Edgar Cardenas v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Dec 04 2020, 8:28 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Mark K. Leeman Curtis T. Hill, Jr.
Leeman Law Office Attorney General of Indiana
Logansport, Indiana
Sierra A. Murray
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Edgar Cardenas, December 4, 2020
Appellant-Defendant, Court of Appeals Case No.
20A-CR-1411
v. Appeal from the Cass Superior
Court
State of Indiana, The Honorable James K.
Appellee-Plaintiff. Muehlhausen, Judge
Trial Court Cause No.
09D01-1710-F6-404
Najam, Judge.
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Statement of the Case
[1] Edgar Cardenas appeals the trial court’s revocation of his probation. Cardenas
raises a single issue for our review, namely, whether the trial court abused its
discretion when it relied on an affidavit that was based on hearsay in revoking
his probation. We affirm.
Facts and Procedural History
[2] In September of 2018, Cardenas pleaded guilty to battery, as a Level 6 felony.
The trial court accepted Cardenas’s plea agreement and sentenced him to time
already served along with a probationary term of 852 days.
[3] In February of 2020, the State filed a notice of probation violation and alleged
that Cardenas had committed six new criminal offenses, including additional
counts of battery. The State attached to its notice the affidavit of Glenn L.
Wilson, an investigator for the Clinton County Prosecutor’s Office. According
to Wilson’s affidavit, Carter Albertson had reported to Frankfort Police
Department Officer Evan Hall that Cardenas had hit Carter with a wooden
baseball bat. Wilson’s affidavit also reported that Calee Albertson had reported
to Officer Hall that Cardenas had struck her across the face.
[4] At the ensuing fact-finding hearing on the State’s notice of probation violation,
the State called Officer Hall. Officer Hall testified as follows without objection:
Q . . . When you arrived who was the first witness that you
spoke with?
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***
A It would be Daniel and Heather Wynne.
Q And what did the Wynnes report to you when you
arrived?
A . . . Daniel stated that he heard a female . . . yelling bloody
murder [and] went down [the street a few houses] to check it out
and saw a male get hit over the head by another male with a
baseball bat.
***
Q Okay, thank you. And you just referenced a Mr.
Albertson in this situation?
***
A Yes.
Q Okay when you first made contact what did you observe
about him?
A . . . [H]e was holding his . . . I can’t remember what side of
his head, but . . . said he had been struck by an object.
***
Q Okay, what did Mr. Albertson say happened . . . ?
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A He stated that Mr. Cardenas came upstairs where he was
asleep and told him he needed to go downstairs with his sister.
He stated that as soon as he got to the back porch he was hit in
the back of the head or in the side of the head with an object. . . .
***
Q Okay, and did you also have a chance to speak to a Ms.
Albertson?
A I did.
Q What is her first name?
A Calee.
Q And what is Calee’s relationship to . . . Carter Albertson?
A That would be his older sister.
Q Okay, and what if anything did Ms. Albertson indicate to
you?
A . . . [S]he stated that . . . her and Mr. Cardenas . . . went to
a gas station [and] on the way back he told . . . her that he was
going to cause harm to her brother . . . . And she said you aren’t
going to lay hands on my brother.
***
Q Okay, thank you. What physical observations did you
make about Ms. Albertson?
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A . . . [T]here was redness to the side of her face.
***
A She stated . . . that [Cardenas] struck her [o]n the side of
the face . . . .
Tr. at 18-21.
[5] Following Officer Hall’s testimony, the trial court found that Cardenas had
violated the terms of his probation by committing two acts of battery. In
reaching that conclusion, the court stated that it had taken judicial notice of
Wilson’s affidavit and that its conclusion that Cardenas had committed the two
acts of battery was based “on the testimony heard today and the Verified
Affidavit of Prosecutor Investigator Glenn L. Wilson.” Id. at 30. The court
then ordered Cardenas to serve the suspended portion of his original sentence.
This appeal ensued.
Discussion and Decision
[6] Cardenas appeals the trial court’s revocation of his probation. As our Supreme
Court has stated:
“Probation is a matter of grace left to trial court discretion, not a
right to which a criminal defendant is entitled.” Prewitt v. State,
878 N.E.2d 184, 188 (Ind. 2007) (explaining that: “Once a trial
court has exercised its grace by ordering probation rather than
incarceration, the judge should have considerable leeway in
deciding how to proceed. If this discretion were not afforded to
trial courts and sentences were scrutinized too severely on
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appeal, trial judges might be less inclined to order probation to
future defendants.”). A probation hearing is civil in nature, and
the State must prove an alleged probation violation by a
preponderance of the evidence.
Murdock v. State, 10 N.E.3d 1265, 1267 (Ind. 2014).
[7] Cardenas asserts that the trial court abused its discretion when it admitted
Wilson’s affidavit into evidence and relied on it in its judgment. Trial courts
have broad discretion whether to admit or exclude evidence. Marshall v. State,
117 N.E.3d 1254, 1258 (Ind. 2019). Appellate courts generally review decisions
to admit evidence for abuse of discretion. Zanders v. State, 118 N.E.3d 736, 741
(Ind. 2019). “An abuse of discretion occurs when the decision is clearly against
the logic and effect of the facts and circumstances and the error affects a party’s
substantial rights.” Beasley v. State, 46 N.E.3d 1232, 1235 (Ind. 2016) (quotation
omitted).
[8] Cardenas has not met his burden to show reversible error. Wilson’s affidavit
identified what Officer Hall’s testimony on the notice of probation violation
would be. In particular, Officer Hall testified that Calee had said that Cardenas
intended to attack Carter that evening. Officer Hall further testified that Carter
had said that he was hit over the head with a bat shortly after following
Cardenas’s instructions to go downstairs. That evidence was sufficient to
support at least the State’s allegation that Cardenas had attacked Carter. And
Cardenas did not object to Officer Hall’s testimony.
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[9] In other words, Wilson’s affidavit was merely cumulative to Officer Hall’s
testimony to the court at the fact-finding hearing. Reversible error cannot be
predicated upon the erroneous admission of evidence that is merely cumulative
of other evidence that had already been admitted without objection. Sibbing v.
Cave, 922 N.E.2d 594, 598 (Ind. 2010). We therefore cannot say that the trial
court abused its discretion in its admission of Wilson’s affidavit, and we affirm
the revocation of Cardenas’s probation.
[10] Affirmed.
Riley, J., and Crone, J., concur.
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