       MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D), this
      Memorandum Decision shall not be regarded as                        May 28 2015, 10:08 am
      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 A. Bates                                            Gregory F. Zoeller
      Office of the Lake County Public                         Attorney General of Indiana
      Defender
                                                               Larry D. Allen
      Appellate Division
                                                               Deputy Attorney General
      Crown Point, Indiana
                                                               Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Anthony Edward Stewart,                                  May 28, 2015

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               45A04-1409-CR-422
              v.                                               Appeal from the Lake Superior
                                                               Court
      State of Indiana,                                        The Honorable Clarence D. Murray,
      Appellee-Plaintiff                                       Judge

                                                               Case No. 45G02-0908-FB-93




      Crone, Judge.


                                             Case Summary
[1]   Anthony Edward Stewart appeals an order revoking his probation. He asserts

      that the trial court abused its discretion in admitting police testimony
      Court of Appeals of Indiana | Memorandum Decision 45A04-1409-CR-422 | May 28, 2015          Page 1 of 12
      containing hearsay statements and identification evidence by an eyewitness and

      in admitting recordings of phone calls that he placed from the jail. Finding that

      the recorded phone calls were properly admitted, we conclude that any possible

      error in admitting the hearsay statements and identification evidence was

      harmless. Thus, we affirm.


                              Facts and Procedural History
[2]   In January 2013, Stewart was convicted via plea agreement of class B felony

      unlawful possession of a firearm by a serious violent felon. The trial court

      sentenced him to ten years, with four years suspended to probation. The

      conditions of his probation included a prohibition against possessing a firearm

      and a prohibition against committing a new criminal offense.


[3]   On February 1, 2014, gunshots were fired at a vehicle carrying three people.

      One of the occupants, Brian Boyd, was seriously injured and hospitalized. In

      the course of his investigation, East Chicago Police Department Detective Isaac

      Washington interviewed Dwayne Millender, a passenger in the vehicle at the

      time of the shooting. During his time on the force, Detective Washington had

      repeatedly been in contact with both Millender and Stewart, and he knew that

      “Ant” was Stewart’s nickname and “Lakeside” was Millender’s nickname. Tr.

      at 12 and 13. Millender told the detective that “Ant” was the shooter. Id. He

      subsequently identified Stewart as the shooter from a photo array. On February

      1, 2014, the State charged Stewart with attempted murder, aggravated battery,




      Court of Appeals of Indiana | Memorandum Decision 45A04-1409-CR-422 | May 28, 2015   Page 2 of 12
      attempted battery by means of a deadly weapon, battery resulting in serious

      bodily injury to an endangered adult, and a habitual offender count.


[4]   On February 28, 2014, during the pendency of the attempted murder

      proceedings, the State filed a petition to revoke Stewart’s probation, alleging

      that he violated his probation conditions by possessing a firearm and

      committing a new criminal offense. While he was in the Lake County jail

      pending trial, he made several phone calls, which were recorded. At least three

      of the calls were made to Millender. During these calls, Stewart informed

      Millender that he would be receiving subpoenas and admonished Millender not

      to show up for deposition or court proceedings. Millender agreed not to testify

      against Stewart. During one of the calls, Stewart told Millender that he did not

      intend for the shots to hit Millender but that they were meant to hit a person

      named Buddy. In another recorded call, Stewart told an unidentified person

      that he did not want Millender to surprise him by showing up in court.


[5]   After several continuances, the revocation hearing was held on July 3, 2014.

      Detective Washington testified concerning the State’s efforts to serve a

      subpoena on Millender by driving the area two days before the hearing.1 He

      described his familiarity with both Stewart and Millender, having coached

      Stewart in basketball and spoken with him approximately fifty times and having

      spoken with Millender approximately 100 times. Over Stewart’s hearsay



      1
         Although the record is unclear, the subpoena apparently was for Stewart’s upcoming attempted murder
      trial rather than his probation revocation hearing.

      Court of Appeals of Indiana | Memorandum Decision 45A04-1409-CR-422 | May 28, 2015            Page 3 of 12
      objections, the trial court admitted the detective’s testimony concerning

      Millender’s statements identifying Stewart as the shooter both verbally and by

      photograph.


[6]   Also over Stewart’s objection, the trial court admitted four recorded phone calls

      from the jail, with Detective Washington authenticating the voices and

      nicknames of Stewart and Millender. The trial court found that the State had

      proven by a preponderance of the evidence that Stewart violated the terms of

      his probation. The court therefore issued an order revoking Stewart’s

      probation. Stewart now appeals. Additional facts will be provided as

      necessary.


                                  Discussion and Decision
[7]   Stewart maintains that the trial court abused its discretion in revoking his

      probation. Probation is a matter of grace left to the trial court’s sound

      discretion, not a right to which a criminal defendant is entitled. Prewitt v. State,

      878 N.E.2d 184, 188 (Ind. 2007). The trial court determines the conditions of

      probation and may revoke probation if the probationer violates those

      conditions. Id. We review a trial court’s probation violation determination

      using an abuse of discretion standard. Jackson v. State, 6 N.E.3d 1040, 1042

      (Ind. Ct. App. 2014). 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 or where the trial court misinterprets the law. Id. In determining

      whether a trial court has abused its discretion, we neither reweigh evidence nor


      Court of Appeals of Indiana | Memorandum Decision 45A04-1409-CR-422 | May 28, 2015   Page 4 of 12
      judge witness credibility. Ripps v. State, 968 N.E.2d 323, 326 (Ind. Ct. App.

      2012). Instead, we consider conflicting evidence in the light most favorable to

      the trial court’s ruling. Id. Because a probation revocation proceeding is civil in

      nature, the State need only prove the alleged probation violation by a

      preponderance of the evidence. Holmes v. State, 923 N.E.2d 479, 485 (Ind. Ct.

      App. 2010). Proof of a single violation is sufficient to permit a trial court to

      revoke probation. Beeler v. State, 959 N.E.2d 828, 830 (Ind. Ct. App. 2011),

      trans. denied.


[8]   Here, the revocation petition alleged that Stewart “engage[d] in criminal

      activity as indicated by his arrest” for attempted murder, aggravated battery,

      attempted battery by means of a deadly weapon, and battery resulting in serious

      bodily injury to an endangered adult, all in conjunction with a February 1, 2014

      shooting incident. Appellant’s App. at 40. At the time of the hearing, he was

      awaiting trial on those charges.2

               When a probationer is accused of committing a criminal offense, an
               arrest alone does not warrant the revocation of probation. Likewise,
               the mere filing of a criminal charge against a defendant does not
               warrant the revocation of probation. Instead, when the State alleges
               that the defendant violated probation by committing a new criminal
               offense, the State is required to prove—by a preponderance of the




      2
        The evidence below and the arguments on appeal focus on Stewart’s alleged commission of a new criminal
      offense. In granting the petition, the trial court referenced the “violations” in the plural, finding that they
      were established by a preponderance of the evidence. Tr. at 44. The court made one brief reference to the
      “bullets or shots,” but otherwise appeared to roll the firearm possession violation into the evidence
      supporting Stewart’s commission of the new offense. Id. at 43. Because the new offense violation involved
      the use of a firearm, we will address the firearm possession as it relates to that analysis.

      Court of Appeals of Indiana | Memorandum Decision 45A04-1409-CR-422 | May 28, 2015                 Page 5 of 12
               evidence—that the defendant committed the offense.


       Jackson, 6 N.E.3d at 1042 (citations and quotation marks omitted). In the

       context of probation revocation, the State need not establish that the defendant

       was actually convicted of the new offense. Lightcap v. State, 863 N.E.2d 907, 911

       (Ind. Ct. App. 2007).


[9]    Stewart contends that he was denied his constitutional right of confrontation

       and due process when the trial court admitted certain evidence. In the context

       of probation revocation, the defendant’s liberty interest is conditional, and he is

       therefore not entitled to the full panoply of due process rights afforded a

       defendant in a criminal proceeding. Piper v. State, 770 N.E.2d 880, 882 (Ind. Ct.

       App. 2002), trans. denied. However, because probation revocation implicates his

       conditional liberty interest, he is entitled to some procedural due process,

       including:

               (a) written notice of the claimed violations of probation; (b) disclosure
               to the probationer of evidence against him; (c) opportunity to be heard
               in person and to present witnesses and documentary evidence; (d) the
               right to confront and cross-examine adverse witnesses (unless the
               hearing officer specifically finds good cause for not allowing
               confrontation); (e) a neutral and detached hearing body; and (f) a
               written statement by the factfinders as to the evidence relied on and
               reasons for revoking probation.
       Id.


[10]   In Reyes v. State, 868 N.E.2d 438, 441 (Ind. 2007), our supreme court adopted a

       “substantial trustworthiness” test for determining the admissibility of evidence

       during probation revocation proceedings. This means that in such hearings, the

       Court of Appeals of Indiana | Memorandum Decision 45A04-1409-CR-422 | May 28, 2015   Page 6 of 12
       trial court may consider “any relevant evidence bearing some substantial indicia

       of reliability,” including “reliable hearsay.” Monroe v. State, 899 N.E.2d 688,

       691 (Ind. Ct. App. 2009). In other words, concerning hearsay, a showing of

       substantial trustworthiness is an implicit finding of good cause, therefore

       obviating the need to otherwise show good cause for not producing the

       declarant live. Reyes, 868 N.E.2d at 442.


[11]   Stewart challenges the trial court’s admission of four recorded phone calls that

       he made from the jail and Detective Washington’s testimony concerning those

       calls. To the extent that he predicates this claim on what he characterizes as a

       discovery violation by the State in failing to timely notify him of the recordings,

       we note that

                 [t]he trial court has broad discretion in dealing with discovery
                 violations and may be reversed only for an abuse of that discretion
                 involving clear error and resulting prejudice. Generally, the proper
                 remedy for a discovery violation is a continuance. Exclusion of the
                 evidence is an extreme remedy and is to be used only if the State’s
                 actions were deliberate and the conduct prevented a fair trial.
       Berry v. State, 715 N.E.2d 864, 866 (Ind. 1999) (citations omitted).


[12]   Indiana Trial Rule 26, governing discovery, does not provide for mandatory

       disclosures. Although the State has a constitutional duty to disclose evidence

       favorable to the defendant, “there is no affirmative duty to provide inculpatory

       evidence.” Booker v. State, 903 N.E.2d 502, 504-05 (Ind. Ct. App. 2009), trans.

       denied.




       Court of Appeals of Indiana | Memorandum Decision 45A04-1409-CR-422 | May 28, 2015   Page 7 of 12
[13]   During direct examination, the State questioned Detective Washington

       concerning the voices on four recorded phone calls placed from the jail. The

       following colloquy ensued:

               [DEFENSE COUNSEL]: Judge, at this juncture, I have to object. I
               was never given an opportunity to review these phone calls. I’m just
               hearing about this for the first time this morning. So I would like to
               show my objection to any testimony relating to anything that was not
               provided in discovery.

               THE COURT: Was there a discovery order in the Petition to Revoke
               Probation?

               [DEFENSE COUNSEL]: Judge, I thought that was a standard course
               of the matter, Judge. I presumed that that was supposed to be turned
               over as a matter of course.

               THE COURT: It wasn’t. Obviously we understand your objection
               concerning short cause FA-7 [attempted murder]. And so your
               objection—you are objecting to this being presented to the Court at
               this time?

               [DEFENSE COUNSEL]: Right, Judge.

               THE COURT: Would you like an opportunity to hear the recordings
               before we reconvene. We could recess for a while to give you that
               opportunity.

               [DEFENSE COUNSEL]: Judge, obviously I would like that
               opportunity. However, I think my objection still stands, that it puts
               me in a distinct disadvantage having meaningful cross-examination
               based upon that at this late notice.

               THE COURT: Okay.

               [DEFENSE COUNSEL]: While I would be glad to take that
               opportunity, Judge, I don’t think that cures my objection because I do
               not feel that I would have proper time to adequately cross examine this

       Court of Appeals of Indiana | Memorandum Decision 45A04-1409-CR-422 | May 28, 2015   Page 8 of 12
               witness or challenge those, ask that they not be admitted.

               THE COURT: Okay. The record will show that this evidentiary
               hearing was scheduled on June the 6th, and there was an opportunity
               from that date to now, it’s been almost a month, to request any
               information from the State. And so your objection to prohibit the
               presentation of the evidence is denied. And, State, you may proceed.

               [STATE]: Your Honor, may I address an issue that was stated for the
               record?

               THE COURT: If you would like to, yes.

               [STATE]: The State did notify [defense counsel] that I stated I am
               listening to some recordings. I can’t make out what they said. I will
               have them. I was notified over the weekend of this specific language
               in the dialogue. And I did call—we’ve been texting back and forth
               letting [defense counsel] know, what the gist of what some of the
               conversations are. This morning, I called and stated, I am here. I’m
               trying to download these. He was busy. So part—it is true, I did not
               turn them over; however, he had notice prior to right this moment.

               THE COURT: All right.

               [DEFENSE COUNSEL]: Judge, I would acknowledge that as well.
               But I did not know what they said to even factor it, so that’s what my
               objection was.

               THE COURT: All right. Thank you very much, everyone. Let’s go
               forward.
       Tr. at 15-17.


[14]   First, the record indicates that Stewart never requested discovery from the State

       in the probation revocation proceedings. Instead, he treated discovery as

       mandatory as a matter of course. The trial court indicated, in ruling on the

       recordings, that Stewart had never requested discovery despite having had a


       Court of Appeals of Indiana | Memorandum Decision 45A04-1409-CR-422 | May 28, 2015   Page 9 of 12
       month since the most recently granted continuance to do so. The State notes

       that even in a criminal trial setting, as opposed to the more flexible probation

       revocation setting, the constitutional duty to disclose applies only to

       exculpatory evidence. Booker, 903 N.E.2d at 504-05. The recordings clearly

       implicate Stewart as the shooter and highlight his attempts to dissuade

       Millender from testifying.


[15]   Moreover, Stewart never specifically requested a continuance. Rather, defense

       counsel reiterated that his objection was to the admission of the recordings and

       testimony pertaining to them. When the trial court offered defense counsel a

       recess to listen to the recordings, his responses were equivocal: “I would like

       that opportunity. However ….” And, “While I would be glad to take that

       opportunity …. I don’t think that cures my objection … [I] ask that they not be

       admitted.” Tr. at 15-16. If he had wanted a continuance, that would have been

       the perfect time to request it; yet he did not. As a result, he has waived the issue

       for consideration on appeal. See Lindsey v. State, 877 N.E.2d 190, 196 (Ind. Ct.

       App. 2007) (failure to request continuance where continuance is the appropriate

       remedy constitutes waiver), trans. denied (2008).


[16]   Finally, despite Stewart’s assertion of being unaware of the recordings until the

       hearing, the prosecutor emphasized that she had notified defense counsel over

       the weekend concerning the contents of the recordings and that the two had

       texted back and forth about the gist of the conversations. The State also noted

       that it had offered defense counsel an opportunity to listen to the recordings that

       morning before the hearing. Defense counsel admitted as such, but reiterated

       Court of Appeals of Indiana | Memorandum Decision 45A04-1409-CR-422 | May 28, 2015   Page 10 of 12
       his objection to their admission. In short, Stewart did not avail himself of the

       procedures available to cure any infirmities in the discovery process. Instead,

       he sought the extreme remedy of exclusion yet failed to show that the State

       deliberately withheld the recordings from him.


[17]   Notwithstanding Stewart’s procedural failures, the recordings contained

       inculpatory, not exculpatory, evidence. Detective Washington’s testimony was

       crucial in laying a foundation for the recordings, as he was able to authenticate

       the voices of both Millender and Stewart. See, e.g., Tr. at 19 (“Q. So you know

       [Stewart’s] voice and can identify it? A. I know it, yes.”). The detective

       testified that he had spoken to Millender over 100 times and that he had

       coached Stewart in basketball and had spoken to him approximately fifty times.

       As each recording was played, the detective identified the voices. He identified

       the first three recordings as conversations between Stewart, a/k/a “Ant,” and

       Millender, a/k/a “Lakeside.” Id. at 21-22. The recordings contained

       instructions from Stewart to Millender, with Stewart informing Millender that

       he would be receiving papers ordering him to come in for a deposition or for

       testimony in court and advising him to ignore the papers and not show up. The

       recordings also indicated Millender’s agreement not to testify against Stewart.

       In one of the recordings, Stewart told Millender that the bullets were not

       intended for him but were intended for another person in the vehicle. The

       fourth recording was a conversation between Stewart and an unrecognized

       individual wherein Stewart advised his listener that he did not want Millender

       showing up and surprising him by coming to court.


       Court of Appeals of Indiana | Memorandum Decision 45A04-1409-CR-422 | May 28, 2015   Page 11 of 12
[18]   The recordings, taken through the jail phone system, were subjected to voice

       authentication by Detective Washington, who was extensively familiar with

       both Stewart and Millender. We conclude that the recordings bore substantial

       indicia of reliability. In these recorded conversations, Stewart incriminated

       himself as to the violations of his probation conditions by admitting that he (1)

       committed a new criminal offense and (2) used a firearm. 3


[19]   In sum, the trial court did not abuse its discretion in admitting the recordings.

       As for Millender’s hearsay statements and photo array identification of Stewart

       as the shooter, any possible error in their admission was harmless as cumulative

       of the contents of those recordings. The State met its burden of establishing

       Stewart’s probation violations by a preponderance of the evidence. As such,

       the trial court acted within its discretion in revoking his probation.

       Accordingly, we affirm.


[20]   Affirmed.


       Brown, J., and Pyle, J., concur.




       3
          Because we find the recordings substantially trustworthy, we need not address Millender’s availability.
       We note, however, that the recordings implicate Stewart’s role in procuring Millender’s unavailability by
       means of intimidation. Indiana Rule of Evidence 804(b)(5) permits admission of hearsay “offered against a
       party that has engaged in or encouraged wrongdoing that was intended to, and did, procure the unavailability
       of the declarant as a witness for the purpose of preventing the declarant from attending or testifying.”
       Essentially, Stewart invited the very circumstance about which he now complains: hearsay evidence
       admitted in the absence of the declarant. Having played this role in procuring Millender’s unavailability, he
       is subject to the “forfeiture by wrongdoing” hearsay exception found in Rule 804(b)(5). White v. State, 978
       N.E.2d 475, 479 (Ind. Ct. App. 2012), trans. denied (2013).




       Court of Appeals of Indiana | Memorandum Decision 45A04-1409-CR-422 | May 28, 2015             Page 12 of 12
