Mark A. Drescher v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Dec 23 2015, 8:27 am
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Jacob P. Wahl Gregory F. Zoeller
Steven E. Ripstra Attorney General of Indiana
Ripstra Law Office
Jasper, Indiana Ian McLean
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Mark A. Drescher, December 23, 2015
Appellant-Defendant, Court of Appeals Case No.
19A01-1507-CR-828
v. Appeal from the Dubois Circuit
Court
State of Indiana, The Honorable Mark R.
Appellee-Plaintiff McConnell, Special Judge
Trial Court Cause Nos.
19C01-1307-CM-656 and
19C01-1312-CM-966
Crone, Judge.
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Case Summary
[1] Mark A. Drescher appeals the trial court’s revocation of his probation.
Drescher pled guilty to two class A misdemeanors and received consecutive
one-year sentences with all but 275 days suspended to probation. After his
arrest on additional charges, the State filed a petition to revoke probation. The
trial court held a revocation hearing, found a violation of probation by a
preponderance of the evidence, and ordered that Drescher serve the balance of
his previously suspended sentences. On appeal, Drescher contends that there
was insufficient evidence to support the trial court’s finding that he violated his
probation and that the trial court abused its discretion in revoking his probation
and imposing his previously suspended sentences. Finding the evidence
sufficient and no abuse of discretion, we affirm.
Facts and Procedural History
[2] In January 2014, Drescher pled guilty to class A misdemeanor battery resulting
in bodily injury in cause number 19C01-1307-CM-656 and class A
misdemeanor domestic battery in cause number 19C01-1312-CM-966. The
victim in the domestic battery was E.N. The trial court sentenced Drescher to
consecutive sentences of one year suspended for the battery resulting in bodily
injury and one year, with ninety-days suspended, for the domestic battery. The
court permitted Drescher to serve the executed portion of his domestic battery
sentence on work release. One condition of his probation was to “[n]ot be
arrested for any criminal offense where there is probable cause.” Appellant’s
App. at 74.
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[3] On December 27, 2014, Drescher was arrested and charged with two level 5
felonies: battery by means of a deadly weapon and intimidation. The alleged
victim in both crimes was again E.N. The State filed a petition to revoke
Drescher’s probation. A revocation evidentiary hearing was held on June 10,
2015.
[4] During the revocation hearing, Dubois County Sheriff’s Deputy Donna Hurt
testified that she was working the overnight shift on December 27, 2014, when
E.N. came into the station looking distraught and requesting assistance.
Deputy Hurt observed red marks on E.N.’s face and neck, as well as mud on
her clothes. Deputy Hurt interviewed E.N. 1 E.N. told Deputy Hurt that she
“had been battered” by Drescher. Tr. at 34. She stated that she and Drescher
had been drinking alcohol together and driving around in his truck. E.N.
reported that Drescher started “acting a little weird” and then suddenly
“[f]lipped out and grabbed her pony tail and started banging her head against
the glass window on the passenger side of the truck.” Id. at 54. Deputy Hurt
testified that E.N. stated that Drescher then held a long butcher knife to her
throat before throwing her to the ground and repeatedly poking her in the chest
with the knife. E.N. further informed Deputy Hurt that Drescher asked her if
“she was ready to die.” Id. E.N. stated that, after the ordeal, Drescher drove
her to the motel parking lot across from the sheriff’s station, told her to “go tell
1
We note that Drescher objected to Deputy Hurt’s testimony regarding what E.N. told her during the
interview on the basis of hearsay. The trial court overruled the objection. Tr. at 33.
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the sheriff what happened,” and indicated that he planned to go kill himself. Id.
at 55. Deputy Hurt photographed the marks on E.N.’s chest, neck, and face.
Deputy Hurt testified that E.N. appeared “very fearful” and “afraid for her life”
at the time of the interview. Id. at 42.
[5] Deputy Josh Smith also testified at the revocation hearing. He stated that
Deputy Hurt called him while he was on patrol on the night in question and
relayed E.N.’s story along with a description of Drescher and the truck he was
driving. Deputy Smith was able to locate Drescher driving a truck matching the
description, and brought him to the station. Both Deputy Smith and Deputy
Hurt testified that Drescher, who smelled of alcohol and had obviously been
drinking, confirmed E.N.’s story regarding the events of the evening but
claimed that he, rather than E.N., was the victim. The deputies found no
injuries on Drescher but discovered three knives in his truck.
[6] Deputy Smith stated that he attempted to serve a subpoena on E.N. compelling
her to attend the revocation hearing but was unable to locate her. Deputy
Smith testified that he was able to reach her on the phone and that she stated
that she wanted nothing to do with Drescher or any subpoena, and then ended
the call.
[7] At the conclusion of the hearing, the trial court found that the State had proved
by a preponderance of the evidence that probable cause existed for Drescher’s
arrest on the new charges, and therefore that Drescher had violated a condition
of his probation. The trial court revoked Drescher’s probation and imposed the
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balance of his previously suspended sentence minus credit for time served on
the new charges, which resulted in a total executed sentence of 295 days. This
appeal ensued.
Discussion and Decision
[8] “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). It is within the trial court’s discretion to determine the conditions of
probation and to revoke probation if those conditions are violated. Heaton v.
State, 984 N.E.2d 614, 616 (Ind. 2013). We review a trial court’s decision to
revoke probation for an abuse of discretion. Ripps v. State, 968 N.E.2d 323, 326
(Ind. Ct. App. 2012). An abuse of discretion occurs when the court’s decision is
clearly against the logic and effect of the facts and circumstances before the
court. Id.Section 1 – Sufficient evidence supports the trial court’s
finding that Drescher violated his probation.
[9] A probation revocation proceeding is in the nature of a civil proceeding, and
therefore the alleged violation need be established only by a preponderance of
the evidence. Jenkins v. State, 956 N.E.2d 146, 148 (Ind. Ct. App. 2011), trans.
denied (2012). Violation of a single condition is sufficient to revoke probation.
Id. As with other sufficiency issues, we do not reweigh the evidence or judge
the credibility of witnesses. Id. We look only to the evidence which supports
the judgment and any reasonable inferences flowing therefrom. Id. If there is
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substantial evidence of probative value to support the trial court's decision that
the probationer committed a violation, revocation of probation is appropriate.
Id.[10] Drescher contends that the evidence is insufficient because the trial court relied
solely upon inadmissible hearsay evidence to revoke his probation. Specifically,
he argues that “since there are no witnesses with firsthand knowledge” of the
incidents leading to his arrest on the new charges, “there is insufficient
evidence” that he violated a condition of his probation. Appellant’s Br. at 14.
We disagree.
[11] The trial court’s decision to admit or exclude evidence in a probation
revocation hearing is reviewed for an abuse of discretion. Figures v. State, 920
N.E.2d 267, 271 (Ind. Ct. App. 2010). We note that the due process
requirements for probation revocation hearings are more flexible than in a
criminal prosecution. Reyes v. State, 868 N.E.2d 438, 440 (Ind. 2007). Thus,
courts may admit evidence during probation revocation hearings that would not
be admissible in criminal trials. Id. Specifically, because the Indiana Rules of
Evidence do not apply in probation revocation hearings, the general rule against
hearsay is inapplicable. See Ind. Evidence Rule 101(d)(2). Instead, hearsay
evidence may be admitted without violating a probationer’s right to
confrontation if the trial court finds that the hearsay is substantially trustworthy.
Figures, 920 N.E.2d at 271. Although ideally the trial court should explain on
the record why the hearsay is substantially trustworthy or sufficiently reliable to
be admissible, see id., the absence of such explanation does not require reversal.
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[12] Our review of the record in the light most favorable to the trial court’s decision
convinces us that, despite the trial court’s failure to specifically say so, the
hearsay testimony presented by Deputies Hurt and Smith met the substantial
trustworthiness test, and thus the trial court did not abuse its discretion in
admitting the evidence. Deputy Hurt interviewed a visibly injured, distraught,
and fearful E.N. who appeared at the police station shortly after the alleged
battery and intimidation. Deputy Hurt personally observed injuries to E.N. that
were consistent with and corroborated her statements. Photos of E.N.’s injuries
were admitted into evidence. The knives subsequently located in Drescher’s
truck during the investigation further corroborated the reliability of E.N.’s
statements. Deputy Smith testified regarding the course of his investigation
based upon E.N.’s statements to Deputy Hurt and further explained his
unavailing efforts to procure E.N.’s attendance at the revocation hearing.
[13] Under the circumstances, the trial court’s decision to admit the hearsay
evidence is not clearly against the logic and effect of the facts and circumstances
before it. Considering the testimony of both deputies along with all the relevant
inferences that can be drawn therefrom, we conclude that the State established
by a preponderance of the evidence that Drescher was arrested for a criminal
offense where there was probable cause, thereby violating a condition of his
probation. Therefore, sufficient evidence supports the trial court’s finding that
Drescher violated his probation.
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Section 2 – The trial court did not abuse its discretion in
revoking Drescher’s probation and imposing his previously
suspended sentences.
[14] Probation revocation is a two-step process. “First, the court must make a
factual determination that a violation of a condition of probation actually
occurred. If a violation is proven, then the trial court must determine if the
violation warrants revocation of the probation.” Vernon v. State, 903 N.E.2d
533, 537 (Ind. Ct. App. 2009) (citations omitted), trans. denied. During the
second step of the inquiry, the probationer must be given an opportunity to
present evidence that explains or mitigates his violation. Alford v. State, 965
N.E.2d 133, 135 (Ind. Ct. App. 2012), trans. denied.
[15] A trial court's decision to revoke probation and its subsequent sentencing
decision are reviewed for an abuse of discretion. Sparks v. State, 983 N.E.2d 221,
224 (Ind. Ct. App. 2013), opinion on reh’g. Once a trial court has concluded that
probation has been violated, it may continue the defendant on probation,
extend the probationary period for not more than one year beyond the original
period, or order all or part of the previously suspended sentence to be executed.
Ind. Code § 35-38-2-3(h)(3). Where a trial court has exercised its grace in
granting a defendant probation rather than incarceration, it has considerable
leeway in deciding how to proceed when the defendant then violates the
conditions of his probation. Prewitt, 878 N.E.2d at 188.
[16] Drescher’s only complaint regarding the trial court’s decision to revoke his
probation and impose his previously suspended sentences is that he was
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somehow denied the opportunity to present evidence that explained or
mitigated his probation violation. Appellant’s Br. at 15. We note that Drescher
appeared with counsel at the revocation hearing. After the State presented its
witnesses, and Drescher’s counsel cross-examined the same, Drescher declined
to testify or present any witnesses or evidence. Drescher’s counsel did present a
closing argument as to why revocation was unwarranted. Under the
circumstances, we fail to see how Drescher was denied any opportunity to
which he was entitled. As Drescher makes no further claim that the trial court
abused its discretion as to revocation, sentencing, or otherwise, we decline to
say more on this issue.
[17] Based on the foregoing, we conclude that there was sufficient evidence to
support the finding of a probation violation, and the trial court did not abuse its
discretion in revoking Drescher's probation and imposing his previously
suspended sentences. The judgment of the trial court is affirmed.
[18] Affirmed.
Vaidik, C.J., and Bailey, J., concur.
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