Jones v. State

• Decision Date: 30 December 1997
• Docket Number: No. 48A02-9705-CR-264,48A02-9705-CR-264
• Parties: Nathan A. JONES, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 759

689 N.E.2d 759

Nathan A. JONES, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 48A02-9705-CR-264.

Court of Appeals of Indiana.

Dec. 30, 1997.

Douglas R. Long, Anderson, for Appellant-Defendant.

Jeffrey A. Modisett, Attorney General, Christopher L. Lafuse, Deputy Attorney General, Indianapolis, for Appellee-Plaintiff.

OPINION

FRIEDLANDER, Judge.

Nathan A. Jones was convicted of Battery by Means of a Deadly Weapon, ¹ a class C felony. The trial court imposed a sentence of eight years, with six years executed and two years suspended. The court also ordered that Jones be placed on probation for a period of two years upon his release from incarceration. One of the conditions of probation was that, within sixty days of his release, Jones must secure and maintain full-time employment for a minimum of thirty-five hours per week and provide the probation department with written verification of compliance with this condition. After finding that Jones had violated the terms of his probation by failing to maintain full-time employment, failing to notify the probation department of such employment, and committing battery on two separate occasions, the court ordered Jones to serve the remainder of his sentence. He now appeals, raising the following restated issues:

1. Was sufficient evidence presented to justify the revocation of Jones's probation?

2. Did the trial court err in denying Jones credit for time served on inhome detention as part of the Community Justice Center Day Reporting Program he was ordered to complete while on probation?

We affirm.

1.

Sufficient evidence was presented to justify the revocation of Jones's probation.

A probation hearing is civil in nature, and the State must therefore prove the alleged violation of probation by a preponderance of the evidence. Braxton v. State, 651 N.E.2d 268 (Ind.1995). When reviewing a claim of insufficient evidence to support a trial court's decision to revoke probation, we will not reweigh the evidence nor judge the credibility of witnesses. Id. Rather, we will consider all the evidence most favorable to the judgment of the trial court and will affirm the decision to revoke probation if there is substantial evidence of probative value to support the trial court's conclusion that a probationer has violated any condition of probation. Id. This court recently determined that hearsay evidence is admissible at probation revocation hearings. Sutton v. State, 689 N.E.2d 452 (Ind.Ct.App.1997).

Even where the State alleges the violation of more than one condition of probation, proof of only one probation violation is sufficient to revoke a defendant's probation. Menifee v. State, 600 N.E.2d 967 (Ind.Ct.App.1992). Where a person has violated a condition of probation at any time before the termination of the probationary period, the trial court may order execution of the sentence that was suspended at the time of the initial sentencing. Ind.Code Ann. § 35-38-2-3(g)(3) (West Supp.1997).

At the probation violation hearing on February 24, 1997, the State presented the testimony of Jones's probation officer that Jones had failed to notify the probation department of his employment status since May 16, 1996, at which time he was not employed. In addition, Jones admitted that he had been employed for a total of only four months since his release from prison in June 1995 and that he had not informed his probation officer of his employment status. The State also presented evidence, albeit most of it hearsay, that Jones had committed battery against his girlfriend, Fleuradecia Brooks, on two separate occasions.

Brooks testified that the police were contacted in June 1996 regarding a battery involving Jones. At trial, Brooks described the altercation between herself and Jones and admitted that Jones hit her in the eye. However, she characterized such contact as accidental. When the State asked Brooks about her statements to police on the date of the incident, Jones interposed a continuing hearsay objection. Brooks admitted that she "probably did", Record at 118, tell a police officer at the scene that, before she could say anything to Jones, Jones slapped her and knocked her off her moped. She denied having ever told the police that, after she fell to the ground, Jones struck her in the face several times with his fist.

Brooks admitted that the police had been called again as a result of an argument between herself and Jones on October 24, 1996. Brooks described the altercation as "rumbling around", Record at 120, and admitted that the two were pushing each other and that Jones tore her shirt when he grabbed her. She also testified that she fell and hit her head, but claimed that the injury was a result of tripping over a step and not from Jones pushing her. Brooks denied having told a police officer that Jones grabbed her by the neck, choked her, and then pulled her by her shirt onto the front porch, but she admitted that she may have told a police officer that Jones had pulled her hair. She also admitted that Jones "might have pushed [her] onto the ground," Record at 122.

Byron Trent Chamberlain, an Anderson police officer, testified that he was called to the scene on October 24, 1996 in response to a call about two people fighting. He testified that, when he arrived on the scene, Brooks had injuries on her neck, face, and head, and her arm was scraped, red, and swollen. Over a hearsay objection, Chamberlain testified that Brooks told him that Jones attacked her while the two were inside the house and that Jones grabbed her by the neck, choked her, threw her to the ground, and kicked her at least twice in the face.

At the conclusion of the hearing, the trial court determined that Jones had violated the terms of his probation by failing to maintain employment and by failing to notify the Probation Department of his employment status. The court also determined that Jones had violated the terms of his probation by committing battery upon Brooks. The court stated in pertinent part:

I think the final story has not been written as to whether or not the appellate courts of this state are going to permit hearsay in probation proceedings. We don't know exactly what to do about that, but as I think about this, clearly even apart from hearsay, there is evidence from the testimony of Ms. Brooks and Mr. Jones that makes it clear that these little conflicts that they both try to minimize, those little conflicts, escalated into some offensive touching. I think it very reasonable to conclude of a criminal nature, that there was some criminal intent. The Court is not obliged to accept the spin on the testimony that the parties give, but can use some common sense. We have two different dates here, and based upon the testimony of the witnesses, their demeanor, what was and what was not said, the Court concludes that there was at the very least simple batteries committed by Mr. Jones on June the 21st of 1996 and on October the 24th of 1996.

Record at 145.

A majority of this panel declines to follow Sutton, supra, which the author of this opinion believes states the law. Even so, Chamberlain's testimony may still have been admissible under the excited utterance exception to the hearsay rule.

Even apart from the hearsay testimony, Brooks admitted that Jones pushed her onto the ground. In addition, there was nonhearsay testimony that established, at a minimum, that there were two altercations between Jones and Brooks which involved pushing and hitting. It was up to the trial court to judge the demeanor and credibility of the witnesses, and the trial court was within its discretion to discount the "spin" put on the events by Jones and Brooks and to determine that some offensive touching had occurred.

The evidence presented at the hearing was sufficient to justify the revocation of Jones's probation. While proof of only one probation violation is necessary to revoke a defendant's probation, the State presented sufficient evidence that Jones had violated the terms of his probation with regard to all three bases alleged.

2.

The trial court did not err in denying Jones credit for time served on in-home detention as part of the Community Justice Center Day Reporting Program he was ordered to complete while on probation. A person does not earn credit time while on probation. Ind.Code Ann. § 35-50-6-6(a) (West 1986); Collins v. State, 639 N.E.2d 653 (Ind.Ct.App.1994), trans. denied.

Judgment affirmed.

KIRSCH, J., concurs in result with separate opinion.

SULLIVAN, J., concurs in part and dissents in part with separate opinion.

KIRSCH, Judge, concurring in result.

I agree with and join in that part of Judge Sullivan's separate opinion that the common law hearsay rule was not abrogated in probation proceedings by the adoption of the Indiana Rules of Evidence. I believe, however, that the nonhearsay evidence was sufficient to support the trial court's revocation of probation. Accordingly, I concur in the result set out in the opinion of Judge Friedlander.

SULLIVAN, Judge, concurring in part and dissenting in part.

The trial court revoked Jones' probation upon three discrete grounds: that he failed to maintain full time employment; that he failed to notify the Probation Department of employment; and that he committed batteries on two different occasions. In my view, only one of these bases is an arguably appropriate ground for revocation.

The evidence, without regard to the hearsay testified to by Officer Chamberlain, is minimally adequate to indicate that a simple battery took place on October 24, 1996. Brooks admitted that she and Jones "were rumbling around", that they were pushing each other and that her shirt was torn when Jones grabbed her. Record at 120. From such evidence the probation revocation court might have reasonably concluded that on that date Jones committed battery as a Class B misdemeanor. ² There is no substantive evidence however, that...