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:                              ATTORNEYS FOR APPELLEE:

MICHAEL D. FRISCHKORN                                GREGORY F. ZOELLER
Frischkorn Law, LLC                                  Attorney General of Indiana
Fortville, Indiana
                                                     ANGELA N. SANCHEZ
                                                     Deputy Attorney General
                                                     Indianapolis, Indiana

                                                                                   FILED
                                                                               Jul 24 2012, 9:09 am

                               IN THE
                                                                                       CLERK
                     COURT OF APPEALS OF INDIANA                                     of the supreme court,
                                                                                     court of appeals and
                                                                                            tax court




JEFFREY SCOTT BROOKS,                                )
                                                     )
       Appellant-Defendant,                          )
                                                     )
               vs.                                   )      No. 48A02-1111-CR-1095
                                                     )
STATE OF INDIANA,                                    )
                                                     )
       Appellee-Plaintiff.                           )


                      APPEAL FROM THE MADISON CIRCUIT COURT
                          The Honorable Rudolph R. Pyle, III, Judge
                               Cause No. 48C01-0304-FB-129



                                           July 24, 2012


                MEMORANDUM DECISION - NOT FOR PUBLICATION


CRONE, Judge
                                      Case Summary

       In June 2004, Jeffrey Scott Brooks pled guilty to felony burglary and theft charges,

and the court sentenced him to a fifteen-year term with three years suspended to probation.

In May 2010, the court released Brooks on probation. After Brooks violated his probation,

the trial court extended his probation one year.

       In September 2011, the State alleged that Brooks again violated his probation by

committing class B felony dealing in a controlled substance and failing to pay costs and fines.

During the evidentiary hearing, the State presented hearsay testimony regarding

conversations that took place between Brooks and the confidential informant (“CI”) who

purchased the controlled substance from him. Over Brooks’s objection, the court admitted

the testimony. The court found that Brooks violated his probation and revoked it. On appeal,

Brooks contends that the trial court violated his due process rights by admitting the

testimony. We affirm.

                              Facts and Procedural History

       On April 21, 2003, the State charged Brooks with class B felony burglary, class D

felony theft, class A misdemeanor carrying a handgun without a license, and class C felony

carrying a handgun without a license. On June 14, 2004, Brooks pled guilty to burglary and

theft, and the State dismissed the handgun charges. On July 21, 2004, the trial court

sentenced him to a fifteen-year term, with twelve years executed and three years suspended to

probation.




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       On May 3, 2010, the court released Brooks to serve the remainder of his sentence on

probation, with the probationary period scheduled to end on December 31, 2013. On March

25, 2011, the State alleged that Brooks violated his probation by committing class A

misdemeanor possession of marijuana, hash oil, or hash, class A misdemeanor possession of

paraphernalia, and class B misdemeanor visiting a common nuisance. At an evidentiary

hearing on May 16, 2011, Brooks admitted that he violated his probation. On June 1, 2011,

the trial court extended Brooks’s probation one year and released him from incarceration.

       On September 1, 2011, the State alleged that Brooks again violated his probation by

committing class B felony dealing in a schedule II controlled substance and failing to pay

court costs and fines. On October 31, 2011, the trial court held an evidentiary hearing. The

State alleged that Brooks violated his probation by distributing fifteen oxycodone pills to a CI

through a controlled buy. Over Brooks’s hearsay objection, the court admitted the testimony

of Detective Clifford Cole of the Anderson Police Department regarding conversations that

took place between Brooks and the CI. Detective Cole testified that he heard three different

recorded conversations between the CI and Brooks, made from the CI’s cellular phone,

scheduling the buy. Additionally, over Brooks’s hearsay objection, the court admitted

Detective Cole’s testimony that the CI said that she purchased the oxycodone pills from

Brooks.

       Detective Cole testified that Brooks lived with his father on South J Street in Elwood.

Both Detective Brad Oster of the Madison County Drug Task Force and Detective Keith

Gaskill of the Anderson Police Department, who conducted visual surveillance of the


                                               3
controlled buy, testified that Brooks was the person who entered the CI’s vehicle from the

residence on South J Street in Elwood. Detective Cole testified that he searched the CI’s

vehicle prior to and immediately after the buy for drugs, money, or weapons and found only

the fifteen pills that Brooks had agreed to sell to the CI.

       The court found that Brooks violated his probation and revoked it. Brooks now

appeals.

                                  Discussion and Decision

       On appeal, Brooks contends that the trial court violated his due process rights under

the Fourteenth Amendment by admitting the CI’s hearsay statements. The United States

Supreme Court has held that the Fourteenth Amendment Due Process Clause applies to

probation revocation hearings. Morrissey v. Brewer, 408 U.S. 471, 489 (1972). The Due

Process Clause “does impose procedural and substantive limits on the revocation of the

conditional liberty created by probation.” Cox v. State, 706 N.E.2d 547, 549 (Ind. 1999).

Therefore, the State must confer certain rights to the defendant, such as providing the

opportunity to confront and cross-examine witnesses. Id. However, “there is no right to

probation: the trial court has discretion whether to grant it … and whether to revoke it.”

Reyes v. State, 868 N.E.2d 438, 440 (Ind. 2007). “Probationers do not receive the same

constitutional rights that defendants receive at trial.” Id. Hence, the procedures in probation

revocation hearings “are more flexible than in a criminal prosecution.” Id.

       In a probation revocation hearing, “the State need only prove the alleged violations by

a preponderance of the evidence.” Cox, 706 N.E.2d at 551 (citations omitted). Brooks


                                               4
alleges that the court erred in admitting the hearsay testimony. Generally, the trial court has

the discretion to admit evidence or not, and its decision is reviewed only for an abuse of

discretion. Holmes v. State, 923 N.E.2d 479, 483 (Ind. Ct. App. 2010). “An abuse of

discretion occurs if a decision is clearly against the logic and effects of the facts and

circumstances before the court or if the court has misinterpreted the law.” Id.

       In Reyes, our supreme court established the test that a trial court must use in

determining whether to admit hearsay evidence “without violating a probationer’s right to

confront a witness.” 868 N.E.2d at 441. “The substantial trustworthiness test requires that

the trial court evaluate the reliability of the hearsay evidence.” Id. at 442. The court may

admit the evidence if the hearsay bears “some substantial indicia of reliability.” Id. at 441.

       Here, we have the testimony of Detective Cole, an experienced detective, who stated

that he searched the CI’s vehicle prior to and after the buy and found only the drugs in the

agreed-upon amount after the buy. Both Detective Oster and Detective Gaskill provided

testimony that Brooks was the person who entered the CI’s vehicle from the residence. The

Indiana State Police lab report confirmed that the pills contained oxycodone. These facts

provide substantial trustworthiness in the reliability of the testimony presented by Detective

Cole of the phone conversations between Brooks and the CI regarding the buy and the CI’s

statement that Brooks was the person who sold her the pills.

       Brooks complains that the trial court failed to explain why it believed that the hearsay

testimony of Detective Cole was substantially trustworthy. The trial court was not obliged to

do so. In Reyes, the court noted, “ideally the trial court should explain on the record … why


                                              5
that reliability is substantial enough to supply good cause for not producing live witnesses.”

Id. at 442. This was not a requirement, only a suggestion. In any event, we note that to

substantiate the reliability of the statements further the trial court asked Detective Cole

additional questions before determining whether to admit the hearsay evidence. See, e.g., Tr.

at 48 (“Is the voice the same, in you (sic) opinion, as to the three (3) conversations.” “Yes

and the same phone number was used each time.”).

       We find that Detective Cole’s testimony was substantially trustworthy. Therefore, the

trial court did not abuse its discretion in admitting the hearsay testimony.

       Affirmed.

VAIDIK, J., and BRADFORD, J., concur.




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