MEMORANDUM DECISION
                                                                  FILED
Pursuant to Ind. Appellate Rule 65(D),                        Jul 29 2016, 8:21 am
this Memorandum Decision shall not be                             CLERK
regarded as precedent or cited before any                     Indiana Supreme Court
                                                                 Court of Appeals
                                                                   and Tax Court
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
Michael Frischkorn                                       Gregory F. Zoeller
Frischkorn Law LLC                                       Attorney General of Indiana
Fortville, Indiana
                                                         Larry D. Allen
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Andrius Brooks,                                          July 29, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         48A05-1512-CR-2174
        v.                                               Appeal from the Madison Circuit
                                                         Court
State of Indiana,                                        The Honorable Mark Dudley,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         48C06-1211-FA-2135



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 48A05-1512-CR-2174 | July 29, 2016   Page 1 of 8
                               Case Summary and Issues
[1]   The trial court revoked Andrius Brooks’s probation and ordered him to serve

      the entirety of his previously suspended sentence. Brooks appeals, raising two

      issues which we consolidate and restate as one: whether the trial court abused

      its discretion in admitting hearsay evidence during the probation revocation

      proceedings. Concluding the trial court did not abuse its discretion because the

      hearsay was sufficiently reliable, we affirm.



                            Facts and Procedural History
[2]   On December 5, 2013, Brooks entered a plea of guilty to robbery as a Class B

      felony and battery as a Class C felony. Pursuant to the plea agreement which

      capped his possible sentence at ten years, the trial court sentenced Brooks on

      January 14, 2014, to ten years in the Department of Correction, with six years

      suspended to probation.


[3]   On October 19, 2015, the State filed a notice of probation violation, alleging

      Brooks violated the conditions of his probation by: a) committing new criminal

      offenses, b) failing to keep probation informed of his address, and c) associating

      with a convicted felon. At the probation revocation hearing, Brooks testified

      under oath that he failed to keep the probation department advised of his

      current address, thus admitting the second alleged probation violation. As to

      the remaining allegations, the State presented the testimony of Detectives Chris

      Frazier and Norman Rayford of the Anderson Police Department. In October


      Court of Appeals of Indiana | Memorandum Decision 48A05-1512-CR-2174 | July 29, 2016   Page 2 of 8
      2015, Detectives Frazier and Rayford investigated a report of a kidnapping for

      which Brooks was ultimately charged with kidnapping, burglary, criminal

      confinement, and attempted robbery. Brooks objected to Detective Frazier’s

      testimony about the incident itself as inadmissible hearsay because the victim

      did not testify. The trial court overruled the objection and allowed the detective

      to testify. Detective Frazier testified he interviewed the victim at the scene

      where she had been released. The victim was unable to identify her kidnappers

      because they were wearing masks when they took her at gunpoint from her

      home and placed her in the trunk of a car. However, she was able to generally

      identify the car in which she was taken and to specifically identify certain items

      in the trunk. Based on this and other information provided by the victim,

      detectives detained Brooks and his brother shortly thereafter in a car similar to

      the one the victim had described. The trunk contained the specific items the

      victim had identified. Detective Rayford testified he interviewed Brooks, who

      indicated he was at a job interview during the time the kidnapping was

      occurring. However, Detective Rayford’s follow-up interview with the

      purported interviewer revealed no such job interview had taken place. In

      addition, the detectives interviewed two other individuals who Brooks claimed

      to have been with during part of the time the kidnapping was occurring. Both

      individuals denied being with Brooks at the stated times.


[4]   At the conclusion of the hearing, the trial court found Brooks had violated his

      probation:




      Court of Appeals of Indiana | Memorandum Decision 48A05-1512-CR-2174 | July 29, 2016   Page 3 of 8
        The issue [of the new offenses] boils down to . . . more or less a
        legal argument sir, and it’s can I take notice of what the officer
        said as it relates to their investigation or as [defense counsel] says
        is it unreliable hearsay and I should ignore all of what they have
        said relating to their investigation. . . . [The State] I think has
        the, the better argument here. This is a probation violation
        hearing. There are lessened standards of proof, preponderance of
        the evidence. There is [sic] also lessened standards of evidentiary
        hurdles. We counted in that it needs to be reliable hearsay. . . .
        [I]f we had a trial, Detective Frazier can’t just tell me well this is
        what the victim said. However that’s not the setting, that’s not
        what the case law tells us. Case law says this is not supposed to
        be a full blown trial, this is supposed to be a, basically a summary
        of the evidence as it relates to the, the alleged violations. . . .
        [T]he case law is that the witnesses that do this for a living, that
        follow procedures, we, we the Court can account for or say that
        that testimony is a more reliable form of hearsay than from other
        individuals. . . . [W]hat I’ve heard from the witness stand as well
        as the file, because I’m allowed to take notice of my file which
        includes the probable cause affidavit, is that a kidnapping
        occurred on October 12th and that the victim was unable to
        visually see who the abductor’s [sic] were but . . . told the
        investigating officers that the people involved had Scream masks,
        that those were eventually retrieved by the Anderson Police
        Department as part of their investigation, that you were arrested
        in a white vehicle, with your brother, that the victim identified
        peculiar objects that were in the trunk of the vehicle that she was
        kept in and that the vehicle you were stopped in had those
        peculiar objects in the truck. This doesn’t prove your guilt
        beyond a reasonable doubt, don’t get me wrong, that certainly
        does not do that, but the Court does find that by a preponderance
        of the evidence the State has established that a kidnapping
        occurred, that there is a, as well as confinement. I didn’t hear
        any evidence as to the robbery element. And I don’t, in the end
        it’s not going to make a whole lot of difference to me as to
        sanctions but so the record is clear, the State did not establish by
        a preponderance of the evidence the robbery elements . . . but

Court of Appeals of Indiana | Memorandum Decision 48A05-1512-CR-2174 | July 29, 2016   Page 4 of 8
              clearly there was the kidnapping and the confinement. You
              admitted as to Paragraph 3b. Your counsel is going to call that a
              technical violation. I agree with it. It’s not, on the scale of
              things, a major violation, it’s a minor violation, but there is that
              admission. As to 3c your counsel actually has the better
              argument there. I can assume that you know about your
              brother’s criminal history. . . . My guess is you are aware of that
              but as an evidentiary point of fact for here, no one said that you
              were aware of your brother’s felony conviction. So as far as 3c
              the State’s failed to meet its preponderance of the evidence as to
              3c. So again, for the Court, for the record, the Court does find
              the State’s met it’s [sic] burden of proof as to 3a regarding the
              kidnapping and the confinement, as to 3b admitted, and 3c the
              State failed in their burden of proof.


      Transcript at 55-58. The trial court ordered Brooks to execute the entire six

      years previously suspended from his sentence. Brooks now appeals the trial

      court’s revocation of his probation.



                                 Discussion and Decision
                                     I. Standard of Review
[5]   A probation hearing is civil in nature, and the State must prove an alleged

      violation by a preponderance of the evidence. Murdock v. State, 10 N.E.3d 1265,

      1267 (Ind. 2014); see also Ind. Code § 35-38-2-3(f). We review a trial court’s

      decision to admit or exclude evidence in a probation revocation proceeding for

      an abuse of discretion. Figures v. State, 920 N.E.2d 267, 271 (Ind. Ct. App.

      2010). An abuse of discretion occurs if the trial court’s decision is clearly

      against the logic and effect of the facts and circumstances. Id.


      Court of Appeals of Indiana | Memorandum Decision 48A05-1512-CR-2174 | July 29, 2016   Page 5 of 8
                                      II. Hearsay Evidence
[6]   The Indiana Rules of Evidence do not generally apply in probation revocation

      proceedings. Ind. Evidence Rule 101(d)(2). However, due process principles

      applicable in probation revocation proceedings include the right of the

      probationer to confront and cross-examine adverse witnesses, Ind. Code § 35-

      38-2-3(f), albeit said right is narrower and more flexible than in a criminal trial,

      Figures, 920 N.E.2d at 271. Therefore, the general rule against hearsay is

      inapplicable in a probation revocation proceeding and hearsay may be admitted

      without violating the probationer’s right to confrontation if the trial court finds

      the hearsay is “substantially trustworthy.” Reyes v. State, 868 N.E.2d 438, 442

      (Ind. 2007). Where the State shows the hearsay evidence bears “substantial

      guarantees of trustworthiness,” it need not also show good cause for not

      producing live testimony. Id. at 441. The trial court should explain on the

      record why the hearsay is reliable and why that is substantial enough to

      comprise good cause for dispensing with live witnesses. Id. at 442.


[7]   Brooks contends the trial court’s admission of Detective Frazier’s testimony

      and consideration of the probable cause affidavit in lieu of testimony from his

      alleged victim violated his right to confront and cross-examine witnesses against

      him. See Tr. at 17 (defense counsel objecting, “[T]he problem with this

      approach Judge is it allows the State to get in allegedly everything the victim

      said to the police and then when I go to ask a question and his response will be

      [‘]I don’t know, I wasn’t there.[’]”). He asserts the detectives were simply



      Court of Appeals of Indiana | Memorandum Decision 48A05-1512-CR-2174 | July 29, 2016   Page 6 of 8
      “relaying information that had been gathered as a result of . . . interviews with

      witnesses . . . .” Brief of Appellant at 12-13.


[8]   In Whatley v. State, 847 N.E.2d 1007, 1010 (Ind. Ct. App. 2006), we held that a

      probable cause affidavit prepared and signed by the officer listed as the affiant

      bore sufficient indicia of reliability to be introduced into evidence at a probation

      revocation hearing. The probable cause affidavit revealed the officer found

      cocaine in a drawer in a locked bedroom. The drawer also contained

      documents with the probationer’s name on them. When the probationer was

      found in possession of a key to the bedroom, he admitted the cocaine was his.

      Brooks contends this case is unlike Whatley because the officer in Whatley

      personally observed evidence of the crime, whereas here, the detectives did not

      witness the crime themselves.


[9]   In Whatley, the probable cause affidavit was the only evidence introduced to

      support the allegations that the probationer had violated his probation.

      Therefore, the firsthand knowledge of the affiant about evidence of a crime was

      an important consideration in determining the reliability of the affidavit. Here,

      the detectives were present at the hearing and testified about their investigation,

      which included interviewing the victim to ascertain what had happened. But

      Detective Frazier testified that during the ensuing investigation, he and other

      investigators uncovered evidence corroborating the victim’s hearsay statements.

      Therefore, the hearsay statements in both the probable cause affidavit and

      Detective Frazier’s testimony had sufficient indicia of reliability to be

      considered substantially trustworthy.

      Court of Appeals of Indiana | Memorandum Decision 48A05-1512-CR-2174 | July 29, 2016   Page 7 of 8
                                               Conclusion
[10]   The trial court did not abuse its discretion in admitting reliable hearsay into

       evidence during the probation revocation hearing. We affirm the trial court’s

       decision to revoke Brooks’s probation upon finding the State had proved by a

       preponderance of the evidence that he had committed new crimes in violation

       of the conditions of his probation.


[11]   Affirmed.


       Najam, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 48A05-1512-CR-2174 | July 29, 2016   Page 8 of 8
