MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Feb 15 2016, 9:19 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 Mark R. McKinney Gregory F. Zoeller Muncie, Indiana Attorney General of Indiana
J.T. Whitehead Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Reginald D. Ivy, Jr., February 15, 2016 Appellant-Defendant, Court of Appeals Case No. 18A05-1506-CR-690 v. Appeal from the Delaware Circuit Court State of Indiana, The Honorable Thomas A. Appellee-Plaintiff. Cannon, Jr., Judge Trial Court Cause No. 18C05-1306-FA-5
Brown, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A05-1506-CR-690 | February 15, 2016 Page 1 of 15 [1] Reginald D. Ivy, Jr., appeals the revocation of his direct commitment to
electronic home detention. Ivy raises three issues which we revise and restate
as:
I. Whether he was properly advised of the terms of his placement;
II. Whether the trial court erred by admitting hearsay testimony at the revocation hearing; and
III. Whether the evidence is sufficient to support the revocation of Ivy’s home detention.
We affirm.
Facts and Procedural History
[2] On June 20, 2013, the State charged Ivy with two counts of dealing in cocaine
as class A felonies, possession of cocaine as a class A felony, dealing in cocaine
as a class B felony, and maintaining a common nuisance as a class D felony.
[3] On December 15, 2014, Ivy signed a written advisement and waiver of rights
form. That same day, Ivy and the State entered into a plea agreement in which
Ivy agreed to plead guilty to possession of cocaine and dealing in cocaine as
class B felonies and the State agreed to dismiss the remaining charges. The
parties agreed that Ivy would receive concurrent sentences of eight years with
six years executed and two years suspended for each count and that the
executed portion of the sentences be served as a direct commitment to
electronic home detention.
[4] On March 2, 2015, the court accepted the plea agreement and sentenced Ivy
pursuant to the plea agreement. That same day, Ivy signed a document titled Court of Appeals of Indiana | Memorandum Decision 18A05-1506-CR-690 | February 15, 2016 Page 2 of 15 Delaware County Community Corrections Home Detention Rules and initialed
next to various rules under the heading “Agreement and Rules of Home
Detention.” State’s Exhibit 1. Rule 20, which Ivy initialed, states: “NEW
ARRESTS/CHARGES: Any new violations of the law while on Home
Detention may be cause for revocation of your suspended sentence or
placement on Home Detention.” Id. Before Ivy’s signature, the document
states:
I have read the rules of Home Detention. I understand all of these rules, and agree to abide and comply with each of them. I understand if my placement is CTP or Direct Commitment failure to comply with these rules will result in sanctions up to and including REMOVAL OF CREDIT OR CLASS TIME.
Id. Jordan King, an officer at the Delaware County Community Corrections,
“went through” the terms with Ivy, including that he agreed to comply with
and abide by each of the rules and that his failure to comply would result in
sanctions. Transcript at 12.
[5] At some point, Muncie Police Investigator Daxton Lovell received information
from his confidential informant (the “C.I.”) that Ivy was dealing cocaine and
that he drove a silver Jeep Cherokee. Investigator Lovell logged on to the local
database at the Muncie Police Department and discovered that a silver Jeep
Cherokee was registered to Ivy.
[6] On March 8, 2015, Investigator Lovell observed Ivy’s Jeep, positioned his
undercover vehicle to have a visual on Ivy’s vehicle, contacted other
Court of Appeals of Indiana | Memorandum Decision 18A05-1506-CR-690 | February 15, 2016 Page 3 of 15 investigators, and observed Ivy exit his vehicle and enter a house. Meanwhile,
Muncie Police Investigator Mike Nickens performed a “thorough search” of the
C.I.’s person and vehicle. Id. at 16. The search of the C.I. and the vehicle took
approximately fifteen minutes. Investigator Nickens provided the C.I. with
$300 worth of previously photocopied buy money and an electronic recording
device and transmitter.
[7] The C.I. received a phone call and then proceeded to the area of Streeter and
Wolfe. Investigator Nickens followed the C.I.’s vehicle until other investigators
advised him that they had a visual of the C.I. Investigator Scott O’Dell
maintained visual contact with the C.I. to Wolfe Street and Streeter.
Meanwhile, Investigator Lovell observed Ivy exit the residence and enter the
backseat of a small four door green vehicle.
[8] At some point, the C.I.’s vehicle and the green vehicle approached each other,
Ivy exited the green vehicle and walked around the rear and then directly to the
front driver’s seat of the C.I.’s vehicle. Investigator Brent Brown observed Ivy
approach the driver’s side window of the C.I.’s vehicle, some “hand
movements,” and Ivy turn around less than five seconds later and enter the rear
seat of the green vehicle before it pulled away. Id. at 63.
[9] The green vehicle drove several blocks and stopped near the silver Jeep
Cherokee, and Ivy exited the green vehicle and attempted to enter the Jeep
Cherokee. Investigators Brown and O’Dell stopped their vehicles, identified
themselves as police officers, and ordered Ivy to the ground. Investigator
Court of Appeals of Indiana | Memorandum Decision 18A05-1506-CR-690 | February 15, 2016 Page 4 of 15 O’Dell put Ivy on the ground and handcuffed him, and Investigator Brown
ordered the two occupants of the green vehicle to exit and placed them in
handcuffs.
[10] After handcuffing Ivy, Investigator O’Dell observed some car keys and a small
baggie on the ground next to Ivy that contained a green plant-like substance
that field tested positive for marijuana. Investigator O’Dell then searched Ivy
and found several different stacks of U.S. currency totaling $695 in his pockets
along with his driver’s license. Investigator Lovell determined that the serial
numbers on certain bills totaling $260 recovered from Ivy matched the serial
numbers of the photocopied buy money.1 Investigator O’Dell searched the
green vehicle and found no controlled substances, monies, or weapons.
[11] The C.I. then met with Investigator Nickens and turned over a clear corner
plastic baggie containing 1.3 grams of cocaine. Ivy was arrested for dealing
cocaine as a level five felony and possession of marijuana as a class B
misdemeanor.
[12] On March 17, 2015, the State filed a Petition for Warrant on Revocation and
Executed Sentence on Violation of Terms of Direct Commitment and alleged
that Ivy failed to comply with the court’s order by being arrested under cause
number 18C02-1503-F4-2 for dealing in cocaine as a level 5 felony and
1 Investigator O’Dell testified that the forty dollars in buy money may have gone missing because the money began to blow away at the scene of Ivy’s arrest.
Court of Appeals of Indiana | Memorandum Decision 18A05-1506-CR-690 | February 15, 2016 Page 5 of 15 possession of marijuana as a class B misdemeanor in violation of Rule 20 of his
conditions of electronic home detention.
[13] On April 28, 2015, the court held a fact finding hearing. Investigators Nickens,
Lovell, Brown, and O’Dell testified to the foregoing. Jennifer Davis, the Home
Detention Supervisor at Delaware County Community Corrections, testified
that she handles all the intakes of people who are sentenced to the program,
that Ivy signed the rules of home detention, and that Jordan King was present
and went through the terms with him including that he agreed to comply and
abide by each of the rules and that his failure to comply would result in
sanctions. When asked how she knew that Ivy signed the rules of home
detention, she testified that she was not there on March 2nd, but “when I
returned I completed the file, his rules of home detention were signed in there
and he was placed on day reporting and assigned a case manager.” Id. at 9.
[14] Without objection, Investigator Nickens testified that Investigator Lovell
received information from the C.I. that he would be able to purchase cocaine
from Ivy. On cross-examination, Investigator Nickens testified that he did not
have the C.I. remove his shoes and that while he checked around the top of the
C.I.’s socks, the socks were not removed, and he did not look inside the C.I.’s
underwear. At one point, Investigator Nickens testified that the C.I. stated that
the C.I. purchased the substance in the baggie, and Ivy’s counsel objected on
the basis of hearsay. The court overruled the objection, and Investigator
Nickens testified that the C.I. stated that the C.I. had purchased the substance
in the baggie from Ivy in exchange for the buy money.
Court of Appeals of Indiana | Memorandum Decision 18A05-1506-CR-690 | February 15, 2016 Page 6 of 15 [15] During direct examination, Investigator Lovell testified that he was informed by
the C.I. that Ivy drove a silver Jeep Cherokee, and Ivy’s counsel stated: “I’d like
to just show a continuing objection to the information received from” the C.I.
Id. at 31. The court noted and overruled the objection. During the direct
examination of Investigator Brown, the prosecutor asked if it would be fair to
say that the C.I. told Investigator Lovell that they had to move the meeting
location, Ivy’s counsel objected, and the court sustained the objection.
[16] On April 29, 2015, the court entered an order finding by a preponderance of the
evidence that Ivy violated the terms of his sentence and Rule 20 of the
electronic home detention rules by committing new crimes. On May 19, 2015,
the court held a sentencing hearing and revoked Ivy’s placement and sentenced
him to the Department of Correction for six years followed by two years of
supervised probation.
Discussion
I.
[17] The first issue is whether Ivy was properly advised of the terms of his
placement. He argues that the State failed to offer any admissible evidence that
he was advised of the terms of his placement prior to the alleged violation. He
asserts that the Rules of Home Detention were admitted despite the fact that
Davis admitted she was not present to observe whether or not Ivy personally
signed them and had no firsthand knowledge of who actually signed the rules.
Court of Appeals of Indiana | Memorandum Decision 18A05-1506-CR-690 | February 15, 2016 Page 7 of 15 The State argues that Ivy was advised of the terms and conditions of his
placement and that he never claims he was not given notice.
[18] Generally, it is error for a probation revocation to be based upon a violation for
which the defendant did not receive notice. Bovie v. State, 760 N.E.2d 1195,
1199 (Ind. Ct. App. 2002) (citing Hubbard v. State, 683 N.E.2d 618, 622 (Ind. Ct.
App. 1997)). However, such error may be harmless. Id.
[19] The record reveals that Davis, the Home Detention Supervisor at the Delaware
County Community Corrections, testified Ivy signed the rules of home
detention. While she testified that she was not present when Ivy signed the
document, she testified that Jordan King, her fellow officer, went through the
terms with Ivy including that he agreed to comply and abide by each of the
rules and that his failure to comply would result in sanctions. Rule 20, which
Ivy initialed, states: “NEW ARRESTS/CHARGES: Any new violations of the
law while on Home Detention may be cause for revocation of your suspended
sentence or placement on Home Detention.” State’s Exhibit 1. Before Ivy’s
signature, the document states:
I have read the rules of Home Detention. I understand all of these rules, and agree to abide and comply with each of them. I understand if my placement is CTP or Direct Commitment failure to comply with these rules will result in sanctions up to and including REMOVAL OF CREDIT OR CLASS TIME.
Id. Based upon the record, we conclude that Ivy received notice of the
conditions of his home detention.
Court of Appeals of Indiana | Memorandum Decision 18A05-1506-CR-690 | February 15, 2016 Page 8 of 15 [20] We also observe that the State’s petition for revocation alleged that Ivy was
arrested and charged for dealing in cocaine and possession of marijuana. This
court has previously held that a trial court has authority to revoke a placement
in community corrections when the defendant commits a new crime while in
community corrections even where such a condition was not expressly made a
term of community corrections. See Toomey v. State, 887 N.E.2d 122, 125 (Ind.
Ct. App. 2008) (rejecting the defendant’s argument that the trial court could not
revoke his placement in home detention when he had no notice of the specific
terms of home detention and holding that the commission of a crime while in
community corrections is grounds for revocation); Decker v. State, 704 N.E.2d
1101, 1103 (Ind. Ct. App. 1999) (holding that the commission of a crime while
serving time in the community corrections program is always grounds for
revocation, even if the sentencing court fails to notify the person of such
condition), trans. dismissed. Accordingly, reversal is not warranted on this basis.
II.
[21] The next issue is whether the trial court erred by admitting hearsay testimony at
the revocation hearing. Ivy argues that the court should not have admitted the
hearsay testimony of the multiple police officers regarding the C.I.’s statements
because the court could not make a finding of substantial trustworthiness. He
asserts that law enforcement did not testify that the informant had been used
before, whether such use resulted in other arrests and/or convictions, whether
the informant had provided correct information in the past, or whether an
independent police investigation corroborated the C.I.’s statements. He argues
Court of Appeals of Indiana | Memorandum Decision 18A05-1506-CR-690 | February 15, 2016 Page 9 of 15 that, without the hearsay testimony, there was insufficient evidence of probative
value to support the trial court’s determination that he violated the terms of his
placement. The State argues that Ivy waived the ability to challenge a good
deal of the evidence relating to the statements made by the C.I., that Ivy does
not argue fundamental error, and that such an argument fails on the merits.
[22] Indiana Evidence Rule 101(d)(2) allows for the admission of evidence during
probation revocation hearings that would not be permitted in a full-blown
criminal trial.2 Yet, “[t]his does not mean that hearsay evidence may be
admitted willy-nilly in a probation revocation hearing.” Reyes v. State, 868
N.E.2d 438, 440 (Ind. 2007), reh’g denied. In Reyes, the Indiana Supreme Court
adopted the substantial trustworthiness test as the means for determining
whether hearsay evidence should be admitted at a probation revocation
hearing. In applying the substantial trustworthiness test, “‘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. at 442 (quoting United States v. Kelley, 446 F.3d 688, 693
(7th Cir. 2006)). Failure to provide an explanation on the record is not fatal
where the record supports such a determination. Id.
2 Ind. Evidence Rule 101(d)(2) provides that “[t]he rules, other than those with respect to privileges, do not apply in . . . [p]roceedings relating to extradition, sentencing, probation, or parole, issuance of criminal summonses or warrants for arrest or search, preliminary juvenile matters, direct contempt, bail hearings, small claims, and grand jury proceedings.”
Court of Appeals of Indiana | Memorandum Decision 18A05-1506-CR-690 | February 15, 2016 Page 10 of 15 [23] We will not reverse an error in the admission of evidence if the error was
harmless. Turner v. State, 953 N.E.2d 1039, 1058 (Ind. 2011). Errors in the
admission of evidence are to be disregarded unless they affect the defendant’s
substantial rights. Id. at 1059. In determining the effect of the evidentiary
ruling on a defendant’s substantial rights, we look to the probable effect on the
fact-finder. Id. Generally, “[t]he improper admission is harmless error if the
conviction is supported by substantial independent evidence of guilt satisfying
the reviewing court there is no substantial likelihood the challenged evidence
contributed to the conviction.” Id. Accordingly, to determine whether an
admission is harmless we must determine whether there is sufficient
independent evidence to support the revocation of Ivy’s probation. See Richeson
v. State, 648 N.E.2d 384, 389 (Ind. Ct. App. 1995), reh’g denied, trans. denied.
[24] As pointed out by the State, Investigator Nickens testified without objection
that Investigator Lovell received information from the C.I. that he would be
able to purchase cocaine from Ivy. Even assuming that some of the officers’
testimony including that the C.I. said that he was contacted by Ivy, that Ivy
sold him the baggie of cocaine, and that Ivy drove a silver Jeep Cherokee, were
improperly admitted, we conclude that such testimony did not affect Ivy’s
substantial rights and that any such error would be harmless in light of the other
evidence introduced at the hearing. See Pritchard v. State, 810 N.E.2d 758, 761
(Ind. Ct. App. 2004) (holding that, even if it could be concluded that it was
error for the trial court to admit certain testimony, the error would have been
harmless and the defendant was not prejudiced by the admission of the
Court of Appeals of Indiana | Memorandum Decision 18A05-1506-CR-690 | February 15, 2016 Page 11 of 15 testimony); see also Cole v. State, 970 N.E.2d 779, 784 (Ind. Ct. App. 2012)
(holding that an error in the admission of evidence does not justify reversal if
the evidence is cumulative of other evidence presented at trial).
III.
[25] The next issue is whether the evidence is sufficient to support the revocation of
Ivy’s home detention. A defendant is not entitled to serve a sentence in either
probation or a community corrections program. Monroe v. State, 899 N.E.2d
688, 691 (Ind. Ct. App. 2009). “Rather, placement in either is a ‘matter of
grace’ and a ‘conditional liberty that is a favor, not a right.’” Id. (quoting Cox v.
State, 706 N.E.2d 547, 549 (Ind. 1999), reh’g denied). For the purposes of
appellate review, we treat a hearing on a petition to revoke a placement in a
community corrections program such as home detention the same as we do a
probation revocation hearing. Id. (citing Cox, 706 N.E.2d at 549). The State
needs to prove the alleged violations by a preponderance of the evidence. Id.
We will consider all the evidence most favorable to supporting the judgment of
the trial court without reweighing that evidence or judging the credibility of the
witnesses. Id. If there is substantial evidence of probative value to support the
trial court’s conclusion that a defendant has violated any terms of home
detention, we will affirm its decision to revoke home detention. Id. The
violation of a single condition of home detention is sufficient to revoke home
detention. See Wilson v. State, 708 N.E.2d 32, 34 (Ind. Ct. App. 1999).
Court of Appeals of Indiana | Memorandum Decision 18A05-1506-CR-690 | February 15, 2016 Page 12 of 15 [26] Ivy argues that the State failed to offer sufficient admissible evidence of
probative value to support the revocation. He asserts that the search of the C.I.
prior to providing him with the buy money and the transmitter was inadequate
to satisfy the requirements of a controlled buy. He also contends that the
amount of cocaine was small, that no evidence from the recorder/transmitter
was offered into evidence, that the transaction occurred on a dark street, and
that no exchange was witnessed by officers. The State argues that the search of
the C.I. and the vehicle were both thorough and that the evidence demonstrated
that Ivy violated the conditions of his commitment by a preponderance of the
evidence.
[27] During cross-examination, Investigator Nickens testified that he conducted a
thorough search of the C.I.’s person and vehicle. Ivy’s counsel asked
Investigator Nickens “[s]tarting with the [C.I.’s] person, describe what a
thorough search is, what you did to search the [C.I.]?” Transcript at 23.
Investigator Nickens answered:
Um, started at the feet area, went up each pant leg, checking pockets, around the belt area, around the chest area, any pockets on the shirts, jackets, t-shirts, in the groin area, in the buttocks area, check their mouth, ears, any hats that may be on, inside their socks if need be, a complete search of their person was conducted also, a thorough search of the vehicle starting the driver compartment and moving methodically through over to the passenger compartment, and then starting at a point in the passenger rear, and over to the other side of the vehicle.
Court of Appeals of Indiana | Memorandum Decision 18A05-1506-CR-690 | February 15, 2016 Page 13 of 15 Id. When asked to again describe the search of the vehicle, Investigator
Nickens stated:
Um, start on the driver compartment, look underneath the seats, in the seat creases, and the floor board, underneath the seat, in between the seats and the dash, the dash, any loose vents inside the compartment, visors, anything loose that can be removed or pulled, same thing going over the passenger side, the glove box, behind the glove box, anything that’s loose is pulled and checked, door panels, anything that’s loose is pulled and checked, same thing with the backseat, creases, if the seats able to be pulled up . . . pulled up, underneath the seat if it’s able to be pulled, and then on the floor or any compartments on the back of the seats is also checked.
Id. at 25-26.
[28] Muncie Police Investigator O’Dell, a police officer for twenty-four years and
involved in the drug unit for sixteen to seventeen years, observed the search of
the C.I. and the C.I.’s vehicle and testified that both searches were thorough.
To the extent Ivy cites Watson v. State, 839 N.E.2d 1291 (Ind. Ct. App. 2005),
we find that case distinguishable. In that case, this Court held that the evidence
was insufficient to support a conviction for dealing in cocaine where the
confidential informant was not searched prior to the buy and did not testify.
839 N.E.2d at 1293. Unlike in Watson, this case involved a thorough search of
the C.I. and his vehicle.
[29] Further, Investigator Brown described the interaction between the C.I. and Ivy
as follows: “As quickly as [Ivy] approached I saw hand movements, he turned
Court of Appeals of Indiana | Memorandum Decision 18A05-1506-CR-690 | February 15, 2016 Page 14 of 15 right around and took the same direct path back to the green vehicle, he got into
the rear seat again, and the vehicle pulled away.” Transcript at 63. The C.I.
then met with Investigator Nickens and turned over a clear corner plastic baggie
containing 1.3 grams of cocaine. The police recovered a small baggie
containing marijuana on the ground next to Ivy, and $695 from Ivy’s pockets,
$260 of which matched the serial numbers of the photocopied buy money.
[30] Based on the facts most favorable to the revocation, we conclude that the State
presented sufficient evidence from which the court could find by a
preponderance of the evidence that Ivy violated the terms of his home
detention. See Kuhfahl v. State, 710 N.E.2d 200, 201 (Ind. Ct. App. 1999)
(holding that the evidence was sufficient to revoke defendant’s probation, and
the defendant’s argument was simply to ask this court to reweigh the evidence
and the credibility of the witnesses).
Conclusion
[31] For the foregoing reasons, we affirm the trial court’s revocation of Ivy’s home
detention.
[32] Affirmed.
Kirsch, J., and Mathias, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A05-1506-CR-690 | February 15, 2016 Page 15 of 15