Steven Eugene Ewing v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this FILED
Memorandum Decision shall not be regarded as Dec 27 2017, 8:13 am
precedent or cited before any court except for the
CLERK
purpose of establishing the defense of res judicata, Indiana Supreme Court
Court of Appeals
collateral estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Thomas G. Godfrey Curtis T. Hill, Jr.
Anderson, Indiana Attorney General of Indiana
Christina D. Pace
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Steven Eugene Ewing, December 27, 2017
Appellant-Defendant, Court of Appeals Case No.
48A05-1707-CR-1491
v. Appeal from the Madison Circuit
Court.
The Honorable David A. Happe,
State of Indiana, Judge.
Appellee-Plaintiff. Trial Court Cause No.
48C04-1511-F5-2043
Shepard, Senior Judge
[1] Steven Eugene Ewing appeals the trial court’s revocation of his community
corrections placement, challenging the court’s admission of a police report into
evidence. We affirm.
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[2] In 2015, the State charged Ewing with operating a motor vehicle after forfeiture
of license for life, a Level 5 felony. The parties executed a plea agreement,
pursuant to which Ewing pleaded guilty and the State agreed the executed part
of his sentence would not exceed three years, to be served on community
corrections. On December 12, 2016, the court sentenced Ewing to five years,
with two and a half years executed through community corrections, and two
and a half years suspended to probation.
[3] On March 15, 2017, community corrections officials filed a notice with the
court, claiming Ewing violated the terms of his commitment by carrying out a
new criminal offense—battery against a public safety official, a Level 6 felony.
The officials further alleged Ewing failed to report to the community justice
center as required by the terms of his commitment. They asked the court to
revoke Ewing’s placement and to order him to serve the balance of his sentence
at DOC.
[4] The State did not present any witnesses at the evidentiary hearing. Instead, the
trial court admitted into evidence State’s Exhibit 1, a police incident report that
described an occurrence in which Ewing struggled with police officers. The
court concluded the report bore “indicia of reliability” because it was digitally
signed by the officers. Tr. Vol. II, p. 6. Ewing testified on his own behalf,
presenting a contrary view of events. The court determined that Ewing
committed both violations alleged by the State and sentenced Ewing to 847
days at DOC, to be followed by the probationary portion of his sentence. This
appeal followed.
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[5] Ewing argues the court erred in admitting the police report into evidence,
claiming it is unreliable hearsay and that he was deprived of his right to cross-
examine the officers. When ruling on the admissibility of evidence, the trial
court has broad discretion, which a reviewing court will disturb only where
there is an abuse of that discretion. Ackerman v. State, 51 N.E.3d 171 (2016),
cert. denied, 137 S. Ct. 475, 196 L. Ed. 2d 387 (2016). When a constitutional
violation is alleged, the standard of review is de novo. Id.
[6] In Reyes v. State, 868 N.E.2d 438 (Ind. 2007), the Indiana Supreme Court noted
that although the Due Process Clause applies to probation revocation
proceedings, offenders do not receive the same constitutional rights that
defendants receive at trial. For example, the Indiana Rules of Evidence do not
apply in probation proceedings. Ind. Rule of Evidence 101(d)(2). Courts may
admit evidence during revocation hearings that would not be permitted in a
criminal trial. A court may admit hearsay evidence if “it has a substantial
guarantee of trustworthiness.” Reyes, 868 N.E.2d at 441. The Supreme Court
has applied this standard in proceedings to revoke a term in community
corrections. See Smith v. State, 971 N.E.2d 86 (Ind. 2012).
[7] In Whatley v. State, 847 N.E.2d 1007 (Ind. Ct. App. 2006), the State sought to
revoke Whatley’s probation, alleging he had committed a new offense. During
an evidentiary hearing, the State asked the court to take judicial notice of a
probable cause affidavit that was filed in the new criminal case, and the court
granted the request. On appeal, Whatley argued the affidavit was inadmissible
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because it lacked sufficient guarantees of reliability. The Court disagreed,
1
concluding it was prepared by the arresting officer and signed under oath.
[8] In this case, the police report includes the date and time of the incident and a
description of Ewing. Two officers, Cunningham and Henninger, described
their interactions with Ewing in detail and electronically signed their
statements. Cunningham provided the following verification: “I . . . swear and
affirm under the pains and penalties of perjury, as specified by Indiana Code 35-
44.1-2-1 that the above and foregoing representations are true and accurate to
the best of my knowledge and belief.” Tr. Vol. III, State’s Ex. 1, p. 5.
Henninger provided a similar verification.
[9] We conclude the trial court appropriately found the hearsay police report to
have a substantial guarantee of trustworthiness because the arresting officers
prepared it and signed it under penalties of perjury. The report resembles the
probable cause affidavit that was deemed admissible in Whatley.
[10] Ewing cites several cases in support of his claim, but they are factually
dissimilar. In Baxter v. State, 774 N.E.2d 1037 (Ind. Ct. App. 2002), trans.
denied, a panel of the Court determined an unverified, unsigned police report
lacked substantial guarantees of reliability. By contrast, in the current case the
police officers signed the report under penalties of perjury.
1
By contrast, in Robinson v. State, 955 N.E.2d 228, 233 (Ind. Ct. App. 2011), this Court held it error to rely on
an affidavit “full of hearsay within hearsay within hearsay.”
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[11] In Figures v. State, 920 N.E.2d 267 (Ind. Ct. App. 2010), a court accepted a
probable cause affidavit in a probation revocation matter even though the
criminal case which followed the affidavit had been dismissed prior to the
hearing in the revocation. A panel of this Court determined the hearsay
affidavit was unreliable. In this case, Ewing’s new criminal charge remained
pending at the time of his community corrections revocation hearing. Figures is
thus distinguishable, and we conclude the court correctly determined the
signed, verified police report has substantial guarantees of reliability.
[12] The State argues in the alternative there is sufficient evidence to support the
trial court’s determination that Ewing failed to report to the community justice
2
center as required by the terms of his placement. We need not address this
claim because we have determined the trial court properly admitted the report.
In addition, Ewing expressly disclaims any challenge to the sufficiency of the
evidence supporting the trial court’s ruling. Appellant’s Br. p. 18.
[13] For the reasons stated above, we affirm the judgment of the trial court.
[14] Affirmed.
Kirsch, J., and Mathias, J., concur.
2
Ewing testified during the sanctions portion of the evidentiary hearing that he did not report to community
corrections because he was incarcerated on a Hamilton County case at the time. He later began serving a
sentence on work release from Hamilton County, and he believed he needed to finish his sentence there
before addressing this case.
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