MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Nov 29 2017, 9:36 am
regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Christopher Sturgeon Curtis T. Hill, Jr. Clark County Public Defender’s Office Attorney General of Indiana Jeffersonville, Indiana Ellen H. Meilaender Supervising Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Amber Kinsey, November 29, 2017 Appellant-Defendant, Court of Appeals Case No. 10A01-1705-CR-1099 v. Appeal from the Clark Circuit Court State of Indiana, The Honorable Andrew Adams, Appellee-Plaintiff. Judge Trial Court Cause No. 10C01-1310-FB-242
Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 10A01-1705-CR-1099 | November 29, 2017 Page 1 of 7 Case Summary and Issues [1] Amber Kinsey appeals the revocation of her probation, raising two issues for
our review: (1) whether the trial court abused its discretion in admitting
evidence during the probation revocation hearing; and (2) whether Kinsey’s due
process rights were violated. Concluding the trial court did not abuse its
discretion and any violation of Kinsey’s due process rights is harmless error, we
affirm the revocation of her probation.
Facts and Procedural History [2] In 2013, the State charged Kinsey with burglary, a Class B felony, and
residential entry, two counts of theft, and auto theft, all Class D felonies. The
State also alleged Kinsey to be an habitual offender. In 2015, Kinsey pleaded
guilty to burglary and auto theft and the trial court sentenced Kinsey to twelve
years in the Indiana Department of Correction (“DOC”) with six of those years
suspended to probation. Several months later, Kinsey sought modification of
her sentence and the trial court ordered Kinsey to serve the remainder of her
sentence in community corrections.
[3] In April of 2016, the State filed a petition to revoke Kinsey’s placement in
community corrections. The petition alleged Kinsey tested positive for opiates
and committed the criminal offenses of failure to return to lawful detention,
possession of methamphetamine, and trafficking with an inmate. In May of
2016, Kinsey pleaded guilty to failure to return to lawful detention and the trial
Court of Appeals of Indiana | Memorandum Decision 10A01-1705-CR-1099 | November 29, 2017 Page 2 of 7 court sentenced Kinsey to one year executed in the DOC. The trial court
ordered Kinsey to execute her time in the DOC before returning to probation in
this case.
[4] In October of 2016, Kinsey was released to probation in this case and placed in
the Successful Living Program. On December 22, 2016, Kinsey left the
program. The director of the Successful Living Program then notified the trial
court and Kinsey’s probation officer, Jennifer Walker, that Kinsey failed a drug
test and had left the program.
[5] On January 6, 2017, the State filed a petition to revoke Kinsey’s probation
alleging she failed to successfully complete the program and tested positive for
opiates. In March of 2017, the State filed new charges against Kinsey for
possession of a controlled substance and amended its petition to revoke her
probation alleging she had committed a new criminal offense.
[6] At the probation revocation hearing, Walker testified, without objection, that
Kinsey failed a drug test and left the Successful Living Program. The State also
submitted into evidence a certified copy of the new charging information
alleging Kinsey possessed a controlled substance. The trial court admitted the
charging information into evidence but struck the probable cause affidavit from
the record based on Kinsey’s hearsay objection. The trial court also informed
the parties the director of the Successful Living Program contacted the court to
notify it Kinsey had left the program. Kinsey then testified and admitted to
leaving the program without notifying her probation officer.
Court of Appeals of Indiana | Memorandum Decision 10A01-1705-CR-1099 | November 29, 2017 Page 3 of 7 [7] The trial court revoked Kinsey’s probation and ordered her to serve the
previously suspended six years of her sentence in the DOC. Kinsey now
appeals.
Discussion and Decision I. Admission of Evidence [8] Kinsey alleges the trial court erred in admitting both the certified copy of the
charging information and Walker’s testimony stating the director of the
Successful Living Program informed her Kinsey failed a drug test and left the
program.
[9] The Indiana Rules of Evidence, including those governing hearsay, do not
apply in probation revocation proceedings. Ind. Evidence Rule 101(d)(2).
However, the trial court’s decision to admit or exclude evidence in a probation
revocation hearing is reviewed on appeal for an abuse of discretion. Figures v.
State, 920 N.E.2d 267, 271 (Ind. Ct. App. 2010). An abuse of discretion occurs
when the trial court’s decision is clearly against the logic and effect of the facts
and circumstances before it. Id.
[10] As to Kinsey’s argument concerning Walker’s testimony, we first note Kinsey
did not object at the revocation hearing. See Transcript, Volume I at 4, 7. As a
result of Kinsey’s failure to object, she has waived a challenge to the admission
of this evidence on appeal. McQueen v. State, 862 N.E.2d 1237, 1241 (Ind. Ct.
App. 2007). Waiver notwithstanding, any error in the admission of this
Court of Appeals of Indiana | Memorandum Decision 10A01-1705-CR-1099 | November 29, 2017 Page 4 of 7 testimony is harmless error because Kinsey admitted to the trial court that she
left the program without completing it or contacting her probation officer. See
Tr., Vol. I at 12-13. Kinsey’s admission is sufficient for the trial court to
properly revoke her probation. See Gosha v. State, 873 N.E.2d 660, 663 (Ind. Ct.
App. 2007) (explaining a single violation is sufficient to revoke probation),
trans. denied.
[11] Kinsey also alleges the trial court erred in admitting a certified copy of the
charging information into evidence. As noted above, the Indiana Rules of
Evidence do not apply in probation revocation hearings. However, any hearsay
admitted into evidence must be “substantial[ly] trustworth[y.]” Reyes v. State,
868 N.E.2d 438, 441 (Ind. 2007). In Pitman v. State, 749 N.E.2d 557, 559 (Ind.
Ct. App. 2001), trans. denied, the State introduced certified copies of the court
docket, police report, and charging information to establish that the defendant
had violated the terms of her probation by being charged with new offenses.
This court determined that the State’s “use of certified copies of the
[documents] regarding [the defendant’s] new charge [was] sufficient to support
the revocation of [the defendant’s] probation.” Id. This court concluded the
information was “obviously relevant and certification of the documents by the
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MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Nov 29 2017, 9:36 am
regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Christopher Sturgeon Curtis T. Hill, Jr. Clark County Public Defender’s Office Attorney General of Indiana Jeffersonville, Indiana Ellen H. Meilaender Supervising Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Amber Kinsey, November 29, 2017 Appellant-Defendant, Court of Appeals Case No. 10A01-1705-CR-1099 v. Appeal from the Clark Circuit Court State of Indiana, The Honorable Andrew Adams, Appellee-Plaintiff. Judge Trial Court Cause No. 10C01-1310-FB-242
Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 10A01-1705-CR-1099 | November 29, 2017 Page 1 of 7 Case Summary and Issues [1] Amber Kinsey appeals the revocation of her probation, raising two issues for
our review: (1) whether the trial court abused its discretion in admitting
evidence during the probation revocation hearing; and (2) whether Kinsey’s due
process rights were violated. Concluding the trial court did not abuse its
discretion and any violation of Kinsey’s due process rights is harmless error, we
affirm the revocation of her probation.
Facts and Procedural History [2] In 2013, the State charged Kinsey with burglary, a Class B felony, and
residential entry, two counts of theft, and auto theft, all Class D felonies. The
State also alleged Kinsey to be an habitual offender. In 2015, Kinsey pleaded
guilty to burglary and auto theft and the trial court sentenced Kinsey to twelve
years in the Indiana Department of Correction (“DOC”) with six of those years
suspended to probation. Several months later, Kinsey sought modification of
her sentence and the trial court ordered Kinsey to serve the remainder of her
sentence in community corrections.
[3] In April of 2016, the State filed a petition to revoke Kinsey’s placement in
community corrections. The petition alleged Kinsey tested positive for opiates
and committed the criminal offenses of failure to return to lawful detention,
possession of methamphetamine, and trafficking with an inmate. In May of
2016, Kinsey pleaded guilty to failure to return to lawful detention and the trial
Court of Appeals of Indiana | Memorandum Decision 10A01-1705-CR-1099 | November 29, 2017 Page 2 of 7 court sentenced Kinsey to one year executed in the DOC. The trial court
ordered Kinsey to execute her time in the DOC before returning to probation in
this case.
[4] In October of 2016, Kinsey was released to probation in this case and placed in
the Successful Living Program. On December 22, 2016, Kinsey left the
program. The director of the Successful Living Program then notified the trial
court and Kinsey’s probation officer, Jennifer Walker, that Kinsey failed a drug
test and had left the program.
[5] On January 6, 2017, the State filed a petition to revoke Kinsey’s probation
alleging she failed to successfully complete the program and tested positive for
opiates. In March of 2017, the State filed new charges against Kinsey for
possession of a controlled substance and amended its petition to revoke her
probation alleging she had committed a new criminal offense.
[6] At the probation revocation hearing, Walker testified, without objection, that
Kinsey failed a drug test and left the Successful Living Program. The State also
submitted into evidence a certified copy of the new charging information
alleging Kinsey possessed a controlled substance. The trial court admitted the
charging information into evidence but struck the probable cause affidavit from
the record based on Kinsey’s hearsay objection. The trial court also informed
the parties the director of the Successful Living Program contacted the court to
notify it Kinsey had left the program. Kinsey then testified and admitted to
leaving the program without notifying her probation officer.
Court of Appeals of Indiana | Memorandum Decision 10A01-1705-CR-1099 | November 29, 2017 Page 3 of 7 [7] The trial court revoked Kinsey’s probation and ordered her to serve the
previously suspended six years of her sentence in the DOC. Kinsey now
appeals.
Discussion and Decision I. Admission of Evidence [8] Kinsey alleges the trial court erred in admitting both the certified copy of the
charging information and Walker’s testimony stating the director of the
Successful Living Program informed her Kinsey failed a drug test and left the
program.
[9] The Indiana Rules of Evidence, including those governing hearsay, do not
apply in probation revocation proceedings. Ind. Evidence Rule 101(d)(2).
However, the trial court’s decision to admit or exclude evidence in a probation
revocation hearing is reviewed on appeal for an abuse of discretion. Figures v.
State, 920 N.E.2d 267, 271 (Ind. Ct. App. 2010). An abuse of discretion occurs
when the trial court’s decision is clearly against the logic and effect of the facts
and circumstances before it. Id.
[10] As to Kinsey’s argument concerning Walker’s testimony, we first note Kinsey
did not object at the revocation hearing. See Transcript, Volume I at 4, 7. As a
result of Kinsey’s failure to object, she has waived a challenge to the admission
of this evidence on appeal. McQueen v. State, 862 N.E.2d 1237, 1241 (Ind. Ct.
App. 2007). Waiver notwithstanding, any error in the admission of this
Court of Appeals of Indiana | Memorandum Decision 10A01-1705-CR-1099 | November 29, 2017 Page 4 of 7 testimony is harmless error because Kinsey admitted to the trial court that she
left the program without completing it or contacting her probation officer. See
Tr., Vol. I at 12-13. Kinsey’s admission is sufficient for the trial court to
properly revoke her probation. See Gosha v. State, 873 N.E.2d 660, 663 (Ind. Ct.
App. 2007) (explaining a single violation is sufficient to revoke probation),
trans. denied.
[11] Kinsey also alleges the trial court erred in admitting a certified copy of the
charging information into evidence. As noted above, the Indiana Rules of
Evidence do not apply in probation revocation hearings. However, any hearsay
admitted into evidence must be “substantial[ly] trustworth[y.]” Reyes v. State,
868 N.E.2d 438, 441 (Ind. 2007). In Pitman v. State, 749 N.E.2d 557, 559 (Ind.
Ct. App. 2001), trans. denied, the State introduced certified copies of the court
docket, police report, and charging information to establish that the defendant
had violated the terms of her probation by being charged with new offenses.
This court determined that the State’s “use of certified copies of the
[documents] regarding [the defendant’s] new charge [was] sufficient to support
the revocation of [the defendant’s] probation.” Id. This court concluded the
information was “obviously relevant and certification of the documents by the
court provides substantial indicia of their reliability.” Id. Like Pitman, we find
Court of Appeals of Indiana | Memorandum Decision 10A01-1705-CR-1099 | November 29, 2017 Page 5 of 7 the introduction of a certified copy of the charging information is not an abuse
of discretion.1
II. Due Process [12] Kinsey also alleges her due process rights were violated when the director of the
Successful Living Program notified the trial court that Kinsey had been
discharged from the program. See Terrell v. State, 886 N.E.2d 98, 100-01 (Ind.
Ct. App. 2008) (noting minimum due process requirements for probation
revocation hearings include the disclosure of evidence, the opportunity to be
heard and present evidence, the right to confront and cross-examine witnesses,
and a neutral and detached hearing body), trans. denied. Kinsey alleges this
notification was an ex parte communication warranting a new hearing. See
Brief of Appellant at 11.
[13] Even assuming this constituted an error on the part of the trial court, any error
was harmless. See Bussberg v. State, 827 N.E.2d 37, 44 (Ind. Ct. App. 2005)
(holding that error violating due process rights of defendant is subject to
1 The trial court’s exclusion of the probable cause affidavit is not at issue in this case. However, we note that without Kinsey’s admission that she left the program, Walker’s testimony, or the probable cause affidavit, the certified charging information alone is likely insufficient to support the revocation of probation. The charging information is merely an allegation that Kinsey has committed prohibited conduct, not evidence of that conduct. By the terms of Kinsey’s probation, she agreed not to commit a new crime. A charging information is not evidence she committed a new crime. See Figures v. State, 920 N.E.2d 267, 272-73 (Ind. Ct. App. 2010) (noting without the probable cause affidavit, the State failed to meet its burden to show the defendant committed a new crime). Further, we note that pursuant to Indiana Rule of Evidence 201, the trial court is permitted to take judicial notice of the records of any Indiana court. See Christie v. State, 939 N.E.2d 691, 693-94 (Ind. Ct. App. 2011) (holding the trial court did not err in taking judicial notice of another court’s records showing defendant’s new conviction).
Court of Appeals of Indiana | Memorandum Decision 10A01-1705-CR-1099 | November 29, 2017 Page 6 of 7 harmless error analysis and affirming revocation of probation), trans. denied.
The information received by the trial court—that Kinsey had left and been
discharged from the program—was testified to without objection by Walker.
Further, as we have noted, Kinsey admitted to the trial court she left the
program early without authorization.
Conclusion [14] The trial court did not abuse its discretion in admitting evidence and any
violation of Kinsey’s due process rights is harmless error. Accordingly, we
[15] Affirmed.
Riley, J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 10A01-1705-CR-1099 | November 29, 2017 Page 7 of 7