Figures v. State

• Decision Date: 29 January 2010
• Docket Number: No. 49A02-0906-CR-553.,49A02-0906-CR-553.
• Citation: 920 N.E.2d 267
• Parties: Edward FIGURES, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

920 N.E.2d 267

Edward FIGURES, Appellant-Defendant, v.STATE of Indiana, Appellee-Plaintiff.

No. 49A02-0906-CR-553.

Court of Appeals of Indiana.

January 29, 2010.

Julie Ann Slaughter, Marion County Public Defender Agency, Indianapolis, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Karl M. Scharnberg, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

ROBB, Judge.

Case Summary and Issues

Edward Figures appeals the trial court's order revoking his probation and ordering him to serve the entirety of his previously suspended sentence.Figures raises three issues for our review, which we restate as: 1) whether the trial court abused its discretion in admitting into evidence a probable cause affidavit and case chronology from a previously dismissed battery prosecution; 2) whether sufficient evidence supports the trial court's finding that Figures violated the terms of his probation by committing a criminal offense; and 3) whether the trial court abused its discretion in ordering Figures to serve the entirety of the previously suspended portion of his sentence.We conclude the trial court did not abuse its discretion in admitting the case chronology but did abuse its discretion in admitting the probable cause affidavit.As a result, insufficient evidence supports the trial court's finding that Figures committed a criminal offense.However, in light of the two other probation violations found by the trial court, which Figures does not challenge, the trial court properly revoked his probation, and the sentence imposed upon revocation was not an abuse of the trial court's discretion.Therefore, we affirm the judgment of the trial court.

Facts and Procedural History

In June 2007, Figures was convicted, following a guilty plea, of carrying a handgun without a license, a Class C felony, and sentenced to four years with two years suspended to probation.After serving 365 actual days, Figures was released by the Department of Correction to begin serving the probationary period of his sentence.The conditions of Figures's probation included standard conditions that he not commit a criminal offense and "report as directed to the Probation Department," as well as special conditions that he complete a "Substance Abuse Evaluation—Treatment if Necessary," and eighty hours of community service work.Appellant's Appendixat 40.Figures reported to the Probation Department for an intake meeting on October 5, 2008, and completed a substance abuse evaluation.He was instructed to report to his first appointment with a probation officer on November 13, 2008, but failed to report.Figures was also instructed to report to Alpha Counseling for substance abuse treatment on November 3, 2008, but missed that appointment as well.Thereafter, Figures did not report to or have any recorded contact with the Probation Department.In addition, because Figures failed to report to the Probation Department, he was not assigned to a work crew and, as a result, did not complete any community service work.

Meanwhile, on October 17, 2008, Figures was charged in a separate case, under cause 49G16-0810-FD-236961("case 236961"), with domestic battery and battery as Class D felonies or, alternatively, Class A misdemeanors.The trial court in case 236961 found probable cause for the charges and, on October 23, 2008, issued a warrant for Figures's arrest.On December 2, 2008, the Probation Department filed a notice of probation violation alleging Figures violated his probation by failing to report to the Probation Department as directed and failing to comply with the court-ordered substance abuse treatment and community service work and, in addition, had an outstanding probable cause warrant for the charges in case 236961.On April 24, 2009, all the charges in case 236961 were dismissed, upon the State's motion, due to "Evidentiary Problems."Appellant's App.at 45.

On May 21, 2009, the trial court held a probation revocation hearing, in which it heard testimony regarding Figures's failure to report to the Probation Department and his failure to complete the substance abuse treatment and community service work.In addition, the State offered, and the trial court admitted into evidence over Figures's objection, certified copies of the case chronology and probable cause affidavit from case 236961.Figures's counsel stated: "Our objection is basically based on the factors that we can't cross-examine the alleged authors of those documents to ascertain whether they are reliable hearsay, which would be admissible, Your Honor."Transcriptat 15.The trial court did not explain on the record its reasons for overruling Figures's objection on the grounds of reliability.The case chronology for case 236961 contained an entry for October 23, 2008, stating, in relevant part: "Information and Probable Cause Affidavit filed (H.I.).Probable cause found."State's Exhibit 1, at 2.The probable cause affidavit stated that on October 10, 2008, Figures arranged to meet his ex-girlfriend Amanda Wilson at a public intersection, and upon meeting Wilson grabbed her hair and left shoulder in an attempt to pull her out of her vehicle and, in addition, bit Wilson's left shoulder causing "extreme pain" and visible bite marks.State's Exhibit 2, at 9.Apart from the case chronology and probable cause affidavit, no testimony was presented to corroborate this version of events.

Figures testified and admitted he failed to report to the Probation Department on November 13, 2008, but explained the reason for his not doing so was the outstanding warrant for his arrest: "the detective called and told me I had a warrant to turn myself in."Tr.at 16.Figures further admitted he did not report for the court-ordered substance abuse treatment or complete any community service work, but offered the same explanation that his reason for not doing so was the arrest warrant that had been issued.

The trial court found Figures violated the terms of his probation by failing to report as directed to the Probation Department and failing to complete any community service work, and in addition, "the State has proved by a preponderance of the evidence that there is probable cause [Figures] committed a criminal act."Id. at 21.The trial court revoked Figures's probation and ordered him to serve the remaining two years of his original sentence with credit for eighty-nine days of pre-hearing confinement.Figures now appeals.

Discussion and Decision

I.Admission of Evidence

A.Standard of Review

The trial court's decision to admit or exclude evidence in a probation revocation hearing is reviewed on appeal for an abuse of discretion.Payne v. State,515 N.E.2d 1141, 1143(Ind.Ct.App.1987), disapproved on other grounds, Cox v. State,706 N.E.2d 547, 551 n. 10(Ind.1999).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.Smith v. State,889 N.E.2d 836, 839(Ind.Ct.App.2008).

B.Case Chronology and Probable Cause Affidavit

Because the Rules of Evidence do not apply in probation revocation hearings, seeInd. Evidence Rule 101(c)(2), the general rule against hearsay is inapplicable.Cox,706 N.E.2d at 550.However, due process principles applicable in probation revocation hearings, also codified at Indiana Code section 35-38-2-3(e), afford the probationer "the right to confront and cross-examine adverse witnesses."Isaac v. State,605 N.E.2d 144, 148(Ind.1992), cert. denied,508 U.S. 922, 113 S.Ct. 2373, 124 L.Ed.2d 278(1993).Yet because "[t]he due process right applicable in probation revocation hearings allows for procedures that are more flexible than in a criminal prosecution,"Reyes v. State,868 N.E.2d 438, 440(Ind.2007), the right to confrontation and cross-examination in probation revocation hearings is narrower than in a criminal trial, seeid. at 440 n. 1(notingthe U.S. Supreme Court's decision in Crawford v. Washington,541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177(2004), on the Sixth Amendment right to confrontation in criminal trials is not applicable to probation revocation hearings).For these reasons, the general rule is that hearsay evidence may be admitted without violating a probationer's right to confrontation if the trial court finds the hearsay is "substantially trustworthy."Id. at 442.Ideally, the trial court should explain on the record why the hearsay is substantially trustworthy, or sufficiently "reliable" to be admissible.Id.

Figures argues the trial court erred in admitting, over his objection on the grounds of insufficient reliability, the case chronology and probable cause affidavit from case 236961.This court addressed a similar argument in Pitman v. State,749 N.E.2d 557(Ind.Ct.App.2001), trans. denied.In Pitman,the trial court revoked Pitman's probation based on evidence in the form of certified copies of the court docket, police report, and charging information in a case where Pitman "was arrested for and charged with battery following a finding of probable cause."Id. at 559.This court concluded the docket and charging information were properly admitted into evidence because "certification of the documents by the court provides substantial indicia of their reliability."Id.¹Further, the docket and charging information were "items of public record which pursuant to Ind. Evidence Rule 803(8), would be admissible as exceptions to the hearsay rule at a proceeding where the rules of evidence are applicable."Id. at 560;seeHernandez v. State,716 N.E.2d 601, 602(Ind.Ct.App.1999)(noting"substantial indicia of reliability ... may be inferred where the evidence falls within a firmly rooted exception to the hearsay rule").Following Pitman,we conclude the trial court did not err in admitting into evidence the certified copy of the case chronology from case 236961.

However, we agree with Figures that the...