Antonio D. Moore v. State of Indiana (mem. dec.) ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Jul 19 2018, 8:42 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
William Byer, Jr. Curtis T. Hill, Jr.
Byer & Byer Attorney General of Indiana
Anderson, Indiana
Lyubov Gore
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Antonio D. Moore, July 19, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-263
v. Appeal from the Madison Circuit
Court
State of Indiana, The Honorable Mark Dudley,
Appellee-Plaintiff. Judge
Trial Court Cause No.
48D01-0912-FA-256
Robb, Judge.
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Case Summary and Issue
[1] The trial court revoked Moore’s probation and ordered him to serve two of the
four years of his previously suspended sentence. Moore appeals, challenging
the sufficiency of the evidence supporting the trial court’s revocation decision.
Concluding that the State produced sufficient evidence in the form of the
investigating officer’s testimony which showed that Moore had failed to behave
well in society when he fired a gun in a crowded bar, we affirm.
Facts and Procedural History
[2] On October 8, 2010, Moore pleaded guilty to possession of cocaine as a Class C
felony and to possession of marijuana as a Class A misdemeanor. On
November 15, 2010, the trial court sentenced Moore to an aggregate sentence of
eight years, with four years suspended to probation. On September 28, 2016,
the State filed a notice of probation violation, and on October 25, 2016, the trial
court found that Moore had violated his probation by testing positive for
alcohol and cannabinoids. The trial court revoked one year of Moore’s
previously suspended sentence but stayed execution of that year contingent on
Moore’s continued compliance with the terms of his probation.
[3] On October 27, 2017, the State filed a second notice of probation violation.
The State alleged that Moore had violated the terms of his probation by failing
to behave well in society by taking substantial steps toward the commission of a
new offense of criminal recklessness. At the probation revocation hearing, the
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State called as its sole witness Officer Joe Garrett of the Anderson City Police
Department. Officer Garrett had investigated the events which formed the
basis of the State’s efforts to revoke Moore’s probation. On October 1, 2017,
Officer Garrett was dispatched to a bar located in Anderson on a call of shots
fired. When Officer Garrett arrived at the bar, he observed that ten to fifteen
cars were attempting to leave the scene quickly, which, in his experience,
indicated that something had just occurred at the bar. Upon investigating,
Officer Garrett observed that there was a spent shell casing on the bar’s dance
floor and that there was a hole in the ceiling above the dance floor, which led
him to conclude that someone had fired a gun into the ceiling.
[4] As part of his initial investigation, Officer Garrett interviewed the daughter of
the owner of the bar. The daughter told Officer Garrett that “J.R. Beck’s
brother” had fired a gun in the bar and that she knew it was Beck’s brother
because previously Beck himself had been killed near the bar. Transcript at 12-
13, 27. Officer Garrett knew that the daughter was speaking about Moore
when she referred to J.R. Beck’s brother. When identifying Moore as the
shooter that evening, the daughter told Officer Garrett that she did not care
about being branded a “snitch.” Id. at 13. The daughter was visibly upset that
a gun had been discharged at her mother’s place of business and that her
mother had possibly been placed in danger. However, the daughter did not
wish to have her name associated with the investigation and did not cooperate
with authorities any further.
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[5] Officer Garrett also interviewed the owner of the bar, who did not witness the
actual shooting. The owner characterized the bar as having been busy that
evening. A few days after the shooting, Officer Garrett returned to the bar to
show the owner a photo lineup that included Moore. The owner did not
identify Moore from the photo lineup at that time, but she telephoned Officer
Garrett several hours later to inform him that she did recognize Moore from the
photo lineup as having been present in the bar during the evening of the
shooting. The owner explained to Officer Garrett that she had not identified
Moore immediately when first shown the photos because she did not want
patrons of the bar who were present to know that she was cooperating with the
authorities. Officer Garrett also learned during the course of his investigation
that Moore’s mother had come to the bar after the instant shooting to confront
the owner about what she felt was a high level of violence and criminal activity
at the bar, which she wanted to shut down.
[6] At the revocation hearing, Moore did not lodge a contemporaneous objection
to any of Officer Barrett’s testimony on hearsay grounds, although Moore’s
counsel argued after the close of evidence that Officer Garrett’s testimony was
unreliable hearsay. The trial court found that Officer Garrett’s hearsay
testimony was reliable because it consisted of statements made by members of
the public to an officer acting in his official capacity during an investigation. In
revoking Moore’s probation, the trial court found that the State had shown by a
preponderance of the evidence that Moore fired a gun in a crowded bar,
committing criminal recklessness. The trial court ordered Moore to serve two
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years of his previously suspended sentence on work release. Moore now
appeals the trial court’s revocation of his probation.
Discussion and Decision
I. Standard of Review
[7] “A probation hearing is civil in nature, and the State must prove an alleged
violation by a preponderance of the evidence.” Murdock v. State, 10 N.E.3d
1265, 1267 (Ind. 2014). When the sufficiency of evidence supporting a
probation revocation is at issue, we consider only the evidence most favorable
to the judgment, without regard to weight or credibility, and we 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.” Id.(citation omitted).
II. Sufficiency of the Evidence
[8] The State alleged that Moore violated his probation when he failed to behave
well in society by taking substantial steps toward the commission of an act of
criminal recklessness. “A person who recklessly, knowingly, or intentionally
performs an act that creates substantial risk of bodily injury to another person
commits criminal recklessness.” Ind. Code § 35-42-2-2(a). A person acts
recklessly if he engages in conduct “in plain, conscious, and unjustifiable
disregard of harm that might result and the disregard involves a substantial
deviation from the acceptable standards of conduct.” Ind. Code § 35-41-2-2(c).
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[9] Here, the evidence showed that on October 1, 2017, Officer Garrett was told by
the bar owner’s daughter that Moore had fired a gun inside the bar, which had
been busy that evening. This report was corroborated by Officer Garrett’s
observation of a hole in the ceiling of the bar and a spent shell casing on the
dance floor. Officer Garrett had also observed the bar crowd hurriedly
dissipating when he arrived at the scene, which supported a reasonable
inference that the shooting had occurred recently. In addition, the bar owner’s
subsequent identification of Moore as having been in the bar that night placed
him at the scene and, as such, corroborated her daughter’s identification of
Moore as the shooter. Furthermore, the fact that Moore’s mother came to the
bar after the shooting to protest what she considered to be the bar’s violent and
criminal atmosphere lent further evidentiary support to the identification of
Moore as the shooter.
[10] The trial court reasonably concluded from this evidence that it was Moore who
fired a gun in the crowded bar, thus taking a substantial step towards creating a
substantial risk of bodily harm to others, in disregard of the harm it might have
caused and in deviation from acceptable standards of conduct. We would note
that actual convictions for criminal recklessness have been sustained as proven
beyond a reasonable doubt on evidence of conduct less egregious than that
involved in this case. See, e.g., Smith v. State, 802 N.E.2d 948, 955 (Ind. Ct.
App. 2004) (finding sufficient evidence of criminal recklessness where Smith
waved a gun out of his car window while passing by a home where his victim
was visiting and shots were fired). We conclude that, under the preponderance
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of the evidence standard applicable to probation revocations, the State met its
burden of showing that Moore took at least a substantial step in committing an
act of criminal recklessness, as alleged in its notice of violation.
[11] Nevertheless, Moore argues there was insufficient evidence that he was present
at the bar and that it was he who fired the gun. Brief of Appellant at 12.
Moore’s argument chiefly consists of directing our attention to evidence that
does not support the trial court’s revocation decision and to evidence which he
contends rendered the State’s evidence less credible. Given our standard of
review, these arguments are unpersuasive. See Murdock, 10 N.E.3d at 1267.
[12] Moore also briefly argues that the evidence supporting his conviction is
insufficient because Officer Garrett’s testimony included hearsay which was not
substantially trustworthy. Br. of Appellant at 13. We note that Moore’s
counsel did not object to the admission of Officer Garrett’s testimony on
hearsay grounds when it was offered during the hearing, and so his claim is
waived. See Wilkerson v. State, 918 N.E.2d 458, 462 n.1 (Ind. Ct. App. 2009)
(finding Wilkerson’s argument on appeal that hearsay testimony was not
substantially trustworthy to be waived for failure to raise an objection on that
basis at his revocation hearing).
[13] However, even if a timely objection had been made to the challenged hearsay, it
would not have been well taken. Hearsay is admissible in probation revocation
proceedings if it is “substantially trustworthy.” Reyes v. State, 868 N.E.2d 438,
442 (Ind. 2007), reh’g denied. Where the State shows the hearsay evidence bears
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“substantial guarantees of trustworthiness,” it need not also show good cause
for not producing live testimony. Id. at 441. Here, the hearsay statements of
the bar owner’s daughter, who made the principle identification of Moore, were
shown to be substantially trustworthy because, as she explained to Officer
Garrett, she made her statements because she was upset about the fact that her
mother and the bar had been placed in danger by Moore’s conduct, and she
made the statement to Officer Garrett despite what she considered to be a risk
to herself of being labeled as an informer. Thus, there was no evidence that she
had a motive to fabricate her identification of Moore. In addition, her
statement was corroborated by the physical evidence at the scene of the hole in
the ceiling and the spent shell casing as well as by the bar owner’s confirmation
that Moore had been present at the bar that evening. Because the State showed
by a preponderance of the evidence that Moore violated a condition of his
probation by failing to behave well in society, we affirm the trial court’s
revocation decision.
Conclusion
[14] We affirm the trial court’s decision to revoke Moore’s probation upon finding
that the State had proved by a preponderance of the evidence that he had
violated a condition of his probation by failing to behave well in society.
[15] Affirmed.
Najam, J., and Altice, J., concur.
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