Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be                                 FILED
regarded as precedent or cited before any                      Feb 22 2012, 9:14 am
court except for the purpose of
establishing the defense of res judicata,                             CLERK
                                                                    of the supreme court,

collateral estoppel, or the law of the case.                        court of appeals and
                                                                           tax court




ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

DAVID W. STONE                                  GREGORY F. ZOELLER
Anderson, Indiana                               Attorney General of Indiana

                                                AARON J. SPOLARICH
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

SCOTT W. BISHOP,                                )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )       Nos. 48A02-1108-CR-797
                                                )            48A05-1108-CR-441
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                    APPEAL FROM THE MADISON CIRCUIT COURT
                        The Honorable Rudolph R. Pyle, III, Judge
                            Cause Nos. 48C01-9112-CD-165
                                  48C01-9903-DF-64
                                  48C01-9903-DF-65


                                    February 22, 2012

               MEMORANDUM DECISION – NOT FOR PUBLICATION

BAKER, Judge
          Appellant-defendant Scott W. Bishop appeals the revocation of his probation

following a hearing during which the State presented evidence that Bishop committed

four criminal acts while on probation. Specifically, Bishop contends that the trial court

erred when it admitted hearsay evidence in a police officer‟s probable cause affidavit at

the hearing, and without the probable cause affidavit, he argues the evidence is

insufficient to support the trial court‟s finding that he committed the offense of resisting

law enforcement. Additionally, Bishop contends that the trial court erred when it ordered

that he serve his suspended sentences for the prior convictions for which he was on

probation. Concluding that the trial court properly revoked Bishop‟s probation, we

affirm.

                                          FACTS

          In December 1992, Bishop pleaded guilty to three counts of robbery, a class B

felony, one count of resisting law enforcement, a class D felony, and one count of

receiving stolen auto parts, a class D felony, under Cause number 48C01-9112-CF-165

(“CF-165”). For each robbery count, the trial court sentenced Bishop to twenty years in

the Indiana Department of Correction (DOC), with ten years suspended, and ordered all

three sentences be served concurrently. For each of the two remaining counts, the trial

court sentenced Bishop to one year in the DOC and ordered that he serve those sentences

concurrent with the other but consecutive to the sentences for robbery. On March 3,

1999, the trial court found that Bishop violated the terms of his probation by committing



                                             2
the offense of criminal confinement, a class D felony, and ordered him to serve three

years of his previously suspended sentence.

       On March 17, 1999, the State charged Bishop under Cause numbers 48C01-9903-

DF-064 (“DF-064”) and 48C01-9903-DF-065 (“DF-065”). In DF-064, Bishop pleaded

guilty to criminal confinement, and the trial court sentenced him to three years suspended

to probation, to run consecutively to the sentences from three prior convictions. In DF-

065, Bishop pleaded guilty to two counts of theft and auto theft. The trial court sentenced

him to three years on each count, all suspended to probation, to run concurrently with

each other, and consecutive to the sentence in three other cause numbers, including DF-

064.

       On June 5, 2011, Jamie Tomlinson was drinking vodka with Bishop at his

apartment.   At some point, Bishop attempted to have sex with Tomlinson, but she

refused, went to the restroom, and locked the door.        While Tomlinson was in the

restroom, Bishop “busted the door open” and threw her to the ground. Tr. p. 9. Bishop

twice picked Tomlinson up by her hair, tossing her out of the bathroom into a closet and

then against a door frame. Thereafter, Bishop grabbed Tomlinson by the throat and threw

her onto a couch, where he attempted to remove her pants. Although Tomlinson pleaded

with Bishop to stop, he refused, removed his belt, and choked her with the belt. Bishop

then strangled Tomlinson until she lost consciousness.

       Anderson Police Department Officer Amber Miller responded to the report of a

woman being battered at Bishop‟s apartment. Officer Miller arrived at the apartment and

                                              3
heard a woman say, “Stop choking me, I can‟t breathe.” State‟s Ex. 1.      Officer Miller

knocked on the door, and when Bishop opened the door, he was holding a steak knife.

She ordered him to drop the knife, but he placed it in his back pant pocket. Miller

ordered Bishop to show his hands, but he refused. Officer Miller was able to place a

handcuff on Bishop‟s right wrist and told him to show his left hand. He refused, but she

was able to take possession of the knife. She again ordered him to show his left hand and

Bishop “forcibly pulled away.” State‟s Ex. 1. Another officer struck Bishop in the

abdomen and Officer Miller was able to completely handcuff Bishop.             Tomlinson

regained consciousness after the police arrived. Officer Miller observed Tomlinson

holding handfuls of her hair.

       On June 5, 2011, the State charged Bishop with criminal confinement, a class D

felony; strangulation, a class D felony; battery committed by means of a deadly weapon

or resulting in serious bodily injury, a class C felony, and resisting law enforcement, a

class A misdemeanor. On June 10, 2011, the State filed a notice of probation violation.

       On July 18, 2011, the trial court held an evidentiary hearing, at which Tomlinson

testified about Bishop‟s actions prior to her passing out and her injuries. Officer Miller

did not attend the hearing and, over Bishop‟s objections, the trial court admitted into

evidence Officer Miller‟s probable cause affidavit.       The probable cause affidavit

contained the only evidence admitted at trial to support the trial court‟s finding that

Bishop committed the offense of resisting law enforcement.



                                            4
       Following the hearing, the trial court found Bishop in violation of the terms of his

probation. In CF-165, it ordered Bishop to serve seven years of his previously suspended

sentence in the DOC. In DF-064 and DF-065, Bishop was ordered to serve three years of

his previously suspended sentence in the DOC, to run concurrently with each other and

consecutive to his sentence in CF-165, for an aggregate term of ten years. Bishop now

appeals.

                               DISCUSSION AND DECISION1

    I. Admission of Probable Cause Affidavit and Sufficiency of Probation Revocation

       Bishop appears to argue that the evidence is insufficient to support the revocation

of his probation. Bishop claims that the trial court erred when it admitted into evidence

Officer Miller‟s probable cause affidavit into evidence at the revocation hearing because

it was hearsay and lacks sufficient indicia of reliability. Specifically, Bishop challenges

the trial court‟s conclusion that the probable cause affidavit, signed under a penalty of

perjury, is sufficiently reliable.

       Decisions regarding the admission of evidence in probation revocation hearings

are reviewed 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.




1
  Although the State argues that Cause number 48A05-1108-CR-441 (“CR-441”) is not properly before
this court, our motions panel granted Bishop‟s motion to consolidate 48A02-1108-CR-797 (“CR-797”)
and CR-441 under CR-797.
                                               5
       Probation revocation deprives a probationer only of a conditional liberty, and he is

not entitled to the full array of due process protections afforded a defendant at a criminal

trial. Mateyko v. State, 901 N.E.2d 554, 557 (Ind. Ct. App. 2009). Indeed, the Indiana

Rules of Evidence, including the rules against hearsay, do not apply in probation

revocation hearings. See Cox v. State, 706 N.E.2d 547, 551 (Ind. 1999); Ind. Evidence.

Rule 101(c)(2). Instead, courts in probation revocation hearings may consider “any

relevant evidence bearing some substantial indicia of reliability. This includes reliable

hearsay.” Cox, 706 N.E.2d at 551. And while the due process principles applicable in

probation revocation hearings afford the probationer the right to confront and cross-

examine adverse witnesses, this right is narrower than in a criminal trial. Figures, 920

N.E.2d at 271. “For these reasons, the general rule is that hearsay evidence may be

admitted without violating a probationer‟s right to confrontation if the trial court finds the

hearsay is „substantially trustworthy.‟” Id. (quoting Reyes v. State, 868 N.E.2d 438, 442

(Ind. 2007)).

       Contrary to Bishop‟s assertions, the United States Supreme Court and our

Supreme Court have determined that affidavits are a “type of material that would be

appropriate in a revocation even if not a criminal trial.” Reyes, 868 N.E.2d at 440-41

Although decided before Reyes, a panel of this court held in Whatley v. State that an

affidavit prepared and signed under oath by an officer bears “sufficient indicia of

reliability.” 847 N.E. 2d 1007, 1009 (Ind. Ct. App. 2006).



                                              6
       Here, the trial court stated during the hearing, “This documents [sic] produced and

is signed by Officer Amber Miller. It‟s uh, under penalty of perjury . . . . The court will

admit State‟s exhibit one (1) over objection.” Tr. p 24-5. Our review of the affidavit

confirms the trial court‟s observations of the affidavit. State‟s Ex. 1. Therefore, because

the affidavit was produced and signed under oath by Officer Miller, it bears sufficient

indicia of reliability, and the trial court did not err when it admitted the affidavit into

evidence.

       Having concluded that the trial court did not err when it admitted the probable

cause affidavit in support of the resisting arrest charge, Bishop‟s insufficiency argument

fails. See Wilson v. State, 708 N.E.2d, 32, 34 (Ind. Ct. App. 1999) (holding that “[t]he

violation of a single condition of probation is sufficient to revoke probation.”) Moreover,

Bishop fails to challenge the trial court‟s three other findings, that there is a reasonable

probability the Bishop committed criminal confinement, strangulation, and battery by

means of a deadly weapon or resulting in serious bodily injury. Therefore, the trial court

did not err in revoking Bishop‟s probation.

                                       II. Sentence

       Bishop next contends that the trial court erred when it ordered him, upon the

revocation of his probation, to serve his previously suspended sentences in DF-165 and

DF-64, and DF-65. In particular, Bishop contends “[his] request for work release would

give him the structure he needed to successfully transition back into society.”

Appellant‟s Br. p. 9.

                                              7
         We review a trial court‟s sentencing decision in a probation revocation proceeding

for an abuse of discretion. Sanders v. State, 825 N.E.2d 952, 956 (Ind. Ct. App. 2005).

An abuse of discretion occurs if the decision is against the logic and effect of the facts

and circumstances before the court. Rosa v. State, 832 N.E.2d 1119, 1121 (Ind. Ct. App.

2005). If the trial court finds that the person violated a condition of probation, it may

order the execution of all or part of the sentence that was suspended at the time of initial

sentencing. Ind. Code § 35-38-2-3(g); Stephens v. State, 818 N.E.2d 936, 942 (Ind.

2004).

         As noted above, the trial court found that there is a reasonable probability that

Bishop committed several crimes in violation of his probation, and we are unconvinced

by Bishop‟s bald assertion that the trial court should have placed him on work release.

Therefore, the trial court did not abuse its discretion when it ordered Bishop to serve the

suspended sentences.

         The judgment of the trial court is affirmed.

DARDEN, J., and BAILEY, J., concur.




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