David Johnson v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Jul 05 2018, 5:43 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Kurt A. Young Curtis T. Hill, Jr.
Nashville, Indiana Attorney General of Indiana
Henry A. Flores, Jr.
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
David Johnson, July 5, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-70
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Lisa F. Borges,
Appellee-Plaintiff. Judge
Trial Court Cause No.
49G04-1003-FA-24557
Najam, Judge.
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Statement of the Case
[1] David Johnson appeals the trial court’s revocation of his probation. Johnson
raises a single issue for our review, which we restate as whether he preserved his
claim of error in the admission of evidence for appellate review. We affirm.
Facts and Procedural History
[2] On March 25, 2010, Johnson committed aggravated battery, as a Class B
felony. Pursuant to an ensuing plea agreement, the trial court sentenced
Johnson to twenty years, with eight years suspended and three years on formal
probation. On May 26, 2016, Johnson began his term of probation.
[3] Less than nine months after his release to probation, Johnson failed two drug
screens when he tested positive for opiates and methamphetamine. Probation
officers referred Johnson to a substance abuse treatment center. However, he
did not enroll for treatment at the center, and he failed to appear at scheduled
assessments in mid-May and early June of 2017.
[4] On June 12, officers initiated a traffic stop of a stolen vehicle. According to the
ensuing probable cause affidavit of Indianapolis Metropolitan Police
Department (“IMPD”) Officer Tod Puletz:
Officer [Catherine] Hedges observed David Johnson pay and put
fuel into the gas tank of a [reported stolen] Chevy Tahoe and
observed Austin Day with the Tahoe . . . . Officer Hedges has
knowledge that Austin Day does not have a valid driver’s license
nor does David Johnson.
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***
. . . Officers conducted a high risk stop and placed Austin Day
(driver) and David Johnson (front passenger seat) into
custody . . . .
Visible indicators on the vehicle were punched steering column
cover but a rubber piece was used to conceal damage. A “punch
key or fake key” to turn the ignition as if it w[ere] a valid key for
the vehicle, wires were broken, the gear shift would move freely
without key, broken interior door locks, broken control panel on
driver’s side panel, in the back rear, vents removed and damaged.
Inside of the vehicle found were personal property belonging to
the victim including the registration . . . .
Before asking any questions, Officer Hedges read Miranda
Warning . . . , to which both Austin Day and David Johnson
understood the Miranda Warning. Under Miranda, Austin Day
admitted to switching seats with David Johnson while in
possession of the vehicle . . . .
. . . The owner . . . stated[] he did not know Day or Johnson and
did not give anyone a key to his vehicle or give anyone
permission to take his vehicle . . . .
Ex. Vol. 1 at 8-9.1
[5] The State charged Johnson with auto theft, as a Level 6 felony, and separately
filed a notice of probation violation. In its notice of probation violation, the
1
Our pagination of the Exhibits Volume refers to the .pdf pagination.
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State alleged that Johnson’s probation should be revoked both because he had
committed the new offense of auto theft and because he had failed to comply
with required substance abuse treatment. At an ensuing evidentiary hearing on
the notice of probation violation, IMPD Officer Derek Duvall, who had arrived
at the scene of Johnson’s arrest after Johnson had already been placed in
handcuffs, testified, without objection, as to the facts surrounding the traffic
stop and Johnson’s arrest as relayed to Officer Duvall by other officers. During
Officer Duvall’s testimony, the State requested that the charging information
for auto theft and Officer Puletz’s supporting probable cause affidavit be
admitted into evidence. In response, Johnson declared that he had “[n]o
objection” to the admission of those documents. Tr. at 16.
[6] Also during the evidentiary hearing, the State called Tara Olson, the Court
Team Supervisor for the Marion County Probation Department. Olson
testified that Johnson had tested positive for methamphetamine and opiates and
that he had been referred to a substance abuse treatment center. She further
testified that he then missed two scheduled appointments for treatment at that
center “and still to date [has] not enrolled into treatment.” Id. at 18.
[7] Following the evidentiary hearing, the trial court found that Johnson violated
the conditions of his probation both when he committed the new offense of
auto theft and when he “tested positive for meth and opiates.” Id. at 22.
Accordingly, the court revoked Johnson’s probation and ordered him to serve
six years in the Department of Correction. This appeal ensued.
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Discussion and Decision
[8] On appeal, Johnson asserts that the trial court erred when it revoked his
probation.
“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
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. Braxton v. State, 651 N.E.2d 268,
270 (Ind. 1995); see Ind. Code § 35-38-2-3(f) (2012). When the
sufficiency of evidence is at issue, we 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.” Braxton,
651 N.E.2d at 270.
Murdock v. State, 10 N.E.3d 1265, 1267 (Ind. 2014).
[9] Here, Johnson asserts that the trial court “erred in admitting and considering
hearsay upon hearsay evidence”—specifically, Officer Duval’s testimony and
Officer Puletz’s probable cause affidavit—and, without that evidence, “the
evidence was insufficient to prove that Johnson violated his probation by
committing auto theft.” Appellant’s Br. at 7. We reject Johnson’s arguments.
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[10] Johnson did not object in the trial court—at any point—during Officer Duval’s
testimony. As such, his complaint on appeal that that testimony was
inadmissible hearsay has not been preserved for appellate review. E.g., Sampson
v. State, 38 N.E.3d 985, 992 (Ind. 2015). Johnson also did not object to the
admission of Officer Puletz’s probable cause affidavit. Instead, Johnson
affirmatively declared that he had no objection to that evidence. Accordingly,
not only did Johnson not preserve the alleged error in the admission of the
probable cause affidavit, he invited any such error. Invited error is not
reversible error.
[11] Neither are we persuaded by Johnson’s passing comment in his brief on appeal
that the alleged evidentiary errors were fundamental error. Our trial courts
rarely have the obligation to interject themselves on behalf of defendants in
evidentiary matters. E.g., Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010). And
fundamental error is not available when the defendant affirmatively states that
he has “no objection” to proffered evidence and invites the alleged error in its
admission. E.g., Halliburton v. State, 1 N.E.3d 670, 678-79 (Ind. 2013). That is,
invited error is not fundamental error. In any event, we cannot say that the
admission of the allegedly erroneous evidence made a fair trial for Johnson
impossible.
[12] Moreover, Johnson’s challenge to the revocation of his probation on the
grounds that he had committed the new offense of auto theft fails to give any
substantial consideration to the fact that the trial court separately revoked his
probation based on his failed drug tests and refusal to comply with required
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substance abuse treatment. It is well established that the violation of a single
condition of probation is sufficient to revoke probation. E.g., Pierce v. State, 44
N.E.3d 752, 755 (Ind. Ct. App. 2015). Thus, even if the trial court had erred in
its consideration of the evidence of Johnson’s auto theft, the evidence of his
failed drug screens and treatment would be sufficient to affirm the trial court’s
revocation of his probation.
[13] In sum, Johnson has not preserved his evidentiary challenges for our review,
and we affirm the trial court’s revocation of Johnson’s probation.
[14] Affirmed.
Vaidik, C.J., and Pyle, J., concur.
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