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:

MELINDA K. JACKMAN-HANLIN                        GREGORY F. ZOELLER
Plainfield, Indiana                              Attorney General of Indiana

                                                 MICHAEL GENE WORDEN
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana

                                                                               FILED
                                                                           Jan 26 2012, 9:17 am
                               IN THE
                    COURT OF APPEALS OF INDIANA                                    CLERK
                                                                                 of the supreme court,
                                                                                 court of appeals and
                                                                                        tax court




CASEY JACKSON,                                   )
                                                 )
       Appellant- Defendant,                     )
                                                 )
              vs.                                )       No. 67A01-1108-CR-340
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee- Plaintiff,                      )


                    APPEAL FROM THE PUTNAM SUPERIOR COURT
                        The Honorable Charles D. Bridges, Judge
                            Cause No. 67D01-0908-CM-563




                                      January 26, 2012



               MEMORANDUM DECISION - NOT FOR PUBLICATION




ROBB, Chief Judge
                                       Case Summary and Issue

        Casey Jackson was convicted of battery resulting in bodily injury, a Class A

misdemeanor, and sentenced to one year of probation. Jackson raises two issues for our

review which we restate as 1) whether the trial court improperly considered a probable

cause affidavit not admitted into evidence in convicting Jackson; and 2) whether such

consideration, if it occurred, violated Jackson’s Sixth Amendment right to confrontation.

The State raises one issue, which we find dispositive: whether Jackson waived the claim

that the trial court improperly considered a probable cause affidavit by failing to object at

trial. Concluding the issues Jackson raises on appeal have been waived, we affirm his

conviction.

                                     Facts and Procedural History

        On August 3, 2009, an incident occurred at Jackson and Cassandra Hart’s home

while Cassandra, Jackson’s girlfriend of two years, was moving out.                            Cassandra’s

parents, Daniel Hart and Denise Otenburg, were there to assist her in removing her

belongings. After warning Hart and Otenburg that they were trespassing, Jackson called

the police. Approximately one week later, Hart and Otenburg went to the police station

and filed a written report stating that Jackson had violently attacked Hart on August 3 at

the residence. On August 19, 2009, a probable cause affidavit and information were

filed, charging Jackson with battery.1 A bench trial was held on July 29, 2011, and

Jackson was convicted of battery resulting in bodily injury, a Class A misdemeanor.

Jackson now appeals.


        1
           Despite forming his arguments around the probable cause affidavit and information, Jackson includes
neither document in his Appellant’s Appendix.
                                                      2
                                  Discussion and Decision

       When rendering its judgment, the trial court stated:

       A couple things and this may be out of the scope of what I’m required to
       do, but I’m going to make a couple of explanations anyway. Although not
       presented today on the record, I did find probable cause for Mr. Jackson’s
       arrest and that Probable Cause was based on the police report that was
       made the very next day, actually the same day. They contacted police the
       same day and reported this battery. The fact that they gave their statements
       seven (7) days later is not unusual at all, it’s a routine occurrence in law
       enforcement. You make the police report and they say when you get a
       chance, come down and make a statement and we’ll turn it into, you know,
       that really has no bearing although much ado was made of that.

Transcript at 41. Jackson now argues, for the first time, that this statement shows the trial

court erred by considering the probable cause affidavit in its determination of guilt even

though the affidavit was not admitted into evidence. He also argues, again for the first

time, that his Sixth Amendment right to confrontation was denied because the police

officers who prepared the affidavit did not testify.

       The State argues Jackson waived both arguments because no objection was made

at any point in time during the trial regarding the trial court’s use of the affidavit. We

agree. “As a general rule, the failure to object at trial results in a waiver of the issue on

appeal.” Benson v. State, 762 N.E.2d 748, 755 (Ind. 2002). Even a Sixth Amendment

contention that one’s right to confrontation was denied is waived on appeal if not timely

objected to at trial. Kimbrough v. State, 911 N.E.2d 621, 631 (Ind. Ct. App. 2009).

Jackson does not point to such an objection in the record, nor do we find one.

       Even if Jackson had timely objected at trial, any error on the part of the trial court

would be harmless. “[A] denial of the right of confrontation is harmless error where the

evidence supporting the conviction is so convincing that a [finder of fact] could not have

                                              3
found otherwise.” Jackson v. State, 735 N.E.2d at 1146, 1152 (Ind. 2000). To convict

Jackson of battery as a Class A misdemeanor, the State was required to prove beyond a

reasonable doubt that Jackson knowingly or intentionally touched another person in a

rude, insolent, or angry manner, resulting in bodily injury to another person. Ind. Code §

35-42-2-1(a)(1)(A).

       Hart’s and Otenburg’s testimonies at trial provided evidence so convincing that a

finder of fact could not have found otherwise. Hart testified Jackson began interrupting

while Hart and Otenburg were removing Cassandra’s belongings. Jackson took Hart’s

cell phone and walked outside, and Hart followed him asking for his phone back. Hart

was able to take it out of Jackson’s hand, and Hart turned around to walk inside the house

and continue removing Cassandra’s belongings.

       Hart testified Jackson came from behind, put his forearm up to Hart’s neck, and

began choking him for several seconds before throwing him face-first into a post. Hart’s

mouth was bleeding and he laid on the ground gasping for air while Jackson ran after

Otenburg. Otenburg pulled a gun out of her purse and pointed it at Jackson, telling him

to get away. Later in the evening Hart went to the emergency room because of the pain

from his injuries. Hart had internal bruising and swelling from being choked. Otenburg

testified that she saw Jackson grab Hart around the neck from behind and lift him off the

ground before she ran into the house. State’s Exhibit 2, admitted into evidence at trial,

provided the hospital’s care instructions for Hart’s injuries.

       The evidence presented at trial was so convincing that Jackson could not

reasonably have been found not guilty. Also, it is not clear in the record that the trial

court actually relied on the probable cause affidavit for the purposes of finding Jackson
                                              4
guilty, especially considering that witness testimony provided the same information as

the affidavit regarding the incident between Jackson and Hart. Further, despite his Sixth

Amendment argument, he cross examined Hart and Otenburg at trial. He was not able to

cross examine the officer or officers who prepared the probable cause affidavit, but this

error was harmless.

                                      Conclusion

      The issues Jackson raises on appeal have been waived due to Jackson’s failure to

timely object at trial to the trial court’s alleged use of a probable cause affidavit in

convicting him. We therefore affirm Jackson’s conviction.

      Affirmed.

NAJAM, J., and VAIDIK, J., concur.




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