MEMORANDUM DECISION
                                                                                      FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                            Nov 29 2017, 9:36 am

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


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Christopher Sturgeon                                    Curtis T. Hill, Jr.
Clark County Public Defender’s Office                   Attorney General of Indiana
Jeffersonville, Indiana
                                                        Ellen H. Meilaender
                                                        Supervising Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Amber Kinsey,                                           November 29, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        10A01-1705-CR-1099
        v.                                              Appeal from the Clark Circuit
                                                        Court
State of Indiana,                                       The Honorable Andrew Adams,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        10C01-1310-FB-242



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 10A01-1705-CR-1099 | November 29, 2017       Page 1 of 7
                               Case Summary and Issues
[1]   Amber Kinsey appeals the revocation of her probation, raising two issues for

      our review: (1) whether the trial court abused its discretion in admitting

      evidence during the probation revocation hearing; and (2) whether Kinsey’s due

      process rights were violated. Concluding the trial court did not abuse its

      discretion and any violation of Kinsey’s due process rights is harmless error, we

      affirm the revocation of her probation.



                            Facts and Procedural History
[2]   In 2013, the State charged Kinsey with burglary, a Class B felony, and

      residential entry, two counts of theft, and auto theft, all Class D felonies. The

      State also alleged Kinsey to be an habitual offender. In 2015, Kinsey pleaded

      guilty to burglary and auto theft and the trial court sentenced Kinsey to twelve

      years in the Indiana Department of Correction (“DOC”) with six of those years

      suspended to probation. Several months later, Kinsey sought modification of

      her sentence and the trial court ordered Kinsey to serve the remainder of her

      sentence in community corrections.


[3]   In April of 2016, the State filed a petition to revoke Kinsey’s placement in

      community corrections. The petition alleged Kinsey tested positive for opiates

      and committed the criminal offenses of failure to return to lawful detention,

      possession of methamphetamine, and trafficking with an inmate. In May of

      2016, Kinsey pleaded guilty to failure to return to lawful detention and the trial


      Court of Appeals of Indiana | Memorandum Decision 10A01-1705-CR-1099 | November 29, 2017   Page 2 of 7
      court sentenced Kinsey to one year executed in the DOC. The trial court

      ordered Kinsey to execute her time in the DOC before returning to probation in

      this case.


[4]   In October of 2016, Kinsey was released to probation in this case and placed in

      the Successful Living Program. On December 22, 2016, Kinsey left the

      program. The director of the Successful Living Program then notified the trial

      court and Kinsey’s probation officer, Jennifer Walker, that Kinsey failed a drug

      test and had left the program.


[5]   On January 6, 2017, the State filed a petition to revoke Kinsey’s probation

      alleging she failed to successfully complete the program and tested positive for

      opiates. In March of 2017, the State filed new charges against Kinsey for

      possession of a controlled substance and amended its petition to revoke her

      probation alleging she had committed a new criminal offense.


[6]   At the probation revocation hearing, Walker testified, without objection, that

      Kinsey failed a drug test and left the Successful Living Program. The State also

      submitted into evidence a certified copy of the new charging information

      alleging Kinsey possessed a controlled substance. The trial court admitted the

      charging information into evidence but struck the probable cause affidavit from

      the record based on Kinsey’s hearsay objection. The trial court also informed

      the parties the director of the Successful Living Program contacted the court to

      notify it Kinsey had left the program. Kinsey then testified and admitted to

      leaving the program without notifying her probation officer.


      Court of Appeals of Indiana | Memorandum Decision 10A01-1705-CR-1099 | November 29, 2017   Page 3 of 7
[7]    The trial court revoked Kinsey’s probation and ordered her to serve the

       previously suspended six years of her sentence in the DOC. Kinsey now

       appeals.



                                 Discussion and Decision
                                   I. Admission of Evidence
[8]    Kinsey alleges the trial court erred in admitting both the certified copy of the

       charging information and Walker’s testimony stating the director of the

       Successful Living Program informed her Kinsey failed a drug test and left the

       program.


[9]    The Indiana Rules of Evidence, including those governing hearsay, do not

       apply in probation revocation proceedings. Ind. Evidence Rule 101(d)(2).

       However, the trial court’s decision to admit or exclude evidence in a probation

       revocation hearing is reviewed on appeal for an abuse of discretion. Figures v.

       State, 920 N.E.2d 267, 271 (Ind. Ct. App. 2010). An abuse of discretion occurs

       when the trial court’s decision is clearly against the logic and effect of the facts

       and circumstances before it. Id.


[10]   As to Kinsey’s argument concerning Walker’s testimony, we first note Kinsey

       did not object at the revocation hearing. See Transcript, Volume I at 4, 7. As a

       result of Kinsey’s failure to object, she 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). Waiver notwithstanding, any error in the admission of this

       Court of Appeals of Indiana | Memorandum Decision 10A01-1705-CR-1099 | November 29, 2017   Page 4 of 7
       testimony is harmless error because Kinsey admitted to the trial court that she

       left the program without completing it or contacting her probation officer. See

       Tr., Vol. I at 12-13. Kinsey’s admission is sufficient for the trial court to

       properly revoke her probation. See Gosha v. State, 873 N.E.2d 660, 663 (Ind. Ct.

       App. 2007) (explaining a single violation is sufficient to revoke probation),

       trans. denied.


[11]   Kinsey also alleges the trial court erred in admitting a certified copy of the

       charging information into evidence. As noted above, the Indiana Rules of

       Evidence do not apply in probation revocation hearings. However, any hearsay

       admitted into evidence must be “substantial[ly] trustworth[y.]” Reyes v. State,

       868 N.E.2d 438, 441 (Ind. 2007). In Pitman v. State, 749 N.E.2d 557, 559 (Ind.

       Ct. App. 2001), trans. denied, the State introduced certified copies of the court

       docket, police report, and charging information to establish that the defendant

       had violated the terms of her probation by being charged with new offenses.

       This court determined that the State’s “use of certified copies of the

       [documents] regarding [the defendant’s] new charge [was] sufficient to support

       the revocation of [the defendant’s] probation.” Id. This court concluded the

       information was “obviously relevant and certification of the documents by the

       court provides substantial indicia of their reliability.” Id. Like Pitman, we find




       Court of Appeals of Indiana | Memorandum Decision 10A01-1705-CR-1099 | November 29, 2017   Page 5 of 7
       the introduction of a certified copy of the charging information is not an abuse

       of discretion.1


                                                II. Due Process
[12]   Kinsey also alleges her due process rights were violated when the director of the

       Successful Living Program notified the trial court that Kinsey had been

       discharged from the program. See Terrell v. State, 886 N.E.2d 98, 100-01 (Ind.

       Ct. App. 2008) (noting minimum due process requirements for probation

       revocation hearings include the disclosure of evidence, the opportunity to be

       heard and present evidence, the right to confront and cross-examine witnesses,

       and a neutral and detached hearing body), trans. denied. Kinsey alleges this

       notification was an ex parte communication warranting a new hearing. See

       Brief of Appellant at 11.


[13]   Even assuming this constituted an error on the part of the trial court, any error

       was harmless. See Bussberg v. State, 827 N.E.2d 37, 44 (Ind. Ct. App. 2005)

       (holding that error violating due process rights of defendant is subject to




       1
         The trial court’s exclusion of the probable cause affidavit is not at issue in this case. However, we note that
       without Kinsey’s admission that she left the program, Walker’s testimony, or the probable cause affidavit, the
       certified charging information alone is likely insufficient to support the revocation of probation. The
       charging information is merely an allegation that Kinsey has committed prohibited conduct, not evidence of
       that conduct. By the terms of Kinsey’s probation, she agreed not to commit a new crime. A charging
       information is not evidence she committed a new crime. See Figures v. State, 920 N.E.2d 267, 272-73 (Ind. Ct.
       App. 2010) (noting without the probable cause affidavit, the State failed to meet its burden to show the
       defendant committed a new crime). Further, we note that pursuant to Indiana Rule of Evidence 201, the trial
       court is permitted to take judicial notice of the records of any Indiana court. See Christie v. State, 939 N.E.2d
       691, 693-94 (Ind. Ct. App. 2011) (holding the trial court did not err in taking judicial notice of another court’s
       records showing defendant’s new conviction).

       Court of Appeals of Indiana | Memorandum Decision 10A01-1705-CR-1099 | November 29, 2017              Page 6 of 7
       harmless error analysis and affirming revocation of probation), trans. denied.

       The information received by the trial court—that Kinsey had left and been

       discharged from the program—was testified to without objection by Walker.

       Further, as we have noted, Kinsey admitted to the trial court she left the

       program early without authorization.



                                              Conclusion
[14]   The trial court did not abuse its discretion in admitting evidence and any

       violation of Kinsey’s due process rights is harmless error. Accordingly, we

       affirm the revocation of her probation.


[15]   Affirmed.


       Riley, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 10A01-1705-CR-1099 | November 29, 2017   Page 7 of 7
