MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jan 24 2020, 9:15 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
David W. Stone, IV Curtis T. Hill, Jr.
Anderson, Indiana Attorney General of Indiana
Courtney Staton
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Robert A. Wilson, Jr., January 24, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-1819
v. Appeal from the Madison Circuit
Court
State of Indiana, The Honorable Mark Dudley,
Appellee-Plaintiff. Judge
Trial Court Cause No.
48C06-1504-F3-524
Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1819 | January 24, 2020 Page 1 of 14
STATEMENT OF THE CASE
[1] Appellant-Defendant, Robert Wilson (Wilson), appeals the trial court’s
revocation of his probation and the sanction it imposed following that
revocation.
[2] We affirm.
ISSUES
[3] Wilson presents two issues on appeal, which we restate as the following three:
(1) Whether the trial court abused its discretion when it admitted
certain hearsay evidence;
(2) Whether the State proved by a preponderance of the evidence
that Wilson violated his probation; and
(3) Whether the trial court abused its discretion when it ordered
Wilson to execute six years of his previously-suspended
sentence.
FACTS AND PROCEDURAL HISTORY
[4] On April 8, 2015, the State filed an Information, charging Wilson with Level 3
felony armed robbery, Level 6 felony possession of cocaine, and Class A
misdemeanor false informing. On October 13, 2015, Wilson pleaded guilty as
charged, and on November 23, 2015, the trial court imposed an aggregate
sentence of twelve years, with seven years suspended to probation. As part of
the conditions of his probation, Wilson was required to refrain from committing
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1819 | January 24, 2020 Page 2 of 14
new offenses and possessing illegal substances. While incarcerated, Wilson was
admitted to a purposeful incarceration program to address his substance abuse.
Wilson was terminated from the program for uncompleted treatment.
[5] Wilson was released from incarceration on September 27, 2018, and began his
probation. On October 26, 2018, Officer Matthew Kopp (Officer Kopp) of the
Anderson Police Department (APD) responded to a call of a domestic battery
at a home in the 1500 block of Arrow Avenue in Anderson, Indiana. Officer
Kopp encountered Wilson and the mother of Wilson’s child, Sadie Cosby
(Cosby), at the residence. Officer Kopp arrested Wilson, who was charged
subsequently with domestic battery. As part of that criminal case, a no-contact
order was entered against Wilson in favor of Cosby. On November 8, 2018, the
State filed a Notice of Probation Violation, alleging that Wilson had committed
the new offense of domestic battery on Cosby on October 26, 2018. Wilson
failed to appear for his initial hearing on the State’s first Notice, and a warrant
was issued for his arrest.
[6] On December 19, 2018, Cosby called 9-1-1 and reported that Wilson was in
violation of the no-contact order and that he had choked her. A few minutes
after receiving the dispatch, Officer Mark Dawson (Officer Dawson) of the
APD responded to the call at the same home in the 1500 block of Arrow
Avenue in Anderson. Wilson, who had been seen by Cosby’s Mother in the
back yard of the home, departed before Officer Dawson arrived. When Officer
Dawson encountered Cosby, she was visibly upset, breathing heavily, and
appeared to have been crying. Cosby reported to Officer Dawson that Wilson
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1819 | January 24, 2020 Page 3 of 14
had battered and choked her. Cosby had visible redness around her neck.
Officer Dawson observed that Cosby had difficulty speaking, breathing, and
swallowing, which Officer Dawson had been trained to recognize as indicia of
strangulation. On December 28, 2018, the State filed its Amended Notice of
Violation of Probation, alleging that on December 19, 2018, Wilson had taken
substantial steps toward the commission of the new offenses of domestic
battery, strangulation, criminal confinement, and invasion of privacy. On
January 18, 2019, the State filed an Information, charging Wilson with those
offenses. 1 On April 17, 2019, Wilson was taken into custody, and he was
released from custody on June 3, 2019.
[7] On June 14, 2019, Wilson reported to his probation officer. Wilson took a drug
screen which was positive for illegal substances. On June 26, 2019, the State
filed its Second Amended Notice of Violation of Probation, alleging that on
June 14, 2019, Wilson had committed the new offenses of possession of
methamphetamine/amphetamine, cocaine, and cannabinoids by providing a
positive drug screen.
[8] The hearing on the State’s Second Amended Notice of Violation of Probation
was scheduled for July 12, 2019. Cosby was subpoenaed as a witness for the
hearing and met with the State’s investigator, Randy Tracy, prior to the
hearing. As the two met, Wilson contacted Cosby, who was pregnant with
1
The domestic battery was charged as domestic battery resulting in moderate bodily injury, a Level 6 felony,
Ind. Code §§ 35-42-2-1.3 (a)(1), -(b)(3).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1819 | January 24, 2020 Page 4 of 14
Wilson’s child at the time, on her cell phone and directed her to inform the
State that she and her mother would not testify against Wilson.
[9] At the probation violation hearing, Wilson admitted that he had committed the
June 14, 2019, offenses by providing a positive drug screen as alleged by the
State. Because Wilson denied the other allegations against him, the trial court
conducted an evidentiary hearing. The trial court initially allowed Officer
Kopp to testify over Wilson’s hearsay objection that Cosby had reported on
October 26, 2018, that Wilson had battered her, finding that her report to law
enforcement was substantially trustworthy hearsay admissible in the revocation
proceeding. Officer Kopp then testified that, as he attempted to place Wilson
under arrest, Cosby had recanted her report. The trial court sustained Wilson’s
objection to this hearsay testimony, finding that Cosby’s recantation rendered
all hearsay testimony regarding her statements on October 26, 2018,
untrustworthy. The trial court struck the previously-admitted hearsay
statements from the record.
[10] Officer Dawson testified regarding Cosby’s statements to him on December 19,
2018. The trial court admitted those statements over Wilson’s hearsay
objection, finding that they were excited utterances excepted from the hearsay
rule. Photographs depicting injuries to Cosby’s neck were also admitted as
Exhibits 3 through 5. At the close of the evidence, the trial court found that the
State had failed to prove that Wilson committed the October 26, 2018, domestic
battery because there was no evidence in the record as to who had battered
Cosby on that day. The trial court also found that the State had failed to prove
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1819 | January 24, 2020 Page 5 of 14
that Wilson had committed criminal confinement on December 19, 2018, but
that the State had shown by a preponderance of the evidence that Wilson had
violated the terms of his probation by committing the other December 19, 2018,
offenses and, by his own admission, by committing the June 14, 2019, drug
possession offenses. The trial court revoked Wilson’s probation.
[11] The trial court then proceeded to a hearing on what sanction to impose as a
result of the violations. Wilson was sworn in and testified that the reason that
he tested positive for illegal substances on June 14, 2019, was that he was using
drugs in jail after he was taken into custody for the December 19, 2018,
offenses. Wilson maintained that he had just procured employment and was to
start substance abuse treatment that day. As to his relationship with Cosby,
Wilson testified that they were attempting to work out their difficulties.
Wilson’s counsel requested that the trial court sanction Wilson with a
community corrections, Continuum of Sanctions (COS), or some other form of
probation as an alternative to the Department of Correction.
[12] The trial court noted the short period of time between Wilson’s release from
incarceration for the underlying offenses and his commission of the December
19, 2018, new offenses. The trial court also observed that, after being released
from custody on June 3, 2019, Wilson was abusing illegal substances eleven
days later, Wilson had not sought substance abuse treatment until just before
the hearing, and that Wilson had pressured Cosby not to testify at the probation
revocation hearing. The trial court concluded that these circumstances did not
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1819 | January 24, 2020 Page 6 of 14
reflect well on Wilson’s character and ordered him to serve six years of his
previously-suspended sentence.
[13] Wilson now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Admission of Evidence
[14] Although Wilson styles his first argument as a challenge to the sufficiency of
the evidence supporting the revocation of his probation, his argument also
contains a contention that the trial court abused its discretion when it admitted
Cosby’s December 19, 2018, hearsay statements to Officer Dawson. We begin
by observing that it is well-established that “probation may be revoked on
evidence of violation of a single condition.” Heaton v. State, 984 N.E.2d 614,
618 (Ind. 2013). Wilson does not appeal the trial court’s determination that he
violated his probation by committing the new drug possession offenses on June
14, 2019. Therefore, we would affirm the trial court’s revocation of Wilson’s
probation even if the challenged evidence was improperly admitted. See Menifee
v. State, 600 N.E.2d 967, 970 (Ind. Ct. App. 1992) (upholding trial court’s
revocation decision even where the State conceded that insufficient evidence
was presented on some violations because other violations were adequately
supported by the evidence).
[15] Regarding the merits of Wilson’s argument, we conclude that the trial court did
not abuse its discretion in admitting Cosby’s statements to Officer Dawson.
There is no right to probation, the trial court having discretion to grant it and to
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1819 | January 24, 2020 Page 7 of 14
revoke it if the conditions it placed on probation are violated. Reyes v. State, 868
N.E.2d 438, 440 (Ind. 2007). Because of this discretion, although the Due
Process Clause applies to probation revocation proceedings, probationers do
not receive the full panoply of protections that defendants receive at trial. Id.
Indeed, the Indiana Rules of Evidence do not strictly apply to probation
revocation hearings. Cox v. State, 706 N.E.2d 547, 550-51 (Ind. 1999). Courts
may admit evidence during a probation revocation that would be inadmissible
in a criminal trial, including hearsay, if the trial court determines that the
hearsay is substantially trustworthy. Reyes, 868 N.E.2d at 440-41. We review a
trial court’s admission of evidence at a probation revocation hearing for an
abuse of its discretion, which only occurs if the trial court’s decision is clearly
against the logic and effect of the facts and circumstances before it. Robinson v.
State, 955 N.E.2d 228, 231 (Ind. Ct. App. 2011).
[16] The trial court found the challenged hearsay to be admissible pursuant to the
excited utterance exception to the hearsay rule which provides for the
admission of “[a] statement relating to a startling event or condition, made
while the declarant was under the stress of excitement that it caused.” See Ind.
Evidence Rule 803(2). In order to meet the exception, three circumstances
must be present: (1) a “startling event or condition” must have occurred; (2) the
declarant must have made the statement “while under the stress of excitement
caused by the event or condition,” and (3) the statement must be related to the
event or condition.” Ramsey v. State, 122 N.E.3d 1023, 1032 (Ind. Ct. App.
2019), trans. denied. The test is not mechanical, and admissibility turns “on
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1819 | January 24, 2020 Page 8 of 14
whether the statement was inherently reliable because the witness was under
the stress of the event and unlikely to make deliberate falsifications.” Id.
[17] Here, Officer Kopp encountered Cosby minutes after receiving the 9-1-1
dispatch. While Cosby reported that Wilson had battered and strangled her,
she was visibly upset, breathing heavily, and appeared to have been crying.
Cosby had visible wounds around her neck and exhibited the indicia of having
been strangled. This was sufficient evidence to show that (1) Cosby had been
battered and strangled, a startling event; (2) Cosby was still under the stress of
that startling event when she made her report to Officer Kopp; and (3) that her
report related to being battered and strangled. See id. (holding that victim’s
report to officer was admissible as an excited utterance where victim appeared
to have been through a traumatic ordeal, was upset and “visibly shaken,” and
had severe injuries). As such, the challenged hearsay testimony was
substantially trustworthy and admissible at Wilson’s probation revocation
hearing.
[18] Nevertheless, Wilson argues that Cosby’s hearsay statements were not
substantially trustworthy because, during the previous domestic battery incident
on October 26, 2018, Cosby recanted her report that Wilson had battered her.
However, the challenged evidence pertained to an entirely different incident on
a different date, and Cosby never retracted her report that Wilson had battered
and strangled her on December 19, 2018. It was within the discretion of the
trial court to find Cosby to be incredible on October 26, 2018, but credible as to
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1819 | January 24, 2020 Page 9 of 14
an entirely separate incident on December 19, 2018. Accordingly, we find no
error in the trial court’s admission of Cosby’s hearsay statements.
II. Sufficiency of the Evidence
[19] Wilson challenges the sufficiency of the evidence supporting the trial court’s
determination that he committed the new offense of domestic battery on
December 19, 2018. A probation violation hearing is a civil proceeding, and
the State must prove the alleged probation violation by a preponderance of the
evidence. Murdock v. State, 10 N.E.3d 1265, 1267 (Ind. 2014). Our standard of
review of the sufficiency of the evidence supporting the revocation of probation
is similar to our standard of review for other matters: “[W]e consider only the
evidence most favorable to the judgment—without regard to weight or
credibility—and will affirm 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. (quoting Braxton v. State, 651 N.E.2d 268, 270
(Ind. 1995)).
[20] The State alleged that Wilson violated his probation by committing domestic
battery on December 19, 2018. The offense of domestic battery occurs when a
person knowingly or intentionally touches a family or household member in a
rude, insolent, or angry manner. I.C. § 35-42-2-1.3(a)(1). The evidence showed
that Cosby, with whom Wilson had a child, reported on December 19, 2018,
that Wilson had battered her, and she had visible injuries on her face. This
evidence proved by a preponderance of the evidence that Wilson had battered
Cosby. See Steele v. State, 42 N.E.3d 138, 144 (Ind. Ct. App. 2015) (upholding
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1819 | January 24, 2020 Page 10 of 14
Steele’s conviction for Class D felony domestic battery where victim suffered an
injury to her eye and had reported during treatment that Steele caused the
injury).
[21] Wilson argues that the evidence was insufficient because Cosby was not a
credible witness. Relying on the fact that Cosby had recanted her report of the
October 26, 2018, domestic battery, Wilson contends that the evidence is
insufficient because the trial court did not explain “how a person who admitted
fabricating her earlier allegation to the officer who responded to the first claim
of domestic battery was found credible with respect to the second claim.”
(Appellant’s Br. p. 9). However, the trial court specifically noted when it struck
Cosby’s October 26, 2018, statements that it was doing so because she recanted
them. Cosby never recanted her December 19, 2018, statements to Officer
Dawson, and it was within the discretion of the trial court to believe that
testimony. Wilson essentially requests that we reassess Cosby’s credibility on
appeal, which is contrary to our standard of review. See Murdock, 10 N.E.3d at
1267. In addition, Wilson does not contest that he committed the June 13,
2019, drug offenses, so we would affirm the trial court’s revocation
determination even if we found the evidence of the December 19, 2018,
domestic battery to be lacking. See Menifee, 600 N.E.2d at 970.
III. Sanction
[22] Wilson argues that the trial court abused its discretion when it ordered him to
execute six years of his previously-suspended sentence. It is well-settled that
probation is a matter of grace which is left to the trial court’s discretion. Heaton,
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1819 | January 24, 2020 Page 11 of 14
984 N.E.2d at 616. If a trial court revokes probation, it may continue the
person on probation, extend the probationary period for not more than one
year, or order the execution of all or part of the previously-suspended sentence.
I.C. § 35-38-2-3(h). The trial court has considerable leeway in deciding how to
proceed in probation matters. Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007).
If this were not so, trial court judges would be less inclined to order probation
for defendants. Id. In light of this considerable leeway, “a trial court’s
sentencing decisions for probation violations are reviewable using the abuse of
discretion standard.” Id. An abuse of discretion occurs where the trial court’s
decision is clearly against the logic and effect of the facts and circumstances
before it. Id.
[23] Here, the trial court found that imposition of six years of Wilson’s previously-
suspended sentence was merited because Wilson began committing new crimes
less than three months after beginning his probation, he continued to abuse
drugs and tested positive for illegal substances eleven days after being on
conditional release, and he attempted to subvert justice by pressuring Cosby not
to testify at his revocation hearing. In addition, as he acknowledges on appeal,
Wilson has a poor history of probation compliance. The pre-sentence
investigation report filed in the underlying armed robbery case revealed that, as
a juvenile, Wilson was found to have violated his probation on nine occasions.
As an adult, Wilson had his probation, work release, and other community
corrections placements revoked on six occasions. Wilson was also plainly and
repeatedly violating the no-contact order in place for Cosby, who was pregnant
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1819 | January 24, 2020 Page 12 of 14
with his child by the time of the revocation hearing. None of these
circumstances reflect well on Wilson’s character. It was within the trial court’s
considerable discretion to conclude that Wilson did not merit any additional
conditional freedom and that he should execute most his previously-suspended
sentence.
[24] Wilson contends that “[d]rug court would give the defendant a final
opportunity to reform and spare the public the cost of incarceration.”
(Appellant’s Br. p. 13). We observe that Wilson did not specifically request this
sanction at his revocation hearing. Rather, Wilson argued that he should be
placed in “community corrections, could be in COS, um [sic] some form of
probation.” (Tr. Vol. II, p. 75). A trial court cannot be said to have abused its
discretion in declining to impose a sanction that was not requested. In
addition, there is no evidence in the record that Wilson qualified for the
sanction he now seeks. Be that as it may, Wilson had been terminated from
substance abuse treatment when he was incarcerated for the underlying offense,
and the trial court was under no obligation to credit his late-breaking
enrollment in treatment prior to the revocation hearing. Finding no abuse of
discretion, we affirm the trial court’s sanction.
CONCLUSION
[25] Based on the foregoing, we conclude that the trial court did not abuse its
discretion when it admitted Cosby’s hearsay statements, sufficient evidence
supported its revocation determination, and that its imposition of six years of
Wilson’s previously-suspended sentence was within its discretion.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1819 | January 24, 2020 Page 13 of 14
[26] Affirmed.
[27] Baker, J. and Brown, J. concur
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1819 | January 24, 2020 Page 14 of 14
Robert A. Wilson, Jr. v. State of Indiana (mem. dec.)
Combined Opinion