MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                    FILED
regarded as precedent or cited before any                           Sep 29 2017, 5:43 am

court except for the purpose of establishing                             CLERK
the defense of res judicata, collateral                              Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Kay A. Beehler                                           Curtis T. Hill, Jr.
Terre Haute, Indiana                                     Attorney General of Indiana
                                                         Eric P. Babbs
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Ariel M. Childress,                                      September 29, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         84A01-1612-CR-2938
        v.                                               Appeal from the Vigo Superior
                                                         Court
State of Indiana,                                        The Honorable John T. Roach,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         84D01-1210-FB-3384



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 84A01-1612-CR-2938 | September 29, 2017    Page 1 of 9
                                       Statement of the Case
[1]   Ariel M. Childress (“Childress”) appeals the revocation of his probation.

      Childress argues that the trial court committed fundamental error by admitting

      hearsay evidence and relying upon it to find that Childress had violated his

      probation. Childress cannot show that fundamental error occurred because he

      admitted that he had violated the two conditions of his probation as alleged by

      the State. Because there was evidence sufficient to show that Childress violated

      the terms of his probation, we affirm the trial court’s revocation of his

      probation.

[2]   Affirmed.


                                                     Issue
              Whether the trial court committed fundamental error by admitting
              hearsay evidence during the probation revocation hearing.

                                                     Facts
[3]   In October 2012, the State charged Childress with three counts of Class B

      felony arson. A year later, in October 2013, Childress entered into a written

      plea agreement for this cause and two others. In this cause, he pled guilty as

      charged to the three counts of Class B felony arson. In exchange, the State

      agreed to recommend that the trial court impose, for all three Class B felony

      convictions, concurrent sentences of fourteen (14) years, with six (6) years

      executed on work release under the supervision of Vigo County Community

      Corrections as a direct commitment and eight (8) years suspended to probation.


      Court of Appeals of Indiana | Memorandum Decision 84A01-1612-CR-2938 | September 29, 2017   Page 2 of 9
      The trial court accepted Childress’ plea and imposed the sentence contained in

      the plea agreement.1

[4]   In June 2014, the State filed a petition to revoke Childress’ direct placement in

      the work release program. This petition contained numerous alleged violations,

      including smoking K2 and cigarettes, refusing to give a urine sample, failing to

      pay work release fees, and failing to follow various rules of the work release

      program. After a hearing, Childress admitted that he had violated the terms of

      his work release as alleged, and the trial court ordered him to serve his six (6)

      year executed sentence in the Indiana Department of Correction. A little more

      than one year later, in November 2015, the trial court approved Childress’

      transfer to a community transition program.

[5]   On April 8, 2016, Childress began serving his probationary term. A few weeks

      later, on April 25, 2016, the State filed a notice of probation violation, alleging

      that Childress had violated his probation by committing new criminal offenses.

      Specifically, the State alleged that Childress had been charged with the

      following: Class A misdemeanor operating a vehicle while intoxicated

      endangering a person; and two counts of Class C misdemeanor operating a

      vehicle with a controlled substance or its metabolite in the body. Childress



      1
        Childress’ plea agreement also provided that he would plead guilty to one count of Class B felony burglary
      and seven counts of Class D felony receiving stolen property in a second cause, 84D01-1210-FB-3385
      (“Cause 3385”), and that his charges from a third cause, 84D01-1208-FD-2539, were to be dismissed.
      Additionally, the plea agreement provided that Childress’ sentence in Cause 3385 would be the same
      aggregate term as he received in this cause (fourteen (14) years, with six (6) years executed on work release as
      a direct commitment and eight (8) years suspended to probation) and would be served concurrently to this
      cause.

      Court of Appeals of Indiana | Memorandum Decision 84A01-1612-CR-2938 | September 29, 2017           Page 3 of 9
      entered an agreement to admit that he had violated probation by using

      methamphetamine in exchange for his placement in the Jail Linkage Program

      to be followed by placement into a sober living facility as a condition of

      probation. The trial court accepted the agreement.

[6]   On August 2, 2016, after Childress had successfully completed the Jail Linkage

      Program, the trial court ordered that he be returned to probation and placed in a

      sober living program at Club Soda. The trial court specified that Childress was

      to complete this program as an additional probation condition.

[7]   Later that month, on August 31, 2016, Childress called his probation officer

      and informed the officer that he had been kicked out of Club Soda. The

      probation officer contacted the Club Soda program director, Kevin Ball

      (“Ball”), and discovered that Childress had not been following the house rules.

      Ball gave Childress another chance and allowed him back into the program.

[8]   Less than two months later, on October 2, 2016, Childress was unsuccessfully

      discharged from the sober living program at Club Soda. Two days later,

      Childress called his probation officer to tell the officer that he had again been

      kicked out of Club Soda. That same day, Ball talked with the probation officer

      and faxed the probation officer a letter, stating that Childress had been “kicked

      out” of the program and that he “was not welcome back at Club Soda.” (Tr.

      Vol. 2 at 11, 12). Specifically, the letter provided, in relevant part, that

      Childress had been “discharged on 10/02/2016 due to [v]iolating Club Soda




      Court of Appeals of Indiana | Memorandum Decision 84A01-1612-CR-2938 | September 29, 2017   Page 4 of 9
       rules” and that Childress been “caught threatening to cause bodily harm to

       another individual that d[id] not reside at Club Soda.” (State’s Ex. 1).

[9]    Thereafter, on October 12, 2016, the probation officer ordered Childress to have

       a drug screen. Childress tested positive for methamphetamine and marijuana.

       The State then filed a second notice of probation violation, alleging that

       Childress had violated his probation by failing to complete the program at Club

       Soda and by testing positive for drugs.

[10]   The trial court held a probation revocation hearing on November 28, 2016.

       During the hearing, Childress’s probation officer testified that Childress had

       been unsuccessfully discharged from the sober living program at Club Soda and

       that he had tested positive for methamphetamine and THC. Childress did not

       object to the probation officer’s testimony. The State also introduced State’s

       Exhibit 1, the Club Soda discharge letter, and State’s Exhibit 2, the positive

       drug screen results. Childress stated that he had “no objection” to the

       admission of either exhibit. (Tr. Vol. 2 at 12, 13).


[11]   During the hearing, Childress testified and admitted that he had violated his

       probation by using drugs and by being discharged from the Club Soda program.

       At the end of the hearing, the trial court stated that “the evidence clearly

       establishe[d] . . . [that Childress had] violated probation by drug use and getting

       kicked out of Club Soda[.]” (Tr. Vol. 2 at 27). The trial court revoked

       Childress’ probation and ordered him to serve his previously suspended eight

       (8) year sentence in the Indiana Department of Correction. The trial court


       Court of Appeals of Indiana | Memorandum Decision 84A01-1612-CR-2938 | September 29, 2017   Page 5 of 9
       recommended that Childress be placed in purposeful incarceration and a

       CLIFF program. The trial court also informed Childress that it would be

       willing to consider modifying Childress’ sentence after he had served one-half

       of his sentence and had successfully completed the CLIFF program. Childress

       now appeals.


                                                   Decision
[12]   Childress challenges the trial court’s determination that he violated probation

       by using drugs and by failing to successfully complete the sober living program

       at Club Soda. Specifically, he contends that the trial court committed

       fundamental error by admitting hearsay evidence during the revocation hearing

       and then using that evidence to find that he had violated the terms of his

       probation.

[13]   “Probation is a matter of grace left to trial court discretion, not a right to which

       a criminal defendant is entitled.” Prewitt v. State, 878 N.E.2d 184, 188 (Ind.

       2007). A trial court has “discretion whether to grant [probation], under what

       conditions, and whether to revoke it if conditions are violated.” Reyes v. State,

       868 N.E.2d 438, 440 (Ind. 2007), reh’g denied. “The due process right applicable

       in probation revocation hearings allows for procedures that are more flexible

       than in a criminal prosecution.” Id. Accordingly, “courts may admit evidence

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

       blown criminal trial.” Id.; see also Ind. Evidence Rule 101(d)(2) (explaining that

       the Indiana Rules of Evidence are not applicable in probation proceedings).


       Court of Appeals of Indiana | Memorandum Decision 84A01-1612-CR-2938 | September 29, 2017   Page 6 of 9
       Nevertheless, “[t]his does not mean that hearsay evidence may be

       admitted willy-nilly in a probation revocation hearing.” Reyes, 868 N.E.2d at

       440. 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. Id. at 441. When

       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)) (brackets and ellipses in original).


[14]   Childress contends that the trial court erred when it allowed the admission of

       hearsay testimony—specifically, the probation officer’s testimony and State’s

       Exhibits 1 and 2—without explaining on the record why the evidence should be

       considered trustworthy as recommended by our supreme court in Reyes.

       However, Childress stated that he had “no objection” to this evidence, and the

       trial court did not make a substantial trustworthiness determination. (Tr. Vol. 2

       at 12, 13). As a result of Childress’ failure to object, he has waived a challenge

       to the admission of this evidence on appeal. McQueen v. State, 862 N.E.2d 1237,

       1241 (Ind. Ct. App. 2007).

[15]   Seeking to avoid procedural default, Childress argues that the admission of this

       hearsay evidence was fundamental error. The fundamental error exception is

       “extremely narrow[.]” McQueen, 862 N.E.2d at 1241. To constitute

       fundamental error, “[t]he error must be so prejudicial to the rights of the

       Court of Appeals of Indiana | Memorandum Decision 84A01-1612-CR-2938 | September 29, 2017   Page 7 of 9
       defendant as to make a fair trial impossible.” Carden, 873 N.E.2d at 164. The

       fundamental error exception “applies only when the error constitutes a blatant

       violation of basic principles, the harm or potential for harm is substantial, and

       the resulting error denies the defendant fundamental due process.” McQueen,

       862 N.E.2d at 1241. “‘For error to be ‘fundamental,’ prejudice to the defendant

       is required.’” Id. (quoting Hopkins v. State, 782 N.E.2d 988, 991 (Ind. 2003)).


[16]   Childress contends that the admission of the challenged hearsay evidence

       constituted fundamental error because the evidence was not substantially

       trustworthy under Reyes and was “the only evidence” upon which the trial court

       could have found that he had violated his probation. (Childress’ Br. at 10)

       (quoting Carden v. State, 873 N.E.2d 160 (Ind. Ct. App. 2007)).


[17]   Here, however, we need not determine if the challenged evidence was

       substantially trustworthy under Reyes. Even if we were to decide that the

       evidence had been erroneously admitted, any such error would not rise to the

       level of fundamental error. Instead, it would constitute harmless error. See,

       e.g., Figures v. State, 920 N.E.2d 267, 273 (Ind. Ct. App. 2010) (explaining that

       admission of evidence in a probation revocation hearing is harmless error if

       there are independent grounds for a court to revoke probation). Contrary to

       Childress’ argument, the challenged evidence was not “the only evidence”

       presented to show that he had violated the conditions of his probation.

       Childress admitted during the hearing that he had violated his probation by

       using drugs and by being discharged from the sober living program at Club

       Soda. Thus, he cannot show that he was prejudiced by the admission of the

       Court of Appeals of Indiana | Memorandum Decision 84A01-1612-CR-2938 | September 29, 2017   Page 8 of 9
       challenged evidence, and the admission of such evidence was harmless. See,

       e.g., McQueen, 862 N.E.2d at 1242 (holding that the defendant had failed to

       show the prejudice necessary for his fundamental error challenge to the

       admission of a toxicology report where he testified that he had violated

       conditions of probation). See also McFall v. State, 71 N.E.3d 383, 388-89 (Ind.

       Ct. App. 2017) (explaining that a “questionable foundation for the admissibility

       of evidence may be cured by later testimony” and holding that any error in the

       admission of the challenged evidence was “rendered harmless” by the

       defendant’s subsequent testimony). Cf. Carden, 873 N.E.2d at 164-65 (holding

       that the admission of the challenged hearsay testimony constituted fundamental

       error where the testimony was not substantially trustworthy and was “the only

       evidence” used to revoke the defendant’s probation). Because there was

       evidence sufficient to show that Childress violated the terms of his probation by

       using drugs and failing to successfully complete the sober living program, we

       affirm the trial court’s revocation of his probation.

[18]   Affirmed.2


       May, J., and Brown, J., concur.




       2
        In his reply brief, Childress requests that we strike a portion of the State’s brief. Specifically, he seeks to
       have this Court strike the State’s argument that suggested that Childress’ lack of objection to the evidence
       may have been a strategic decision by Childress’ counsel. We make no conclusion regarding the reason for
       counsel’s lack of objection, and we deny Childress’ request to strike this portion of the State’s brief.

       Court of Appeals of Indiana | Memorandum Decision 84A01-1612-CR-2938 | September 29, 2017              Page 9 of 9
