MEMORANDUM DECISION
                                                                          FILED
Pursuant to Ind. Appellate Rule 65(D), this                           Jul 07 2016, 8:45 am
Memorandum Decision shall not be
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regarded as precedent or cited before any                             Indiana Supreme Court
                                                                         Court of Appeals
court except for the purpose of establishing                               and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Patricia Caress McMath                                   Gregory F. Zoeller
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         Angela N. Sanchez
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Michael Jackson,                                         July 7, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1512-CR-2106
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Angela Dow
Appellee-Plaintiff.                                      Davis, Judge
                                                         Trial Court Cause No.
                                                         49G16-1407-F6-36935




Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2106|July 7, 2016             Page 1 of 8
[1]   Michael Jackson appeals the revocation of his probation. He raises one issue

      which we revise and restate as whether the trial court abused its discretion in

      revoking his probation. We affirm.


                                        Facts and Procedural History

[2]   In December 2014, Jackson pled guilty, pursuant to a plea agreement, to

      domestic battery as a class A misdemeanor. The court sentenced Jackson to

      365 days with 359 days suspended to probation, and ordered that he have no

      contact with Megan Martin pursuant to the plea agreement.


[3]   On October 13, 2015, a Notice of Violation of Probation was filed alleging that

      Martin made a police report on October 6, 2015, and that Jackson violated the

      no contact order by leaving a note on her vehicle while she was at a friend’s

      house located at 7118 Gavin Drive.


[4]   On October 21, 2015, the court held a hearing. Martin testified that Jackson

      was her husband, that on October 6, 2015, she and her friend Ryan Christmas

      were returning to Christmas’s house on Gavin Drive, where Martin had left her

      truck, that she observed Jackson driving his vehicle, and that she ducked down

      in Christmas’s vehicle so that Jackson would not see her.1 The State introduced




      1
        Martin testified that this occurred at “Three-ish,” and when asked if it “was late afternoon, early evening,”
      she answered “Yeah, in the late afternoon.” Transcript at 7. The court admitted a police report “to show the
      time,” transcript at 9, and the report stated: “Occurred: 10/6/2015 at 17:20” and “Reported: 10/6/2015 at
      17:45.” State’s Exhibit 1.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2106|July 7, 2016                   Page 2 of 8
      an exhibit which Martin testified was a note that was left on her truck. The

      typewritten note provides:


              I need you. PLEASE. TODAY IS THE WORST DAY OF MY
              LIFE. I FIND OUT YOU ARE CHEATING . . . GET THE
              NEWS I JUST GOT. I WON’T SAY A WORD ABOUT
              WHAT YOU’VE DONE. JUST . . . PLEAAASE COME
              TAKE CARE OF ME I AM SOOOO LOST.

              PLLLLLLEEEEEAAASEE . . NO FIGHT NO BITCH NO
              ATTACK JUST LOVE ME . . . .

      State’s Exhibit 2. On cross-examination, Martin testified that Christmas found

      the note on her truck and handed it to her. Martin later testified: “I ran

      underneath the garage door. By the time it was all the way up, [Christmas] had

      . . . come in with the note within minutes.” Transcript at 22. On redirect, the

      prosecutor asked “does [Jackson] know what kind of truck you drive,” and

      Martin replied “[y]es.” Id. at 25.


[5]   An employee of Marion County Community Corrections testified that her

      duties included dealing with the GPS system, that they kept records of GPS

      coordinates in the ordinary course of business, and that GPS coordinates for

      Jackson showed that he was at 7118 Gavin Drive at 5:09 p.m. until at least 5:10

      p.m. on October 6, 2015. When asked on cross-examination whether Jackson

      was excluded from being in that area on October 6th, the employee testified

      “[o]n that date he was not excluded from being there” and that “[i]t has since

      been added as a protected zone.” Id. at 29.



      Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2106|July 7, 2016   Page 3 of 8
[6]   Jackson indicated that he worked in the mortgage business, that he had

      previously asked to be placed on GPS, and that he did so “[f]or an alibi,

      basically.” Id. at 37. He testified that he received a call from a potential

      customer who asked him to come to his house on Gavin Drive, that this

      happened all of the time, and that he set up a time with the person. When

      asked if he had to obtain permission from home detention to do this, he testified

      “[t]ypically, something like this, no. . . . If I’m doing something on personal

      business, I have to get permission.” Id. at 41. He indicated that he has “a GPS

      device that goes off if [he is] in the wrong area” and that his device did not go

      off. Id. When asked if he wrote the note, Jackson testified “No, I speak better

      English than this.” Id. at 42. Jackson indicated that he did not know

      Christmas. He further indicated that he had “been here” and this was his “third

      or fourth time,” that he had been “living with the fear of can [he] make it” to

      December 11th “to save [his] job” and not go to jail, and that he has tried his

      best to stay away from Martin. Id. at 43. Jackson testified that he thought he

      was set up.


[7]   The court asked Jackson if he had any paperwork or a call slip related to his

      visit to the address on Gavin Drive, and Jackson answered that he did not, and

      he testified that he did not do a loan, that he went to the home and no one was

      there, that he did not record calls, and that he did not have a call log. The court

      asked if he was allowed to “go and do whatever you want while you are

      working as long as it’s not personal,” and Jackson replied “[w]ell, she knows

      what I do. I’ve explained to her what I do. And I try to e-mail them . . . .” Id.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2106|July 7, 2016   Page 4 of 8
      at 49. The court asked if he sent an email on October 6th, and Jackson replied:

      “No. Well, I talked to her about it and she was not in any way upset about it.

      She understood.” Id. at 50. The court asked “[a]nd it happened to be at the

      exact same address of 7118 Gavin,” and Jackson answered “Yes. I think I was

      set up. She said I was there at 1:30 and I wasn’t. It was 5:00. So she obviously

      didn’t see me.” Id.


[8]   The trial court stated that it did not believe Jackson’s version of what happened,

      that there was proof by a preponderance of the evidence that Jackson went to

      7118 Gavin Drive, the same place that a note was left, and that Martin testified

      that she saw him. The court found Jackson in violation, gave him credit for the

      time he was on home detention, and ordered that he serve the balance of his

      suspended sentence in the Marion County Jail.


                                                  Discussion

[9]   The issue is whether the court abused its discretion in revoking Jackson’s

      probation. Jackson asserts that, “[i]f indeed the typewritten note was placed on

      [Martin’s] truck by Jackson, that would be a violation of the no contact order.

      However, there is no evidence that the note was put on [Martin’s] truck by

      Jackson and no evidence that Jackson wrote the note or had it put on [Martin’s]

      truck.” Appellant’s Brief at 8. He argues that he had a legitimate explanation

      for being at Gavin Drive that had nothing to do with Martin, that the only

      evidence that the note was found on Martin’s truck was hearsay evidence based

      on what Christmas told her, that Christmas did not testify so he was not

      afforded his due process right to confront him, and that there is nothing
      Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2106|July 7, 2016   Page 5 of 8
       inherent in Martin’s testimony that makes Christmas’s allegation substantially

       trustworthy.


[10]   The State argues that Jackson waived review of the admission of Martin’s

       testimony that Christmas found the note on her vehicle because he did not

       object to the statements, that Jackson does not argue the admission of the

       statements by Christmas to Martin were fundamental error, that Christmas’s

       statement about the location of the note was substantially trustworthy, and that

       the Confrontation Clause is inapplicable to probation revocation proceedings.

       The State further maintains that the court’s determination that Jackson violated

       his probation was supported by substantial evidence, that Martin saw Jackson

       driving away from Christmas’s house where her truck was parked, that

       Jackson’s GPS monitor confirmed that he was at Christmas’s house for two

       minutes that evening, that Christmas found the note on Martin’s truck and

       immediately gave it to her and told her where he had found it, and that the

       court found that Jackson’s completely unsupported explanation for his presence

       at Christmas’s house was not credible. In reply, Jackson argues that “[t]he only

       relevant evidence is that Jackson was at 7118 Gavin Drive just before [Martin]

       got there and that [Martin’s] friend handed a note to [Martin]” and that,

       “[h]owever, there is nothing to connect the note with Jackson.” Appellant’s

       Reply Brief at 5.


[11]   With respect to the admission of Martin’s testimony that Christmas told her

       where he discovered the note and Jackson’s right to confront Christmas, we

       observe that Jackson did not object to this portion of Martin’s testimony or

       Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2106|July 7, 2016   Page 6 of 8
       assert any right of confrontation. Accordingly, these issues are waived.2 See

       Marsh v. State, 818 N.E.2d 143, 145 (Ind. Ct. App. 2004) (noting that the failure

       to object to hearsay evidence at a probation revocation hearing waives the issue

       for appeal); see also Small v. State, 736 N.E.2d 742, 747 (Ind. 2000) (holding,

       where the defendant contended that his right to confront witnesses was

       violated, that the defendant did not object on confrontation grounds at trial and

       that the claim of error was waived).


[12]   With respect to Jackson’s assertion the evidence is insufficient to support the

       court’s finding that he violated his probation, we note that a probation hearing

       is civil in nature and the State need only prove the alleged violations by a

       preponderance of the evidence, that we consider all the evidence most favorable

       to supporting the judgment of the trial court without reweighing that evidence

       or judging the credibility of witnesses, and that, if there is substantial evidence

       of probative value to support the trial court’s conclusion that a defendant has

       violated any terms of probation, we will affirm its decision to revoke. Cox v.

       State, 706 N.E.2d 547, 551 (Ind. 1999), reh’g denied. The record reveals that

       Martin’s truck was at Christmas’s house, that Jackson knew what kind of truck

       Martin drove, that Jackson went to Christmas’s house, that, when Martin and

       Christmas were returning to Christmas’s house, Martin observed Jackson

       driving his vehicle, and that, soon after Martin went inside, Christmas handed




       2
        Jackson does not argue that the admission of Martin’s testimony that Christmas told her where he
       discovered the note constituted fundamental error.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2106|July 7, 2016               Page 7 of 8
       her the note. Given the circumstances as set forth above and in the record, we

       cannot say that the trial court abused its discretion in finding that Jackson

       violated the terms of his probation.


                                                   Conclusion

[13]   For the foregoing reasons, we affirm the trial court’s order revoking Jackson’s

       probation.


[14]   Affirmed.


       Baker, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2106|July 7, 2016   Page 8 of 8
