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:
MELINDA K. JACKMAN-HANLIN GREGORY F. ZOELLER
Plainfield, Indiana Attorney General of Indiana
MICHAEL GENE WORDEN
Deputy Attorney General
Indianapolis, Indiana
FILED
Jan 26 2012, 9:17 am
IN THE
COURT OF APPEALS OF INDIANA CLERK
of the supreme court,
court of appeals and
tax court
CASEY JACKSON, )
)
Appellant- Defendant, )
)
vs. ) No. 67A01-1108-CR-340
)
STATE OF INDIANA, )
)
Appellee- Plaintiff, )
APPEAL FROM THE PUTNAM SUPERIOR COURT
The Honorable Charles D. Bridges, Judge
Cause No. 67D01-0908-CM-563
January 26, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
ROBB, Chief Judge
Case Summary and Issue
Casey Jackson was convicted of battery resulting in bodily injury, a Class A
misdemeanor, and sentenced to one year of probation. Jackson raises two issues for our
review which we restate as 1) whether the trial court improperly considered a probable
cause affidavit not admitted into evidence in convicting Jackson; and 2) whether such
consideration, if it occurred, violated Jackson’s Sixth Amendment right to confrontation.
The State raises one issue, which we find dispositive: whether Jackson waived the claim
that the trial court improperly considered a probable cause affidavit by failing to object at
trial. Concluding the issues Jackson raises on appeal have been waived, we affirm his
conviction.
Facts and Procedural History
On August 3, 2009, an incident occurred at Jackson and Cassandra Hart’s home
while Cassandra, Jackson’s girlfriend of two years, was moving out. Cassandra’s
parents, Daniel Hart and Denise Otenburg, were there to assist her in removing her
belongings. After warning Hart and Otenburg that they were trespassing, Jackson called
the police. Approximately one week later, Hart and Otenburg went to the police station
and filed a written report stating that Jackson had violently attacked Hart on August 3 at
the residence. On August 19, 2009, a probable cause affidavit and information were
filed, charging Jackson with battery.1 A bench trial was held on July 29, 2011, and
Jackson was convicted of battery resulting in bodily injury, a Class A misdemeanor.
Jackson now appeals.
1
Despite forming his arguments around the probable cause affidavit and information, Jackson includes
neither document in his Appellant’s Appendix.
2
Discussion and Decision
When rendering its judgment, the trial court stated:
A couple things and this may be out of the scope of what I’m required to
do, but I’m going to make a couple of explanations anyway. Although not
presented today on the record, I did find probable cause for Mr. Jackson’s
arrest and that Probable Cause was based on the police report that was
made the very next day, actually the same day. They contacted police the
same day and reported this battery. The fact that they gave their statements
seven (7) days later is not unusual at all, it’s a routine occurrence in law
enforcement. You make the police report and they say when you get a
chance, come down and make a statement and we’ll turn it into, you know,
that really has no bearing although much ado was made of that.
Transcript at 41. Jackson now argues, for the first time, that this statement shows the trial
court erred by considering the probable cause affidavit in its determination of guilt even
though the affidavit was not admitted into evidence. He also argues, again for the first
time, that his Sixth Amendment right to confrontation was denied because the police
officers who prepared the affidavit did not testify.
The State argues Jackson waived both arguments because no objection was made
at any point in time during the trial regarding the trial court’s use of the affidavit. We
agree. “As a general rule, the failure to object at trial results in a waiver of the issue on
appeal.” Benson v. State, 762 N.E.2d 748, 755 (Ind. 2002). Even a Sixth Amendment
contention that one’s right to confrontation was denied is waived on appeal if not timely
objected to at trial. Kimbrough v. State, 911 N.E.2d 621, 631 (Ind. Ct. App. 2009).
Jackson does not point to such an objection in the record, nor do we find one.
Even if Jackson had timely objected at trial, any error on the part of the trial court
would be harmless. “[A] denial of the right of confrontation is harmless error where the
evidence supporting the conviction is so convincing that a [finder of fact] could not have
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found otherwise.” Jackson v. State, 735 N.E.2d at 1146, 1152 (Ind. 2000). To convict
Jackson of battery as a Class A misdemeanor, the State was required to prove beyond a
reasonable doubt that Jackson knowingly or intentionally touched another person in a
rude, insolent, or angry manner, resulting in bodily injury to another person. Ind. Code §
35-42-2-1(a)(1)(A).
Hart’s and Otenburg’s testimonies at trial provided evidence so convincing that a
finder of fact could not have found otherwise. Hart testified Jackson began interrupting
while Hart and Otenburg were removing Cassandra’s belongings. Jackson took Hart’s
cell phone and walked outside, and Hart followed him asking for his phone back. Hart
was able to take it out of Jackson’s hand, and Hart turned around to walk inside the house
and continue removing Cassandra’s belongings.
Hart testified Jackson came from behind, put his forearm up to Hart’s neck, and
began choking him for several seconds before throwing him face-first into a post. Hart’s
mouth was bleeding and he laid on the ground gasping for air while Jackson ran after
Otenburg. Otenburg pulled a gun out of her purse and pointed it at Jackson, telling him
to get away. Later in the evening Hart went to the emergency room because of the pain
from his injuries. Hart had internal bruising and swelling from being choked. Otenburg
testified that she saw Jackson grab Hart around the neck from behind and lift him off the
ground before she ran into the house. State’s Exhibit 2, admitted into evidence at trial,
provided the hospital’s care instructions for Hart’s injuries.
The evidence presented at trial was so convincing that Jackson could not
reasonably have been found not guilty. Also, it is not clear in the record that the trial
court actually relied on the probable cause affidavit for the purposes of finding Jackson
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guilty, especially considering that witness testimony provided the same information as
the affidavit regarding the incident between Jackson and Hart. Further, despite his Sixth
Amendment argument, he cross examined Hart and Otenburg at trial. He was not able to
cross examine the officer or officers who prepared the probable cause affidavit, but this
error was harmless.
Conclusion
The issues Jackson raises on appeal have been waived due to Jackson’s failure to
timely object at trial to the trial court’s alleged use of a probable cause affidavit in
convicting him. We therefore affirm Jackson’s conviction.
Affirmed.
NAJAM, J., and VAIDIK, J., concur.
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