Hunkler entered

      Boruff’s residence and encountered Epperly, who “appeared to stumble and

      had to grab ahold of the refrigerator to regain his balance.” (Id. at 19.) Officer

      Court of Appeals of Indiana | Memorandum Decision 34A02-1604-CR-731 | November 23, 2016   Page 3 of 14
      Hunkler also testified Epperly smelled of alcohol. Officer Hunkler took Epperly

      into custody. Officer Hunkler testified Boruff told him Epperly

                 had already left her house early in the evening, and that he
                 appeared to be intoxicated upon arrival and while he was at her
                 house continued drinking alcohol, and then left a short time later,
                 and then returned shortly after claiming that he had just been in
                 an accident and that he needed to be at her house for a little bit.


      (Id. at 21.)


[6]   Trooper Kyle Miller arrived at the trailer to continue the investigation. Trooper

      Miller and Officer Hunkler took Epperly to the accident scene, where one of the

      witnesses to the accident, Julie Hummel, identified Epperly as the person she

      saw fleeing from the accident. Epperly refused to take the offered field sobriety

      tests, so Trooper Miller transported Epperly to the hospital to obtain a blood

      sample to determine intoxication. 3 Officer Hunkler testified Epperly was

      “[v]ery uncooperative and combative,” (id. at 23), at the hospital and his

      “speech was slurred and abusive, his balance was poor, his eyes were red and

      watery, and [Officer Hunkler] detected the order [sic] of an alcohol [sic]

      beverage still emitting from his breath and person.” (Id.)


[7]   On January 29, 2016, the State filed a petition to revoke Epperly’s suspended

      sentence. The State alleged Epperly violated the terms of his probation by

      committing Class A misdemeanor operating a vehicle while intoxicated



      3
          Officer Hunkler testified Officer Smith obtained a search warrant for the blood sample.


      Court of Appeals of Indiana | Memorandum Decision 34A02-1604-CR-731 | November 23, 2016       Page 4 of 14
      endangering a person, Class A misdemeanor resisting law enforcement, 4 Class

      A misdemeanor leaving the scene of an accident with bodily injury, and Class

      A infraction operating a vehicle without financial responsibility. The State also

      alleged Epperly did not notify his probation officer within forty-eight hours of

      his arrest.


[8]   On March 11, 2016, the trial court held a fact-finding hearing on the State’s

      petition to revoke Epperly’s probation. At the conclusion of the hearing, the

      trial court determined Epperly violated his probation and ordered him


                 to serve the balance of his suspended sentence in the amount of
                 Seven Hundred Eighty One (781) days. Defendant is given credit
                 for time served awaiting disposition of this matter in the amount
                 of Thirty Nine (39) actual days or Seventy Eight (78) days with
                 day for day credit leaving Seven Hundred Three days.


      (App. Vol. 1 at 57.)



                                      Discussion and Decision
                                                       Hearsay Evidence

[9]   A probation revocation proceeding is civil in nature and a probationer is not

      entitled to all of the rights afforded to a criminal defendant. McCauley v. State,

      22 N.E.3d 743, 748 (Ind. Ct. App. 2014), reh’g denied, trans. denied. The due

      process requirements for probation revocation hearings are more flexible than



      4
          The State later dismissed this allegation.


      Court of Appeals of Indiana | Memorandum Decision 34A02-1604-CR-731 | November 23, 2016   Page 5 of 14
       in a criminal prosecution. Reyes v. State, 868 N.E.2d 438, 440 (Ind. 2007), reh’g

       denied. This flexibility allows courts to enforce lawful orders, address an

       offender’s personal circumstances, and protect public safety. Id. As such,

       courts may admit evidence during probation revocation hearings that would not

       be admissible in criminal trials. Id.


[10]   To admit hearsay evidence in a probation revocation hearing, the proponent

       must demonstrate its substantial trustworthiness. Id. at 442. Under this test, a

       court should evaluate the reliability of the hearsay and explain why it is

       sufficiently reliable to supply good cause for not producing live testimony. Id.

       Ideally, the trial court should explain “on the record why the hearsay [is]

       reliable and why that reliability [is] substantial enough,” but an “explicit

       finding” thereof is not required. Id. at 442 (quoting, in part, United States v.

       Kelley, 446 F.3d 688, 693 (7th Cir. 2006)). Epperly argues the trial court abused

       its discretion when it allowed certain alleged hearsay statements into evidence

       without explicitly determining if those statements were “substantially

       trustworthy or sufficiently reliable to be admissible.” (Br. of Appellant at 6.)


[11]   Epperly argues nine different statements made by Officers Smith and Hunkler

       were impermissible hearsay. 5 Epperly did not object to seven of the statements,




       5
         Epperly also argues “the Trial court violated his due process rights by denying to him his right to confront
       witnesses against him.” (Br. of Appellant at 4.) However, that right is not guaranteed in probation
       revocation cases. See Holmes v. State, 923 N.E.2d 479, 485 (Ind. Ct. App. 2010) (Indiana Supreme Court has
       specifically stated the right to confrontation does not apply to probation revocation hearings “because they
       are not criminal trials.”).

       Court of Appeals of Indiana | Memorandum Decision 34A02-1604-CR-731 | November 23, 2016            Page 6 of 14
       two by Officer Smith regarding conversations at the scene of the accident, and

       five by Officer Hunkler regarding his interactions with individuals at the scene

       of the accident and with Boruff and Epperly in Boruff’s trailer. Failure to object

       to the admission of evidence “normally results in waiver and precludes

       appellate review unless its admission constitutes fundamental error.” Konopasek

       v. State, 946 N.E.2d 23, 27 (Ind. 2011). Epperly does not argue the admission

       of the testimony was fundamental error. We accordingly decline to address

       those allegations of error.


[12]   Epperly objected to one statement by Officer Smith and one by Officer Hunkler.

       First, he contends the trial court admitted hearsay in Officer Smith’s statement

       he “could smell the alcohol on [Epperly’s] breath. . . [and Epperly’s] balance of

       [sic] not as a normal person.” (Tr. at 13.) However, at trial he did not object to

       the statement as hearsay, but instead objected to it as “opinion without any

       basis for an opinion at this point. His experience is not the basis. The basis is

       what Mr. Epperly did or did not do.” (Id.) We cannot entertain argument

       regarding a different objection than was made before the trial court. See Haak v.

       State, 695 N.E.2d 944, 947 (Ind. 1998) (defendant cannot assert one objection at

       trial and argue a different one on appeal). Thus, the issue is waived. Waiver

       notwithstanding, Officer Smith testified regarding his own observations, which

       is permitted. See Indiana Evidence Rule 602 (witness may testify about that

       which he has personal knowledge); see also Johnson v. State, 734 N.E.2d 530, 532

       (Ind. 2000) (witness’s testimony regarding her own observations of the

       defendant’s behavior was not hearsay).


       Court of Appeals of Indiana | Memorandum Decision 34A02-1604-CR-731 | November 23, 2016   Page 7 of 14
[13]   Epperly also objected to Officer Hunkler’s statement about what Boruff told

       him inside her trailer:

               [She said] [t]hat [Epperly] had already left her house early in the
               evening, and that he appeared to be intoxicated upon arrival and
               while he was at her house continued drinking alcohol, and then
               left a short time later, and then returned shortly after claiming
               that he had just been in an accident and that he needed to be at
               her house for a little bit.


       (Tr. at 21.) Epperly is correct - this statement is hearsay. See Ind. Evidence

       Rule 801(c) (defining hearsay). However, we cannot say its admission caused

       reversible error.


[14]   In addition to that hearsay testimony from Officer Hunkler, the State presented

       unchallenged evidence Epperly appeared intoxicated, Epperly fled the scene of

       an accident, and Epperly had been identified as the driver of a vehicle in the

       accident. Thus, any error in the admission of Officer Hunkler’s testimony

       about what Boruff said was harmless because the State presented sufficient

       evidence outside of that statement to prove Epperly violated his probation by

       committing additional crimes. See Berry v. State, 725 N.E.2d 939, 943 (Ind. Ct.

       App. 2000) (“[A]ny error in the admission of evidence which is merely

       cumulative of evidence properly admitted is harmless.”).


                                        Sufficiency of the Evidence

[15]   “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.


       Court of Appeals of Indiana | Memorandum Decision 34A02-1604-CR-731 | November 23, 2016   Page 8 of 14
       2007). “The trial court determines the conditions of probation and may revoke

       probation if the conditions are violated.” Id.


[16]   We review a decision to revoke probation under the abuse of discretion

       standard. Id. An abuse of discretion occurs where the decision is clearly

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

       When reviewing whether sufficient evidence supported revocation, we do not

       reweigh evidence or judge the credibility of witnesses. Morgan v. State, 691

       N.E.2d 466, 468 (Ind. Ct. App. 1998). If there is substantial evidence of

       probative value to support concluding by a preponderance of the evidence that

       the defendant has violated a term of probation, we will affirm. Menifee v. State,

       600 N.E.2d 967, 970 (Ind. Ct. App. 1992), clarified on other grounds on denial of

       reh’g, 605 N.E.2d 1207 (Ind. Ct. App. 1993).


[17]   Epperly argues the State did not present sufficient evidence he violated his

       probation because all of the evidence was inadmissible hearsay and the State

       did not offer evidence of the results of Epperly’s blood draw to determine his

       blood alcohol content. Epperly also argues the only evidence offered was also

       found in the probable cause affidavit, and thus the evidence was not sufficient.

       Epperly relies heavily on our decision in Figures v. State, 920 N.E.2d 267 (Ind.

       Ct. App. 2010), which has similar facts.


[18]   In Figures, the trial court revoked Figures’ probation based, in part, on the

       probable cause affidavit filed in support of an information charging Figures

       with battery, but the battery charge had been dismissed prior to Figures’


       Court of Appeals of Indiana | Memorandum Decision 34A02-1604-CR-731 | November 23, 2016   Page 9 of 14
       probation revocation hearing. The State entered only the probable cause

       affidavit into evidence and “no testimony was presented to corroborate” the

       evidence in the affidavit. Id. at 270. We held the admission of the probable

       cause affidavit regarding charges which had been dismissed “absent any

       foundation to establish its reliability” was an abuse of discretion. Id. at 272. In

       reaching that decision, we distinguished Whatley v. State, 847 N.E.2d 1007 (Ind.

       Ct. App. 2006), in which we held a trial court considering a probation

       revocation could take judicial notice of a probable cause affidavit for charges

       that had not been dismissed, where that affidavit was signed by the officer who

       was listed as the affiant.


[19]   The facts here are distinguishable from Figures and exceed those required in

       Whatley. In addition to the probable cause affidavit that formed the basis for

       charges against Epperly, the State presented the testimony of the officers who

       prepared the probable cause affidavit. Under Whatley, the investigating officer’s

       signature under oath was sufficient to establish the substantial reliability of the

       information included in the probable cause affidavit. 847 N.E.2d at 1010. We

       acknowledge that, like in Figures, one of the charges against Epperly had been

       dismissed. 6 However, three other charges remained against Epperly, and thus

       the holding in Figures does not control.




       6
           The resisting law enforcement charge had been dismissed.


       Court of Appeals of Indiana | Memorandum Decision 34A02-1604-CR-731 | November 23, 2016   Page 10 of 14
[20]   The State presented evidence Epperly smelled of alcohol, was uncooperative,

       stumbled, and had slurred speech. One of the people at the accident scene

       identified Epperly as the person who left the scene of the accident. As we held

       above, most of the hearsay about which Epperly now complains did not result

       in reversible error. Epperly’s arguments to the contrary are invitations for us to

       reweigh the evidence and judge the credibility of witnesses, which we cannot

       do. See Morgan, 691 N.E.2d at 468 (appellate court cannot reweigh evidence or

       judge the credibility of witnesses).


                                    Sanction for Probation Violation

[21]   On revocation of probation, the trial court may:


               Impose one (1) or more of the following sanctions:

                       (1) Continue the person on probation, with or without
                       modifying or enlarging 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.



       Ind. Code § 35-38-2-3. Courts have discretion regarding which sanction to

       impose after finding a violation of probation. Prewitt, 878 N.E.2d at 188.


[22]   After revoking Epperly’s probation, the trial court ordered Epperly to “serve the

       remaining balance of his sentence.” (Tr. at 33.) In its order, the trial court

       indicated Epperly was “now ordered to serve the balance of his suspended

       sentence in the amount of Seven Hundred Eight One (781) days.” (App. Vol. 1
       Court of Appeals of Indiana | Memorandum Decision 34A02-1604-CR-731 | November 23, 2016   Page 11 of 14
       at 57.) However, as Epperly and the State agree, Epperly’s original sentencing

       order suspended only 780 days to probation. Accordingly, we remand for the

       trial court to correct its order regarding the number of days that remained on

       Epperly’s sentence.


[23]   Additionally, the trial court indicated in the order revoking Epperly’s probation

       that he was “given credit for time served awaiting disposition of this matter in

       the amount of Thirty Nine (39) actual days or Seventy Eight (78) days with day

       for day credit leaving Seven Hundred Three (703) days.” (Id.) Both parties

       agree the credit time computation is incorrect, though they diverge on the

       amount of time due. Epperly contends he should have received credit time

       from his date of arrest - January 20, 2016 - until the day the trial court revoked

       his probation for a total of fifty actual, or one hundred good time, credit days.

       The State argues Epperly was entitled to credit from February 3, 2016, when he

       was arrested on the bench warrant for the probation violation until March 11,

       2016, when his probation was revoked, for a total of thirty-seven actual, or

       seventy-four good time, credit days.


[24]   Ind. Code § 35-50-6-4(a) provides a person who is “not a credit restricted felon”

       and “who is imprisoned for a Level 6 felony or a misdemeanor awaiting trial or

       sentencing for a Level 6 felony or misdemeanor” is assigned to credit time Class

       A. “A person assigned to Class A earns one (1) day of good time credit for

       each day the person is imprisoned for a crime or confined awaiting trial or

       sentencing.” Ind. Code § 35-50-6-3.1(b). The amount of credit time awarded

       depends on the number of days confined prior to trial or sentencing and “the

       Court of Appeals of Indiana | Memorandum Decision 34A02-1604-CR-731 | November 23, 2016   Page 12 of 14
       pretrial confinement being a result of the criminal charge for which sentence is

       being imposed.” James v. State, 872 N.E.2d 669, 672 (Ind. Ct. App. 2007).


[25]   Epperly was arrested on January 20, 2016, and charged with the crimes

       stemming from the vehicle accident the same day. It is unclear if he left jail

       before his arrest on February 2, 2016, for violation of his probation. As the case

       before us concerns the violation of his probation, he is entitled to good credit

       time from February 2, 2016, until March 11, 2016, or thirty-seven actual, or

       seventy-four good time, credit days. See Willoughby v. State, 626 N.E.2d 601,

       602 (Ind. Ct. App. 1993) (defendant not entitled to credit time for time served

       regarding charge which resulted in the filing of a petition to revoke his

       probation; instead he was only due credit for the time he was imprisoned for his

       arrest stemming from the petition to revoke probation). Accordingly, we also

       remand for the trial court to correct its statement of Epperly’s credit time.



                                              Conclusion
[26]   As Epperly does not argue fundamental error, we are unable to consider his

       arguments regarding some alleged hearsay statements. Officer Smith’s

       statement was not hearsay. Any error in the admission of Officer Hunkler’s

       statement was harmless, as it was cumulative of other properly admitted

       evidence. The State presented sufficient evidence Epperly violated his

       probation. Finally, we remand for the trial court to correct its statements

       regarding the days remaining on Epperly’s sentence and the days of credit time

       Epperly had earned.

       Court of Appeals of Indiana | Memorandum Decision 34A02-1604-CR-731 | November 23, 2016   Page 13 of 14
[27]   Affirmed and remanded.


       Kirsch, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 34A02-1604-CR-731 | November 23, 2016   Page 14 of 14
