Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any                   Dec 18 2014, 8:21 am
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:

JOHN T. WILSON                                      GREGORY F. ZOELLER
Anderson, Indiana                                   Attorney General of Indiana

                                                    KENNETH E. BIGGINS
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

BRIAN PIERCE,                                       )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )       No. 48A02-1405-CR-324
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                      APPEAL FROM THE MADISON CIRCUIT COURT
                         The Honorable Thomas Newman, Jr., Judge
                              Cause No. 48C03-1210-FC-2038



                                        December 18, 2014


                MEMORANDUM DECISION - NOT FOR PUBLICATION


CRONE, Judge
                                       Case Summary

       Brian Pierce appeals the trial court’s revocation of his probation. Pierce asserts that

the trial court abused its discretion when it admitted hearsay evidence during the revocation

hearing. Pierce also contends that the evidence was insufficient to support the trial court’s

finding that he violated a condition of his probation. Finding no abuse of discretion and

sufficient evidence that Pierce violated a condition of his probation, we affirm.

                               Facts and Procedural History

       Pierce pled guilty to one count of class C felony battery resulting in injury to a

pregnant woman and one count of class D felony domestic battery in the presence of a child

less than sixteen years old. Pursuant to the plea agreement, the trial court sentenced Pierce to

four years of probation. Pierce began serving his probation on March 11, 2013. In January

2014, the Madison County Department of Child Services investigated child molestation

allegations made by four-year-old W.A. against Pierce. Pierce is not W.A.’s biological

father, but has always played the role of a father in her life. During a forensic interview,

W.A. revealed that Pierce had touched her vagina on three separate occasions and had also

taken inappropriate pictures of her. On March 6, 2014, the State filed a notice of probation

violation alleging that Pierce violated the terms of his probation by committing the new

offense of child molestation. Following a hearing, the court found, by a preponderance of the

evidence, that Pierce had violated his probation, and therefore the court revoked his

probation. This appeal ensued.




                                               2
                                  Discussion and Decision

        Probation is a matter of grace left to the trial court’s discretion and 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

conditions are violated. Id. Probation revocation is a two-step process. Alford v. State, 965

N.E.2d 133, 134 (Ind. Ct. App. 2012), trans. denied. First, the trial court must make a factual

determination that a violation of a condition of probation has occurred. Id. Second, the trial

court must make a determination as to whether the violation warrants revocation. Id. It is

well settled that violation of a single condition of probation is sufficient to revoke probation.

Wilson v. State, 708 N.E.2d 32, 34 (Ind. Ct. App. 1999).

                            Section 1 – Admission of Evidence

       Pierce initially contends that the trial court abused its discretion and violated his

constitutional right to confrontation during the revocation hearing in admitting hearsay

evidence through the testimony of Jenny Chambers, a forensic interviewer with the Madison

County Department of Child Services. Over Pierce’s hearsay objection, Chambers was

permitted to testify regarding the child victim’s statements that Pierce had touched her vagina

on three separate occasions. Our standard of review for the admissibility of hearsay evidence

during revocation proceedings is well settled.




                                               3
       A probation revocation hearing is not to be equated with an adversarial
       criminal proceeding. Because probation revocation procedures are to be
       flexible, strict rules of evidence do not apply. The trial court may consider
       hearsay bearing some substantial indicia of reliability. Hearsay is admissible
       in this context if it has a substantial guarantee of trustworthiness. A trial court
       possesses broad discretion in ruling on the admissibility of evidence, and we
       will not disturb its decision absent a showing of an abuse of that discretion.

Peterson v. State, 909 N.E.2d 494, 499 (Ind. Ct. App. 2009) (citations and quotation marks

omitted).    Indeed, our supreme court has held that a defendant’s due process right to

confrontation is satisfied upon a finding that the hearsay evidence is substantially

trustworthy. Smith v. State, 971 N.E.2d 86, 92 (Ind. 2012).1

       The record presented supports the trial court’s decision to admit the hearsay

statements. Chambers gave extensive testimony regarding her training as a forensic

interviewer, the general procedure and purposes of child forensic interviews, and her

experience in conducting over fifty of these interviews. She explained how non-leading

questions are used to discuss body safety and to promote open dialogue with the child. She

stated that she provided the four-year-old victim in this case with anatomically accurate

diagrams of a child’s body, and that the victim was able to use age-appropriate language to

correctly identify body parts and to indicate that Pierce had touched her vagina on at least

three occasions. Under the circumstances, the trial court had sufficient information before it

to deem the hearsay statements substantially trustworthy. We note that Pierce declined to




       1
          Although not required, ideally the trial court should explain on the record why the hearsay is
substantially trustworthy. See Reyes v. State, 868 N.E.2d 438, 442 (Ind. 2007).


                                                   4
cross-examine Chambers. Pierce has not established that the trial court abused its discretion

when it admitted Chambers’s testimony.

                         Section 2 – Sufficiency of the Evidence

       Pierce next argues that the State failed to present sufficient evidence to support the

trial court’s finding that he violated a condition his probation. Specifically, Pierce argues

that the witness testimony presented at trial did not establish the specific dates that he

committed the three alleged separate acts of child molesting, and therefore there was

insufficient evidence that he committed a new crime during his probationary period. We

disagree.

       A probation revocation hearing is in the nature of a civil proceeding. Marsh v. State,

818 N.E.2d 143, 148 (Ind. Ct. App. 2004). Therefore, an alleged violation of probation need

only be proven by a preponderance of the evidence. Id. When we review the revocation

decision, we neither reweigh the evidence nor reassess witness credibility. Id. “Instead, we

look at the evidence most favorable to the probation court’s judgment and determine whether

there is substantial evidence of probative value supporting revocation. If so, we will affirm.”

Id. (citation omitted). When the alleged violation of probation is the commission of a new

crime, it is not necessary that the State show the probationer was convicted of a new crime.

Whatley v. State, 847 N.E.2d 1007, 1010 (Ind. Ct. App. 2006). The State must demonstrate

the commission of that new crime by only a preponderance of the evidence. Heaton v. State,

984 N.E.2d 614, 617 (Ind. 2013).




                                              5
        During the revocation hearing in this case, Chambers testified that, in January 2014,

she was assigned to investigate recent sexual abuse allegations made by a four-year-old

victim against Pierce. Chambers testified that the young child told her that Pierce had

touched her vagina on at least three separate occasions. Based upon the statements made by

the victim during the forensic interview, as well as additional police interviews of Pierce, the

State filed multiple charges against Pierce. At the conclusion of the revocation hearing, the

State requested that the trial court take judicial notice of the charging information, which

alleges that Pierce committed two acts of child molesting between January 1, 2011 and July

31, 2013, and another act of child molesting on or about January 5, 2014. Tr. at 32.2 This

evidence indicates that the State had probable cause to believe that Pierce committed multiple

offenses of child molesting, some of which clearly occurred during his probationary period,

which began on March 11, 2013. The aforementioned evidence and reasonable inferences to

be drawn therefrom were sufficient to support the trial court’s conclusion that it was more

likely than not that Pierce committed the crime of child molesting, and that he did so during

the probationary period.3 Accordingly, we affirm the trial court’s revocation of probation.

        Affirmed.

FRIEDLANDER, J., and KIRSCH, J., concur.




        2
            Pierce did not object to the State’s request.

        3
           We note that Pierce suggests that the trial court improperly employed a “probable cause” standard
when it determined that he had violated a condition of his probation. Appellant’s Br. at 6. To the contrary, the
trial court specifically stated that it found Pierce’s violation by a preponderance of the evidence. Tr. at 32.

                                                            6
