DAVIS v. STATE (2026)

MEMORANDUM DECISION

[1] Emmett Davis appeals his sentence following the Carroll Circuit Court's revocation of his probation. Davis presents two issues for our review:

1. Whether the trial court violated his right to due process when it admitted hearsay evidence during the probation revocation hearing.

2. Whether the trial court abused its discretion when it sentenced him.

[2] We affirm.

Facts and Procedural History

[3] In May 2021, Davis shot a young woman during an attempted drug deal. The State charged Davis with Level 1 felony attempted murder, Level 2 felony robbery resulting in serious bodily injury, Level 3 felony aggravated battery, and Level 5 felony conspiracy to commit dealing in marijuana. One year later, in May 2022, Davis pleaded guilty to Level 2 felony robbery resulting in serious bodily injury, and the State dismissed the remaining charges.

[4] Davis's plea agreement left sentencing to the trial court's discretion. At the conclusion of the sentencing hearing, the trial court identified a single aggravator, Davis's criminal history,¹ and a single mitigator, Davis's guilty plea. At the time of sentencing in May of 2022, Davis had been in jail for almost thirteen months. The court sentenced Davis to twenty years with all but his time served suspended to probation.

[5] Two years later, on September 9, 2024, Davis was arguing with his girlfriend T.M., in the presence of T.M.’s two-year-old daughter, when Davis grabbed T.M. around the throat and choked her. Approximately twenty minutes later, T.M. told a 9-1-1 operator that Davis had choked her three times in the presence of her daughter. Lafayette Police Department Officer Derrin Nuckols responded to the home and observed “abrasions” and “marks” on T.M.’s neck that were consistent with a “hand imprint․” Tr. Vol. 2, p. 12.² T.M. told Officer Nuckols that Davis had used his right hand to grab her by her throat. After Davis's arrest, the State charged Davis with Level 6 felony domestic battery in Cause No. 79D04-2409-F6-829 (“Cause No. 829”), and the State filed a petition to revoke Davis's probation in the instant case.

[6] The trial court issued a no contact order prohibiting Davis from contacting T.M. Despite the no contact order, Davis repeatedly called T.M. from jail. Accordingly, in February 2025, the State added a second count in Cause No. 829 for Class A misdemeanor invasion of privacy.

[7] On May 7, 2025, Davis took the deposition of T.M. During the State's cross-examination, T.M. listened to her 9-1-1 call and confirmed that Davis had choked her. Ex. Vol. 3, pp. 34-35. But T.M. testified that she had lied when she told the 9-1-1 operator that Davis had choked her three times. After the prosecutor played Officer Nuckols's body cam footage of his interview of T.M., T.M. denied that Davis had choked her and said that he only “shoved” her. Id. at 50. T.M. testified that she had exaggerated the incident to the 9-1-1 operator and Officer Nuckols because she was “angry and frustrated.” Id. at 51. The prosecutor also played portions of recordings of Davis's phone calls to T.M. while he was in jail, and Davis asked T.M. not to testify against him. T.M. admitted that she and Davis were still dating.

[8] During a hearing on the State's petition to revoke Davis's probation on August 7, 2025, Davis admitted to having violated his probation, but he denied “that the alleged battery occurred the way that it did ․” Tr. Vol. 2, p. 5. Davis advised the trial court that he had pleaded guilty to Class A misdemeanor invasion of privacy in Cause No. 829 and that the State had dismissed the domestic battery charge.

[9] Still, the State presented evidence that, on September 9, 2024, Davis was arguing with T.M., in the presence of T.M.’s two-year-old child, when Davis grabbed T.M. around the throat and “choked” her for about “10-15 seconds.” Id. at 11. Over Davis's objections that the evidence was inadmissible hearsay, the State admitted into evidence: T.M.’s 9-1-1 call stating that Davis had choked her; Officer Nuckols's testimony that T.M. had told him that Davis had choked her; and portions of T.M.’s deposition testimony.

[10] On direct examination, Davis admitted that he and T.M. had fought and that he had “rammed her into the couch” and then “pushed” her “towards the chest and neck area” while she was “raining down punches” on his head. Id. at 30. Davis admitted that T.M.’s daughter was present during the fight; that he had violated the no contact order by calling T.M. “almost every day” from jail; and that he told T.M. not to testify against him. Id. at 34.

[11] At the conclusion of the hearing, the trial court found that Davis had violated his probation by committing invasion of privacy, but the court took the matter of the domestic violence allegation under advisement. Immediately prior to the dispositional hearing on August 20, 2025, the trial court issued an order finding that the State had proven by a preponderance of the evidence that Davis violated the terms of his probation by committing domestic battery in September 2024.

[12] The trial court began the dispositional hearing on August 20 and continued it to September 16 in order to determine whether Davis was eligible for community corrections. Having determined that Davis was not eligible for community corrections, the trial court ordered Davis to serve twelve years executed in the Department of Correction and the remaining 2,396 days suspended to probation. This appeal ensued.

Discussion and Decision

Issue One: Due Process

[13] Davis argues that the trial court violated his right to due process when it admitted evidence related to the domestic violence charges filed in September 2024 during the probation revocation hearing. Davis does not challenge the trial court's finding that he violated the terms of his probation by committing domestic battery in September 2024. Rather, Davis contends that the hearsay evidence “served to aggravate Davis's sanction, which caused Davis harm.” Appellant's Br. at 14.

[14] As this Court has explained:

Although probationers are not entitled to the full array of constitutional rights afforded defendants at trial, still “the Due Process Clause of the Fourteenth Amendment [does] impose[ ] procedural and substantive limits on the revocation of the conditional liberty created by probation.” Debro v. State, 821 N.E.2d 367, 374 (Ind. 2005) (quoting Cox v. State, 706 N.E.2d 547, 549 (Ind. 1999)); see also Black v. Romano, 471 U.S. 606, 610, 105 S. Ct. 2254, 2257, 85 L.Ed.2d 636 (1985). “The minimum requirements of due process that inure to a probationer at a revocation hearing include: (a) written notice of the claimed violations of probation; (b) disclosure of the evidence against him; (c) an opportunity to be heard and present evidence; (d) the right to confront and cross-examine adverse witnesses ․” Woods v. State, 892 N.E.2d 637, 640 (Ind. 2008). See also Ind. Code § 35-38-2-3 (2015) (providing in pertinent part that a probationer “is entitled to confrontation, cross-examination, and representation by counsel”).

Nonetheless, confrontation rights in the context of probation revocation are not as extensive as they are in criminal trials. Robinson v. State, 955 N.E.2d 228, 232 (Ind. Ct. App. 2011). As one example, the Indiana Rules of Evidence, including those governing hearsay, do not apply in such proceedings. See Ind. Evidence Rule 101(c)(2) (declaring in pertinent part, “the rules, other than those with respect to privilege, do not apply in ․ proceedings relating to ․ sentencing, probation, or parole”). Further, the scope of the right to confrontation as explored in the seminal case of Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L.Ed.2d 177 (2004), also does not apply in probation revocation proceedings.[ ]See Smith v. State, 971 N.E.2d 86, 89 (Ind. 2012).

To be sure, due process does not prohibit the use of hearsay evidence “ ‘where appropriate [for] the conventional substitutes for live testimony, including affidavits, depositions, and documentary evidence.’ ” Reyes v. State, 868 N.E.2d 438, 440 (Ind. 2007) (quoting Gagnon v. Scarpelli, 411 U.S. 778, 782 n.5, 93 S. Ct. 1756, 1760 n.5, 36 L.Ed.2d 656 (1973)). However, this “does not mean that hearsay evidence may be admitted willynilly in a probation revocation hearing.” Id.

In order to admit hearsay evidence at a probation revocation hearing in lieu of live testimony, the State must demonstrate “good cause” for its use. Id. at 440. This requirement is met so long as the hearsay bears substantial guarantees of trustworthiness. Id. at 441. Substantial guarantees of trustworthiness satisfy the need for flexibility in routine probation revocation hearings. Further, the “substantial trustworthiness test” requires the trial court to evaluate the reliability of the hearsay evidence. Id. at 442. “[I]deally [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. (alterations in original) (quoting United States v. Kelley, 446 F.3d 688, 693 (7th Cir. 2006)).

Knecht v. State, 85 N.E.3d 829, 833-34 (Ind. Ct. App. 2017).

[15] Here, Davis objected to the following evidence as inadmissible hearsay: T.M.’s deposition testimony, T.M.’s 9-1-1 call, and Officer Nuckols's testimony regarding T.M.’s statements when he responded to the 9-1-1 call. The State explained that it did not bother to subpoena T.M. because there was no reason to believe that she would attend the hearing. Indeed, during the evidentiary hearing, the State pointed out that Davis had asked T.M. to testify, but she did not appear.

[16] In lieu of her live testimony, because Davis had thoroughly examined T.M. on direct and redirect examination during her deposition, the trial court properly admitted her deposition testimony into evidence during the probation revocation hearing.³ See, e.g., Reyes, 868 N.E.2d at 440; see also Knecht, 85 N.E.3d at 835 (holding no violation of due process where defendant had cross-examined witness at previous criminal trial). In her deposition, after the prosecutor played the 9-1-1 recording for T.M., the following colloquy occurred:

Q So when you were talking to the dispatcher, were you lying right here?

A When I said he choked me?

Q Everything from, “my boyfriend just choked me. We got into an argument. He put his hands on me twenty minutes ago. He took my phone. So I haven't had my[․],” was that a lie?

A He, he did choke me.

Ex. Vol. 3, pp. 34-35 (emphasis added). T.M. later testified that she had lied to the 9-1-1 operator when T.M. stated that Davis had choked her three times. And T.M. also testified that Davis did not choke her at all.

[17] On appeal, Davis maintains that T.M.’s deposition testimony

lack[s] substantial guarantees of trustworthiness. Considering the statements as a whole, the declarant either committed perjury or false informing. In her deposition, she testified that she lied to law enforcement multiple times, including when she stated that Davis choked her. If the deposition testimony was false, then the declarant committed perjury. All the hearsay statements were made by an individual who swore under oath she lied to law enforcement. The statements are not substantially trustworthy.

Appellant's Br. at 13 (record citation omitted). We do not agree.

[18] It is well settled that it is the province of the trier of fact to hear the testimony given by the witnesses and to assess credibility and veracity. Jordan v. State, 656 N.E.2d 816, 818 (Ind. 1995). Inconsistencies go to the weight and credibility of the testimony, the resolution of which is within the province of the trier of fact. Id. This Court will not judge witness credibility or reweigh the evidence. Id.

[19] The State argued that it had good cause for admitting T.M.’s deposition testimony in lieu of her live testimony, as Davis had called her to testify and she did not show up. And the deposition testimony was substantially trustworthy given that Davis thoroughly questioned T.M. during direct and redirect examination. We cannot say that the trial court violated Davis's right to due process when it admitted T.M.’s deposition testimony over Davis's objection.

[20] The 9-1-1 call transcript is also substantially trustworthy. As our Supreme Court has observed, “statements generally elicited from individuals seeking help during an ongoing emergency are not classified as testimonial.” Isom v. State, 31 N.E.3d 469, 483 (Ind. 2015) (citing Davis v. Washington, 547 U.S. 813, 822 (2006)). And the admission of non-testimonial statements does not violate the Sixth Amendment. See Cardosi v. State, 128 N.E.3d 1277, 1288 (Ind. 2019). Here, in the 9-1-1 call, T.M. was reporting an emergency and requesting the assistance of law enforcement. The first words out of her mouth were, “Hi. My boyfriend just choked me ․” Ex. Vol. 3, p. 31. The trial court did not violate Davis's right to due process when it admitted the 9-1-1 call into evidence.

[21] Finally, Officer Nuckols's testimony regarding what T.M. had told him was merely cumulative of T.M.’s deposition testimony and the 9-1-1 call, and Davis cannot show error. See, e.g., McClain v. State, 675 N.E.2d 329, 331-32 (Ind. 1996) (holding that admission of hearsay evidence is not grounds for reversal where it is merely cumulative of other evidence admitted).

[22] In sum, the trial court properly considered hearsay evidence that bore sufficient indicia of trustworthiness. Davis has not shown that he was denied his right to due process.

Issue Two: Sentence

[23] Davis also argues that the trial court abused its discretion when it ordered him to serve the balance of his sentence, with twelve years executed and the remainder suspended to probation. “Probation is a matter of grace left to trial court discretion, not a right to which a criminal defendant is entitled.” Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013). The conditions for probation and whether to revoke probation when those conditions are violated are left to the discretion of the trial court. Id. If the trial court determines a probationer has violated a term of probation, then the court may impose one or more of the following sanctions:

(1) Continue the person on probation, with or without modifying or enlarging the conditions.

(2) Extend the person's probationary period for not more than one (1) year beyond the original probationary period.

(3) Order execution of all or part of the sentence that was suspended at the time of initial sentencing.

Ind. Code § 35-38-2-3(h). Here, minus credit for time served in pretrial detention, the trial court ordered execution of twelve years of the balance of Davis's sentence under subsection (h)(3).

[24] We review a court's sentencing decisions for probation violations for an abuse of discretion. Alford v. State, 965 N.E.2d 133, 135 (Ind. Ct. App. 2012), trans. denied. An abuse of discretion occurs where the decision is clearly against the logic and effect of the facts and circumstances. Id.

[25] Davis asserts that his “immatur[ity],” work history, minimal criminal history, and mostly-perfect completion of 800 days of supervised probation combine to show that the trial court's imposition of sentence was “unreasonable.” Appellant's Br. at 17. But the seriousness of Davis's underlying crime and his probation violations justified his sentence. Davis shot a woman and pleaded guilty to Level 2 robbery causing serious bodily injury. After he was placed on probation for that crime, not only did Davis choke T.M. in the presence of her two-year-old daughter, but he violated a no contact order when he repeatedly called T.M. from jail after his arrest. Davis has not shown that the trial court abused its discretion when it imposed its sentence.

[26] For all these reasons, we affirm Davis's sentence.

[27] Affirmed.

FOOTNOTES

1.   Davis was twenty-two years old at the time of the shooting, and his criminal history included four misdemeanor offenses related to one occasion when he drove while intoxicated in 2018.

2.   There are two volumes of transcript entitled “Volume 2 of 3.” One volume contains both the August 7, 2025, evidentiary hearing and the conclusion of the dispositional hearing held in September 2025, which we will refer to as “Vol. 2.”

3.   We reject Davis's contention that T.M.’s deposition testimony is not substantially trustworthy because she “swore under oath [that] she lied to law enforcement.” Appellant's Br. at 13. Davis cites no authority for that contention, and we agree with the State that it was the trial court's prerogative to resolve the conflicts in T.M.’s testimony.

Mathias, Judge.

May, J., and Felix, J., concur.