MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Dec 21 2020, 9:08 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 Mark K. Leeman Curtis T. Hill, Jr. Leeman Law Office Attorney General of Indiana Logansport, Indiana Courtney Staton Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Leosthene Morissette, December 21, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-1352 v. Appeal from the Cass Superior Court State of Indiana, The Honorable James K. Appellee-Plaintiff Muehlhausen, Special Judge Trial Court Cause No. 09D01-1804-F2-11
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1352 | December 21, 2020 Page 1 of 7 Case Summary [1] Leosthene Morissette appeals the trial court’s revocation of his probation. He
contends that the trial court committed fundamental error in relying on certain
hearsay evidence to support its finding that he violated his probation. Finding
no fundamental error, we affirm.
Facts and Procedural History [2] In April 2018, the State charged Morissette with level 2 felony robbery resulting
in bodily injury and level 3 felony aggravated battery. On October 2, 2018,
pursuant to a plea agreement, he pled guilty to level 3 felony aggravated battery
in exchange for dismissal of the other charge. The agreement provided for an
executed sentencing cap of nine years. Thereafter, the trial court imposed a
sentence of 1825 days with 1541 days suspended to probation.
[3] On July 31, 2019, the State filed a notice of probation violation and petition to
revoke probation alleging that Morissette had failed to report to his probation
officer on two occasions as required by the terms and conditions of his
probation. A revocation hearing was held on February 25, 2020. During the
hearing, Morissette admitted that he violated his probation by failing to report
to his probation officer. However, before the trial court entered a sanction for
the violation, the State filed another notice of probation violation and petition
to revoke alleging that Morissette had violated his probation by committing the
new criminal offenses of level 5 felony criminal confinement and class A
misdemeanor domestic battery.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1352 | December 21, 2020 Page 2 of 7 [4] The trial court held a hearing on the second petition to revoke on July 7, 2020.
During the hearing, Delphi Police Department Officer Alex Parkinson testified
that he was dispatched to a Carroll County home on December 11, 2019, in
response to a report of a domestic disturbance. When Officer Parkinson
arrived, he spoke to Natalie Martinez. Martinez told Officer Parkinson that she
wanted to leave the apartment she shared with Morissette but that he stood in
front of the door and would not let her leave. Martinez reported that Morissette
grabbed her by the arm and pushed her away from the door and that this caused
her pain. Officer Parkinson testified that he personally observed “very slight
redness” on Martinez’s arm. Tr. Vol. 2 at 23. Officer Parkinson stated that
Morissette admitted that he blocked Martinez from leaving the apartment
without her consent, but he denied that he grabbed her arm or pushed her.
Morissette was subsequently charged with level 5 felony criminal confinement
and class A misdemeanor domestic battery. At the conclusion of the hearing,
the trial court found by a preponderance of the evidence that Morissette
violated the terms of his probation by committing criminal confinement and
domestic battery, and the court also reaffirmed its prior finding that Morissette
violated his probation by twice failing to report to his probation officer as
required. The trial court ordered Morissette to serve the balance of his
previously suspended sentence in the Department of Correction. This appeal
ensued.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1352 | December 21, 2020 Page 3 of 7 Discussion and Decision [5] “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). We review probation violation determinations for an abuse of
discretion. Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013). An abuse of
discretion occurs where the trial court’s decision is clearly against the logic and
effect of the facts and circumstances, or when the trial court misinterprets the
law. Id.
[6] Probation revocation is a two-step process. First, the trial court must make a
factual determination that a violation of a condition of probation occurred.
Woods v. State, 892 N.E.2d 637, 640 (Ind. 2008). Second, the court must
determine if the violation warrants revocation of probation. Id. “A revocation
hearing is in the nature of a civil proceeding, and the alleged violation only
needs to be established by a preponderance of the evidence.” Smith v. State, 727
N.E.2d 763, 765 (Ind. Ct. App. 2000). In short, “[i]f there is substantial
evidence of probative value to support the trial court’s decision that a defendant
has violated any terms of probation, the reviewing court will affirm its decision
to revoke probation.” Woods, 892 N.E.2d at 639-40.
[7] When the State alleges that the defendant violated probation by committing a
new criminal offense, the State is required to prove—by a preponderance of the
evidence—that the defendant committed the offense. Heaton, 984 N.E.2d at
617. Morissette challenges the State’s proof, and the trial court’s finding, that
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1352 | December 21, 2020 Page 4 of 7 he violated his probation by committing the new criminal offenses of criminal
confinement and domestic battery. 1 Specifically, Morissette argues that the trial
court erred in admitting Officer Parkinson’s testimony about what Martinez
told the officer. Morissette claims that it was fundamental error for the court to
consider this testimony because it was hearsay and not substantially
trustworthy.
[8] As a general matter, 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, 892 N.E.2d at 649; see
also Ind. Code § 35-38-2-3(f) (stating probationer in revocation proceeding “is
entitled to confrontation, cross-examination, and representation by counsel”).
Free access — add to your briefcase to read the full text and ask questions with AI
MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Dec 21 2020, 9:08 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 Mark K. Leeman Curtis T. Hill, Jr. Leeman Law Office Attorney General of Indiana Logansport, Indiana Courtney Staton Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Leosthene Morissette, December 21, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-1352 v. Appeal from the Cass Superior Court State of Indiana, The Honorable James K. Appellee-Plaintiff Muehlhausen, Special Judge Trial Court Cause No. 09D01-1804-F2-11
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1352 | December 21, 2020 Page 1 of 7 Case Summary [1] Leosthene Morissette appeals the trial court’s revocation of his probation. He
contends that the trial court committed fundamental error in relying on certain
hearsay evidence to support its finding that he violated his probation. Finding
no fundamental error, we affirm.
Facts and Procedural History [2] In April 2018, the State charged Morissette with level 2 felony robbery resulting
in bodily injury and level 3 felony aggravated battery. On October 2, 2018,
pursuant to a plea agreement, he pled guilty to level 3 felony aggravated battery
in exchange for dismissal of the other charge. The agreement provided for an
executed sentencing cap of nine years. Thereafter, the trial court imposed a
sentence of 1825 days with 1541 days suspended to probation.
[3] On July 31, 2019, the State filed a notice of probation violation and petition to
revoke probation alleging that Morissette had failed to report to his probation
officer on two occasions as required by the terms and conditions of his
probation. A revocation hearing was held on February 25, 2020. During the
hearing, Morissette admitted that he violated his probation by failing to report
to his probation officer. However, before the trial court entered a sanction for
the violation, the State filed another notice of probation violation and petition
to revoke alleging that Morissette had violated his probation by committing the
new criminal offenses of level 5 felony criminal confinement and class A
misdemeanor domestic battery.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1352 | December 21, 2020 Page 2 of 7 [4] The trial court held a hearing on the second petition to revoke on July 7, 2020.
During the hearing, Delphi Police Department Officer Alex Parkinson testified
that he was dispatched to a Carroll County home on December 11, 2019, in
response to a report of a domestic disturbance. When Officer Parkinson
arrived, he spoke to Natalie Martinez. Martinez told Officer Parkinson that she
wanted to leave the apartment she shared with Morissette but that he stood in
front of the door and would not let her leave. Martinez reported that Morissette
grabbed her by the arm and pushed her away from the door and that this caused
her pain. Officer Parkinson testified that he personally observed “very slight
redness” on Martinez’s arm. Tr. Vol. 2 at 23. Officer Parkinson stated that
Morissette admitted that he blocked Martinez from leaving the apartment
without her consent, but he denied that he grabbed her arm or pushed her.
Morissette was subsequently charged with level 5 felony criminal confinement
and class A misdemeanor domestic battery. At the conclusion of the hearing,
the trial court found by a preponderance of the evidence that Morissette
violated the terms of his probation by committing criminal confinement and
domestic battery, and the court also reaffirmed its prior finding that Morissette
violated his probation by twice failing to report to his probation officer as
required. The trial court ordered Morissette to serve the balance of his
previously suspended sentence in the Department of Correction. This appeal
ensued.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1352 | December 21, 2020 Page 3 of 7 Discussion and Decision [5] “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). We review probation violation determinations for an abuse of
discretion. Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013). An abuse of
discretion occurs where the trial court’s decision is clearly against the logic and
effect of the facts and circumstances, or when the trial court misinterprets the
law. Id.
[6] Probation revocation is a two-step process. First, the trial court must make a
factual determination that a violation of a condition of probation occurred.
Woods v. State, 892 N.E.2d 637, 640 (Ind. 2008). Second, the court must
determine if the violation warrants revocation of probation. Id. “A revocation
hearing is in the nature of a civil proceeding, and the alleged violation only
needs to be established by a preponderance of the evidence.” Smith v. State, 727
N.E.2d 763, 765 (Ind. Ct. App. 2000). In short, “[i]f there is substantial
evidence of probative value to support the trial court’s decision that a defendant
has violated any terms of probation, the reviewing court will affirm its decision
to revoke probation.” Woods, 892 N.E.2d at 639-40.
[7] When the State alleges that the defendant violated probation by committing a
new criminal offense, the State is required to prove—by a preponderance of the
evidence—that the defendant committed the offense. Heaton, 984 N.E.2d at
617. Morissette challenges the State’s proof, and the trial court’s finding, that
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1352 | December 21, 2020 Page 4 of 7 he violated his probation by committing the new criminal offenses of criminal
confinement and domestic battery. 1 Specifically, Morissette argues that the trial
court erred in admitting Officer Parkinson’s testimony about what Martinez
told the officer. Morissette claims that it was fundamental error for the court to
consider this testimony because it was hearsay and not substantially
trustworthy.
[8] As a general matter, 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, 892 N.E.2d at 649; 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).
1 A person who knowingly or intentionally confines another person without the other person’s consent commits criminal confinement. Ind. Code § 35-42-3-3(a). The offense is a level 5 felony if it results in bodily injury to a person other than the confining person. Ind. Code § 35-42-3-3(b)(1)(C). A person who knowingly or intentionally touches a family or household member in a rude, insolent, or angry manner commits class A misdemeanor domestic battery. Ind. Code § 35-42-2-1.3.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1352 | December 21, 2020 Page 5 of 7 [9] Morissette concedes that he did not object to Officer Parkinson’s testimony at
the probation revocation hearing and thus his claim must be reviewed only for
fundamental error. Although a party’s failure to make a contemporaneous
objection to the admission of evidence generally results in waiver of the issue,
“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.” Weedman v. State, 21 N.E.3d 873, 881
(Ind. Ct. App. 2014), trans. denied (2015). “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.
[10] Here, Officer Parkinson testified regarding his personal involvement in the
investigation of the domestic disturbance that occurred between Morissette and
Martinez and what he learned during the course of his investigation, including
what both Morissette and Martinez reported to the officer. We observe that
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 that defendant’s statement to detective was a statement by a
party opponent and therefore not hearsay), trans. denied. Consequently,
Morissette’s admission to Officer Parkinson that he indeed purposely blocked
Martinez from leaving the apartment without her consent is not hearsay.
Moreover, Officer Parkinson’s testimony regarding his personal observation of
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1352 | December 21, 2020 Page 6 of 7 redness on Martinez’s arm is not hearsay. Accordingly, we conclude that
Officer Parkinson’s additional testimony regarding Morissette’s confinement of
Martinez was substantially trustworthy, and the admission of any hearsay
statements contained therein did not constitute error, fundamental or otherwise.
[11] In sum, Morissette has not met his burden to demonstrate that the trial court
committed error, much less fundamental error, in relying on Officer Parkinson’s
testimony to support its finding by a preponderance of the evidence that
Morissette violated his probation by committing the new offense of criminal
confinement. As proof of a single violation is sufficient to permit a revocation
of probation, Beeler v. State, 959 N.E.2d 828, 830 (Ind. Ct. App. 2011), trans.
denied, we decline to address the reliability of the evidence supporting the
court’s finding that Morissette also violated his probation by committing the
new crime of domestic battery. 2 The trial court’s revocation of Morissette’s
probation is affirmed.
[12] Affirmed.
Najam, J., and Riley, J., concur.
2 We note that Morissette makes no claim of error regarding the trial court’s finding, based upon his admission during the prior revocation proceeding, that he also violated his probation by twice failing to report to his probation officer as required.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1352 | December 21, 2020 Page 7 of 7