MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                       Mar 27 2015, 9:30 am
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
Jonathon T. Cook                                         Gregory F. Zoeller
Sansberry Dickmann Freeman Builta &                      Attorney General of Indiana
Cook
Anderson, Indiana                                        Brian Reitz
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Michael Thompson,                                        March 27, 2015

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         48A02-1408-CR-547
        v.                                               Appeal from the Madison Superior
                                                         Court; The Honorable Dennis D.
                                                         Carroll, Judge;
State of Indiana,                                        48D01-1105-FB-828
Appellee-Plaintiff.




May, Judge.




Court of Appeals of Indiana | Memorandum Decision 48A02-1408-CR-547 | March 27, 2015     Page 1 of 6
[1]   Michael Thompson appeals the revocation of his probation. Thompson argues

      the evidence was insufficient to prove he violated his probation.


[2]   We affirm.


                                         Facts and Procedural History
[3]   Thompson pled guilty to Class B felony burglary1 and Class D felony theft.2 On

      August 17, 2011, the court sentenced Thompson to a total of fourteen years,

      with six years executed in the Department of Correction and eight years

      suspended. On January 9, 2014, Thompson began probation.


[4]   On April 28, 2014, the State charged Thompson with Class A misdemeanor

      battery.3 A few days later, the State filed a notice of probation violation.


[5]   At the revocation hearing, the State called Officer Zane Sparks. Officer Sparks

      testified he had been dispatched after receiving a report of a battery. He found

      Chelsey Smith, Thompson’s ex-girlfriend, with bruising and swelling on the left

      side of her face. She had grass stains on her pants and she was “very shook

      up.” (Tr. at 9.)


[6]   Smith told Officer Sparks that she and Thompson had been loading items into

      her car when she became afraid of him because of behavior she had seen during



      1
          Ind. Code § 35-43-2-1(B)(i) (1999).
      2
          Ind. Code § 35-43-4-2(a) (2009).
      3
          Ind. Code § 35-42-2-1(a)(1).



      Court of Appeals of Indiana | Memorandum Decision 48A02-1408-CR-547 | March 27, 2015   Page 2 of 6
      previous acts of domestic violence. Smith tried to drive away, but Thompson

      convinced her to let him remove his belongings from her car before she left.

      After Thompson removed his belongings, Smith tried to get in her vehicle, but

      Thompson slammed the car door on her back. Smith pushed Thompson away

      from her; he responded by grabbing Smith by the hair, throwing her to the

      ground, and hitting her face with a closed fist. Smith managed to get into her

      car and drive to a friend’s house where she called police. Smith identified

      Thompson as her assailant and gave Officer Sparks his description and

      birthdate. Officer Sparks testified Smith’s injuries were consistent with her

      story.


[7]   Thompson objected to Officer Sparks’ testimony as hearsay that denied

      Thompson his right to confront Smith.4 The court overruled Thompson’s

      objection on the ground Smith’s statement as relayed by Officer Sparks bore

      substantial indicia of trustworthiness based on the timing of Smith’s statement

      to Officer Sparks, the corroborating evidence she provided, her demeanor, and

      her injuries consistent with her statement.


[8]   Thompson testified he grabbed Smith’s hair in self-defense. The court found

      Thompson violated a condition of his probation by committing battery and

      revoked his probation.




      4
          Smith was subpoenaed but did not appear at the hearing.


      Court of Appeals of Indiana | Memorandum Decision 48A02-1408-CR-547 | March 27, 2015   Page 3 of 6
                                      Discussion and Decision
[9]    Probation is not a right to which a criminal defendant is entitled, but a matter of

       grace left to trial court discretion. Prewitt v. State, 878 N.E.2d 184, 188 (Ind.

       2007). We review a decision to revoke probation under an abuse of discretion

       standard. Whatley v. State, 847 N.E.2d 1007, 1009 (Ind. Ct. App. 2006). An

       abuse of discretion occurs when the trial court’s decision is against the logic and

       effect of the facts and circumstances before the court. Id. A probation hearing

       is in the nature of a civil proceeding and a violation of probation need be

       proven by only a preponderance of the evidence. Id. at 1010. A trial court need

       find only that there is probable cause to believe the defendant violated criminal

       law. Id. We will consider all the evidence most favorable to the judgment of

       the trial court without reweighing the evidence or judging the credibility of the

       witnesses. Cox v. State, 706 N.E.2d 547, 551 (Ind. 1999).


[10]   The court revoked Thompson’s probation because he committed another crime

       when he battered Smith. The only evidence of the battery was the testimony of

       Officer Sparks, who was permitted to testify as to Smith’s report of the crime.

       Thus, Thompson challenges Officer Sparks retelling of Smith’s report.


[11]   Our Indiana Supreme Court addressed the admission of hearsay evidence in

       probation revocation hearings in Reyes v. State, 868 N.E.2d 438 (Ind. 2007).5 In




       5
        Thompson’s first argument relies on Ind. Evidence Rule 803, however, according to Ind. Evidence Rule
       801(d)(2) the rules of evidence do not apply to probation revocation hearings.

       Court of Appeals of Indiana | Memorandum Decision 48A02-1408-CR-547 | March 27, 2015          Page 4 of 6
       revocation hearings, trial courts are empowered to admit hearsay evidence if it

       meets the substantial trustworthiness test. Id. at 443. But such evidence may

       not be admitted “willy-nilly.” Id. at 440. Ideally, courts should explain on the

       record why hearsay evidence is reliable and why the reliability is sufficiently

       substantial to supply good cause for not producing a live witness. Id. at 442

       (quoting United States v. Kelley, 446 F.3d 688, 693 (7th Cir. 2006)). The right to

       confront witnesses in a probation revocation hearing is a limited right based on

       minimum due process. Smith v. State, 971 N.E.2d 86, 91 (Ind. 2012).


[12]   The trial court explained on the record that Smith’s report to Officer Sparks was

       substantially trustworthy because her injuries and physical appearance were

       consistent with her statement to Officer Sparks. In addition, Smith provided

       information about Thompson, such as his name and date of birth, which were

       later corroborated. The trial court explained that Smith’s statements appeared

       reliable because they were made when she was still under the stress of the

       battery and therefore more likely to be telling the truth. Finally, Thompson

       admitted at the probation revocation hearing that he pulled Smith’s hair during

       a physical altercation with Smith on the date in question. Smith’s report to

       Officer Sparks is substantially reliable to permit its introduction despite her

       absence. See, e.g., Smith, 971 N.E.2d at 92 (finding no violation of due process

       right to confrontation when the evidence supports the trial court’s finding that

       the hearsay was substantially trustworthy).




       Court of Appeals of Indiana | Memorandum Decision 48A02-1408-CR-547 | March 27, 2015   Page 5 of 6
                                                 Conclusion
[13]   The court did not abuse its discretion by admitting Smith’s statements to

       Officer Sparks. Accordingly, the evidence was sufficient to support the

       revocation of Thompson’s probation, and we affirm.


[14]   Affirmed.


       Barnes, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 48A02-1408-CR-547 | March 27, 2015   Page 6 of 6
