MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Feb 17 2020, 10:15 am
court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Marielena Duerring Curtis T. Hill, Jr. South Bend, Indiana Attorney General of Indiana
Samantha M. Sumcad Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Dominic Jones, February 17, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-1693 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable John M. Appellee-Plaintiff Marnocha, Judge Trial Court Cause No. 71D02-1709-F6-912
May, Judge.
[1] Dominic Jones appeals the revocation of his probation. He raises two issues,
which we restate as: (1) whether the hearsay evidence admitted at Jones’
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1693 | February 17, 2020 Page 1 of 8 probation revocation hearing was substantially trustworthy; and (2) whether the
State presented sufficient evidence to support revocation. We affirm.
Facts and Procedural History [2] Pursuant to a plea agreement, Jones pled guilty to Level 6 felony domestic
battery 1 on March 26, 2018. On April 24, 2018, the trial court entered
judgment of conviction and sentenced Jones to a term of thirty months, with
twelve months executed and the remaining eighteen months suspended. The
trial court also placed Jones on probation for a period of twelve months. A
term of Jones’ probation required that he not violate any laws.
[3] At approximately 2:45 a.m. on February 11, 2019, LaPorte County Sheriff
Deputy Slawek Czupryna received a dispatch regarding suspicious activity at a
trailer park in Westville, Indiana. While on his way to the trailer park, Deputy
Czupryna learned that another deputy on the scene had stopped a car, and the
driver of the car told the deputy that he was there to pick up two individuals
who were breaking into the cars of trailer park residents. The driver identified
Jones as one of the individuals breaking into the cars. Officers found footprints
in the trailer park and the footprints led them to a Casey’s General Store in
Westville where the officers discovered Jones. Officers also arrested Austin
1 Ind. Code § 35-42-2-1.3.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1693 | February 17, 2020 Page 2 of 8 Wood for breaking into vehicles at the trailer park and Wood identified Jones
as his accomplice.
[4] The State charged Jones with eleven counts of theft and one count of
unauthorized entry of a motor vehicle in LaPorte County, and the State filed a
petition to revoke Jones’ probation in the case before us. The trial court held a
hearing on the State’s petition to revoke Jones’ probation on May 31, 2019.
Deputy Czupryna was the only witness to testify at the hearing, and the
following exchanged occurred during direct examination:
[State:] And do you know if Mr. Jones admitted to breaking into the cars?
[Deputy Czupryna:] At first he didn’t, but he said—he mentioned that he was in the area with some other people. At first I believe he mentioned that he got into an argument with his girlfriend, or something like that.
[State:] So he wasn’t immediately forthcoming?
[Deputy Czupryna:] No. No, he was not.
[State:] But he did ultimately say, yes, I broke into the vehicles?
[Deputy Czupryna:] Correct. When the pat-down search was conducted, he was found in possession of several items on his person that were later found to be stolen from the vehicles.
(Tr. Evidentiary Hearing May 31, 2019 Vol. II at 7-8.) At the conclusion of the
hearing, the trial court stated:
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1693 | February 17, 2020 Page 3 of 8 As I see in this case from the evidence, the testimony of the officer, the officers of the Laporte Sheriff’s Department were being dispatched to a trailer park on February 11, 2019 with respect to a report that a vehicle had dropped off other individuals in the trailer park and those people were going through various cars. The individuals were apprehended. The defendant was found in possession of items, although I understand the description of the items were somewhat vague. Nonetheless, I think the officer testified the items—the defendant first denied being involved in the case, but when there was a pat- down search, he was found in possession of items which had been reported stolen from the cars. He then admitted to breaking into the cars.
I think based upon that evidence the State has proven by a preponderance of the evidence its petition. As a result, the Court finds the defendant has violated the terms of probation.
(Id. at 15.)
[5] On June 26, 2019, the trial court issued an order revoking Jones’ probation:
On the Court’s finding that the defendant violated the terms of his probation the Court imposes the eighteen (18)-month sentence as an executed sentence. The defendant is given credit for thirty-six (36) days served in custody. The sentence will be consecutive to, if there is one, LaPorte County Case No. 46C01- 1902-F6-000207.
(App. Vol. II at 128.)
Discussion and Decision
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1693 | February 17, 2020 Page 4 of 8 1. Admission of Evidence [6] Jones argues the trial court erred in admitting Deputy Czupryna’s testimony
about what officers at the scene relayed to him. Jones argues this testimony
should not have been admitted because it was hearsay and not substantially
trustworthy. Generally, we will not reverse a trial court’s ruling on the
admission of evidence absent an abuse of discretion. Peterson v. State, 909
N.E.2d 494, 499 (Ind. Ct. App. 2009). Further, Indiana Rule of Evidence
101(d) provides that, except for rules involving privileges, the Indiana Rules of
Evidence do not apply in probation revocation hearings. Nonetheless, a
probationer has certain due process rights at a probation revocation hearing,
which include “the right to confront and cross-examine adverse witnesses.”
Woods v. State, 892 N.E.2d 637, 649 (Ind. 2008); see also Ind. Code § 35-38-2-3(f)
(stating probationer in revocation proceeding “is entitled to confrontation,
cross-examination, and representation by counsel”). Therefore, the trial court
may consider hearsay evidence at a probation revocation hearing only if the
court finds the hearsay to be substantially trustworthy. Reyes v. State, 868
N.E.2d 438, 442 (Ind. 2007), reh’g denied.
[7] While Jones did object to admission of Deputy Czupryna’s probable cause
affidavit, Jones did not object to Deputy Czupryna’s testimony at the probation
revocation hearing. The State argues Jones has therefore waived his right to
challenge Deputy Czupryna’s testimony on appeal. Generally, a party’s failure
to make a contemporaneous objection to the admission of evidence results in
waiver of the issue. Weedman v. State, 21 N.E.3d 873, 881 (Ind. Ct. App. 2014),
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Feb 17 2020, 10:15 am
court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Marielena Duerring Curtis T. Hill, Jr. South Bend, Indiana Attorney General of Indiana
Samantha M. Sumcad Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Dominic Jones, February 17, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-1693 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable John M. Appellee-Plaintiff Marnocha, Judge Trial Court Cause No. 71D02-1709-F6-912
May, Judge.
[1] Dominic Jones appeals the revocation of his probation. He raises two issues,
which we restate as: (1) whether the hearsay evidence admitted at Jones’
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1693 | February 17, 2020 Page 1 of 8 probation revocation hearing was substantially trustworthy; and (2) whether the
State presented sufficient evidence to support revocation. We affirm.
Facts and Procedural History [2] Pursuant to a plea agreement, Jones pled guilty to Level 6 felony domestic
battery 1 on March 26, 2018. On April 24, 2018, the trial court entered
judgment of conviction and sentenced Jones to a term of thirty months, with
twelve months executed and the remaining eighteen months suspended. The
trial court also placed Jones on probation for a period of twelve months. A
term of Jones’ probation required that he not violate any laws.
[3] At approximately 2:45 a.m. on February 11, 2019, LaPorte County Sheriff
Deputy Slawek Czupryna received a dispatch regarding suspicious activity at a
trailer park in Westville, Indiana. While on his way to the trailer park, Deputy
Czupryna learned that another deputy on the scene had stopped a car, and the
driver of the car told the deputy that he was there to pick up two individuals
who were breaking into the cars of trailer park residents. The driver identified
Jones as one of the individuals breaking into the cars. Officers found footprints
in the trailer park and the footprints led them to a Casey’s General Store in
Westville where the officers discovered Jones. Officers also arrested Austin
1 Ind. Code § 35-42-2-1.3.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1693 | February 17, 2020 Page 2 of 8 Wood for breaking into vehicles at the trailer park and Wood identified Jones
as his accomplice.
[4] The State charged Jones with eleven counts of theft and one count of
unauthorized entry of a motor vehicle in LaPorte County, and the State filed a
petition to revoke Jones’ probation in the case before us. The trial court held a
hearing on the State’s petition to revoke Jones’ probation on May 31, 2019.
Deputy Czupryna was the only witness to testify at the hearing, and the
following exchanged occurred during direct examination:
[State:] And do you know if Mr. Jones admitted to breaking into the cars?
[Deputy Czupryna:] At first he didn’t, but he said—he mentioned that he was in the area with some other people. At first I believe he mentioned that he got into an argument with his girlfriend, or something like that.
[State:] So he wasn’t immediately forthcoming?
[Deputy Czupryna:] No. No, he was not.
[State:] But he did ultimately say, yes, I broke into the vehicles?
[Deputy Czupryna:] Correct. When the pat-down search was conducted, he was found in possession of several items on his person that were later found to be stolen from the vehicles.
(Tr. Evidentiary Hearing May 31, 2019 Vol. II at 7-8.) At the conclusion of the
hearing, the trial court stated:
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1693 | February 17, 2020 Page 3 of 8 As I see in this case from the evidence, the testimony of the officer, the officers of the Laporte Sheriff’s Department were being dispatched to a trailer park on February 11, 2019 with respect to a report that a vehicle had dropped off other individuals in the trailer park and those people were going through various cars. The individuals were apprehended. The defendant was found in possession of items, although I understand the description of the items were somewhat vague. Nonetheless, I think the officer testified the items—the defendant first denied being involved in the case, but when there was a pat- down search, he was found in possession of items which had been reported stolen from the cars. He then admitted to breaking into the cars.
I think based upon that evidence the State has proven by a preponderance of the evidence its petition. As a result, the Court finds the defendant has violated the terms of probation.
(Id. at 15.)
[5] On June 26, 2019, the trial court issued an order revoking Jones’ probation:
On the Court’s finding that the defendant violated the terms of his probation the Court imposes the eighteen (18)-month sentence as an executed sentence. The defendant is given credit for thirty-six (36) days served in custody. The sentence will be consecutive to, if there is one, LaPorte County Case No. 46C01- 1902-F6-000207.
(App. Vol. II at 128.)
Discussion and Decision
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1693 | February 17, 2020 Page 4 of 8 1. Admission of Evidence [6] Jones argues the trial court erred in admitting Deputy Czupryna’s testimony
about what officers at the scene relayed to him. Jones argues this testimony
should not have been admitted because it was hearsay and not substantially
trustworthy. Generally, we will not reverse a trial court’s ruling on the
admission of evidence absent an abuse of discretion. Peterson v. State, 909
N.E.2d 494, 499 (Ind. Ct. App. 2009). Further, Indiana Rule of Evidence
101(d) provides that, except for rules involving privileges, the Indiana Rules of
Evidence do not apply in probation revocation hearings. Nonetheless, a
probationer has certain due process rights at a probation revocation hearing,
which include “the right to confront and cross-examine adverse witnesses.”
Woods v. State, 892 N.E.2d 637, 649 (Ind. 2008); see also Ind. Code § 35-38-2-3(f)
(stating probationer in revocation proceeding “is entitled to confrontation,
cross-examination, and representation by counsel”). Therefore, the trial court
may consider hearsay evidence at a probation revocation hearing only if the
court finds the hearsay to be substantially trustworthy. Reyes v. State, 868
N.E.2d 438, 442 (Ind. 2007), reh’g denied.
[7] While Jones did object to admission of Deputy Czupryna’s probable cause
affidavit, Jones did not object to Deputy Czupryna’s testimony at the probation
revocation hearing. The State argues Jones has therefore waived his right to
challenge Deputy Czupryna’s testimony on appeal. Generally, a party’s failure
to make a contemporaneous objection to the admission of evidence results in
waiver of the issue. Weedman v. State, 21 N.E.3d 873, 881 (Ind. Ct. App. 2014),
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1693 | February 17, 2020 Page 5 of 8 trans. denied. Nonetheless, “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 there was fundamental error.” Id. “Fundamental
error is error that 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.” Carden v. State, 873 N.E.2d 160, 164 (Ind. Ct. App.
2007). The error must be so egregious as to make a fair trial impossible. Id.
[8] Deputy Czupryna testified regarding his personal involvement in the
investigation of the robbery of vehicles at the trailer park and the information he
learned in the course of that investigation. Additionally, Indiana Rule of
Evidence 801 provides that an out-of-court statement by a party opponent is not
hearsay. See Bell v. State, 29 N.E.3d 137, 141 (Ind. Ct. App. 2015) (holding
defendant’s statement to detective that he was good at “reading” people was a
statement by a party opponent and therefore not hearsay), trans. denied.
Consequently, Jones’ admission that he broke into vehicles at the trailer park is
not hearsay. Therefore, we hold Deputy Czupryna’s testimony was
substantially trustworthy, and admission of any hearsay statements contained
therein did not constitute fundamental error. See Votra v. State, 121 N.E.3d
1108, 1116 (Ind. Ct. App. 2019) (holding statement in probable cause affidavit
was substantially trustworthy to be admitted at probation revocation hearing).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1693 | February 17, 2020 Page 6 of 8 2. Sufficiency of the Evidence [9] “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). “The trial court determines the conditions of probation and may revoke
probation if the conditions are violated.” Id.
[10] 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 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).
[11] Jones argues no evidence was produced that Jones had unauthorized control
over someone else’s property or that he entered someone else’s vehicle without
permission. 2 However, Jones admitted breaking into vehicles at the trailer park
2 Jones also notes that Deputy Czupryna did not identify the Dominic Jones present at the hearing as the same Dominic Jones officers encountered in Westville on February 11, 2019. However, while not explicitly identified, it is clear from the context of Deputy Czupryna’s testimony that he is talking about the defendant in this case.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1693 | February 17, 2020 Page 7 of 8 when officers apprehended him. The driver of Jones’ getaway vehicle and
Jones’ accomplice both identified Jones as one of the individuals breaking into
cars at the trailer park. Jones was apprehended near the trailer park and found
with items stolen from the vehicles of trailer park residents. Thus, we hold
there was sufficient evidence of probative value that Jones committed a new
crime to support revocation of his probation. See Pierce v. State, 44 N.E.3d 752,
756 (Ind. Ct. App. 2009) (holding State presented sufficient evidence
probationer committed a new crime to support revocation).
Conclusion [12] The trial court did not commit fundamental error in allowing Deputy Czupryna
to testify to information he learned in the course of his investigation. Further,
the State presented evidence that Jones admitted breaking into vehicles at the
trailer park, his cohorts identified him as a fellow participant, and he was found
in possession of stolen items. We therefore affirm the revocation of Jones’
probation.
[13] Affirmed.
Crone, J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1693 | February 17, 2020 Page 8 of 8