Darnell Johnson v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: November 10, 2014
• Docket: 48A04-1402-CR-82
• Status: Unpublished

Opinion

Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any Nov 10 2014, 10:02 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:

CLIFFORD M. DAVENPORT GREGORY F. ZOELLER Davenport Law Offices Attorney General of Indiana Pendleton, Indiana MICHAEL GENE WORDEN Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

DARNELL JOHNSON, ) ) Appellant-Defendant, ) ) vs. ) No. 48A04-1402-CR-82 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE MADISON COUNTY CIRCUIT COURT 3 The Honorable Thomas Newman, Jr., Judge Cause No. 48C03-1010-FC-550

November 10, 2014

MEMORANDUM DECISION - NOT FOR PUBLICATION

FRIEDLANDER, Judge Darnell Johnson appeals the revocation of his probation and the execution of his

previously suspended sentence. Johnson presents three issue for our review:

1. Did the trial court abuse its discretion when it permitted hearsay testimony during the probation revocation hearing?

2. Is there sufficient evidence to sustain the trial court’s determination that Johnson violated his probation?

3. Did the trial court abuse its discretion when it revoked Johnson’s probation and ordered Johnson to serve the balance of his previously suspended sentence?

We affirm.

On October 8, 2010, the State charged Johnson under Cause No. 48C01-1010-FC-

366 (FC-366) with Count I, criminal confinement as a class C felony, and Count II,

battery as a class A misdemeanor. On December 2, 2010, the State charged Johnson

under Cause No. 48C01-1012-FC-939 (FC-939) with battery resulting in serious bodily

injury as a class C felony. On July 25, 2011, Johnson entered into a plea agreement with

the State that covered FC-366 and FC-939, as well as separate misdemeanor case. The

terms of the plea agreement provided that Johnson would plead guilty to all charges in

FC-366 and FC-939 and the misdemeanor case would be dismissed. The plea agreement

further provided that any executed sentence under each FC-366 and FC-939 would be

capped at four years. On August 22, 2011, the trial court sentenced Johnson in FC-939 to

four years executed. In FC-366, the trial court sentenced Johnson to six years with two

years suspended on Count I, and to one year executed on Count II. The court ordered the

sentences in FC-366 to be served concurrently with each other, but consecutively to the

sentence imposed in FC-939.

2 In February 2013, the cause was reassigned to the Honorable Judge Thomas

Newman and given a new cause number—Cause No. 48C03-1010-FC-550 (FC-550).

Johnson was released from the Indiana Department of Correction on September 11, 2013.

On October 1, 2013, the State filed a notice of probation violation and subsequently filed

an amendment thereto on October 14, 2013. A second amended notice of probation

violation was filed on November 1, 2013. The alleged probation violation followed a

urine drug screen that tested positive for the presence of cocaine and marijuana. A

probation violation hearing was held on November 18, 2013, during which Johnson

admitted to violating a condition of his probation, and the trial court ordered Johnson to

submit to an evaluation. Following a hearing on December 2, 2013, Johnson was

released back to probation and ordered to complete certain programs that were

recommended upon his evaluation.

On January 2, 2014, the State filed a second notice of probation violation alleging

that Johnson had committed the crime of class A misdemeanor battery. The trial court

held a probation revocation hearing on January 27, 2014.

During the revocation hearing, Kimberly Smith testified that she was Johnson’s

girlfriend at the time and that on or about October 27, 2013, while at her residence,

Johnson pushed her by her shoulders and grabbed her by the neck. Holly Brewer,

Smith’s friend, intervened and attempted to pull Johnson off of Smith. Johnson and

Brewer started to scuffle. Smith then gathered her stuff and went outside, asking Brewer

to follow her. Brewer made “some racist remarks” and the next thing Smith saw was

Brewer’s feet “flying up in the air.” Transcript at 72. Johnson fled the scene.

3 Officer Michael Williams with the Anderson Police Department also testified at

the probation revocation hearing. Officer Williams explained that while on duty, he was

dispatched to Smith’s residence in response to a report of a battery and that when he

arrived, Brewer was standing out front complaining of pain to her elbow and her face.

Over a defense hearsay objection, Officer Williams testified that Brewer told him that she

tried to help Smith after Johnson grabbed her and that when she yelled that she was going

to call the police, Johnson struck her a couple of times in the face, knocking her to the

ground. Brewer continued, telling Officer Williams that she fled outside and when she

turned to call the police, Johnson struck her in the face again, knocking her into a trash

can. Officer Williams further testified that Brewer was visibly shaken and that she had

red marks on her face.

Another witness, Karla Scruggs, Smith’s neighbor, testified at the probation

revocation hearing. Scruggs admitted that she did not see what transpired inside Smith’s

home between Johnson and Brewer, but testified as to what she saw happen outside the

residence. According to Scruggs, Johnson was standing on the front porch when Brewer

made a racist remark to Johnson and spit on Johnson. Scruggs said that after Brewer took

a swing at Johnson, Johnson hit Brewer, causing her to fall back over a stroller. In his

own defense, Johnson denied striking Brewer with a closed fist.

Based upon the testimony presented, the trial court found by a preponderance of

the evidence that Johnson had violated a condition of his probation by committing

battery. As a result, the trial court revoked Johnson’s probation and ordered that he be

4 returned to the Department of Correction to serve the balance of his suspended sentence.

Johnson now appeals.

1.

Johnson argues that the trial court abused its discretion in admitting hearsay

evidence during his probation revocation hearing. Johnson’s argument is based on the

fact that Brewer, the victim of the alleged battery that served as the basis for the notice of

probation violation, did not testify at the probation revocation hearing. The events giving

rise to the alleged battery were related to the court by Officer Williams, who testified as

to what Brewer told him upon his arrival on the scene on the night of the incident.

Although Officer Williams’s testimony concerning what Brewer told him may have

constituted hearsay, this does not necessarily preclude the admission of such evidence

during a probation revocation proceeding.

The trial court’s decision to admit or exclude evidence in a

probation revocation hearing is reviewed on appeal for an abuse of discretion. Figures v.

State, 920 N.E.2d 267 (Ind. Ct. App. 2010). An abuse of discretion occurs when the trial

court’s decision is clearly against the logic and effect of the facts and circumstances

before it. Id.

The United States Supreme Court has held that the Due Process Clause applies

to probation revocation hearings. Gagnon v. Scarpelli, 411 U.S. 778 (1973)

(citing Morrissey v. Brewer, 408 U.S. 471 (1972)). The due process rights of

a probationer include: “written notice of the claimed violations, disclosure of the

evidence against him, an opportunity to be heard and present evidence, the right to

5 confront and cross-examine witnesses, and a neutral and detached hearing body. . . .”

Cox v. State, 706 N.E.2d 547, 549 (Ind. 1999).

Confrontation rights in the context of probation revocation are not as extensive as

they are in criminal trials. Reyes v. State, 868 N.E.2d 438 (Ind. 2007). The Indiana Rules

of Evidence, including those governing hearsay, do not apply in such proceedings.

See Ind. Evidence Rule 101(c)(2). Additionally, the scope of the right to confrontation as

defined in Crawford v. Washington, 541 U.S. 36 (2004), does not apply in

such proceedings. See Reyes v. State, 868 N.E.2d 438. This, however, “does not mean

that hearsay evidence may be admitted willy-nilly in a probation revocation hearing.”

Reyes v. State, 868 N.E.2d at 440.

Our Supreme Court has held that the substantial trustworthiness test is the most

effective means for determining whether hearsay evidence should be admitted at a

probation revocation hearing. Reyes v. State, 868 N.E.2d 438. Under this test, “‘judges

may consider any relevant evidence bearing some substantial indicia of reliability . . .

includ[ing] reliable hearsay.’” Reyes v. State, 868 N.E.2d at 441 (quoting Cox v. State,

706 N.E.2d 547, 551 (Ind. 1999)). In other words, the substantial trustworthiness test

requires that the trial court evaluate the reliability of the hearsay evidence. Reyes v. State,

868 N.E.2d 438. 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. Our Supreme Court has held that a finding of substantial

trustworthiness is the equivalent of a good-cause finding. Id.

6 While it is preferable for the trial court to 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, the absence of such explanation from the trial court in this case

does not necessitate reversal. To be sure, we find that in the present case, the hearsay

testimony presented by Officer Williams met the substantial trustworthiness test. Officer

Williams responded to a report of a battery and noted that the Brewer was visibly shaken,

appeared to have been in an altercation, and had red marks on her face. Brewer’s

physical condition was directly observed by Officer Williams and corroborated her

statement to Officer Williams that she had been struck in the face. Furthermore, the

admission of the hearsay testimony was harmless as it was cumulative of testimony from

two other witnesses who confirmed there was a physical altercation between Johnson and

Brewer, with one of the witnesses specifically testifying that she saw Johnson strike

Brewer. The trial court did not abuse its discretion in admitting Officer Williams’s

testimony.

2.

Johnson argues that there is insufficient evidence to support the trial court’s

finding that he violated a condition of his probation. Specifically, the trial court found

that Johnson had violated a condition of his probation by committing the offense of class

A misdemeanor battery1 against Brewer.

1 Ind. Code Ann. § 35-42-2-1(b)(1), (c) (West, Westlaw current with all Public Laws of the 2014 Second Regular Session and Second Regular Technical Session of the 118th General Assembly) (“a person who knowingly or intentionally . . . touches another person in a rude, insolent, or angry manner” and such “results in bodily injury to any other person” commits class A misdemeanor battery).

7 Probation is a matter of grace that confers conditional liberty; it is a favor, not a

right. Cooper v. State, 917 N.E.2d 667 (Ind. 2009). The trial court sets the conditions

of probation and is authorized to revoke probation if those conditions are violated. Id.

The decision whether to revoke probation is committed to the trial court’s sound

discretion. Id. We review its decision for abuse of discretion. Id. An abuse of discretion

occurs when the trial court’s decision is clearly against the logic and effects of the facts

and circumstances before it or if it misinterprets or misapplies the law. Bennett v. State,

862 N.E.2d 1281 (Ind. Ct. App. 2007).

In determining if there is sufficient evidence to support a revocation of probation,

we will consider only the evidence most favorable to the State along with all relevant

inferences that can be drawn therefrom. Richeson v. State, 648 N.E.2d 384 (Ind. Ct. App.

1995), trans. denied. In a probation revocation proceeding, an alleged violation need

only be proved by a preponderance of the evidence. Id.

The State called three witnesses at the probation revocation hearing. Officer

Williams’s testimony, which we found, infra, to be admissible in this context, related

what Brewer told him when he arrived on the scene after having been dispatched in

response to a reported battery. Officer Williams testified that Brewer told him she

intervened in a physical altercation between Johnson and Smith and then Johnson hit her

twice in the face while inside Smith’s residence. Brewer also told Officer Williams that

after she retreated outside, Johnson struck her again in the face. Brewer complained of

pain to Officer Williams, and Officer Williams observed that Brewer was visibly shaken

and had red marks on her face. Furthermore, Smith’s testimony corroborated Officer

8 Williams’s testimony in that she too testified that Brewer intervened when Johnson

became physical with her and that she then witnessed a scuffle between Johnson and

Brewer and then saw Brewer’s legs fly up in the air. From Smith’s testimony, a

reasonable inference can be drawn that Johnson hit Brewer so hard that she was knocked

off her feet. Scruggs also testified that she witnessed Johnson strike Brewer with such

force that Brewer was knocked to the ground.2 The evidence presented by these

witnesses is more than sufficient to establish by a preponderance of the evidence that

Johnson committed a class A misdemeanor battery on Brewer.

Johnson’s argument on appeal is that he acted in self-defense, which he bases on

the testimony of Scruggs that while outside on the porch, Johnson struck Brewer after she

made a racial comment directed at Johnson and swung at him. A valid claim of self-

defense is a legal justification for committing what would otherwise be a criminal act.

See Miller v. State, 720 N.E.2d 696 (Ind. 1999). For a defendant to prevail on a claim of

self-defense, he must present evidence that shows: (1) he was in a place that he had a

right to be; (2) he did not provoke, instigate, or participate willingly in the violence; and

(3) he had a reasonable fear of death or great bodily injury. Bryant v. State, 984 N.E.2d

240 (Ind. Ct. App. 2013), trans. denied.

We begin by noting that the evidence demonstrates that Johnson was the initial

aggressor3 and provoked violence when, inside Smith’s home, he pushed Smith and

2 Scruggs testified that she believed Johnson struck Brewer in self-defense after Brewer swung at him. 3 Before an initial aggressor can assert a claim of self-defense, he or she must declare an armistice, i.e., withdraw from the encounter and communicate to the other person the intent to do so. See Wilson v. State, 770 N.E.2d 799 (Ind. 2002); Ind. Code Ann. § 35-41-3-2 (g)(3) (West, Westlaw current with all

9 grabbed her by the neck. Brewer intervened in this physical altercation in defense of

Smith, and Johnson, in turn, struck Brewer. Scruggs did not witness the events that took

place inside Smith’s home. We also note that Brewer retreated outside to the front porch.

Johnson did not retreat from the situation; rather, he prolonged it by following Brewer

outside.

Furthermore, there is nothing in the record that even remotely indicates that

Johnson had a reasonable fear of death or bodily injury. Johnson was the initial aggressor

when he pushed Smith and grabbed her around her neck. When Johnson came to Smith’s

aid, Johnson struck her twice in the face, knocking her to the ground. After Brewer

retreated to the front porch, Johnson followed her outside. To say that an attempted

strike from Brewer while outside on the porch placed Johnson in fear of death or bodily

injury strains credulity. There is no basis in the record that supports Johnson’s claim of

self-defense. As set forth above, the State’s evidence establishes by a preponderance of

the evidence that Johnson committed class A misdemeanor battery against Brewer.

3.

Johnson argues that the trial court abused its discretion in revoking his probation

and ordering that he serve the balance of his suspended sentence. Specifically, Johnson

contends that the trial court should have considered other alternatives to incarceration.

Where a trial court has exercised its grace by granting a defendant probation in

lieu of incarceration, it has considerable leeway in deciding how to proceed where the

2014 Public Laws of the 2014 Second Regular Session and Second Regular Technical Session of the 118th General Assembly).

10 defendant then violates the conditions of his probation. Prewitt v. State, 878 N.E.2d 184

(Ind. 2007). A trial court’s sanction decision is not scrutinized too severely on appeal.

Id. Thus, the sanction imposed by the trial court upon a finding of a probation violation

is reviewed on appeal for an abuse of discretion. Brandenburg v. State, 992 N.E.2d 951

(Ind. Ct. App. 2013), trans. denied. An abuse of discretion occurs where the trial court’s

decision is clearly against the logic and effect of the facts and circumstances before the

court. Id. Although the court has several alternative sanctions it may impose where it

has found that a defendant has violated his probation, one of those sanctions is to order

execution of the sentence that was previously suspended. Id.; see also Ind. Code Ann. §

35-38-2-3(h) (West, Westlaw current with all 2014 Public Laws of the 2014 Second

Regular Session and Second Regular Technical Session of the 118th General Assembly).

Here, Johnson violated his probation by committing another criminal offense. The

record also demonstrates that Johnson has not fared well in the past when placed on

probation or given other lenient treatment. In fact, in the present case, a prior notice of

probation violation was filed against Johnson because he used illicit drugs (i.e., cocaine

and marijuana) in violation of the conditions of his probation. After an evaluation, the

trial court released Johnson back to probation and ordered that he complete certain

programs. Shortly thereafter, the instant notice of probation violation was filed against

Johnson. Johnson’s lengthy criminal history demonstrates that he has not learned from

his prior contacts with the criminal justice system. Under the circumstances presented

here, particularly Johnson’s violent character and inability to abide by the rules of

society, we cannot say that the trial court abused its discretion when it revoked Johnson’s

11 probation and ordered that he serve the remaining previously suspended portion of his

sentence.

Judgment affirmed.

VAIDIK, C.J., and MAY, J., concur.