Steven Eugene Ewing v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: December 27, 2017
• Docket: 48A05-1707-CR-1491
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this FILED Memorandum Decision shall not be regarded as Dec 27 2017, 8:13 am precedent or cited before any court except for the CLERK purpose of establishing the defense of res judicata, Indiana Supreme Court Court of Appeals collateral estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Thomas G. Godfrey Curtis T. Hill, Jr. Anderson, Indiana Attorney General of Indiana Christina D. Pace Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Steven Eugene Ewing, December 27, 2017

Appellant-Defendant, Court of Appeals Case No. 48A05-1707-CR-1491 v. Appeal from the Madison Circuit Court. The Honorable David A. Happe, State of Indiana, Judge. Appellee-Plaintiff. Trial Court Cause No. 48C04-1511-F5-2043

Shepard, Senior Judge

[1] Steven Eugene Ewing appeals the trial court’s revocation of his community

corrections placement, challenging the court’s admission of a police report into

evidence. We affirm.

Court of Appeals of Indiana | Memorandum Decision 48A05-1707-CR-1491 | December 27, 2017 Page 1 of 5 [2] In 2015, the State charged Ewing with operating a motor vehicle after forfeiture

of license for life, a Level 5 felony. The parties executed a plea agreement,

pursuant to which Ewing pleaded guilty and the State agreed the executed part

of his sentence would not exceed three years, to be served on community

corrections. On December 12, 2016, the court sentenced Ewing to five years,

with two and a half years executed through community corrections, and two

and a half years suspended to probation.

[3] On March 15, 2017, community corrections officials filed a notice with the

court, claiming Ewing violated the terms of his commitment by carrying out a

new criminal offense—battery against a public safety official, a Level 6 felony.

The officials further alleged Ewing failed to report to the community justice

center as required by the terms of his commitment. They asked the court to

revoke Ewing’s placement and to order him to serve the balance of his sentence

at DOC.

[4] The State did not present any witnesses at the evidentiary hearing. Instead, the

trial court admitted into evidence State’s Exhibit 1, a police incident report that

described an occurrence in which Ewing struggled with police officers. The

court concluded the report bore “indicia of reliability” because it was digitally

signed by the officers. Tr. Vol. II, p. 6. Ewing testified on his own behalf,

presenting a contrary view of events. The court determined that Ewing

committed both violations alleged by the State and sentenced Ewing to 847

days at DOC, to be followed by the probationary portion of his sentence. This

appeal followed.

Court of Appeals of Indiana | Memorandum Decision 48A05-1707-CR-1491 | December 27, 2017 Page 2 of 5 [5] Ewing argues the court erred in admitting the police report into evidence,

claiming it is unreliable hearsay and that he was deprived of his right to cross-

examine the officers. When ruling on the admissibility of evidence, the trial

court has broad discretion, which a reviewing court will disturb only where

there is an abuse of that discretion. Ackerman v. State, 51 N.E.3d 171 (2016),

cert. denied, 137 S. Ct. 475, 196 L. Ed. 2d 387 (2016). When a constitutional

violation is alleged, the standard of review is de novo. Id.

[6] In Reyes v. State, 868 N.E.2d 438 (Ind. 2007), the Indiana Supreme Court noted

that although the Due Process Clause applies to probation revocation

proceedings, offenders do not receive the same constitutional rights that

defendants receive at trial. For example, the Indiana Rules of Evidence do not

apply in probation proceedings. Ind. Rule of Evidence 101(d)(2). Courts may

admit evidence during revocation hearings that would not be permitted in a

criminal trial. A court may admit hearsay evidence if “it has a substantial

guarantee of trustworthiness.” Reyes, 868 N.E.2d at 441. The Supreme Court

has applied this standard in proceedings to revoke a term in community

corrections. See Smith v. State, 971 N.E.2d 86 (Ind. 2012).

[7] In Whatley v. State, 847 N.E.2d 1007 (Ind. Ct. App. 2006), the State sought to

revoke Whatley’s probation, alleging he had committed a new offense. During

an evidentiary hearing, the State asked the court to take judicial notice of a

probable cause affidavit that was filed in the new criminal case, and the court

granted the request. On appeal, Whatley argued the affidavit was inadmissible

Court of Appeals of Indiana | Memorandum Decision 48A05-1707-CR-1491 | December 27, 2017 Page 3 of 5 because it lacked sufficient guarantees of reliability. The Court disagreed, 1 concluding it was prepared by the arresting officer and signed under oath.

[8] In this case, the police report includes the date and time of the incident and a

description of Ewing. Two officers, Cunningham and Henninger, described

their interactions with Ewing in detail and electronically signed their

statements. Cunningham provided the following verification: “I . . . swear and

affirm under the pains and penalties of perjury, as specified by Indiana Code 35-

44.1-2-1 that the above and foregoing representations are true and accurate to

the best of my knowledge and belief.” Tr. Vol. III, State’s Ex. 1, p. 5.

Henninger provided a similar verification.

[9] We conclude the trial court appropriately found the hearsay police report to

have a substantial guarantee of trustworthiness because the arresting officers

prepared it and signed it under penalties of perjury. The report resembles the

probable cause affidavit that was deemed admissible in Whatley.

[10] Ewing cites several cases in support of his claim, but they are factually

dissimilar. In Baxter v. State, 774 N.E.2d 1037 (Ind. Ct. App. 2002), trans.

denied, a panel of the Court determined an unverified, unsigned police report

lacked substantial guarantees of reliability. By contrast, in the current case the

police officers signed the report under penalties of perjury.

1 By contrast, in Robinson v. State, 955 N.E.2d 228, 233 (Ind. Ct. App. 2011), this Court held it error to rely on an affidavit “full of hearsay within hearsay within hearsay.”

Court of Appeals of Indiana | Memorandum Decision 48A05-1707-CR-1491 | December 27, 2017 Page 4 of 5 [11] In Figures v. State, 920 N.E.2d 267 (Ind. Ct. App. 2010), a court accepted a

probable cause affidavit in a probation revocation matter even though the

criminal case which followed the affidavit had been dismissed prior to the

hearing in the revocation. A panel of this Court determined the hearsay

affidavit was unreliable. In this case, Ewing’s new criminal charge remained

pending at the time of his community corrections revocation hearing. Figures is

thus distinguishable, and we conclude the court correctly determined the

signed, verified police report has substantial guarantees of reliability.

[12] The State argues in the alternative there is sufficient evidence to support the

trial court’s determination that Ewing failed to report to the community justice 2 center as required by the terms of his placement. We need not address this

claim because we have determined the trial court properly admitted the report.

In addition, Ewing expressly disclaims any challenge to the sufficiency of the

evidence supporting the trial court’s ruling. Appellant’s Br. p. 18.

[13] For the reasons stated above, we affirm the judgment of the trial court.

[14] Affirmed.

Kirsch, J., and Mathias, J., concur.

2 Ewing testified during the sanctions portion of the evidentiary hearing that he did not report to community corrections because he was incarcerated on a Hamilton County case at the time. He later began serving a sentence on work release from Hamilton County, and he believed he needed to finish his sentence there before addressing this case.

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