MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                    FILED
regarded as precedent or cited before any                           Feb 26 2018, 6:07 am
court except for the purpose of establishing
                                                                         CLERK
the defense of res judicata, collateral                              Indiana Supreme Court
                                                                        Court of Appeals
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
                                                         Ian McLean
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Christopher McGregor,                                    February 26, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         48A02-1708-CR-1998
        v.                                               Appeal from the Madison Circuit
                                                         Court
State of Indiana,                                        The Honorable David A. Happe,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         48C04-1407-FA-1189



Barnes, Judge.




Court of Appeals of Indiana | Memorandum Decision 48A02-1708-CR-1998| February 26, 2018      Page 1 of 6
                                             Case Summary
[1]   Christopher McGregor appeals the trial court’s revocation of his placement in

      work release. We affirm.


                                                     Issue
[2]   McGregor raises one issue, which we restate as whether the evidence was

      sufficient to demonstrate that he violated a term of his work release.


                                                     Facts
[3]   In July 2014, McGregor was charged with Class A felony attempted murder,

      Class B felony aggravated battery, and Class D felony criminal recklessness. In

      April 2015, McGregor pled guilty to Class B felony aggravated battery, and the

      trial court sentenced him to nine years in the Department of Correction with

      three years suspended. The trial court ordered one year of the executed

      sentence to be served in a work release program.


[4]   McGregor began his work release placement on April 5, 2017. In May 2017, a

      petition to terminate his placement in work release was filed because he was

      intoxicated at the work release center. The trial court found that he had

      violated the terms of his placement, returned him to work release, revoked one

      year of his suspended sentence, and ordered him to serve that additional year in

      the Continuum of Sanction Program.


[5]   On June 26, 2017, McGregor was found with a green, leafy substance hidden in

      his sock. On June 28, 2017, McGregor was found with a green, leafy substance

      Court of Appeals of Indiana | Memorandum Decision 48A02-1708-CR-1998| February 26, 2018   Page 2 of 6
      hidden in the crotch of his underwear. When asked what the substance was,

      McGregor replied that it was “K2 Spice” that was left over after a previous

      arrest. Ex. at 9. Additionally, McGregor was alleged to have been in arrears

      for his work release fees. Another petition to terminate McGregor’s work

      release was filed.


[6]   At a hearing in July 2017, McGregor admitted that he was in arrears in the

      amount of $321.66. Regarding the possession of spice, the State called Steven

      Perry, case manager at the work release center, to testify. The State moved to

      admit Exhibits 1 and 2, which were probable cause affidavits regarding the

      spice incidents, and McGregor did not object to their admission. The probable

      cause affidavits were prepared by two different officers. Perry testified that he

      saw the substance officers found in McGregor’s sock and that he believed it to

      be spice. McGregor testified that the substance found on June 26, 2017, was

      located in a common area, not his sock, and that the substance found on June

      28, 2017, did not belong to him. The trial court found that McGregor violated

      the terms of his work release, revoked his suspended sentence, and ordered that

      his executed sentence be served in the DOC. McGregor now appeals.


                                                  Analysis
[7]   McGregor argues that the trial court erred by finding that he violated the terms

      of his work release. We treat a hearing on a petition to revoke a placement in a

      community corrections program the same as we do a hearing on a petition to

      revoke probation. Cox v. State, 706 N.E.2d 547, 549 (Ind. 1999). “A defendant

      is not entitled to serve a sentence in either probation or a community
      Court of Appeals of Indiana | Memorandum Decision 48A02-1708-CR-1998| February 26, 2018   Page 3 of 6
corrections program.” Id. “Rather, placement in either is a ‘matter of grace’

and a ‘conditional liberty that is a favor, not a right.’” Id. (quoting Million v.

State, 646 N.E.2d 998, 1002 (Ind. Ct. App. 1995)).


        While a community corrections placement revocation hearing
        has certain due process requirements, it is not to be equated with
        an adversarial criminal proceeding. Id. at 549-50. Rather, it is a
        narrow inquiry, and its procedures are to be more flexible. Id.
        This is necessary to permit the court to exercise its inherent
        power to enforce obedience to its lawful orders. Id. Accordingly,
        the Indiana Rules of Evidence in general and the rules against
        hearsay in particular do not apply in community corrections
        placement revocation hearings. See id. at 550-51; see also Ind.
        Evidence Rule 101(c) (providing that the rules do not apply in
        proceedings relating to sentencing, probation, or parole). In
        probation and community corrections placement revocation
        hearings, therefore, judges may consider any relevant evidence
        bearing some substantial indicia of reliability. Cox, 706 N.E.2d at
        551. This includes reliable hearsay. Id. The absence of strict
        evidentiary rules places particular importance on the fact-finding
        role of judges in assessing the weight, sufficiency and reliability
        of proffered evidence. Id. This assessment, then, carries with it a
        special level of judicial responsibility and is subject to appellate
        review. Id. Nevertheless, it is not subject to the Rules of
        Evidence nor to the common law rules of evidence in effect prior
        to the Rules of Evidence. Id.


        Our standard of review of an appeal from the revocation of a
        community corrections placement mirrors that for revocation of
        probation. Id. A probation hearing is civil in nature and the
        State need only prove the alleged violations by a preponderance
        of the evidence. Id. We will consider all the evidence most
        favorable to supporting the judgment of the trial court without
        reweighing that evidence or judging the credibility of the
        witnesses. Id. If there is substantial evidence of probative value

Court of Appeals of Indiana | Memorandum Decision 48A02-1708-CR-1998| February 26, 2018   Page 4 of 6
               to support the trial court’s conclusion that a defendant has
               violated any terms of probation, we will affirm its decision to
               revoke probation. Id.


       Monroe v. State, 899 N.E.2d 688, 691 (Ind. Ct. App. 2009).


[8]    McGregor argues that Perry did not observe the substances on McGregor and

       that the officers responsible for making the probable cause affidavits did not

       testify. McGregor relies on his own testimony that the substance in the first

       incident was found in a common area and that he does not know anything

       about the second substance. In his reply brief, he argues that the probable cause

       affidavits “do not comprise reliable hearsay and do not possess the requisite

       guarantee of reliability.” Appellant’s Reply Br. p. 4.


[9]    McGregor did not object to the admission of the probable cause affidavits, and

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

       probable cause affidavit bore “substantial indicia of reliability such that the trial

       court did not err in taking judicial notice of it.” In support of his argument that

       the probable cause affidavits were not reliable, McGregor relies on Baxter v.

       State, 774 N.E.2d 1037 (Ind. Ct. App. 2002), trans. denied. However, Baxter

       addressed an uncertified, unverified law enforcement incident report, not a

       probable cause affidavit. Baxter is not applicable here. The probable cause

       affidavits admitted here were substantially reliable.


[10]   The probable cause affidavits were evidence that the spice was found in

       McGregor’s sock and underwear and that McGregor stated the spice found in


       Court of Appeals of Indiana | Memorandum Decision 48A02-1708-CR-1998| February 26, 2018   Page 5 of 6
       his underwear was left over from a prior arrest. McGregor’s arguments to the

       contrary are merely requests that we reweigh the evidence, which we cannot

       do. There is sufficient evidence to support a reasonable inference that

       McGregor actually possessed spice on two occasions. McGregor also admitted

       that he failed to pay his required fees. The trial court did not err by finding that

       McGregor violated the terms of his placement in work release.


                                                 Conclusion
[11]   The trial court did not err by revoking McGregor’s placement in work release.

       We affirm.


[12]   Affirmed.


       Najam, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 48A02-1708-CR-1998| February 26, 2018   Page 6 of 6
