      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D), this
                                                                          FILED
      Memorandum Decision shall not be regarded as                   Mar 15 2017, 6:14 am
      precedent or cited before any court except for the                  CLERK
      purpose of establishing the defense of res judicata,            Indiana Supreme Court
                                                                         Court of Appeals
      collateral estoppel, or the law of the case.                         and Tax Court




      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      William Byer, Jr.                                        Curtis T. Hill, Jr.
      Byer & Byer                                              Attorney General of Indiana
      Anderson, Indiana
                                                               Monika Prekopa Talbot
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana


                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Maurice E. Hilliard,                                     March 15, 2017

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               48A05-1609-CR-2087
              v.                                               Appeal from the Madison Circuit
                                                               Court.
                                                               The Honorable David A. Happe,
      State of Indiana,                                        Judge.
      Appellee-Plaintiff.                                      Cause No. 48C04-1509-F5-1457




      Friedlander, Senior Judge

[1]   Maurice E. Hilliard appeals the revocation of his probation and placement on

      home detention. We affirm.


[2]   The State charged Hilliard with two counts of intimidation with a deadly

      weapon, both Level 5 felonies. The parties executed a plea agreement.

      Court of Appeals of Indiana | Memorandum Decision 48A05-1609-CR-2087 |March 15, 2017    Page 1 of 6
      Pursuant to the agreement, Hilliard agreed to plead guilty to two counts of

      intimidation, both Class A misdemeanors, and the parties would be free to

      argue the sentence to the trial court. The court sentenced Hilliard to one year

      on each conviction, to be served consecutively. The court further suspended

      Hilliard’s sentence and ordered him to serve his suspended sentence on home

      detention through the Madison County Community Corrections Program.


[3]   On February 8, 2016, the State filed a notice of violation, alleging Hilliard

      violated the terms of the home detention program. On July 26, 2016, the State

      amended its notice to allege that Hilliard committed two violations. In

      paragraph 3A, the State restated its allegation that Hilliard violated the terms of

      the home detention program. In paragraph 3B, the State alleged Hilliard

      committed a new offense, battery with a deadly weapon, on April 30, 2016.


[4]   The trial court held an evidentiary hearing, after which the court concluded

      Hilliard violated the terms of probation “as alleged in paragraph 3B.” Tr. p. 28.
                                                                                                            1
      The court made no findings as to the violations alleged in paragraph 3A. The

      court ordered Hilliard to serve his previously-suspended two-year sentence in

      the Madison County Detention Center. This appeal followed.




      1
        In its order, the trial court reversed its findings, stating “The Court now finds defendant has violated the
      conditions of his probation as alleged under 3A. No violation found under 3B.” Appellant’s App. p. 51. We
      consider the trial court’s statement during the evidentiary hearing to be the accurate description of the court’s
      ruling.

      Court of Appeals of Indiana | Memorandum Decision 48A05-1609-CR-2087 |March 15, 2017                 Page 2 of 6
[5]   Hilliard raises one issue, which we restate as: whether the trial court erred in

      admitting evidence during the revocation hearing. Hilliard argues the trial

      court’s determination that he violated the terms of probation is based solely on

      inadmissible hearsay. The State responds that the trial court properly

      considered the hearsay evidence in determining Hilliard committed a new

      offense.


[6]   The admission of evidence is within the trial court’s discretion and its decisions

      are reviewed only for an abuse of that discretion. Holmes v. State, 923 N.E.2d

      479 (Ind. Ct. App. 2010). An abuse of discretion occurs if a decision is clearly

      against the logic and effect of the facts and circumstances before the court or if

      the court has misinterpreted the law. Id.


[7]   When considering the admissibility of evidence in a probation revocation

      proceeding, it is useful to remember a defendant is not entitled to serve a

      sentence on probation or in a community corrections program. Monroe v. State,

      899 N.E.2d 688 (Ind. Ct. App. 2009). Placement in such a program is a

      conditional liberty and is a favor, not a right. Id. (quotation omitted). As a

      result, the due process right applicable in probation revocation hearings allows

      for procedures that are more flexible than in a criminal prosecution. Reyes v.

      State, 868 N.E.2d 438 (Ind. 2007). Such flexibility allows courts to enforce

      lawful orders, address an offender’s personal circumstances, and protect public

      safety, sometimes within limited time periods. Id. Within this framework,

      courts may admit evidence during probation revocation hearings that would not

      be permitted in a formal criminal trial. Id.

      Court of Appeals of Indiana | Memorandum Decision 48A05-1609-CR-2087 |March 15, 2017   Page 3 of 6
[8]    The Indiana Rules of Evidence, which govern hearsay, do not apply in

       proceedings relating to sentencing or probation. Ind. Evid. R. 101(d)(2). Even

       so, principles of due process require some limits on the admissibility of hearsay

       in probation revocation hearings. Reyes, 868 N.E.2d 438. The Indiana

       Supreme Court has determined that when a court holding a probation

       revocation hearing receives hearsay evidence, it must assess the evidence’s

       reliability and may admit it as evidence only if it has “substantial guarantees of

       trustworthiness.” Id. at 441. Ideally, the trial court will explain on the record

       why the hearsay is reliable and substantial enough to supply good cause for not

       producing a witness. Id. at 442 (quotation omitted).


[9]    In the current case, the State’s sole witness at the probation revocation hearing

       was Detective Clifford Cole of the Anderson Police Department. He testified

       about his discussions with various witnesses as he investigated a stabbing that

       Hilliard allegedly committed on April 30, 2016, during his term of probation.

       The alleged victim, Dylon Bricker, was present at the hearing but the prosecutor

       was reluctant to call him, stating “I don’t need to put [Bricker] unwarrantedly

       through a hearing.” Tr. p. 14. Hilliard objected to Detective Cole describing

       what others told him during the investigation. The trial court stated, “I’ve

       found in other cases, and I would find in this case, the statements made to a law

       enforcement officer, being subject to penalties for false reporting, that’s by itself,

       indicia of reliability, which is sufficient.” Tr. p. 15.


[10]   As a result, Detective Cole testified about his discussions with witnesses during

       his investigation. He spoke with Bricker and prepared a photo lineup

       Court of Appeals of Indiana | Memorandum Decision 48A05-1609-CR-2087 |March 15, 2017   Page 4 of 6
       containing Hilliard’s picture. Bricker pointed to Hilliard’s photo, identifying

       him as the person who attacked him. The trial court correctly noted Bricker’s

       identification of Hilliard, if false, potentially subjected Bricker to criminal

       liability for false informing. See Ind. Code § 35-44.1-2-3(d) (2016) (“A person

       who . . . gives a false report of the commission of a crime or gives false

       information in the official investigation of the commission of a crime, knowing

       the report or information to be false . . . commits false informing, a Class B

       misdemeanor.”). The possibility of prosecution for lying provides a substantial

       guarantee of trustworthiness.


[11]   Similarly, Detective Cole testified that he interviewed Tayler Beemer, who

       identified Hilliard in the same photo array as a person he saw leaving the scene

       of the stabbing. Finally, Shane Hollowell and Tony Buchan both told Detective

       Cole that on April 30, 2016, prior to the stabbing, they had separately

       encountered an angry man who challenged them to fight. Both of them

       separately identified Hilliard in the photo array as the man who confronted

       them. These three witnesses’ statements to Detective Cole were provided in the

       course of a criminal investigation, and they were subject to criminal liability for

       any falsehoods. As a result, their statements also had a substantial guarantee of

       trustworthiness and the trial court did not err in admitting them. See Wilkerson

       v. State, 918 N.E.2d 458 (Ind. Ct. App. 2009) (evidence, including hearsay

       evidence consisting of witness statements to police officer, sufficient to support

       revocation).




       Court of Appeals of Indiana | Memorandum Decision 48A05-1609-CR-2087 |March 15, 2017   Page 5 of 6
[12]   Detective Cole told the court about his conversation with other officers who

       were dispatched to the scene of the stabbing, interviewed Bricker, and described

       their interview to the detective. Detective Cole further testified that he spoke

       with Bricker’s mother, who told him “she had heard from subjects on the street

       that a possible suspect’s name was Maurice Hilliard.” Tr. p. 17. The

       statements by the officers and Bricker’s mother to Detective Cole about what

       other persons told them appear to be hearsay within hearsay, which may be less

       reliable. In any event, even if Detective Cole’s testimony about what the

       officers and Bricker’s mother told him should not have been admitted, the

       erroneous admission of hearsay is not grounds for reversal where it is merely

       cumulative of other evidence. Sutton v. State, 689 N.E.2d 452 (Ind. Ct. App.

       1997). This evidence is cumulative of Detective Cole’s testimony about

       Bricker, Beemer, Hollowell, and Buchan’s identifications of Hilliard. The trial

       court did not abuse its discretion in admitting evidence.


[13]   For the reasons stated above, we affirm the judgment of the trial court.


[14]   Judgment affirmed.


       Baker, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 48A05-1609-CR-2087 |March 15, 2017   Page 6 of 6
