Michael Jackson v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: July 7, 2016
• Docket: 49A02-1512-CR-2106
• Status: Published

Opinion

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.

Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2106|July 7, 2016 Page 1 of 8 [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.

Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2106|July 7, 2016 Page 2 of 8 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.

Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2106|July 7, 2016 Page 3 of 8 [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.

Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2106|July 7, 2016 Page 4 of 8 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 Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2106|July 7, 2016 Page 5 of 8 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

Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2106|July 7, 2016 Page 6 of 8 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.

Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2106|July 7, 2016 Page 7 of 8 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.

Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2106|July 7, 2016 Page 8 of 8