Nelson Rios v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: April 30, 2013
• Docket: 49A02-1209-CR-756
• Status: Unpublished

Opinion

Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be Apr 30 2013, 9:31 am regarded as precedent or cited before any 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:

ELLEN M. O’CONNOR GREGORY F. ZOELLER Marion County Public Defender Agency Attorney General of Indiana Indianapolis, Indiana RICHARD C. WEBSTER Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

NELSON RIOS, ) ) Appellant-Defendant, ) ) vs. ) No. 49A02-1209-CR-756 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Steven Eichholtz, Judge Cause No. 49G20-0909-FC-79297

April 23, 2013

MEMORANDUM DECISION - NOT FOR PUBLICATION

FRIEDLANDER, Judge Nelson Rios appeals the revocation of his probation, presenting the following issue for

review: Did the trial court abuse its discretion in admitting hearsay evidence at his probation

revocation hearing?

We affirm.

On November 18, 2009, a jury convicted Rios of seven counts relating to dealing in

and possession of a look-alike substance, as well as two counts of theft and one count of

possession of marijuana. The trial court entered judgment on six counts: two counts of class

C felony dealing in a look-alike substance, two counts of class D felony theft, one count of

class A misdemeanor possession of marijuana, and one count of class C misdemeanor

possession of a look-alike substance. The trial court sentenced Rios to consecutive five-year

terms for each dealing conviction, along with concurrent terms for the remaining convictions.

Thus, Rios received a ten-year aggregate sentence.

Rios appealed, and this court concluded that the trial court’s imposition of consecutive

sentences on the two counts of dealing in a look-alike substance was inappropriate. Rios v.

State, 930 N.E.2d 664 (Ind. Ct. App. 2010). In remanding for a new sentencing hearing, this

court noted that “in resentencing Rios to serve concurrent terms on the dealing a look-alike

convictions, the trial court retains its right to enhance the advisory term based on any factors

it finds applicable.” Id. at 669. On remand, the trial court imposed concurrent terms of eight

years on each of the dealing in a look-alike substance convictions, with three years suspended

subject to two years of supervised probation. Rios again appealed his sentence, and this court

2 affirmed in an unpublished memorandum decision. Rios v. State, No. 49A02-1010-CR-612

(June 20, 2011).

In January 2012, Rios was placed in a community corrections transition program. On

May 7, 2012, the probation department filed a notice of probation violation and petition to

revoke alleging that Rios had committed class D felony possession of marijuana, class B

misdemeanor public intoxication, class A misdemeanor battery, and four separate acts of

class A misdemeanor invasion of privacy. 1 The petition also alleged that Rios had violated

his probation by consuming alcohol.

A hearing was held on August 23, 2012. At the hearing, Indianapolis Metropolitan

Police Officer Robert Hatch testified that on April 12, 2012, he responded to a 911 dispatch

at an apartment complex. When he arrived, Officer Hatch made contact with Christina

Lawrence, who was extremely angry and upset, and had blood on her body and bruising on

her face. Over Rios’s objection, Officer Hatch testified concerning Lawrence’s statements to

him. Specifically, he testified that Lawrence told him Rios, the father of her child, had been

drinking and struck her several times, bitten her on her inner thigh, and brandished a knife.

Officer Hatch testified further that Lawrence told him that when Rios’s mother arrived,

Lawrence was able to get up and get a knife, and she chased Rios off through the apartment

complex. Officers took pictures of Lawrence’s injuries, which the State admitted into

evidence at the hearing.

1 We note that Rios was serving the executed portion of his sentence on community corrections and had not yet begun formal probation. It is well settled, however, that a defendant’s probation may be revoked prior to the commencement of probation. See Baker v. State, 894 N.E.2d 594 (Ind. Ct. App. 2008) (collecting cases).

3 Officer Doug Himmel also testified at the hearing. Officer Himmel testified that

shortly after Officer Hatch took Lawrence’s statement, he located Rios between a fence and

the tree line on the south side of the apartment building. Officer Himmel testified that Rios

was wet, cold, and appeared to be drunk. He also testified that when he searched Rios, he

found a baggie of green, leafy material he believed to be marijuana in Rios’s back pocket.

Officer Himmel subsequently turned over the baggie to Officer Hatch. At the hearing,

Officer Hatch testified that through his training and experience, he recognized the substance

as marijuana. In addition to this testimony, and over Rios’s objection, the trial court admitted

into evidence a laboratory examination report, in which a forensic scientist indicated that the

substance was indeed marijuana.

Following the April 12, 2012 incident, Rios was arrested and placed in the Marion

County Jail, and a no-contact order was entered prohibiting Rios from contacting Lawrence

in person, by telephone, or otherwise. At the probation revocation hearing, the State admitted

into evidence a recording of a call placed from the telephone located in Rios’s cell block,

placed by a man to a woman. Witnesses identified the female voice as belonging to

Lawrence. During the call, Lawrence referred to the male caller as “Endo,” which was her

nickname for Rios. Transcript at 37-38. Lawrence and the male caller discussed the April

12, 2012 incident and the injuries Lawrence suffered.

At the conclusion of the hearing, the trial court found that Rios had violated his

probation. In doing so, the trial court gave the following statement:

I’ve listened to the evidence, taken notes, looked at the pictures, listened to the jail call. To try to claim that Mr. Rios didn’t make the jail call is disingenuous.

4 There’s too many times where the person making the call slips up and says “I” and them [sic] switches and says “I mean that guy”. That name with Miss Lawrence on the call, it is obvious what they are trying to do which is they know the call is monitored, and they are trying to act like it’s other people talking about this matter and it is clear that the people have way too much knowledge of what happened on that day to be anybody other than the two people that were engaged in the incident. During that, Miss Lawrence acknowledges the pictures were taken, showing evidence of the battery. And there’s no doubt in my mind that the State have [sic] proven by a preponderance of the evidence that Mr. [N]elson Rios committed battery on Miss Lawrence and further that at the time he was found hiding he possessed marijuana, based on the lab reports as well as the officer’s experience and training. For all of --- also then the phone call having --- the Court having determined that Mr. Rios was indeed the person making the call, that’s a violation of the protective order. For all of those reasons the court finds the defendant has violated his probation.

Transcript at 64-65. The trial court then sentenced Rios to serve his previously suspended

sentence. Rios now appeals.

Rios argues that the trial court abused its discretion in admitting hearsay evidence at

his probation revocation hearing that was not substantially trustworthy. We review decisions

regarding the admission of evidence in probation revocation hearings 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.

Additionally, when reviewing probation revocation decisions, we keep in mind that a

defendant is not entitled to probation; rather, probation is a conditional liberty which is a

favor, not a right. Jones v. State, 838 N.E.2d 1146 (2005). Once the State grants this favor,

however, it cannot be revoked without certain procedural safeguards. Mateyko v. State, 901

N.E.2d 554 (Ind. Ct. App. 2009), trans. denied. But because probation revocation deprives a

5 probationer only of a conditional liberty, he is not entitled to the full array of due process

protections afforded a defendant at a criminal trial. Id.

These limited due process rights allow courts to admit evidence that would not be

permitted in criminal trials. Reyes v. State, 868 N.E.2d 438 (Ind. 2007). Indeed, the Indiana

Rules of Evidence, aside from the rules pertaining to privileges, do not apply in probation

revocation hearings. See Cox v. State, 706 N.E.2d 547 (Ind. 1999); Ind. Evid. Rule

101(c)(2). Rather, courts in probation revocation hearings may consider “any relevant

evidence bearing some substantial indicia of reliability. This includes reliable hearsay.” Cox

v. State, 706 N.E.2d at 551 (footnote omitted). Additionally, while the due process principles

applicable in probation revocation hearings afford the probationer the right to confront and

cross-examine adverse witnesses, this right is narrower than in a criminal trial. Figures v.

State, 920 N.E.2d 267. For these reasons, hearsay evidence may be admitted in a probation

revocation hearing if it is substantially trustworthy. Smith v. State, 971 N.E.2d 86 (Ind.

2012).

Rios argues that the trial court abused its discretion by admitting hearsay evidence in

the form of the lab report and Officer Hatch’s testimony concerning Lawrence’s statements

about the battery. According to Rios, this evidence lacked sufficient indicia of reliability to

be admissible.

As an initial matter, we note that the trial court found that Rios committed three

separate probation violations. Specifically, the court found that Rios had violated his

probation by committing possession of marijuana, battery, and invasion of privacy (by

6 violating the no-contact order). On appeal, Rios challenges only the admission of evidence

supporting the trial court’s findings concerning battery and possession of marijuana; he raises

no challenge to the trial court’s finding that he violated the no-contact order. It is well settled

that the violation of a single condition of probation is sufficient to revoke probation. Gosha

v. State, 873 N.E.2d 660 (Ind. Ct. App. 2007). Thus, even assuming the trial court abused its

discretion by admitting the challenged evidence, we would affirm its ultimate decision to

revoke Rios’s probation.

In any event, Rios’s arguments concerning the admissibility of the challenged

evidence are unavailing. With respect to Officer’s Hatch’s testimony concerning Lawrence’s

statements, we note several indicia of reliability. First, Officer Hatch testified that when he

arrived shortly after the battery and spoke with Lawrence, she was “[e]xtremely angry” and

“upset” about the battery. Transcript at 15. Although the rules of evidence pertaining to

hearsay are not applicable in probation revocation hearings, the rationale underlying an

exception to the general rule against hearsay is instructive here. Ind. Evidence Rule 803(2)

provides that “[a] statement relating to a startling event or condition made while the declarant

was under the stress of excitement caused by the event or condition” is not excluded by the

hearsay rule, even if the declarant is available to testify. Boatner v. State, 934 N.E.2d 184

(Ind. Ct. App. 2010). The rationale supporting the so-called “excited utterance” exception

“is that such a declaration from one who has recently suffered an overpowering experience is

likely to be truthful.” Hardiman v. State, 726 N.E.2d 1201, 1204 (Ind. 2000). Although

Lawrence’s statement need not satisfy the criteria for admissibility under Evid. R. 803(2) in

7 order to be admissible at Rios’s probation revocation hearing, Officer Hatch’s testimony

supports a conclusion that at the time Lawrence made the statements, she was still under the

stress caused by the battery, and therefore likely to be telling the truth.

Additionally, Lawrence’s statements concerning the battery were corroborated by her

injuries, which Officer Hatch observed, and photographs of those injuries were admitted into

evidence at trial. We also note that when Lawrence made the statements, she was reporting a

crime to a police officer. This may be viewed as an additional indicator of reliability

because, as a general matter, people are aware that falsely reporting crimes may lead to

criminal prosecution. For all of these reasons, we conclude that Lawrence’s statements,

admitted through the testimony of Officer Hatch, were substantially trustworthy and therefore

admissible at Rios’s probation revocation hearing.

With regard to the lab report, we conclude that any error in its admission was

harmless. Assuming arguendo that the lab report was not substantially trustworthy, we are

considering an alleged violation of Rios’s Fourteenth Amendment due process right to

confront and cross-examine adverse witnesses. 2 As a general matter, federal constitutional

error is reviewed de novo and must be found harmless beyond a reasonable doubt. Furnish v.

State, 779 N.E.2d 576 (Ind. Ct. App. 2002), trans. denied; see also Chapman v. California,

2 Because a probationer’s right to confront and cross-examine witnesses emanates from the Due Process Clause rather than the Confrontation Clause of Sixth Amendment, Rios’s reliance on Bullcoming v. New Mexico, 131 S. Ct. 2705 (2011), in which the U.S. Supreme Court held that the admission of a forensic lab report in a criminal trial violated the rule of Crawford v. Washington, 541 U.S. 36 (2004), is misplaced. See Smith v. State, 971 N.E.2d 86 (Ind. 2012) (noting that the Sixth Amendment and Crawford v. Washington do not apply in probation and community corrections revocation hearings).

8 386 U.S. 18 (1967). 3 It is well settled that any error in admitting evidence will be found

harmless where it is merely cumulative of other, properly admitted evidence, even when the

alleged error is of constitutional dimension. Fuller v. State, 674 N.E.2d 576 (Ind. Ct. App.

1996).

Here, the lab report was not the only evidence admitted that identified the substance

found in Rios’s back pocket as marijuana. Officer Hatch testified that that the substance was

“a green leafy vegetation that through my training and experience has the odor and texture to

be marijuana.” Trancript at 19-20. Our Supreme Court has held that the identity of a drug

may be proven by circumstantial evidence, including the opinion of someone sufficiently

experienced with the drug. Vasquez v. State, 741 N.E.2d 1214, 1216-17 (Ind. 2001)

(“[a]lthough chemical analysis is one way, and perhaps the best way, to establish the identity

of a compound, persons experienced in the area may be able to identify . . . marijuana. . .

[t]his is true even if every citizen may not be up to that task.”). Rios does not dispute that

Officer Hatch had sufficient training and experience to be able to identify marijuana. Thus,

the lab report identifying the substance as marijuana was cumulative of Officer Hatch’s

testimony, and any error in the admission of the lab report was therefore harmless.

Judgment affirmed.

ROBB, C.J., and CRONE, J., concur.

3 It is apparently not entirely settled whether the federal constitutional harmless error standard applies in probation revocation proceedings. See Black v. State, 794 N.E.2d 561, 566 (Ind. Ct. App. 2003) (applying the federal constitutional harmless error standard in a probation revocation proceedings because the issue was not argued by the parties, but leaving the question “open for argument in subsequent cases”). We need not resolve the question here, because even under the more rigorous federal standard, we conclude that any error in the admission of the lab report was harmless.