Reginald D. Ivy, Jr. v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Feb 15 2016, 9:19 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.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Mark R. McKinney Gregory F. Zoeller Muncie, Indiana Attorney General of Indiana

J.T. Whitehead Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Reginald D. Ivy, Jr., February 15, 2016 Appellant-Defendant, Court of Appeals Case No. 18A05-1506-CR-690 v. Appeal from the Delaware Circuit Court State of Indiana, The Honorable Thomas A. Appellee-Plaintiff. Cannon, Jr., Judge Trial Court Cause No. 18C05-1306-FA-5

Brown, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A05-1506-CR-690 | February 15, 2016 Page 1 of 15 ^[1] Reginald D. Ivy, Jr., appeals the revocation of his direct commitment to

electronic home detention. Ivy raises three issues which we revise and restate

as:

I. Whether he was properly advised of the terms of his placement;

II. Whether the trial court erred by admitting hearsay testimony at the revocation hearing; and

III. Whether the evidence is sufficient to support the revocation of Ivy’s home detention.

We affirm.

Facts and Procedural History

^[2] On June 20, 2013, the State charged Ivy with two counts of dealing in cocaine

as class A felonies, possession of cocaine as a class A felony, dealing in cocaine

as a class B felony, and maintaining a common nuisance as a class D felony.

^[3] On December 15, 2014, Ivy signed a written advisement and waiver of rights

form. That same day, Ivy and the State entered into a plea agreement in which

Ivy agreed to plead guilty to possession of cocaine and dealing in cocaine as

class B felonies and the State agreed to dismiss the remaining charges. The

parties agreed that Ivy would receive concurrent sentences of eight years with

six years executed and two years suspended for each count and that the

executed portion of the sentences be served as a direct commitment to

electronic home detention.

^[4] On March 2, 2015, the court accepted the plea agreement and sentenced Ivy

pursuant to the plea agreement. That same day, Ivy signed a document titled Court of Appeals of Indiana | Memorandum Decision 18A05-1506-CR-690 | February 15, 2016 Page 2 of 15  Delaware County Community Corrections Home Detention Rules and initialed

next to various rules under the heading “Agreement and Rules of Home

Detention.” State’s Exhibit 1. Rule 20, which Ivy initialed, states: “NEW

ARRESTS/CHARGES: Any new violations of the law while on Home

Detention may be cause for revocation of your suspended sentence or

placement on Home Detention.” Id. Before Ivy’s signature, the document

states:

I have read the rules of Home Detention. I understand all of these rules, and agree to abide and comply with each of them. I understand if my placement is CTP or Direct Commitment failure to comply with these rules will result in sanctions up to and including REMOVAL OF CREDIT OR CLASS TIME.

Id. Jordan King, an officer at the Delaware County Community Corrections,

“went through” the terms with Ivy, including that he agreed to comply with

and abide by each of the rules and that his failure to comply would result in

sanctions. Transcript at 12.

^[5] At some point, Muncie Police Investigator Daxton Lovell received information

from his confidential informant (the “C.I.”) that Ivy was dealing cocaine and

that he drove a silver Jeep Cherokee. Investigator Lovell logged on to the local

database at the Muncie Police Department and discovered that a silver Jeep

Cherokee was registered to Ivy.

^[6] On March 8, 2015, Investigator Lovell observed Ivy’s Jeep, positioned his

undercover vehicle to have a visual on Ivy’s vehicle, contacted other

Court of Appeals of Indiana | Memorandum Decision 18A05-1506-CR-690 | February 15, 2016 Page 3 of 15  investigators, and observed Ivy exit his vehicle and enter a house. Meanwhile,

Muncie Police Investigator Mike Nickens performed a “thorough search” of the

C.I.’s person and vehicle. Id. at 16. The search of the C.I. and the vehicle took

approximately fifteen minutes. Investigator Nickens provided the C.I. with

$300 worth of previously photocopied buy money and an electronic recording

device and transmitter.

^[7] The C.I. received a phone call and then proceeded to the area of Streeter and

Wolfe. Investigator Nickens followed the C.I.’s vehicle until other investigators

advised him that they had a visual of the C.I. Investigator Scott O’Dell

maintained visual contact with the C.I. to Wolfe Street and Streeter.

Meanwhile, Investigator Lovell observed Ivy exit the residence and enter the

backseat of a small four door green vehicle.

^[8] At some point, the C.I.’s vehicle and the green vehicle approached each other,

Ivy exited the green vehicle and walked around the rear and then directly to the

front driver’s seat of the C.I.’s vehicle. Investigator Brent Brown observed Ivy

approach the driver’s side window of the C.I.’s vehicle, some “hand

movements,” and Ivy turn around less than five seconds later and enter the rear

seat of the green vehicle before it pulled away. Id. at 63.

^[9] The green vehicle drove several blocks and stopped near the silver Jeep

Cherokee, and Ivy exited the green vehicle and attempted to enter the Jeep

Cherokee. Investigators Brown and O’Dell stopped their vehicles, identified

themselves as police officers, and ordered Ivy to the ground. Investigator

Court of Appeals of Indiana | Memorandum Decision 18A05-1506-CR-690 | February 15, 2016 Page 4 of 15  O’Dell put Ivy on the ground and handcuffed him, and Investigator Brown

ordered the two occupants of the green vehicle to exit and placed them in

handcuffs.

^[10] After handcuffing Ivy, Investigator O’Dell observed some car keys and a small

baggie on the ground next to Ivy that contained a green plant-like substance

that field tested positive for marijuana. Investigator O’Dell then searched Ivy

and found several different stacks of U.S. currency totaling $695 in his pockets

along with his driver’s license. Investigator Lovell determined that the serial

numbers on certain bills totaling $260 recovered from Ivy matched the serial

numbers of the photocopied buy money.1 Investigator O’Dell searched the

green vehicle and found no controlled substances, monies, or weapons.

^[11] The C.I. then met with Investigator Nickens and turned over a clear corner

plastic baggie containing 1.3 grams of cocaine. Ivy was arrested for dealing

cocaine as a level five felony and possession of marijuana as a class B

misdemeanor.

^[12] On March 17, 2015, the State filed a Petition for Warrant on Revocation and

Executed Sentence on Violation of Terms of Direct Commitment and alleged

that Ivy failed to comply with the court’s order by being arrested under cause

number 18C02-1503-F4-2 for dealing in cocaine as a level 5 felony and

1 Investigator O’Dell testified that the forty dollars in buy money may have gone missing because the money began to blow away at the scene of Ivy’s arrest.

Court of Appeals of Indiana | Memorandum Decision 18A05-1506-CR-690 | February 15, 2016 Page 5 of 15  possession of marijuana as a class B misdemeanor in violation of Rule 20 of his

conditions of electronic home detention.

^[13] On April 28, 2015, the court held a fact finding hearing. Investigators Nickens,

Lovell, Brown, and O’Dell testified to the foregoing. Jennifer Davis, the Home

Detention Supervisor at Delaware County Community Corrections, testified

that she handles all the intakes of people who are sentenced to the program,

that Ivy signed the rules of home detention, and that Jordan King was present

and went through the terms with him including that he agreed to comply and

abide by each of the rules and that his failure to comply would result in

sanctions. When asked how she knew that Ivy signed the rules of home

detention, she testified that she was not there on March 2nd, but “when I

returned I completed the file, his rules of home detention were signed in there

and he was placed on day reporting and assigned a case manager.” Id. at 9.

^[14] Without objection, Investigator Nickens testified that Investigator Lovell

received information from the C.I. that he would be able to purchase cocaine

from Ivy. On cross-examination, Investigator Nickens testified that he did not

have the C.I. remove his shoes and that while he checked around the top of the

C.I.’s socks, the socks were not removed, and he did not look inside the C.I.’s

underwear. At one point, Investigator Nickens testified that the C.I. stated that

the C.I. purchased the substance in the baggie, and Ivy’s counsel objected on

the basis of hearsay. The court overruled the objection, and Investigator

Nickens testified that the C.I. stated that the C.I. had purchased the substance

in the baggie from Ivy in exchange for the buy money.

Court of Appeals of Indiana | Memorandum Decision 18A05-1506-CR-690 | February 15, 2016 Page 6 of 15 ^[15] During direct examination, Investigator Lovell testified that he was informed by

the C.I. that Ivy drove a silver Jeep Cherokee, and Ivy’s counsel stated: “I’d like

to just show a continuing objection to the information received from” the C.I.

Id. at 31. The court noted and overruled the objection. During the direct

examination of Investigator Brown, the prosecutor asked if it would be fair to

say that the C.I. told Investigator Lovell that they had to move the meeting

location, Ivy’s counsel objected, and the court sustained the objection.

^[16] On April 29, 2015, the court entered an order finding by a preponderance of the

evidence that Ivy violated the terms of his sentence and Rule 20 of the

electronic home detention rules by committing new crimes. On May 19, 2015,

the court held a sentencing hearing and revoked Ivy’s placement and sentenced

him to the Department of Correction for six years followed by two years of

supervised probation.

Discussion

I.

^[17] The first issue is whether Ivy was properly advised of the terms of his

placement. He argues that the State failed to offer any admissible evidence that

he was advised of the terms of his placement prior to the alleged violation. He

asserts that the Rules of Home Detention were admitted despite the fact that

Davis admitted she was not present to observe whether or not Ivy personally

signed them and had no firsthand knowledge of who actually signed the rules.

Court of Appeals of Indiana | Memorandum Decision 18A05-1506-CR-690 | February 15, 2016 Page 7 of 15  The State argues that Ivy was advised of the terms and conditions of his

placement and that he never claims he was not given notice.

^[18] Generally, it is error for a probation revocation to be based upon a violation for

which the defendant did not receive notice. Bovie v. State, 760 N.E.2d 1195,

1199 (Ind. Ct. App. 2002) (citing Hubbard v. State, 683 N.E.2d 618, 622 (Ind. Ct.

App. 1997)). However, such error may be harmless. Id.

^[19] The record reveals that Davis, the Home Detention Supervisor at the Delaware

County Community Corrections, testified Ivy signed the rules of home

detention. While she testified that she was not present when Ivy signed the

document, she testified that Jordan King, her fellow officer, went through the

terms with Ivy including that he agreed to comply and abide by each of the

rules and that his failure to comply would result in sanctions. Rule 20, which

Ivy initialed, states: “NEW ARRESTS/CHARGES: Any new violations of the

law while on Home Detention may be cause for revocation of your suspended

sentence or placement on Home Detention.” State’s Exhibit 1. Before Ivy’s

signature, the document states:

I have read the rules of Home Detention. I understand all of these rules, and agree to abide and comply with each of them. I understand if my placement is CTP or Direct Commitment failure to comply with these rules will result in sanctions up to and including REMOVAL OF CREDIT OR CLASS TIME.

Id. Based upon the record, we conclude that Ivy received notice of the

conditions of his home detention.

Court of Appeals of Indiana | Memorandum Decision 18A05-1506-CR-690 | February 15, 2016 Page 8 of 15 ^[20] We also observe that the State’s petition for revocation alleged that Ivy was

arrested and charged for dealing in cocaine and possession of marijuana. This

court has previously held that a trial court has authority to revoke a placement

in community corrections when the defendant commits a new crime while in

community corrections even where such a condition was not expressly made a

term of community corrections. See Toomey v. State, 887 N.E.2d 122, 125 (Ind.

Ct. App. 2008) (rejecting the defendant’s argument that the trial court could not

revoke his placement in home detention when he had no notice of the specific

terms of home detention and holding that the commission of a crime while in

community corrections is grounds for revocation); Decker v. State, 704 N.E.2d

1101, 1103 (Ind. Ct. App. 1999) (holding that the commission of a crime while

serving time in the community corrections program is always grounds for

revocation, even if the sentencing court fails to notify the person of such

condition), trans. dismissed. Accordingly, reversal is not warranted on this basis.

II.

^[21] The next issue is whether the trial court erred by admitting hearsay testimony at

the revocation hearing. Ivy argues that the court should not have admitted the

hearsay testimony of the multiple police officers regarding the C.I.’s statements

because the court could not make a finding of substantial trustworthiness. He

asserts that law enforcement did not testify that the informant had been used

before, whether such use resulted in other arrests and/or convictions, whether

the informant had provided correct information in the past, or whether an

independent police investigation corroborated the C.I.’s statements. He argues

Court of Appeals of Indiana | Memorandum Decision 18A05-1506-CR-690 | February 15, 2016 Page 9 of 15  that, without the hearsay testimony, there was insufficient evidence of probative

value to support the trial court’s determination that he violated the terms of his

placement. The State argues that Ivy waived the ability to challenge a good

deal of the evidence relating to the statements made by the C.I., that Ivy does

not argue fundamental error, and that such an argument fails on the merits.

^[22] Indiana Evidence Rule 101(d)(2) allows for the admission of evidence during

probation revocation hearings that would not be permitted in a full-blown

criminal trial.2 Yet, “[t]his does not mean that hearsay evidence may be

admitted willy-nilly in a probation revocation hearing.” Reyes v. State, 868

N.E.2d 438, 440 (Ind. 2007), reh’g denied. In Reyes, the Indiana Supreme Court

adopted the substantial trustworthiness test as the means for determining

whether hearsay evidence should be admitted at a probation revocation

hearing. In applying the substantial trustworthiness test, “‘ideally [the trial

court should explain] on the record why the hearsay [is] reliable and why that

reliability [is] substantial enough to supply good cause for not producing . . .

live witnesses.’” Id. at 442 (quoting United States v. Kelley, 446 F.3d 688, 693

(7th Cir. 2006)). Failure to provide an explanation on the record is not fatal

where the record supports such a determination. Id.

2 Ind. Evidence Rule 101(d)(2) provides that “[t]he rules, other than those with respect to privileges, do not apply in . . . [p]roceedings relating to extradition, sentencing, probation, or parole, issuance of criminal summonses or warrants for arrest or search, preliminary juvenile matters, direct contempt, bail hearings, small claims, and grand jury proceedings.”

Court of Appeals of Indiana | Memorandum Decision 18A05-1506-CR-690 | February 15, 2016 Page 10 of 15 ^[23] We will not reverse an error in the admission of evidence if the error was

harmless. Turner v. State, 953 N.E.2d 1039, 1058 (Ind. 2011). Errors in the

admission of evidence are to be disregarded unless they affect the defendant’s

substantial rights. Id. at 1059. In determining the effect of the evidentiary

ruling on a defendant’s substantial rights, we look to the probable effect on the

fact-finder. Id. Generally, “[t]he improper admission is harmless error if the

conviction is supported by substantial independent evidence of guilt satisfying

the reviewing court there is no substantial likelihood the challenged evidence

contributed to the conviction.” Id. Accordingly, to determine whether an

admission is harmless we must determine whether there is sufficient

independent evidence to support the revocation of Ivy’s probation. See Richeson

v. State, 648 N.E.2d 384, 389 (Ind. Ct. App. 1995), reh’g denied, trans. denied.

^[24] As pointed out by the State, Investigator Nickens testified without objection

that Investigator Lovell received information from the C.I. that he would be

able to purchase cocaine from Ivy. Even assuming that some of the officers’

testimony including that the C.I. said that he was contacted by Ivy, that Ivy

sold him the baggie of cocaine, and that Ivy drove a silver Jeep Cherokee, were

improperly admitted, we conclude that such testimony did not affect Ivy’s

substantial rights and that any such error would be harmless in light of the other

evidence introduced at the hearing. See Pritchard v. State, 810 N.E.2d 758, 761

(Ind. Ct. App. 2004) (holding that, even if it could be concluded that it was

error for the trial court to admit certain testimony, the error would have been

harmless and the defendant was not prejudiced by the admission of the

Court of Appeals of Indiana | Memorandum Decision 18A05-1506-CR-690 | February 15, 2016 Page 11 of 15  testimony); see also Cole v. State, 970 N.E.2d 779, 784 (Ind. Ct. App. 2012)

(holding that an error in the admission of evidence does not justify reversal if

the evidence is cumulative of other evidence presented at trial).

III.

^[25] The next issue is whether the evidence is sufficient to support the revocation of

Ivy’s home detention. A defendant is not entitled to serve a sentence in either

probation or a community corrections program. Monroe v. State, 899 N.E.2d

688, 691 (Ind. Ct. App. 2009). “Rather, placement in either is a ‘matter of

grace’ and a ‘conditional liberty that is a favor, not a right.’” Id. (quoting Cox v.

State, 706 N.E.2d 547, 549 (Ind. 1999), reh’g denied). For the purposes of

appellate review, we treat a hearing on a petition to revoke a placement in a

community corrections program such as home detention the same as we do a

probation revocation hearing. Id. (citing Cox, 706 N.E.2d at 549). The State

needs to prove the alleged violations by a preponderance of the evidence. Id.

We will consider all the evidence most favorable to supporting the judgment of

the trial court without reweighing that evidence or judging the credibility of the

witnesses. Id. If there is substantial evidence of probative value to support the

trial court’s conclusion that a defendant has violated any terms of home

detention, we will affirm its decision to revoke home detention. Id. The

violation of a single condition of home detention is sufficient to revoke home

detention. See Wilson v. State, 708 N.E.2d 32, 34 (Ind. Ct. App. 1999).

Court of Appeals of Indiana | Memorandum Decision 18A05-1506-CR-690 | February 15, 2016 Page 12 of 15 ^[26] Ivy argues that the State failed to offer sufficient admissible evidence of

probative value to support the revocation. He asserts that the search of the C.I.

prior to providing him with the buy money and the transmitter was inadequate

to satisfy the requirements of a controlled buy. He also contends that the

amount of cocaine was small, that no evidence from the recorder/transmitter

was offered into evidence, that the transaction occurred on a dark street, and

that no exchange was witnessed by officers. The State argues that the search of

the C.I. and the vehicle were both thorough and that the evidence demonstrated

that Ivy violated the conditions of his commitment by a preponderance of the

evidence.

^[27] During cross-examination, Investigator Nickens testified that he conducted a

thorough search of the C.I.’s person and vehicle. Ivy’s counsel asked

Investigator Nickens “[s]tarting with the [C.I.’s] person, describe what a

thorough search is, what you did to search the [C.I.]?” Transcript at 23.

Investigator Nickens answered:

Um, started at the feet area, went up each pant leg, checking pockets, around the belt area, around the chest area, any pockets on the shirts, jackets, t-shirts, in the groin area, in the buttocks area, check their mouth, ears, any hats that may be on, inside their socks if need be, a complete search of their person was conducted also, a thorough search of the vehicle starting the driver compartment and moving methodically through over to the passenger compartment, and then starting at a point in the passenger rear, and over to the other side of the vehicle.

Court of Appeals of Indiana | Memorandum Decision 18A05-1506-CR-690 | February 15, 2016 Page 13 of 15  Id. When asked to again describe the search of the vehicle, Investigator

Nickens stated:

Um, start on the driver compartment, look underneath the seats, in the seat creases, and the floor board, underneath the seat, in between the seats and the dash, the dash, any loose vents inside the compartment, visors, anything loose that can be removed or pulled, same thing going over the passenger side, the glove box, behind the glove box, anything that’s loose is pulled and checked, door panels, anything that’s loose is pulled and checked, same thing with the backseat, creases, if the seats able to be pulled up . . . pulled up, underneath the seat if it’s able to be pulled, and then on the floor or any compartments on the back of the seats is also checked.

Id. at 25-26.

^[28] Muncie Police Investigator O’Dell, a police officer for twenty-four years and

involved in the drug unit for sixteen to seventeen years, observed the search of

the C.I. and the C.I.’s vehicle and testified that both searches were thorough.

To the extent Ivy cites Watson v. State, 839 N.E.2d 1291 (Ind. Ct. App. 2005),

we find that case distinguishable. In that case, this Court held that the evidence

was insufficient to support a conviction for dealing in cocaine where the

confidential informant was not searched prior to the buy and did not testify.

839 N.E.2d at 1293. Unlike in Watson, this case involved a thorough search of

the C.I. and his vehicle.

^[29] Further, Investigator Brown described the interaction between the C.I. and Ivy

as follows: “As quickly as [Ivy] approached I saw hand movements, he turned

Court of Appeals of Indiana | Memorandum Decision 18A05-1506-CR-690 | February 15, 2016 Page 14 of 15  right around and took the same direct path back to the green vehicle, he got into

the rear seat again, and the vehicle pulled away.” Transcript at 63. The C.I.

then met with Investigator Nickens and turned over a clear corner plastic baggie

containing 1.3 grams of cocaine. The police recovered a small baggie

containing marijuana on the ground next to Ivy, and $695 from Ivy’s pockets,

$260 of which matched the serial numbers of the photocopied buy money.

^[30] Based on the facts most favorable to the revocation, we conclude that the State

presented sufficient evidence from which the court could find by a

preponderance of the evidence that Ivy violated the terms of his home

detention. See Kuhfahl v. State, 710 N.E.2d 200, 201 (Ind. Ct. App. 1999)

(holding that the evidence was sufficient to revoke defendant’s probation, and

the defendant’s argument was simply to ask this court to reweigh the evidence

and the credibility of the witnesses).

Conclusion

^[31] For the foregoing reasons, we affirm the trial court’s revocation of Ivy’s home

detention.

^[32] Affirmed.

Kirsch, J., and Mathias, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A05-1506-CR-690 | February 15, 2016 Page 15 of 15