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
Michael Thompson v. State of Indiana (mem. dec.)
Combined Opinion