      MEMORANDUM DECISION
                                                                          Feb 09 2015, 8:06 am
      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
      John T. Wilson                                            Gregory F. Zoeller
      Anderson, Indiana                                         Attorney General of Indiana

                                                                Graham T. Youngs
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Justin Mullins,                                          February 9, 2015

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               48A04-1403-CR-115
              v.                                               Appeal from the Madison Circuit
                                                               Court
                                                               Honorable Thomas Newman Jr.,
      State of Indiana,                                        Judge
      Appellee-Plaintiff                                       Cause No. 48D03-0801-FC-20




      Friedlander, Judge.

[1]   Justin Mullins appeals the trial court’s order revoking probation and ordering

      execution of his previously suspended sentence. He presents the following

      restated issue for review: Did the trial court abuse its discretion in admitting



      Court of Appeals of Indiana | Memorandum Decision 48A04-1403-CR-115 | February 9, 2015     Page 1 of 6
      into evidence a probable cause affidavit from a previously dismissed

      prosecution?

[2]   We affirm.


[3]   After pleading guilty to two counts of theft and two counts of resisting law

      enforcement, the trial court sentenced Mullins to an aggregate term of three

      years. Eighteen months were ordered to be served in the Madison County

      Work Release Facility, with the balance suspended to probation.

[4]   While on informal probation in this case and on more than one occasion,

      Mullins associated with a convicted felon – Gary Fairchild – whom Mullins

      had previously met while incarcerated. Late in the evening on Tuesday,

      November 27, 2012, police responded to a report of a possible burglary in

      progress at an IMI concrete plant in Hamilton County. From across the canal,

      a resident had heard banging at the site and called 911. Police responded and

      stopped a vehicle leaving the plant. Fairchild was driving, with his fiancée in

      the passenger seat and Mullins in the backseat. Fairchild and Mullins denied

      having identification. A search of the vehicle at the scene uncovered stolen

      electrical wires and commercial grade junction boxes from the plant, as well as

      Mullins’s wallet and identification. Mullins and his companions were arrested

      that night for theft and burglary.

[5]   On February 28, 2013, the State filed a notice of violation of probation alleging

      that Mullins had violated probation by committing the new criminal offenses in



      Court of Appeals of Indiana | Memorandum Decision 48A04-1403-CR-115 | February 9, 2015   Page 2 of 6
      Hamilton County and by associating with a convicted felon. Although a

      warrant was promptly issued, Mullins was not arrested for nearly a year.

[6]   At the evidentiary hearing on February 24, 2014, Mullins admitted that he had

      violated probation by associating with a convicted felon. With respect to the

      other alleged violation, Mullins asserted that the charges out of Hamilton

      County had been dismissed. When the State offered the affidavit of probable

      cause from Hamilton County, defense counsel asserted a general objection and

      then indicated that Mullins’s testimony “would probably shed light” on the

      matter. Transcript at 24. In his testimony, Mullins conceded many of the

      important facts set out in the probable cause affidavit. He admitted being in the

      back portion of the IMI plant with Fairchild just prior to being pulled over and

      that stolen items were found in the back hatch of the vehicle. Mullins also

      acknowledged that he lied to the officer about not having identification. During

      his testimony, however, Mullins denied ever getting out at the plant and

      indicated that he could not explain how the items stolen from the plant ended

      up in the vehicle. Mullins claimed, without any supporting evidence, that the

      charges were dismissed because Fairchild and his fiancée later took

      responsibility for the incident and indicated Mullins was not involved.


[7]   At the conclusion of the hearing, the trial court found by a preponderance of the

      evidence that Mullins had committed the Hamilton County offenses. In light of

      this finding and the other admitted violation, the trial court revoked Mullins’s

      probation and ordered his sentence served at the Department of Correction.



      Court of Appeals of Indiana | Memorandum Decision 48A04-1403-CR-115 | February 9, 2015   Page 3 of 6
[8]    On appeal, Mullins contends that the trial court abused its discretion when it

       admitted the probable cause affidavit into evidence because the charges had

       been dismissed in Hamilton County. Relying on Figures v. State, 920 N.E.2d

       267 (Ind. Ct. App. 2010), Mullins claims that admission of the affidavit violated

       his due process rights to confront and cross examine adverse witnesses because

       the affidavit lacked any foundation to establish its reliability.

[9]    Confrontation rights in the context of probation revocation are not as extensive

       as in criminal trials, and the Indiana Rules of Evidence do not apply. Id. Thus,

       in revocation hearings, due process does not prohibit the use “where

       appropriate of the conventional substitutes for live testimony, including

       affidavits, depositions, and documentary evidence.” Reyes v. State, 868 N.E.2d

       438, 440 (Ind. 2007) (quoting Gagnon v. Scarpelli, 411 U.S. 778, 783 n.5 (1973)).


[10]   We have held that a probable cause affidavit prepared and signed by the officer

       listed as the affiant generally bears sufficient indicia of reliability to be

       introduced into evidence at probation revocation hearings. Whatley v. State, 847

       N.E.2d 1007 (Ind. Ct. App. 2006). In Figures v. State, the case upon which

       Mullins relies, we rejected the use of a probable cause affidavit in a revocation

       hearing where the case for which the affidavit was prepared had been dismissed

       due to “evidentiary problems”. 920 N.E.2d at 272. We observed that this cast

       doubt on the trustworthiness of the affidavit’s assertions particularly where the

       State did not present any corroborating evidence.




       Court of Appeals of Indiana | Memorandum Decision 48A04-1403-CR-115 | February 9, 2015   Page 4 of 6
[11]   In Figures, the defendant made a specific objection to the admission of the

       probable cause affidavit.1 Mullins, in contrast, failed to articulate any basis for

       his objection at the probation revocation hearing. Accordingly, we find the

       issue waived. See, e.g., Espinoza v. State, 859 N.E.2d 375, 384 (Ind. Ct. App.

       2006) (“[g]rounds for objection must be specific and any grounds not raised in

       the trial court are not available for appeal”).

[12]   Waiver notwithstanding, we observe that Mullins’s own testimony provided

       substantial corroboration of the probable cause affidavit. Cf. Figures v. State, 920

       N.E.2d at 270 (“no testimony was presented to corroborate [the probable cause

       affidavit’s] version of events”). Mullins testified that on the night in question he

       was in the rear of the IMI plant with Fairchild just prior to being pulled over

       and that stolen items from the plant were found in the back hatch of the vehicle.

       Mullins also acknowledged that he lied to the officer about not having

       identification. While Mullins claimed no involvement in or knowledge of the

       burglary and theft of materials from the plant, the trial court was not bound to

       believe his self-serving denial, nor was it required to accept his unsubstantiated

       explanation for the dismissal of the charges in Hamilton County. In sum,




       1
         When the State sought to admit the probable cause affidavit and CCS from a dismissed case, Figures raised
       the following specific objection: “Our objection is basically based on the factors that we can’t cross-examine
       the alleged authors of those documents to ascertain whether they are reliable hearsay, which would be
       admissible, Your Honor.” Id. at 270. Although we ultimately found the error harmless, we held that under
       the circumstances the trial court erred in admitting the evidence “over his objection on the grounds of
       insufficient reliability”. Id. at 271.

       Court of Appeals of Indiana | Memorandum Decision 48A04-1403-CR-115 | February 9, 2015             Page 5 of 6
       Mullins’s testimony established a sufficient foundation for the probation

       revocation with respect to both alleged violations.2

[13]   Judgment affirmed.


       Kirsch, J., and Crone, J., concur.




       2
         Mullins asserts a challenge to the sentence imposed but presents no argument in support. Accordingly, we
       find the issue waived. See Hart v. State, 889 N.E.2d 1266 (Ind. Ct. App. 2008) (a party waives an issue raised
       on appeal where the party fails to develop a cogent argument or provide adequate citation to authority).

       Court of Appeals of Indiana | Memorandum Decision 48A04-1403-CR-115 | February 9, 2015              Page 6 of 6
