MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Feb 18 2020, 7:57 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.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Valerie K. Boots Curtis T. Hill, Jr.
Suzy St. John Attorney General of Indiana
Marion County Public Defender Agency
Megan M. Smith
Appellate Division Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Joshua Walker, February 18, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-1072
v. Appeal from the
Marion Superior Court
State of Indiana, The Honorable
Appellee-Plaintiff. Clark Rogers, Judge
Trial Court Cause No.
49G25-1803-F6-7796
Kirsch, Judge.
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[1] Joshua Walker (“Walker”) was convicted after a jury trial of possession of
cocaine1 as a Level 6 felony and was adjudicated as an habitual offender. 2 He
raises one issue on appeal, which we restate as whether the trial court abused its
discretion when it denied Walker’s request to elicit testimony regarding a
corrections officer who was accused of planting contraband on an inmate.
[2] We affirm.
Facts and Procedural History
[3] In March 2018, Walker was residing at Duvall Residential Center (“Duvall”)
through Marion County Community Corrections. Tr. Vol. 2 at 15. Duvall was
understaffed at the time, as it still was at the time of trial, employing twenty-
seven security officers instead a full staff of forty security officers. Id. at 23.
Shortly before midnight on March 2, 2018, correctional officers Michael Nesbitt
(“Nesbitt”) and Brian Ahmed (“Ahmed”) were conducting a security check in
one of the bathrooms. Id. at 33. Nesbitt and Ahmed observed Walker sitting in
one of the open toilet stalls. Id. at 34. Walker appeared to be concealing
something in his hand, so Nesbitt confronted Walker and noticed plastic
baggies in Walker’s hand. Id. Nesbitt asked Walker to step away from the
toilet and place his hands behind his back. Id. Walker began cursing at Nesbitt
1
See Ind. Code § 35-48-4-6(a).
2
See Ind. Code § 35-50-2-8.
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and Ahmed. Id. As Ahmed tried to handcuff Walker, Walker punched Ahmed
and then fled to a sleeping dorm. Id. at 18, 34-36.
[4] When Walker reached the dorm, Nesbitt observed Walker toss something, so
Nesbitt stopped and retrieved the items that Walker had discarded. Id at 36;
State’s Ex. 1. Nesbitt ordered Walker to get on the ground and put his hands
behind his back. Tr. Vol. 2 at 36. When Walker refused to comply, Nesbitt
warned that he would use his pepper spray. Id. Walker refused to comply and
continued cursing at Nesbitt. Id. Nesbitt then squirted pepper spray at Walker
several times, and Walker eventually surrendered. Id. at 36-37; State’s Ex. 1.
The substance that Nesbitt retrieved tested positive for cocaine. Tr. Vol. 2 at 49-
50; State’s Exs. 2-4.
[5] On March 6, 2018, the State charged Walker with possession of cocaine as a
Level 6 felony, battery against a public safety official as a Level 6 felony,
resisting law enforcement as a Class A misdemeanor, and possession of a
synthetic drug or synthetic drug lookalike as a Class A misdemeanor.
Appellant’s App. Vol. II at 20-21. On October 3, 2018, the State filed an
information alleging that Walker was an habitual offender. Id. at 66. The State
later filed a motion to dismiss the charges for resisting law enforcement and
possession of a synthetic drug; on February 21, 2019, the trial court granted the
request. Id. at 87-88.
[6] The jury trial commenced on February 26, 2019. During opening argument,
Walker’s counsel stated that “Duvall Residential Facility is a Mickey Mouse
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Operation.” Supp. Tr. Vol. 2 at 25. He also contended that the video of the
incident would contradict Nesbitt’s testimony: “Additionally, you’re not going
to see, I guess, what Officer Nesbitt is going to testify to reflected in the video.”
Id. at 26. During his cross-examination of Andrew Steagall (“Steagall”), Chief
of Security at Duvall, Walker attempted to elicit testimony from Steagall that
nearly a year after Walker’s incident, Elijah Taylor (“Taylor”), a former
correctional officer at Duvall, was accused of planting drugs on a resident; the
State objected. Tr. Vol. 2 at 13, 20-22. During testimony on Walker’s offer to
prove, Steagall testified that Taylor was not yet employed by Duvall when the
incident with Walker occurred, stating that Taylor began working at Duvall in
August or September of 2018, five or six months after the incident with Walker.
Id. at 22. Steagall also stated that he was aware that Taylor had been fired from
Duvall, but Steagall explained that he did not know if the allegations about
planting drugs was related to Taylor’s termination. Id. Steagall also testified
that Taylor had not been charged with a crime related to the allegation. Id. at
21-22. The trial court sustained the State’s objection. Id. at 22. During closing
argument, Walker’s counsel reiterated his argument that Nesbitt lied on the
stand: “Nesbitt’s statement of what happened is just complete and total
fabrication.” Tr. Vol. 2 at 57. He also accused Nesbitt on planting cocaine on
Walker: “I don’t know why Mr. Nesbitt did decide who, this guy Walker, I’m
going to drop some cocaine on him.” Id. at 58.
[7] The jury found Walker guilty of possession of cocaine but not guilty of battery
against a public safety official. Id. at 62. Walker waived his right to a jury trial
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1072 | February 18, 2020 Page 4 of 9
on the habitual-offender enhancement and admitted to being an habitual
offender. Id. at 64-67. On April 11, 2019, the trial court sentenced Walker to
365 days in the Indiana Department of Correction for possession of cocaine,
enhanced by two years for being an habitual offender. Id. at 77-78. Walker
now appeals. Additional facts will be presented as necessary.
Discussion and Decision
[8] Walker argues that the trial court abused its discretion when it ruled that
Walker could not elicit Steagall’s testimony that Taylor had been accused of
planting drugs on an inmate. Even though Taylor did not work at Duvall at the
time of Walker’s incident, Walker argues this evidence was probative and vital
to his defense, which was that Nesbitt planted the cocaine on Walker. Walker
claims the exclusion of this evidence violated his constitutional right to present
a defense.
[9] We review evidentiary rulings for an abuse of discretion. Guilmette v. State, 14
N.E.3d 38, 40 (Ind. 2014). An abuse of discretion occurs when the trial court’s
judgment “is clearly against the logic and effect of the facts and circumstances
and the error affects a party’s substantial rights.” Id. In determining whether
an evidentiary ruling affected a party’s substantial rights, we assess the probable
impact of the evidence on the trier of fact. Hyser v. State, 996 N.E.2d 443, 448
(Ind. Ct. App. 2013), trans. denied.
[10] Defendants are guaranteed a meaningful opportunity to present a complete
defense. Crane v. Kentucky, 476 U.S. 683, 690 (1986). The right to present a
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defense is a fundamental element of due process. Kubsch v. State, 784 N.E.2d
905, 924 (Ind. 2003). However, this right is not absolute. Marley v. State, 747
N.E.2d 1123, 1132 (Ind. 2001). The defendant must also “comply with
established rules of procedure and evidence designed to assure both fairness and
reliability in the ascertainment of guilt and innocence.” Id. (emphasis added).
“Evidence is relevant if: (a) it has any tendency to make a fact more or less
probable than it would be without the evidence; and (b) the fact is of
consequence in determining the action.” Ind. Evidence Rule 401. The two
components of relevant evidence are materiality and probative value. Kubsch,
784 N.E.2d at 924.
[11] In greater detail, Walker contends that the evidence about Taylor was relevant
because Duvall’s chronic understaffing suggested that Duvall was not hiring
suitable employees. Walker contends this alleged inability to hire qualified
employees made Duvall employees more susceptible to corruption.
Had the jury been made aware of the corruption involving
Taylor, it could have assessed that there are no mechanisms in
place to prevent a dishonest person, who would go as far as
framing a resident by planting drugs, from being hired into a
position with daily contact with residents. The jury was entitled
to determine whether a culture of corruption existed among
Duvall correctional officers and whether Walker was a victim of
that.
Appellant’s Br. at 13.
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[12] Here, the testimony Walker sought to elicit regarding Taylor was not relevant.
Taylor did not work at Duvall at the time of Walker’s incident. Tr. Vol. 2 at 21-
22. The accusation that Taylor planted contraband on an inmate several
months after Walker’s incident does not make it more or less probable that
Nesbitt planted drugs on Walker. Thus, testimony about Taylor was neither
material nor probative, and the probable impact on the jury would have been
low. See Evid. R. 401; Hyser, 996 N.E.2d at 448. Thus, the proffered evidence
was irrelevant, and the trial court did not abuse its discretion in sustaining the
State’s objection and excluding the evidence. See Guilmette, 14 N.E.3d at 40.
This also disposes of Walker’s claim that the trial court’s ruling violated his
right to present a defense because by proffering irrelevant evidence, Walker
failed to “comply with established rules of procedure and evidence designed to assure
both fairness and reliability in the ascertainment of guilt and innocence.” See
Marley, 747 N.E.2d at 1132. Thus, by sustaining the State’s objection, the trial
court did not violate Walker’s right to present a defense. See id.
[13] Nonetheless, Walker likens the impact on his defense by the exclusion of
testimony about Taylor to the situation in Hyser, 996 N.E.2d at 443. In Hyser,
the defendant was deprived of a meaningful opportunity to present a complete
defense when the trial court excluded his proffered testimony that a third person
fabricated a child’s accusation that the defendant molested the child in
retaliation against the defendant for reporting the third person’s physical abuse
of the child. We determined that the evidence of alleged fabrication was
relevant, exculpatory, unique, and critical to Hyser’s defense. Id. at 449-50.
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We also observed that the defense Hyser wished to present “was not
implausible and that the jury may have believed that his version of the facts was
true.” Id. at 449.
[14] Walker’s reliance on Hyser is misplaced. In Hyser, the defendant claimed the
victim’s stepfather coached him into fabricating the allegations of child
molesting in retaliation for the defendant reporting the stepfather to DCS for
physical abuse. Hyser, 996 N.E.2d at 445-47. The defendant in Hyser provided
a foundation for his theory, included evidence that other people had seen the
stepfather physically abuse the child. Id. Here, Walker presented no evidence
to support his theory that Nesbitt planted the cocaine or any evidence that
connected Nesbitt to Taylor. Rather, Walker’s theory relies on speculation,
which standing alone, does not make Walker’s theory relevant. See Hinkle v.
State, 97 N.E.3d 654, 663-64 (Ind. Ct. App. 2018) (trial court did not abuse its
discretion in refusing to allow defendant to present evidence of retaliation when
there had been no question of retaliation and defendant relied solely on
speculation to support claim that victim had invented the allegations), trans.
denied.
[15] We also reject Walker’s argument that Duvall’s staffing shortages were relevant
to his claim that Nesbitt planted the cocaine. Without evidentiary foundation,
Walker contends these staffing shortages helped create a culture of corruption at
Duvall. This claim is groundless and wildly speculative. We concur with the
State’s assessment: “one correctional officer being accused of planting drugs on
a resident on one occasion does not establish a culture of corruption, impugn
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the hiring practices of Duvall, or determine the propensity of other officers to
plant drugs; therefore, the accusations against Taylor were not relevant.”
Appellee’s Br. at 11. The trial court did not abuse its discretion in ruling that
Walker’s proffered evidence about Taylor planting evidence on an inmate was
inadmissible.
[16] Affirmed.
Bailey, J., and Mathias, J., concur.
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