Christopher DeMoss v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: December 9, 2014
• Docket: 84A05-1408-CR-235
• Status: Unpublished

Opinion

Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any Dec 09 2014, 8:45 am 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:

CARA SCHAEFER WIENEKE GREGORY F. ZOELLER Plainfield, Indiana Attorney General of Indiana

RICHARD C. WEBSTER Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

CHRISTOPHER DeMOSS, ) ) Appellant-Defendant, ) ) vs. ) No. 84A05-1408-CR-235 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE VIGO SUPERIOR COURT The Honorable David R. Bolk, Judge Cause No. 84D03-0601-FA-337

December 9, 2014

MEMORANDUM DECISION – NOT FOR PUBLICATION

RILEY, Judge STATEMENT OF THE CASE

Appellant-Defendant, Christopher DeMoss (DeMoss), appeals the trial court’s

revocation of his probation.

We affirm.

ISSUE

DeMoss raises one issue on appeal, which we restate as follows: Whether

fundamental error occurred when the trial court revoked DeMoss’ probation on the basis

of hearsay evidence.

FACTS AND PROCEDURAL HISTORY

On September 5, 2006, DeMoss entered into a plea agreement with the State,

pleading guilty to two Counts of Class B felony dealing in methamphetamine, one Count

of Class D felony dealing in marijuana, and one Count of Class D felony possession of a

controlled substance. On October 30, 2006, pursuant to the terms of the plea agreement,

the trial court sentenced DeMoss to an aggregate term of twelve years, with four years

suspended to probation.

On June 27, 2012, DeMoss was advised of and signed the terms of his probation.

Thereafter, on October 24, 2012, the trial court granted DeMoss’ request to transfer his

probation from Vigo County to Pike County. In February 2013, DeMoss admitted to

violating his terms of probation by testing positive for methamphetamine and served a

thirty-day sentence. In July 2013, the State file a second notice of probation violation

after DeMoss was charged with two drug-related offenses.

2 On January 23, 2014, the Vigo County Probation Department filed a third notice

of probation violation, arguing that DeMoss violated the terms of his probation by failing

to report to the Pike County Probation Department for scheduled appointments on

November 13, 2013 and January 22, 2014, and by failing to advise the Pike County

Probation Department of his changed address and telephone number. On March 27,

2014, the trial court conducted an evidentiary hearing. During this hearing, DeMoss’

Vigo County Probation Officer testified that his colleague with the Pike County

Probation Department had sent him a report, alerting him of DeMoss’ failure to report

and update his contact information. Finding the evidence “reasonably reliable,” the trial

court concluded that DeMoss had violated the terms of his probation and sentenced him

to serve three years of his previously suspended sentence. (Transcript p. 25).

DeMoss now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Standard of Review

Probation is a favor granted by the State and is not a right to which a criminal

defendant is entitled. Sparks v. State, 983 N.E.2d 221, 224 (Ind. Ct. App. 2013). The

decision to revoke probation lies within the sound discretion of the trial court. Id. Thus,

a trial court’s decision to revoke probation and its subsequent sentencing decision are

reviewed for an abuse of discretion. Id. A probation revocation proceeding is in the

nature of a civil proceeding, and, therefore, the alleged violation need be established only

by a preponderance of the evidence. Jenkins v. State, 956 N.E.2d at 146, 148 (Ind. Ct.

App. 2011), trans. denied. Violation of a single condition is sufficient to revoke

3 probation. Id. As with other sufficiency issues, we do not reweigh the evidence or judge

the credibility of witnesses. Id. We look only to the evidence which supports the

judgment and any reasonable inferences flowing therefrom. Id. If there is substantial

evidence of probative value to support the trial court’s decision that the probationer

committed a violation, revocation of probation is appropriate. Id.

II. Analysis

DeMoss contends that the trial court abused its discretion when it relied only on

hearsay evidence, which it characterized as “reasonably reliable,” to revoke his probation.

(Tr. p. 25). Because the Rules of Evidence do not apply in probation revocation hearings,

the general rule against hearsay is inapplicable. See Ind. Evidence R. 101(d)(2).

Nevertheless, due process principles applicable in probation revocation hearings afford

the probationer the right to confront and cross-examine adverse witnesses. Figures v.

State, 920 N.E.2d 267, 271 (Ind. Ct. App. 2010). Yet because the due process right

applicable in probation revocation hearings allows for procedures that are more flexible

than in criminal prosecutions, the right to confrontation and cross-examination is

narrower than in a criminal trial. Id. For these reasons, the general rule is that hearsay

evidence may be admitted without violating a probationer’s right to confrontation if the

trial court finds the hearsay is substantially trustworthy. Id. Ideally, the trial court should

explain on the record why the hearsay is substantially trustworthy or sufficiently reliable

to be admissible. Id.

Regardless, a claim of error in the admission of evidence is generally not available

for argument on appeal unless a specific objection to the evidence was made in a timely

4 manner during trial. Evid. R. 103(a). Failure to timely object, as here, results in waiver

of the suppression claim. However, a claim that has been waived by a defendant’s failure

to raise a contemporaneous objection can be reviewed on appeal if the reviewing court

determines that a fundamental error occurred. Brown v. State, 929 N.E.2d 204, 207 (Ind.

2010), reh’g denied. The fundamental error doctrine is extremely narrow and applies

only when the error constitutes a blatant violation of basic principles, the harm or

potential for harm is substantial, and the resulting error denies the defendant fundamental

due process. Id. This exception is available only in egregious circumstances. Id.

In support of his argument, DeMoss refers this court to Mateyko v. State, 901

N.E.2d 554, 559 (Ind. Ct. App. 2009), trans. denied, in which we reversed a revocation of

probation based on an erroneous admission of hearsay evidence. However, we find

Mateyko readily distinguishable as the court relied on hearsay within hearsay within

hearsay, a triple layer of hearsay, which is absent in the case at bar.

At the evidentiary hearing, Steven Bell (Bell), DeMoss’ Vigo County Probation

Officer, testified that he had been alerted by DeMoss’ Pike County Probation Officer that

he had missed two scheduled appointments and had failed to keep his information

updated. Bell clarified that while he did not talk with the Pike County Probation Officer

in person, he had received his written report. During his testimony, DeMoss informed

the court that he had failed to attend the two scheduled appointments because he did not

know he was supposed to report on those dates. The trial court deemed the testimony of

the Vigo County Probation Officer “reasonably reliable” and revoked DeMoss’

probation. (Tr. p. 25).

5 While we agree that the trial court applied a different standard than the

requirement of substantial trustworthiness imposed by the supreme court, we find that

Bell’s testimony nonetheless fell within this ambit. See Reyes v. State, 868 N.E.2d 438,

440 (Ind. 2007). The information relied upon to revoke DeMoss’ probation was a report

conveyed from one probation officer to another concerning a mutual client. DeMoss did

not establish that either probation officer had any reason or motive to fabricate the

allegations or to be untruthful in the report and testimony. As such, the trial court did not

abuse its discretion, let alone commit a fundamental error, in relying on the Probation

Officer’s hearsay testimony, which was substantially trustworthy, as a basis for revoking

DeMoss’ probation.

CONCLUSION

Based on the foregoing, we conclude that the trial court properly revoked

Affirmed.

BAKER, J. and VAIDIK, J. concur