Court of Appeals of Indiana | Memorandum Decision 19A-CR-1819 | January 24, 2020 Page 1 of 14

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

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

David W. Stone, IV

Anderson, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Courtney Staton

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Robert A. Wilson, Jr.,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

January 24, 2020

Court of Appeals Case No.

19A-CR-1819

Appeal from the Madison Circuit 

Court

The Honorable Mark Dudley, 

Judge

Trial Court Cause No.

48C06-1504-F3-524

Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1819 | January 24, 2020 Page 2 of 14

STATEMENT OF THE CASE

[1] Appellant-Defendant, Robert Wilson (Wilson), appeals the trial court’s 

revocation of his probation and the sanction it imposed following that 

revocation.

[2] We affirm. 

ISSUES

[3] Wilson presents two issues on appeal, which we restate as the following three:

(1) Whether the trial court abused its discretion when it admitted 

certain hearsay evidence;

(2) Whether the State proved by a preponderance of the evidence 

that Wilson violated his probation; and

(3) Whether the trial court abused its discretion when it ordered 

Wilson to execute six years of his previously-suspended 

sentence. 

FACTS AND PROCEDURAL HISTORY

[4] On April 8, 2015, the State filed an Information, charging Wilson with Level 3 

felony armed robbery, Level 6 felony possession of cocaine, and Class A 

misdemeanor false informing. On October 13, 2015, Wilson pleaded guilty as 

charged, and on November 23, 2015, the trial court imposed an aggregate 

sentence of twelve years, with seven years suspended to probation. As part of 

the conditions of his probation, Wilson was required to refrain from committing 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1819 | January 24, 2020 Page 3 of 14

new offenses and possessing illegal substances. While incarcerated, Wilson was 

admitted to a purposeful incarceration program to address his substance abuse. 

Wilson was terminated from the program for uncompleted treatment. 

[5] Wilson was released from incarceration on September 27, 2018, and began his 

probation. On October 26, 2018, Officer Matthew Kopp (Officer Kopp) of the 

Anderson Police Department (APD) responded to a call of a domestic battery 

at a home in the 1500 block of Arrow Avenue in Anderson, Indiana. Officer 

Kopp encountered Wilson and the mother of Wilson’s child, Sadie Cosby

(Cosby), at the residence. Officer Kopp arrested Wilson, who was charged 

subsequently with domestic battery. As part of that criminal case, a no-contact 

order was entered against Wilson in favor of Cosby. On November 8, 2018, the 

State filed a Notice of Probation Violation, alleging that Wilson had committed 

the new offense of domestic battery on Cosby on October 26, 2018. Wilson 

failed to appear for his initial hearing on the State’s first Notice, and a warrant 

was issued for his arrest. 

[6] On December 19, 2018, Cosby called 9-1-1 and reported that Wilson was in 

violation of the no-contact order and that he had choked her. A few minutes 

after receiving the dispatch, Officer Mark Dawson (Officer Dawson) of the 

APD responded to the call at the same home in the 1500 block of Arrow 

Avenue in Anderson. Wilson, who had been seen by Cosby’s Mother in the 

back yard of the home, departed before Officer Dawson arrived. When Officer 

Dawson encountered Cosby, she was visibly upset, breathing heavily, and 

appeared to have been crying. Cosby reported to Officer Dawson that Wilson 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1819 | January 24, 2020 Page 4 of 14

had battered and choked her. Cosby had visible redness around her neck. 

Officer Dawson observed that Cosby had difficulty speaking, breathing, and 

swallowing, which Officer Dawson had been trained to recognize as indicia of 

strangulation. On December 28, 2018, the State filed its Amended Notice of 

Violation of Probation, alleging that on December 19, 2018, Wilson had taken 

substantial steps toward the commission of the new offenses of domestic 

battery, strangulation, criminal confinement, and invasion of privacy. On 

January 18, 2019, the State filed an Information, charging Wilson with those 

offenses.1

 On April 17, 2019, Wilson was taken into custody, and he was 

released from custody on June 3, 2019. 

[7] On June 14, 2019, Wilson reported to his probation officer. Wilson took a drug 

screen which was positive for illegal substances. On June 26, 2019, the State 

filed its Second Amended Notice of Violation of Probation, alleging that on 

June 14, 2019, Wilson had committed the new offenses of possession of 

methamphetamine/amphetamine, cocaine, and cannabinoids by providing a 

positive drug screen. 

[8] The hearing on the State’s Second Amended Notice of Violation of Probation 

was scheduled for July 12, 2019. Cosby was subpoenaed as a witness for the 

hearing and met with the State’s investigator, Randy Tracy, prior to the 

hearing. As the two met, Wilson contacted Cosby, who was pregnant with 

1

 The domestic battery was charged as domestic battery resulting in moderate bodily injury, a Level 6 felony, 

Ind. Code §§ 35-42-2-1.3 (a)(1), -(b)(3). 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1819 | January 24, 2020 Page 5 of 14

Wilson’s child at the time, on her cell phone and directed her to inform the 

State that she and her mother would not testify against Wilson. 

[9] At the probation violation hearing, Wilson admitted that he had committed the 

June 14, 2019, offenses by providing a positive drug screen as alleged by the 

State. Because Wilson denied the other allegations against him, the trial court 

conducted an evidentiary hearing. The trial court initially allowed Officer 

Kopp to testify over Wilson’s hearsay objection that Cosby had reported on 

October 26, 2018, that Wilson had battered her, finding that her report to law 

enforcement was substantially trustworthy hearsay admissible in the revocation 

proceeding. Officer Kopp then testified that, as he attempted to place Wilson 

under arrest, Cosby had recanted her report. The trial court sustained Wilson’s 

objection to this hearsay testimony, finding that Cosby’s recantation rendered 

all hearsay testimony regarding her statements on October 26, 2018, 

untrustworthy. The trial court struck the previously-admitted hearsay 

statements from the record. 

[10] Officer Dawson testified regarding Cosby’s statements to him on December 19, 

2018. The trial court admitted those statements over Wilson’s hearsay 

objection, finding that they were excited utterances excepted from the hearsay 

rule. Photographs depicting injuries to Cosby’s neck were also admitted as 

Exhibits 3 through 5. At the close of the evidence, the trial court found that the 

State had failed to prove that Wilson committed the October 26, 2018, domestic 

battery because there was no evidence in the record as to who had battered 

Cosby on that day. The trial court also found that the State had failed to prove 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1819 | January 24, 2020 Page 6 of 14

that Wilson had committed criminal confinement on December 19, 2018, but 

that the State had shown by a preponderance of the evidence that Wilson had 

violated the terms of his probation by committing the other December 19, 2018, 

offenses and, by his own admission, by committing the June 14, 2019, drug 

possession offenses. The trial court revoked Wilson’s probation. 

[11] The trial court then proceeded to a hearing on what sanction to impose as a 

result of the violations. Wilson was sworn in and testified that the reason that 

he tested positive for illegal substances on June 14, 2019, was that he was using 

drugs in jail after he was taken into custody for the December 19, 2018, 

offenses. Wilson maintained that he had just procured employment and was to 

start substance abuse treatment that day. As to his relationship with Cosby, 

Wilson testified that they were attempting to work out their difficulties. 

Wilson’s counsel requested that the trial court sanction Wilson with a 

community corrections, Continuum of Sanctions (COS), or some other form of 

probation as an alternative to the Department of Correction. 

[12] The trial court noted the short period of time between Wilson’s release from 

incarceration for the underlying offenses and his commission of the December 

19, 2018, new offenses. The trial court also observed that, after being released 

from custody on June 3, 2019, Wilson was abusing illegal substances eleven 

days later, Wilson had not sought substance abuse treatment until just before 

the hearing, and that Wilson had pressured Cosby not to testify at the probation 

revocation hearing. The trial court concluded that these circumstances did not 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1819 | January 24, 2020 Page 7 of 14

reflect well on Wilson’s character and ordered him to serve six years of his 

previously-suspended sentence. 

[13] Wilson now appeals. Additional facts will be provided as necessary. 

DISCUSSION AND DECISION

I. Admission of Evidence

[14] Although Wilson styles his first argument as a challenge to the sufficiency of 

the evidence supporting the revocation of his probation, his argument also 

contains a contention that the trial court abused its discretion when it admitted 

Cosby’s December 19, 2018, hearsay statements to Officer Dawson. We begin 

by observing that it is well-established that “probation may be revoked on 

evidence of violation of a single condition.” Heaton v. State, 984 N.E.2d 614, 

618 (Ind. 2013). Wilson does not appeal the trial court’s determination that he 

violated his probation by committing the new drug possession offenses on June 

14, 2019. Therefore, we would affirm the trial court’s revocation of Wilson’s 

probation even if the challenged evidence was improperly admitted. See Menifee 

v. State, 600 N.E.2d 967, 970 (Ind. Ct. App. 1992) (upholding trial court’s 

revocation decision even where the State conceded that insufficient evidence 

was presented on some violations because other violations were adequately 

supported by the evidence). 

[15] Regarding the merits of Wilson’s argument, we conclude that the trial court did 

not abuse its discretion in admitting Cosby’s statements to Officer Dawson. 

There is no right to probation, the trial court having discretion to grant it and to 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1819 | January 24, 2020 Page 8 of 14

revoke it if the conditions it placed on probation are violated. Reyes v. State, 868 

N.E.2d 438, 440 (Ind. 2007). Because of this discretion, although the Due 

Process Clause applies to probation revocation proceedings, probationers do 

not receive the full panoply of protections that defendants receive at trial. Id. 

Indeed, the Indiana Rules of Evidence do not strictly apply to probation 

revocation hearings. Cox v. State, 706 N.E.2d 547, 550-51 (Ind. 1999). Courts 

may admit evidence during a probation revocation that would be inadmissible 

in a criminal trial, including hearsay, if the trial court determines that the 

hearsay is substantially trustworthy. Reyes, 868 N.E.2d at 440-41. We review a 

trial court’s admission of evidence at a probation revocation hearing for an 

abuse of its discretion, which only occurs if the trial court’s decision is clearly 

against the logic and effect of the facts and circumstances before it. Robinson v. 

State, 955 N.E.2d 228, 231 (Ind. Ct. App. 2011). 

[16] The trial court found the challenged hearsay to be admissible pursuant to the 

excited utterance exception to the hearsay rule which provides for the 

admission of “[a] statement relating to a startling event or condition, made 

while the declarant was under the stress of excitement that it caused.” See Ind. 

Evidence Rule 803(2). In order to meet the exception, three circumstances 

must be present: (1) a “startling event or condition” must have occurred; (2) the 

declarant must have made the statement “while under the stress of excitement 

caused by the event or condition,” and (3) the statement must be related to the 

event or condition.” Ramsey v. State, 122 N.E.3d 1023, 1032 (Ind. Ct. App. 

2019), trans. denied. The test is not mechanical, and admissibility turns “on 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1819 | January 24, 2020 Page 9 of 14

whether the statement was inherently reliable because the witness was under 

the stress of the event and unlikely to make deliberate falsifications.” Id.

[17] Here, Officer Kopp encountered Cosby minutes after receiving the 9-1-1 

dispatch. While Cosby reported that Wilson had battered and strangled her, 

she was visibly upset, breathing heavily, and appeared to have been crying. 

Cosby had visible wounds around her neck and exhibited the indicia of having 

been strangled. This was sufficient evidence to show that (1) Cosby had been 

battered and strangled, a startling event; (2) Cosby was still under the stress of 

that startling event when she made her report to Officer Kopp; and (3) that her 

report related to being battered and strangled. See id. (holding that victim’s 

report to officer was admissible as an excited utterance where victim appeared 

to have been through a traumatic ordeal, was upset and “visibly shaken,” and 

had severe injuries). As such, the challenged hearsay testimony was 

substantially trustworthy and admissible at Wilson’s probation revocation 

hearing. 

[18] Nevertheless, Wilson argues that Cosby’s hearsay statements were not 

substantially trustworthy because, during the previous domestic battery incident 

on October 26, 2018, Cosby recanted her report that Wilson had battered her. 

However, the challenged evidence pertained to an entirely different incident on 

a different date, and Cosby never retracted her report that Wilson had battered 

and strangled her on December 19, 2018. It was within the discretion of the 

trial court to find Cosby to be incredible on October 26, 2018, but credible as to 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1819 | January 24, 2020 Page 10 of 14

an entirely separate incident on December 19, 2018. Accordingly, we find no 

error in the trial court’s admission of Cosby’s hearsay statements. 

II. Sufficiency of the Evidence

[19] Wilson challenges the sufficiency of the evidence supporting the trial court’s 

determination that he committed the new offense of domestic battery on 

December 19, 2018. A probation violation hearing is a civil proceeding, and 

the State must prove the alleged probation violation by a preponderance of the 

evidence. Murdock v. State, 10 N.E.3d 1265, 1267 (Ind. 2014). Our standard of 

review of the sufficiency of the evidence supporting the revocation of probation 

is similar to our standard of review for other matters: “[W]e 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.’” Id. (quoting Braxton v. State, 651 N.E.2d 268, 270 

(Ind. 1995)). 

[20] The State alleged that Wilson violated his probation by committing domestic 

battery on December 19, 2018. The offense of domestic battery occurs when a 

person knowingly or intentionally touches a family or household member in a 

rude, insolent, or angry manner. I.C. § 35-42-2-1.3(a)(1). The evidence showed 

that Cosby, with whom Wilson had a child, reported on December 19, 2018, 

that Wilson had battered her, and she had visible injuries on her face. This 

evidence proved by a preponderance of the evidence that Wilson had battered 

Cosby. See Steele v. State, 42 N.E.3d 138, 144 (Ind. Ct. App. 2015) (upholding 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1819 | January 24, 2020 Page 11 of 14

Steele’s conviction for Class D felony domestic battery where victim suffered an 

injury to her eye and had reported during treatment that Steele caused the 

injury). 

[21] Wilson argues that the evidence was insufficient because Cosby was not a 

credible witness. Relying on the fact that Cosby had recanted her report of the 

October 26, 2018, domestic battery, Wilson contends that the evidence is 

insufficient because the trial court did not explain “how a person who admitted 

fabricating her earlier allegation to the officer who responded to the first claim 

of domestic battery was found credible with respect to the second claim.” 

(Appellant’s Br. p. 9). However, the trial court specifically noted when it struck 

Cosby’s October 26, 2018, statements that it was doing so because she recanted 

them. Cosby never recanted her December 19, 2018, statements to Officer 

Dawson, and it was within the discretion of the trial court to believe that 

testimony. Wilson essentially requests that we reassess Cosby’s credibility on 

appeal, which is contrary to our standard of review. See Murdock, 10 N.E.3d at 

1267. In addition, Wilson does not contest that he committed the June 13, 

2019, drug offenses, so we would affirm the trial court’s revocation 

determination even if we found the evidence of the December 19, 2018, 

domestic battery to be lacking. See Menifee, 600 N.E.2d at 970. 

III. Sanction

[22] Wilson argues that the trial court abused its discretion when it ordered him to 

execute six years of his previously-suspended sentence. It is well-settled that 

probation is a matter of grace which is left to the trial court’s discretion. Heaton, 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1819 | January 24, 2020 Page 12 of 14

984 N.E.2d at 616. If a trial court revokes probation, it may continue the 

person on probation, extend the probationary period for not more than one 

year, or order the execution of all or part of the previously-suspended sentence. 

I.C. § 35-38-2-3(h). The trial court has considerable leeway in deciding how to 

proceed in probation matters. Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). 

If this were not so, trial court judges would be less inclined to order probation 

for defendants. Id. In light of this considerable leeway, “a trial court’s 

sentencing decisions for probation violations are reviewable using the abuse of 

discretion standard.” Id. An abuse of discretion occurs where the trial court’s 

decision is clearly against the logic and effect of the facts and circumstances 

before it. Id. 

[23] Here, the trial court found that imposition of six years of Wilson’s previouslysuspended sentence was merited because Wilson began committing new crimes

less than three months after beginning his probation, he continued to abuse 

drugs and tested positive for illegal substances eleven days after being on 

conditional release, and he attempted to subvert justice by pressuring Cosby not 

to testify at his revocation hearing. In addition, as he acknowledges on appeal, 

Wilson has a poor history of probation compliance. The pre-sentence 

investigation report filed in the underlying armed robbery case revealed that, as 

a juvenile, Wilson was found to have violated his probation on nine occasions. 

As an adult, Wilson had his probation, work release, and other community 

corrections placements revoked on six occasions. Wilson was also plainly and 

repeatedly violating the no-contact order in place for Cosby, who was pregnant 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1819 | January 24, 2020 Page 13 of 14

with his child by the time of the revocation hearing. None of these 

circumstances reflect well on Wilson’s character. It was within the trial court’s 

considerable discretion to conclude that Wilson did not merit any additional 

conditional freedom and that he should execute most his previously-suspended 

sentence.

[24] Wilson contends that “[d]rug court would give the defendant a final 

opportunity to reform and spare the public the cost of incarceration.” 

(Appellant’s Br. p. 13). We observe that Wilson did not specifically request this 

sanction at his revocation hearing. Rather, Wilson argued that he should be 

placed in “community corrections, could be in COS, um [sic] some form of 

probation.” (Tr. Vol. II, p. 75). A trial court cannot be said to have abused its 

discretion in declining to impose a sanction that was not requested. In 

addition, there is no evidence in the record that Wilson qualified for the 

sanction he now seeks. Be that as it may, Wilson had been terminated from 

substance abuse treatment when he was incarcerated for the underlying offense, 

and the trial court was under no obligation to credit his late-breaking 

enrollment in treatment prior to the revocation hearing. Finding no abuse of 

discretion, we affirm the trial court’s sanction. 

CONCLUSION

[25] Based on the foregoing, we conclude that the trial court did not abuse its 

discretion when it admitted Cosby’s hearsay statements, sufficient evidence 

supported its revocation determination, and that its imposition of six years of 

Wilson’s previously-suspended sentence was within its discretion. 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1819 | January 24, 2020 Page 14 of 14

[26] Affirmed. 

[27] Baker, J. and Brown, J. concur