MEMORANDUM DECISION Feb 09 2015, 8:06 am 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 John T. Wilson Gregory F. Zoeller Anderson, Indiana Attorney General of Indiana
Graham T. Youngs Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Justin Mullins, February 9, 2015
Appellant-Defendant, Court of Appeals Case No. 48A04-1403-CR-115 v. Appeal from the Madison Circuit Court Honorable Thomas Newman Jr., State of Indiana, Judge Appellee-Plaintiff Cause No. 48D03-0801-FC-20
Friedlander, Judge.
[1] Justin Mullins appeals the trial court’s order revoking probation and ordering
execution of his previously suspended sentence. He presents the following
restated issue for review: Did the trial court abuse its discretion in admitting
Court of Appeals of Indiana | Memorandum Decision 48A04-1403-CR-115 | February 9, 2015 Page 1 of 6 into evidence a probable cause affidavit from a previously dismissed
prosecution?
[2] We affirm.
[3] After pleading guilty to two counts of theft and two counts of resisting law
enforcement, the trial court sentenced Mullins to an aggregate term of three
years. Eighteen months were ordered to be served in the Madison County
Work Release Facility, with the balance suspended to probation.
[4] While on informal probation in this case and on more than one occasion,
Mullins associated with a convicted felon – Gary Fairchild – whom Mullins
had previously met while incarcerated. Late in the evening on Tuesday,
November 27, 2012, police responded to a report of a possible burglary in
progress at an IMI concrete plant in Hamilton County. From across the canal,
a resident had heard banging at the site and called 911. Police responded and
stopped a vehicle leaving the plant. Fairchild was driving, with his fiancée in
the passenger seat and Mullins in the backseat. Fairchild and Mullins denied
having identification. A search of the vehicle at the scene uncovered stolen
electrical wires and commercial grade junction boxes from the plant, as well as
Mullins’s wallet and identification. Mullins and his companions were arrested
that night for theft and burglary.
[5] On February 28, 2013, the State filed a notice of violation of probation alleging
that Mullins had violated probation by committing the new criminal offenses in
Court of Appeals of Indiana | Memorandum Decision 48A04-1403-CR-115 | February 9, 2015 Page 2 of 6 Hamilton County and by associating with a convicted felon. Although a
warrant was promptly issued, Mullins was not arrested for nearly a year.
[6] At the evidentiary hearing on February 24, 2014, Mullins admitted that he had
violated probation by associating with a convicted felon. With respect to the
other alleged violation, Mullins asserted that the charges out of Hamilton
County had been dismissed. When the State offered the affidavit of probable
cause from Hamilton County, defense counsel asserted a general objection and
then indicated that Mullins’s testimony “would probably shed light” on the
matter. Transcript at 24. In his testimony, Mullins conceded many of the
important facts set out in the probable cause affidavit. He admitted being in the
back portion of the IMI plant with Fairchild just prior to being pulled over and
that stolen items were found in the back hatch of the vehicle. Mullins also
acknowledged that he lied to the officer about not having identification. During
his testimony, however, Mullins denied ever getting out at the plant and
indicated that he could not explain how the items stolen from the plant ended
up in the vehicle. Mullins claimed, without any supporting evidence, that the
charges were dismissed because Fairchild and his fiancée later took
responsibility for the incident and indicated Mullins was not involved.
[7] At the conclusion of the hearing, the trial court found by a preponderance of the
evidence that Mullins had committed the Hamilton County offenses. In light of
this finding and the other admitted violation, the trial court revoked Mullins’s
probation and ordered his sentence served at the Department of Correction.
Court of Appeals of Indiana | Memorandum Decision 48A04-1403-CR-115 | February 9, 2015 Page 3 of 6 [8] On appeal, Mullins contends that the trial court abused its discretion when it
admitted the probable cause affidavit into evidence because the charges had
been dismissed in Hamilton County. Relying on Figures v. State, 920 N.E.2d
267 (Ind. Ct. App. 2010), Mullins claims that admission of the affidavit violated
his due process rights to confront and cross examine adverse witnesses because
the affidavit lacked any foundation to establish its reliability.
[9] Confrontation rights in the context of probation revocation are not as extensive
as in criminal trials, and the Indiana Rules of Evidence do not apply. Id. Thus,
in revocation hearings, due process does not prohibit the use “where
appropriate of the conventional substitutes for live testimony, including
affidavits, depositions, and documentary evidence.” Reyes v. State, 868 N.E.2d
438, 440 (Ind. 2007) (quoting Gagnon v. Scarpelli, 411 U.S. 778, 783 n.5 (1973)).
[10] We have held that a probable cause affidavit prepared and signed by the officer
listed as the affiant generally bears sufficient indicia of reliability to be
introduced into evidence at probation revocation hearings. Whatley v. State, 847
N.E.2d 1007 (Ind. Ct. App. 2006). In Figures v. State, the case upon which
Mullins relies, we rejected the use of a probable cause affidavit in a revocation
hearing where the case for which the affidavit was prepared had been dismissed
due to “evidentiary problems”. 920 N.E.2d at 272. We observed that this cast
doubt on the trustworthiness of the affidavit’s assertions particularly where the
State did not present any corroborating evidence.
Court of Appeals of Indiana | Memorandum Decision 48A04-1403-CR-115 | February 9, 2015 Page 4 of 6 [11] In Figures, the defendant made a specific objection to the admission of the
probable cause affidavit.1 Mullins, in contrast, failed to articulate any basis for
his objection at the probation revocation hearing. Accordingly, we find the
issue waived. See, e.g., Espinoza v. State, 859 N.E.2d 375, 384 (Ind. Ct. App.
2006) (“[g]rounds for objection must be specific and any grounds not raised in
the trial court are not available for appeal”).
[12] Waiver notwithstanding, we observe that Mullins’s own testimony provided
substantial corroboration of the probable cause affidavit. Cf. Figures v. State, 920
N.E.2d at 270 (“no testimony was presented to corroborate [the probable cause
affidavit’s] version of events”). Mullins testified that on the night in question he
was in the rear of the IMI plant with Fairchild just prior to being pulled over
and that stolen items from the plant were found in the back hatch of the vehicle.
Mullins also acknowledged that he lied to the officer about not having
identification. While Mullins claimed no involvement in or knowledge of the
Free access — add to your briefcase to read the full text and ask questions with AI
MEMORANDUM DECISION Feb 09 2015, 8:06 am 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 John T. Wilson Gregory F. Zoeller Anderson, Indiana Attorney General of Indiana
Graham T. Youngs Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Justin Mullins, February 9, 2015
Appellant-Defendant, Court of Appeals Case No. 48A04-1403-CR-115 v. Appeal from the Madison Circuit Court Honorable Thomas Newman Jr., State of Indiana, Judge Appellee-Plaintiff Cause No. 48D03-0801-FC-20
Friedlander, Judge.
[1] Justin Mullins appeals the trial court’s order revoking probation and ordering
execution of his previously suspended sentence. He presents the following
restated issue for review: Did the trial court abuse its discretion in admitting
Court of Appeals of Indiana | Memorandum Decision 48A04-1403-CR-115 | February 9, 2015 Page 1 of 6 into evidence a probable cause affidavit from a previously dismissed
prosecution?
[2] We affirm.
[3] After pleading guilty to two counts of theft and two counts of resisting law
enforcement, the trial court sentenced Mullins to an aggregate term of three
years. Eighteen months were ordered to be served in the Madison County
Work Release Facility, with the balance suspended to probation.
[4] While on informal probation in this case and on more than one occasion,
Mullins associated with a convicted felon – Gary Fairchild – whom Mullins
had previously met while incarcerated. Late in the evening on Tuesday,
November 27, 2012, police responded to a report of a possible burglary in
progress at an IMI concrete plant in Hamilton County. From across the canal,
a resident had heard banging at the site and called 911. Police responded and
stopped a vehicle leaving the plant. Fairchild was driving, with his fiancée in
the passenger seat and Mullins in the backseat. Fairchild and Mullins denied
having identification. A search of the vehicle at the scene uncovered stolen
electrical wires and commercial grade junction boxes from the plant, as well as
Mullins’s wallet and identification. Mullins and his companions were arrested
that night for theft and burglary.
[5] On February 28, 2013, the State filed a notice of violation of probation alleging
that Mullins had violated probation by committing the new criminal offenses in
Court of Appeals of Indiana | Memorandum Decision 48A04-1403-CR-115 | February 9, 2015 Page 2 of 6 Hamilton County and by associating with a convicted felon. Although a
warrant was promptly issued, Mullins was not arrested for nearly a year.
[6] At the evidentiary hearing on February 24, 2014, Mullins admitted that he had
violated probation by associating with a convicted felon. With respect to the
other alleged violation, Mullins asserted that the charges out of Hamilton
County had been dismissed. When the State offered the affidavit of probable
cause from Hamilton County, defense counsel asserted a general objection and
then indicated that Mullins’s testimony “would probably shed light” on the
matter. Transcript at 24. In his testimony, Mullins conceded many of the
important facts set out in the probable cause affidavit. He admitted being in the
back portion of the IMI plant with Fairchild just prior to being pulled over and
that stolen items were found in the back hatch of the vehicle. Mullins also
acknowledged that he lied to the officer about not having identification. During
his testimony, however, Mullins denied ever getting out at the plant and
indicated that he could not explain how the items stolen from the plant ended
up in the vehicle. Mullins claimed, without any supporting evidence, that the
charges were dismissed because Fairchild and his fiancée later took
responsibility for the incident and indicated Mullins was not involved.
[7] At the conclusion of the hearing, the trial court found by a preponderance of the
evidence that Mullins had committed the Hamilton County offenses. In light of
this finding and the other admitted violation, the trial court revoked Mullins’s
probation and ordered his sentence served at the Department of Correction.
Court of Appeals of Indiana | Memorandum Decision 48A04-1403-CR-115 | February 9, 2015 Page 3 of 6 [8] On appeal, Mullins contends that the trial court abused its discretion when it
admitted the probable cause affidavit into evidence because the charges had
been dismissed in Hamilton County. Relying on Figures v. State, 920 N.E.2d
267 (Ind. Ct. App. 2010), Mullins claims that admission of the affidavit violated
his due process rights to confront and cross examine adverse witnesses because
the affidavit lacked any foundation to establish its reliability.
[9] Confrontation rights in the context of probation revocation are not as extensive
as in criminal trials, and the Indiana Rules of Evidence do not apply. Id. Thus,
in revocation hearings, due process does not prohibit the use “where
appropriate of the conventional substitutes for live testimony, including
affidavits, depositions, and documentary evidence.” Reyes v. State, 868 N.E.2d
438, 440 (Ind. 2007) (quoting Gagnon v. Scarpelli, 411 U.S. 778, 783 n.5 (1973)).
[10] We have held that a probable cause affidavit prepared and signed by the officer
listed as the affiant generally bears sufficient indicia of reliability to be
introduced into evidence at probation revocation hearings. Whatley v. State, 847
N.E.2d 1007 (Ind. Ct. App. 2006). In Figures v. State, the case upon which
Mullins relies, we rejected the use of a probable cause affidavit in a revocation
hearing where the case for which the affidavit was prepared had been dismissed
due to “evidentiary problems”. 920 N.E.2d at 272. We observed that this cast
doubt on the trustworthiness of the affidavit’s assertions particularly where the
State did not present any corroborating evidence.
Court of Appeals of Indiana | Memorandum Decision 48A04-1403-CR-115 | February 9, 2015 Page 4 of 6 [11] In Figures, the defendant made a specific objection to the admission of the
probable cause affidavit.1 Mullins, in contrast, failed to articulate any basis for
his objection at the probation revocation hearing. Accordingly, we find the
issue waived. See, e.g., Espinoza v. State, 859 N.E.2d 375, 384 (Ind. Ct. App.
2006) (“[g]rounds for objection must be specific and any grounds not raised in
the trial court are not available for appeal”).
[12] Waiver notwithstanding, we observe that Mullins’s own testimony provided
substantial corroboration of the probable cause affidavit. Cf. Figures v. State, 920
N.E.2d at 270 (“no testimony was presented to corroborate [the probable cause
affidavit’s] version of events”). Mullins testified that on the night in question he
was in the rear of the IMI plant with Fairchild just prior to being pulled over
and that stolen items from the plant were found in the back hatch of the vehicle.
Mullins also acknowledged that he lied to the officer about not having
identification. While Mullins claimed no involvement in or knowledge of the
burglary and theft of materials from the plant, the trial court was not bound to
believe his self-serving denial, nor was it required to accept his unsubstantiated
explanation for the dismissal of the charges in Hamilton County. In sum,
1 When the State sought to admit the probable cause affidavit and CCS from a dismissed case, Figures raised the following specific objection: “Our objection is basically based on the factors that we can’t cross-examine the alleged authors of those documents to ascertain whether they are reliable hearsay, which would be admissible, Your Honor.” Id. at 270. Although we ultimately found the error harmless, we held that under the circumstances the trial court erred in admitting the evidence “over his objection on the grounds of insufficient reliability”. Id. at 271.
Court of Appeals of Indiana | Memorandum Decision 48A04-1403-CR-115 | February 9, 2015 Page 5 of 6 Mullins’s testimony established a sufficient foundation for the probation
revocation with respect to both alleged violations.2
[13] Judgment affirmed.
Kirsch, J., and Crone, J., concur.
2 Mullins asserts a challenge to the sentence imposed but presents no argument in support. Accordingly, we find the issue waived. See Hart v. State, 889 N.E.2d 1266 (Ind. Ct. App. 2008) (a party waives an issue raised on appeal where the party fails to develop a cogent argument or provide adequate citation to authority).
Court of Appeals of Indiana | Memorandum Decision 48A04-1403-CR-115 | February 9, 2015 Page 6 of 6