Antonio D. Moore v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: July 19, 2018
• Docket: 18A-CR-263
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jul 19 2018, 8:42 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE William Byer, Jr. Curtis T. Hill, Jr. Byer & Byer Attorney General of Indiana Anderson, Indiana Lyubov Gore Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Antonio D. Moore, July 19, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-263 v. Appeal from the Madison Circuit Court State of Indiana, The Honorable Mark Dudley, Appellee-Plaintiff. Judge Trial Court Cause No. 48D01-0912-FA-256

Robb, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-263 | July 19, 2018 Page 1 of 8 Case Summary and Issue [1] The trial court revoked Moore’s probation and ordered him to serve two of the

four years of his previously suspended sentence. Moore appeals, challenging

the sufficiency of the evidence supporting the trial court’s revocation decision.

Concluding that the State produced sufficient evidence in the form of the

investigating officer’s testimony which showed that Moore had failed to behave

well in society when he fired a gun in a crowded bar, we affirm.

Facts and Procedural History [2] On October 8, 2010, Moore pleaded guilty to possession of cocaine as a Class C

felony and to possession of marijuana as a Class A misdemeanor. On

November 15, 2010, the trial court sentenced Moore to an aggregate sentence of

eight years, with four years suspended to probation. On September 28, 2016,

the State filed a notice of probation violation, and on October 25, 2016, the trial

court found that Moore had violated his probation by testing positive for

alcohol and cannabinoids. The trial court revoked one year of Moore’s

previously suspended sentence but stayed execution of that year contingent on

Moore’s continued compliance with the terms of his probation.

[3] On October 27, 2017, the State filed a second notice of probation violation.

The State alleged that Moore had violated the terms of his probation by failing

to behave well in society by taking substantial steps toward the commission of a

new offense of criminal recklessness. At the probation revocation hearing, the

Court of Appeals of Indiana | Memorandum Decision 18A-CR-263 | July 19, 2018 Page 2 of 8 State called as its sole witness Officer Joe Garrett of the Anderson City Police

Department. Officer Garrett had investigated the events which formed the

basis of the State’s efforts to revoke Moore’s probation. On October 1, 2017,

Officer Garrett was dispatched to a bar located in Anderson on a call of shots

fired. When Officer Garrett arrived at the bar, he observed that ten to fifteen

cars were attempting to leave the scene quickly, which, in his experience,

indicated that something had just occurred at the bar. Upon investigating,

Officer Garrett observed that there was a spent shell casing on the bar’s dance

floor and that there was a hole in the ceiling above the dance floor, which led

him to conclude that someone had fired a gun into the ceiling.

[4] As part of his initial investigation, Officer Garrett interviewed the daughter of

the owner of the bar. The daughter told Officer Garrett that “J.R. Beck’s

brother” had fired a gun in the bar and that she knew it was Beck’s brother

because previously Beck himself had been killed near the bar. Transcript at 12-

13, 27. Officer Garrett knew that the daughter was speaking about Moore

when she referred to J.R. Beck’s brother. When identifying Moore as the

shooter that evening, the daughter told Officer Garrett that she did not care

about being branded a “snitch.” Id. at 13. The daughter was visibly upset that

a gun had been discharged at her mother’s place of business and that her

mother had possibly been placed in danger. However, the daughter did not

wish to have her name associated with the investigation and did not cooperate

with authorities any further.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-263 | July 19, 2018 Page 3 of 8 [5] Officer Garrett also interviewed the owner of the bar, who did not witness the

actual shooting. The owner characterized the bar as having been busy that

evening. A few days after the shooting, Officer Garrett returned to the bar to

show the owner a photo lineup that included Moore. The owner did not

identify Moore from the photo lineup at that time, but she telephoned Officer

Garrett several hours later to inform him that she did recognize Moore from the

photo lineup as having been present in the bar during the evening of the

shooting. The owner explained to Officer Garrett that she had not identified

Moore immediately when first shown the photos because she did not want

patrons of the bar who were present to know that she was cooperating with the

authorities. Officer Garrett also learned during the course of his investigation

that Moore’s mother had come to the bar after the instant shooting to confront

the owner about what she felt was a high level of violence and criminal activity

at the bar, which she wanted to shut down.

[6] At the revocation hearing, Moore did not lodge a contemporaneous objection

to any of Officer Barrett’s testimony on hearsay grounds, although Moore’s

counsel argued after the close of evidence that Officer Garrett’s testimony was

unreliable hearsay. The trial court found that Officer Garrett’s hearsay

testimony was reliable because it consisted of statements made by members of

the public to an officer acting in his official capacity during an investigation. In

revoking Moore’s probation, the trial court found that the State had shown by a

preponderance of the evidence that Moore fired a gun in a crowded bar,

committing criminal recklessness. The trial court ordered Moore to serve two

Court of Appeals of Indiana | Memorandum Decision 18A-CR-263 | July 19, 2018 Page 4 of 8 years of his previously suspended sentence on work release. Moore now

appeals the trial court’s revocation of his probation.

Discussion and Decision I. Standard of Review [7] “A probation hearing is civil in nature, and the State must prove an alleged

violation by a preponderance of the evidence.” Murdock v. State, 10 N.E.3d

1265, 1267 (Ind. 2014). When the sufficiency of evidence supporting a

probation revocation is at issue, we consider only the evidence most favorable

to the judgment, without regard to weight or credibility, and we will affirm if

“there is substantial evidence of probative value to support the trial court’s

conclusion that a probationer has violated any condition of probation.” Id.

(citation omitted).

II. Sufficiency of the Evidence [8] The State alleged that Moore violated his probation when he failed to behave

well in society by taking substantial steps toward the commission of an act of

criminal recklessness. “A person who recklessly, knowingly, or intentionally

performs an act that creates substantial risk of bodily injury to another person

commits criminal recklessness.” Ind. Code § 35-42-2-2(a). A person acts

recklessly if he engages in conduct “in plain, conscious, and unjustifiable

disregard of harm that might result and the disregard involves a substantial

deviation from the acceptable standards of conduct.” Ind. Code § 35-41-2-2(c).

Court of Appeals of Indiana | Memorandum Decision 18A-CR-263 | July 19, 2018 Page 5 of 8 [9] Here, the evidence showed that on October 1, 2017, Officer Garrett was told by

the bar owner’s daughter that Moore had fired a gun inside the bar, which had

been busy that evening. This report was corroborated by Officer Garrett’s

observation of a hole in the ceiling of the bar and a spent shell casing on the

dance floor. Officer Garrett had also observed the bar crowd hurriedly

dissipating when he arrived at the scene, which supported a reasonable

inference that the shooting had occurred recently. In addition, the bar owner’s

subsequent identification of Moore as having been in the bar that night placed

him at the scene and, as such, corroborated her daughter’s identification of

Moore as the shooter. Furthermore, the fact that Moore’s mother came to the

bar after the shooting to protest what she considered to be the bar’s violent and

criminal atmosphere lent further evidentiary support to the identification of

Moore as the shooter.

[10] The trial court reasonably concluded from this evidence that it was Moore who

fired a gun in the crowded bar, thus taking a substantial step towards creating a

substantial risk of bodily harm to others, in disregard of the harm it might have

caused and in deviation from acceptable standards of conduct. We would note

that actual convictions for criminal recklessness have been sustained as proven

beyond a reasonable doubt on evidence of conduct less egregious than that

involved in this case. See, e.g., Smith v. State, 802 N.E.2d 948, 955 (Ind. Ct.

App. 2004) (finding sufficient evidence of criminal recklessness where Smith

waved a gun out of his car window while passing by a home where his victim

was visiting and shots were fired). We conclude that, under the preponderance

Court of Appeals of Indiana | Memorandum Decision 18A-CR-263 | July 19, 2018 Page 6 of 8 of the evidence standard applicable to probation revocations, the State met its

burden of showing that Moore took at least a substantial step in committing an

act of criminal recklessness, as alleged in its notice of violation.

[11] Nevertheless, Moore argues there was insufficient evidence that he was present

at the bar and that it was he who fired the gun. Brief of Appellant at 12.

Moore’s argument chiefly consists of directing our attention to evidence that

does not support the trial court’s revocation decision and to evidence which he

contends rendered the State’s evidence less credible. Given our standard of

review, these arguments are unpersuasive. See Murdock, 10 N.E.3d at 1267.

[12] Moore also briefly argues that the evidence supporting his conviction is

insufficient because Officer Garrett’s testimony included hearsay which was not

substantially trustworthy. Br. of Appellant at 13. We note that Moore’s

counsel did not object to the admission of Officer Garrett’s testimony on

hearsay grounds when it was offered during the hearing, and so his claim is

waived. See Wilkerson v. State, 918 N.E.2d 458, 462 n.1 (Ind. Ct. App. 2009)

(finding Wilkerson’s argument on appeal that hearsay testimony was not

substantially trustworthy to be waived for failure to raise an objection on that

basis at his revocation hearing).

[13] However, even if a timely objection had been made to the challenged hearsay, it

would not have been well taken. Hearsay is admissible in probation revocation

proceedings if it is “substantially trustworthy.” Reyes v. State, 868 N.E.2d 438,

442 (Ind. 2007), reh’g denied. Where the State shows the hearsay evidence bears

Court of Appeals of Indiana | Memorandum Decision 18A-CR-263 | July 19, 2018 Page 7 of 8 “substantial guarantees of trustworthiness,” it need not also show good cause

for not producing live testimony. Id. at 441. Here, the hearsay statements of

the bar owner’s daughter, who made the principle identification of Moore, were

shown to be substantially trustworthy because, as she explained to Officer

Garrett, she made her statements because she was upset about the fact that her

mother and the bar had been placed in danger by Moore’s conduct, and she

made the statement to Officer Garrett despite what she considered to be a risk

to herself of being labeled as an informer. Thus, there was no evidence that she

had a motive to fabricate her identification of Moore. In addition, her

statement was corroborated by the physical evidence at the scene of the hole in

the ceiling and the spent shell casing as well as by the bar owner’s confirmation

that Moore had been present at the bar that evening. Because the State showed

by a preponderance of the evidence that Moore violated a condition of his

probation by failing to behave well in society, we affirm the trial court’s

revocation decision.

Conclusion [14] We affirm the trial court’s decision to revoke Moore’s probation upon finding

that the State had proved by a preponderance of the evidence that he had

violated a condition of his probation by failing to behave well in society.

[15] Affirmed.

Najam, J., and Altice, J., concur.

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