MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), this Jul 07 2016, 8:45 am
Memorandum Decision shall not be
CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Patricia Caress McMath Gregory F. Zoeller
Indianapolis, Indiana Attorney General of Indiana
Angela N. Sanchez
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Michael Jackson, July 7, 2016
Appellant-Defendant, Court of Appeals Case No.
49A02-1512-CR-2106
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Angela Dow
Appellee-Plaintiff. Davis, Judge
Trial Court Cause No.
49G16-1407-F6-36935
Brown, Judge.
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[1] Michael Jackson appeals the revocation of his probation. He raises one issue
which we revise and restate as whether the trial court abused its discretion in
revoking his probation. We affirm.
Facts and Procedural History
[2] In December 2014, Jackson pled guilty, pursuant to a plea agreement, to
domestic battery as a class A misdemeanor. The court sentenced Jackson to
365 days with 359 days suspended to probation, and ordered that he have no
contact with Megan Martin pursuant to the plea agreement.
[3] On October 13, 2015, a Notice of Violation of Probation was filed alleging that
Martin made a police report on October 6, 2015, and that Jackson violated the
no contact order by leaving a note on her vehicle while she was at a friend’s
house located at 7118 Gavin Drive.
[4] On October 21, 2015, the court held a hearing. Martin testified that Jackson
was her husband, that on October 6, 2015, she and her friend Ryan Christmas
were returning to Christmas’s house on Gavin Drive, where Martin had left her
truck, that she observed Jackson driving his vehicle, and that she ducked down
in Christmas’s vehicle so that Jackson would not see her.1 The State introduced
1
Martin testified that this occurred at “Three-ish,” and when asked if it “was late afternoon, early evening,”
she answered “Yeah, in the late afternoon.” Transcript at 7. The court admitted a police report “to show the
time,” transcript at 9, and the report stated: “Occurred: 10/6/2015 at 17:20” and “Reported: 10/6/2015 at
17:45.” State’s Exhibit 1.
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an exhibit which Martin testified was a note that was left on her truck. The
typewritten note provides:
I need you. PLEASE. TODAY IS THE WORST DAY OF MY
LIFE. I FIND OUT YOU ARE CHEATING . . . GET THE
NEWS I JUST GOT. I WON’T SAY A WORD ABOUT
WHAT YOU’VE DONE. JUST . . . PLEAAASE COME
TAKE CARE OF ME I AM SOOOO LOST.
PLLLLLLEEEEEAAASEE . . NO FIGHT NO BITCH NO
ATTACK JUST LOVE ME . . . .
State’s Exhibit 2. On cross-examination, Martin testified that Christmas found
the note on her truck and handed it to her. Martin later testified: “I ran
underneath the garage door. By the time it was all the way up, [Christmas] had
. . . come in with the note within minutes.” Transcript at 22. On redirect, the
prosecutor asked “does [Jackson] know what kind of truck you drive,” and
Martin replied “[y]es.” Id. at 25.
[5] An employee of Marion County Community Corrections testified that her
duties included dealing with the GPS system, that they kept records of GPS
coordinates in the ordinary course of business, and that GPS coordinates for
Jackson showed that he was at 7118 Gavin Drive at 5:09 p.m. until at least 5:10
p.m. on October 6, 2015. When asked on cross-examination whether Jackson
was excluded from being in that area on October 6th, the employee testified
“[o]n that date he was not excluded from being there” and that “[i]t has since
been added as a protected zone.” Id. at 29.
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[6] Jackson indicated that he worked in the mortgage business, that he had
previously asked to be placed on GPS, and that he did so “[f]or an alibi,
basically.” Id. at 37. He testified that he received a call from a potential
customer who asked him to come to his house on Gavin Drive, that this
happened all of the time, and that he set up a time with the person. When
asked if he had to obtain permission from home detention to do this, he testified
“[t]ypically, something like this, no. . . . If I’m doing something on personal
business, I have to get permission.” Id. at 41. He indicated that he has “a GPS
device that goes off if [he is] in the wrong area” and that his device did not go
off. Id. When asked if he wrote the note, Jackson testified “No, I speak better
English than this.” Id. at 42. Jackson indicated that he did not know
Christmas. He further indicated that he had “been here” and this was his “third
or fourth time,” that he had been “living with the fear of can [he] make it” to
December 11th “to save [his] job” and not go to jail, and that he has tried his
best to stay away from Martin. Id. at 43. Jackson testified that he thought he
was set up.
[7] The court asked Jackson if he had any paperwork or a call slip related to his
visit to the address on Gavin Drive, and Jackson answered that he did not, and
he testified that he did not do a loan, that he went to the home and no one was
there, that he did not record calls, and that he did not have a call log. The court
asked if he was allowed to “go and do whatever you want while you are
working as long as it’s not personal,” and Jackson replied “[w]ell, she knows
what I do. I’ve explained to her what I do. And I try to e-mail them . . . .” Id.
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at 49. The court asked if he sent an email on October 6th, and Jackson replied:
“No. Well, I talked to her about it and she was not in any way upset about it.
She understood.” Id. at 50. The court asked “[a]nd it happened to be at the
exact same address of 7118 Gavin,” and Jackson answered “Yes. I think I was
set up. She said I was there at 1:30 and I wasn’t. It was 5:00. So she obviously
didn’t see me.” Id.
[8] The trial court stated that it did not believe Jackson’s version of what happened,
that there was proof by a preponderance of the evidence that Jackson went to
7118 Gavin Drive, the same place that a note was left, and that Martin testified
that she saw him. The court found Jackson in violation, gave him credit for the
time he was on home detention, and ordered that he serve the balance of his
suspended sentence in the Marion County Jail.
Discussion
[9] The issue is whether the court abused its discretion in revoking Jackson’s
probation. Jackson asserts that, “[i]f indeed the typewritten note was placed on
[Martin’s] truck by Jackson, that would be a violation of the no contact order.
However, there is no evidence that the note was put on [Martin’s] truck by
Jackson and no evidence that Jackson wrote the note or had it put on [Martin’s]
truck.” Appellant’s Brief at 8. He argues that he had a legitimate explanation
for being at Gavin Drive that had nothing to do with Martin, that the only
evidence that the note was found on Martin’s truck was hearsay evidence based
on what Christmas told her, that Christmas did not testify so he was not
afforded his due process right to confront him, and that there is nothing
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inherent in Martin’s testimony that makes Christmas’s allegation substantially
trustworthy.
[10] The State argues that Jackson waived review of the admission of Martin’s
testimony that Christmas found the note on her vehicle because he did not
object to the statements, that Jackson does not argue the admission of the
statements by Christmas to Martin were fundamental error, that Christmas’s
statement about the location of the note was substantially trustworthy, and that
the Confrontation Clause is inapplicable to probation revocation proceedings.
The State further maintains that the court’s determination that Jackson violated
his probation was supported by substantial evidence, that Martin saw Jackson
driving away from Christmas’s house where her truck was parked, that
Jackson’s GPS monitor confirmed that he was at Christmas’s house for two
minutes that evening, that Christmas found the note on Martin’s truck and
immediately gave it to her and told her where he had found it, and that the
court found that Jackson’s completely unsupported explanation for his presence
at Christmas’s house was not credible. In reply, Jackson argues that “[t]he only
relevant evidence is that Jackson was at 7118 Gavin Drive just before [Martin]
got there and that [Martin’s] friend handed a note to [Martin]” and that,
“[h]owever, there is nothing to connect the note with Jackson.” Appellant’s
Reply Brief at 5.
[11] With respect to the admission of Martin’s testimony that Christmas told her
where he discovered the note and Jackson’s right to confront Christmas, we
observe that Jackson did not object to this portion of Martin’s testimony or
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assert any right of confrontation. Accordingly, these issues are waived.2 See
Marsh v. State, 818 N.E.2d 143, 145 (Ind. Ct. App. 2004) (noting that the failure
to object to hearsay evidence at a probation revocation hearing waives the issue
for appeal); see also Small v. State, 736 N.E.2d 742, 747 (Ind. 2000) (holding,
where the defendant contended that his right to confront witnesses was
violated, that the defendant did not object on confrontation grounds at trial and
that the claim of error was waived).
[12] With respect to Jackson’s assertion the evidence is insufficient to support the
court’s finding that he violated his probation, we note that a probation hearing
is civil in nature and the State need only prove the alleged violations by a
preponderance of the evidence, that we consider all the evidence most favorable
to supporting the judgment of the trial court without reweighing that evidence
or judging the credibility of witnesses, and that, if there is substantial evidence
of probative value to support the trial court’s conclusion that a defendant has
violated any terms of probation, we will affirm its decision to revoke. Cox v.
State, 706 N.E.2d 547, 551 (Ind. 1999), reh’g denied. The record reveals that
Martin’s truck was at Christmas’s house, that Jackson knew what kind of truck
Martin drove, that Jackson went to Christmas’s house, that, when Martin and
Christmas were returning to Christmas’s house, Martin observed Jackson
driving his vehicle, and that, soon after Martin went inside, Christmas handed
2
Jackson does not argue that the admission of Martin’s testimony that Christmas told her where he
discovered the note constituted fundamental error.
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her the note. Given the circumstances as set forth above and in the record, we
cannot say that the trial court abused its discretion in finding that Jackson
violated the terms of his probation.
Conclusion
[13] For the foregoing reasons, we affirm the trial court’s order revoking Jackson’s
probation.
[14] Affirmed.
Baker, J., and May, J., concur.
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