MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any FILED court except for the purpose of establishing Apr 25 2019, 6:13 am
the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Kimberly A. Jackson Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana
Caroline G. Templeton Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Tywon D. Alexander, April 25, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-1638 v. Appeal from the Vigo Superior Court State of Indiana, The Honorable Michael R. Rader, Appellee-Plaintiff. judge Trial Court Cause No. 84D05-1612-F5-3310
Altice, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1638 | April 25, 2019 Page 1 of 19 Case Summary [1] Finding that Tywon D. Alexander violated the rules of his work release
program, the trial court revoked Alexander’s direct placement and ordered him
to serve the balance of his five-year sentence in the Indiana Department of
Correction (the DOC). Alexander appeals, asserting that his due process rights
were violated because he did not have notice of the rules that governed his
direct placement and because the trial court admitted hearsay testimony that
was not sufficiently reliable. He also claims that the evidence was insufficient
to support the revocation of his direct placement.
[2] We affirm.
Facts & Procedural History [3] For his involvement in robbing pizza delivery people, the State charged
Alexander on December 8, 2016, as later amended in January 2017, under
84D05-1612-F5-3310 (Cause 3310) with fifteen felonies: four counts of Level 5
felony robbery, six counts of Level 5 felony conspiracy to commit robbery,
three counts of Level 5 felony attempted robbery, one count of Level 6 felony
fraud, and one count of Level 6 felony attempted automobile theft. Pending
trial, the trial court placed Alexander in home detention under the supervision
of Vigo County Community Corrections.
[4] On March 23, 2017, Alexander pled guilty under Cause 3310 to one count of
robbery, one count of attempted robbery, and one count of conspiracy to
commit robbery, all Level 5 felonies, and the State dismissed the remaining
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1638 | April 25, 2019 Page 2 of 19 charges. On April 27, 2017, the trial court sentenced Alexander to an aggregate
five-year term: two years for the robbery conviction, with all but 691 days
suspended, to be served on home detention as a direct commitment; a
consecutive two years for the attempted robbery conviction, fully suspended, to
be served in work release as a direct commitment; and one year of probation for
the conspiracy to commit robbery conviction. The home detention and work
release sentences were to be served under the supervision of Vigo County
Community Corrections. The sentencing order incorporated by reference “all
rules and regulations of the Community Corrections Program.” Appellant’s
Appendix Vol. II at 64.
[5] That same date, the State filed an amended petition to revoke Alexander’s pre-
trial placement in home detention, alleging that Alexander failed to report on
April 20 and 22 to Vigo County Community Corrections for drug screens,
tested positive for THC in an April 24 drug screen, failed to call Community
Corrections as required on five occasions, and was in arrears with his home
detention fees. On July 24, 2017, the State filed an amended petition, alleging
that in June and July 2017, Alexander failed to do each of the following on
multiple occasions: failed to call the drug screen hotline, failed to report for
work as scheduled, and failed to report for testing. The petition advised that
because Alexander was $1395 in arrears in home detention fees, he had been
moved in July 2017 to the work release facility.
[6] On August 10, 2017, Alexander appeared for a hearing and admitted that he
had violated the terms of placement by failing to appear for drug screens, failing
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1638 | April 25, 2019 Page 3 of 19 to call in as ordered, and failing to report to work. The trial court found that
Alexander violated the terms of his placement on work release and revoked the
remainder of his suspended sentence to the DOC. 1 On November 16, 2017, the
trial court modified Alexander’s placement and returned Alexander to his
original sentence, ordering him “to serve the balance of the 2 years of the
previously ordered sentence on Work Release followed by 2 years on Home
Detention[,]” and “[u]pon release of those programs the Defendant will be on
formal probation for 1 year.” Appellant’s Appendix Vol. II at 100.
[7] On April 5, 2018, the State filed a Petition to Revoke Direct Placement in the
Work Release Program and/or to Revoke Probation (the Petition). The
Petition alleged six violations: (1) possession or use of tobacco on February 19,
2018; (2) interfering with attendance count at the facility on February 19; (3)
failure to obtain required number of signatures on job search and whereabouts
unknown for 2 hours on February 26; (4) a positive drug test for
benzodiazepines consistent with Xanax on March 1; (5) out of location/being
unaccounted for on March 6 for 1.5 hours; and (6) violation of conditions of
temporary leave and unaccounted for on March 28 for a period of 2.5 hours.
[8] At the May 24, 2018 hearing, the State presented the testimony of Vigo County
Community Corrections Case Manager Bradley Burton, who began supervising
1 On August 22 and 30, 2017, the trial court entered nunc pro tunc orders clarifying the two-year sentence for attempted robbery would continue to be served on work release and adjusting the credit time Alexander received.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1638 | April 25, 2019 Page 4 of 19 Alexander’s work release in December 2017. Burton did not witness the
alleged violations, but was informed of them by other community corrections
personnel at the work release facility. As Burton began to testify about
Alexander’s conduct violations, Alexander objected to Burton’s testimony on
the basis of hearsay “as this is not from his testimony from direct knowledge”
and because “he is testifying from some other officer telling him[.]” Transcript
Vol. 2 at 26. The court overruled the objection noting that Indiana’s Rules of
Evidence do not apply in probation violation hearings and “the real issue is
whether or not it’s a reliable report so you get a chance on cross-examination to
investigate that.” Id.
[9] With regard to the allegation that on February 19 Alexander received a conduct
report for violating the rule prohibiting “Possession or Use of Tobacco,” Burton
testified that an officer found a lighter in Alexander’s jacket, which Alexander
was not wearing at the time. Appellant’s Appendix Vol. II at 112. Burton testified
that possession of a lighter was a violation of the rules of the work release
program and that, when Alexander entered the work release program, he signed
a document acknowledging the rules. 2 In his later testimony, Alexander denied
that the lighter belonged to him and said that he was not aware that it was in his
jacket.
2 The work release rules were not admitted into evidence.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1638 | April 25, 2019 Page 5 of 19 [10] With regard to the allegation that Alexander interfered with the population
count at the work release facility on February 19, Burton testified that when an
officer entered Alexander’s dorm room at 11:00 p.m. to conduct a population
count, Alexander was playing cards, rather than sitting on his bunk. Burton
said that, at some prior time, an announcement over the facility’s speaker
system had been made to tell offenders “to return to your bunk for count” and
advising that anyone who was not on his bunk for count at 11:00 p.m. would
receive a write-up for interfering with count. Id. at 34. Burton testified that
interfering with count is a violation of the work release rules that Alexander
signed when he entered the facility. Alexander testified that he did not hear any
announcement and denied that such announcements are routinely made.
[11] Concerning the February 26 allegation that Alexander’s whereabouts were
unknown for two hours, Burton testified that Alexander was authorized to be
out of the work release facility on a job search from noon until 4:00 p.m.
Burton stated that the work release rules required Alexander to obtain a
minimum of three signatures from prospective employers and that, on February
26, Alexander provided two. He did not obtain any signature between
approximately 1:30 p.m. and 3:30 p.m., and his whereabouts were unknown.
Burton testified that this was a violation of the work release rules that
Alexander had signed off on. Alexander maintained that he “had no idea” that
he needed three signatures and that if anyone had asked him where else he had
gone, he would have obtained the additional signature. Id. at 44.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1638 | April 25, 2019 Page 6 of 19 [12] As to the allegation of the March 1 failed drug test, Burton testified that
Alexander tested positive for benzodiazepines and that the test was sent to
Norchem Solutions lab for verification. Burton confirmed that the positive
screen was a violation of the work release program’s rules. Alexander
acknowledged at the hearing that he had consumed a pill that day that his “line
leader” had given him to calm his stomach because he was vomiting due to
what he believed was food poisoning. Alexander claimed, however, that he did
not know that the pill was Xanax and if he had, he would not have taken it. Id.
at 45.
[13] Regarding the allegation that, for a one and one-half hour period on March 6,
Alexander was unaccounted for, Burton testified that Alexander was authorized
to be away from the work release facility for four hours to search for a job.
Alexander conducted his job search at a mall and returned with the required
three signatures, but Burton testified that persons in work release are “not
permitted to be at the mall” and therefore the mall was not an appropriate place
to look for work. Id. at 30. Burton was uncertain whether that rule about the
mall appears in the program’s written rules, stating “I guess you could just
consider it an unwritten rule.” Id. at 29-30. Burton explained that it is “[j]ust
like you’re not allowed to go to a restaurant[,]” and “[y]ou’re not allowed to go
to somebody’s house.” Id. at 39-40. Alexander testified that he did not know
that he was not allowed to enter the mall to seek a job there.
[14] As to the allegation that Alexander violated conditions of temporary leave on
March 28, with his whereabouts not known for a period of 2.5 hours, Burton
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1638 | April 25, 2019 Page 7 of 19 testified that Alexander had been granted permission to be out of the facility
and at the Hamilton Center from 2:30 to 5:30 p.m. and that Alexander returned
to the work release facility fifteen to twenty minutes late. Burton testified that,
upon Alexander’s late return, a work release officer contacted Hamilton Center
and was advised by the personnel in “Scheduling” and “Reception,” that
Alexander “showed up and cancelled stating that he was going to the hospital.”
Id. at 31. Work release personnel contacted two local hospitals and were
informed that no one with Alexander’s name had been at either place that day.
Burton stated that he asked Alexander about it and that Alexander told him he
went to Hamilton Center but was sick. Burton testified that because Alexander
provided no proof either that he stayed at Hamilton Center or that he went to a
hospital, his whereabouts were considered “unknown” during that time frame.
Id. at 32.
[15] Alexander testified that he was ill that day, “still sick from the nausea that I had
from the food poisoning,” and was vomiting and had diarrhea. Id. at 47. He
said that, after walking an hour to Hamilton Center for his appointment, he
went directly to the bathroom and stayed for an hour. He testified that when he
exited the bathroom he saw the woman at Scheduling and told her that he was
going back to work release because he was sick. He denied that he told anyone
at Hamilton Center that he was going directly from there to a hospital.
[16] The trial court found that Alexander’s testimony was “not credible,” that
Alexander had received a lenient sentence, that he already had his direct
placement revoked once before, and that “we are back with a number of
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1638 | April 25, 2019 Page 8 of 19 violations that indicate either an unwillingness or an inability to comply with []
the rules of your placement.” Id. at 54, 58. The court revoked Alexander’s
direct placement and ordered him to serve the balance of his five-year sentence
in the DOC in the Purposeful Incarceration program. Alexander requested and
received permission to file this belated appeal.
Discussion & Decision [17] A defendant is not entitled to serve a sentence in either probation or a
community corrections program. Monroe v. State, 899 N.E.2d 688, 691 (Ind. Ct.
App. 2009). Such placement is a matter of grace and a conditional liberty that
is a favor, not a right. Id. For purposes of appellate review, a petition to revoke
placement in a community corrections program such as work release or home
detention is treated the same on appeal as a petition to revoke probation. Bass v.
State, 974 N.E.2d 482, 488 (Ind. Ct. App. 2012) (citing Cox v. State, 706 N.E.2d
547, 549 (Ind. 1999)). The appellate court considers the evidence most
favorable to the judgment without reweighing that evidence or judging the
credibility of the witnesses. Monroe, 899 N.E.2d at 691. 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 probation. Holmes v. State, 923 N.E.2d 479, 483 (Ind. Ct. App. 2010)
(citing Monroe, 899 N.E.2d at 691).
[18] In challenging the revocation of his direct placement, Alexander asserts that he
was denied due process in two ways: (1) he received inadequate notice of the
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1638 | April 25, 2019 Page 9 of 19 rules governing his direct placement, and (2) the trial court admitted
“inadmissible, often multi-level hearsay” through Burton, which did not meet
the requirements of the substantial trustworthiness test and thereby denied
Alexander’s right to confront witnesses against him. Appellant’s Brief at 12.
Alexander argues that, even if he was not denied due process, the evidence was
insufficient to revoke his direct placement. We address his arguments in turn.
I. Due Process [19] While an individual at a probation revocation hearing does not possess the
same rights with which he was endowed prior to a conviction, the due process
clause of the Fourteenth Amendment does provide certain protections to
probationers at revocation hearings. J.H. v. State, 857 N.E.2d 429, 432 (Ind. Ct.
App. 2006), trans. denied. A defendant facing revocation of either a community
corrections placement or probation “is entitled to representation by counsel,
written notice of the claimed violations, disclosure of the opposing evidence, an
opportunity to be heard and present evidence, and the right to confront and
cross-examine witnesses in a neutral hearing before the trial court.” Cox, 706
N.E.2d at 550.
1. Notice
[20] Alexander challenges the determinations that he interfered with count and
failed to get required job signatures, claiming that he had no notice of those
work release rules. We find, however, that the trial court was presented with
sufficient evidence from which it could have found that Alexander had notice of
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1638 | April 25, 2019 Page 10 of 19 the rules. First, the trial court’s April 2017 sentencing order on Alexander’s
guilty plea, which sentenced Alexander to home detention and then work
release, expressly “incorporate[d] by reference all rules and regulations of the
Community Corrections Program.” Appellant’s Appendix Vol. II at 64. Second,
Burton testified at the revocation hearing that interfering with count and
obtaining three signatures in a job search were rules of the facility that
Alexander signed and acknowledged upon intake. Burton also testified that the
work release facility made an announcement over the speaker system advising
offenders to be in their bunks at 11:00 p.m. or they would be written up for
interfering with count. The trial court found Alexander’s testimony, claiming
that he was not aware that he had to be in his bunk at the designated time or
“had no idea” that he needed three signatures, was not credible. Transcript Vol.
2 at 44. We do not reweigh the evidence or judge the credibility of witnesses on
appeal. Monroe, 899 N.E.2d at 691.
[21] Alexander suggests that because the work release rules were not admitted at the
revocation hearing, “the trial court could not, and [the appellate] Court cannot,
determine whether Alexander received appropriate notice through the written
rules of what conduct would constitute a violation of his placement.”
Appellant’s Brief at 15. We disagree. Alexander provides no authority for the
assertion that the State was required to introduce the rules into evidence.
Moreover, as stated, Burton testified that interfering with count, as well as
obtaining three signatures in a job search, were written rules of the work release
facility and that Alexander signed and acknowledged his understanding of
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1638 | April 25, 2019 Page 11 of 19 them. Accordingly, the trial court was presented with evidence from which it
could determine whether Alexander’s conduct violated the rules of his
placement.
[22] Alexander also challenges the notice, or lack thereof, as to the mall violation,
asserting that he had no notice of any rule that precluded him from seeking
employment at the mall. Burton’s testimony indicated that the prohibition
regarding visiting and being employed at the mall may not have been written,
and instead, was more of an “unwritten” rule known and understood by
offenders. Transcript Vol. 2 at 29-30. Burton was not sure whether Alexander
had ever been expressly told that he was not permitted to be at the mall. Based
on the evidence before it, the trial court found Alexander’s testimony that he
was not aware of any such limitation was not credible. Again, we cannot
reweigh the credibility of witnesses on appeal. Monroe, 899 N.E.2d at 691.
That said, even if we were to find that Alexander did not have notice of this
particular rule, any error in basing revocation of direct placement on this was
harmless given that, as we discuss later in this decision, multiple other
violations supported the revocation. See Figures v. State, 920 N.E.2d 267, 272-73
(Ind. Ct. App. 2010) (revocation court’s finding that probationer had committed
new crime was not supported by evidence but error was harmless where
sufficient evidence supported two other probation violations found by court).
[23] In a related but different notice argument, Alexander asserts that the Petition
provided “[d]eficient notice . . . relating to Alexander’s alleged violation of a
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1638 | April 25, 2019 Page 12 of 19 rule governing tobacco use.” Appellant’s Brief at 16. Alexander is referring to
the following allegation of the Petition:
a. That on February 19th, 2018 Tywon Alexander received a report of conduct for violation of rule 305C Possession or Use of Tobacco. Mr. [Alexander] received a sanction verbal warning.
Appellant’s Appendix Vol. II at 112. Alexander’s argument is that because “[t]he
petition did not mention a lighter, much less allege Alexander’s possession of a
lighter violated the work release rules[,]” the Petition to revoke “did not notify
Alexander that the State was alleging Alexander’s possession of a lighter
violated Rule 305C or any other alleged work release rule.” Appellant’s Brief at
16. Alexander correctly observes that due process requires that the petition for
revocation disclose the grounds upon which revocation is being sought.
Washington v. State, 758 N.E.2d 1014, 1017 (Ind. Ct. App. 2001). However, we
reject Alexander’s argument for a couple of reasons.
[24] First, when Burton was being questioned at the hearing about that “Possession
or use of tobacco” violation, and Burton testified that Officer Freeman “wrote []
up” Alexander for having the “small yellow lighter,” Alexander never objected
or asserted, as he does now, that he did not receive notice that he was facing
revocation for possession of a lighter. Transcript Vol. 2 at 27-28. Rather, his
position at the revocation hearing was that the lighter was not his and he did
not know it was in his jacket. Based on this record, Alexander has waived any
argument that he did not know, i.e. lacked notice, that the State was seeking
revocation of his placement for his possession of the lighter. See Cox, 706
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1638 | April 25, 2019 Page 13 of 19 N.E.2d at 552 n.12 (noting that defendant waived claim that he was not
provided with written notice of the work release violation where he did not
object to lack of written notice at revocation hearing).
[25] Waiver notwithstanding, we find that Alexander received adequate written
notice in the Petition of the alleged violation. The Petition plainly charged that
Alexander had violated his direct placement because, on February 19, he
received a conduct violation “for violation of rule 305C Possession or Use of
Tobacco” and that he received a verbal warning. Alexander acknowledged at
the hearing that on that date Officer Freeman found a lighter in his jacket
pocket and asked him about it, to which he responded that it did not belong to
him and did not know it was in his jacket. The Petition adequately apprised
Alexander that the State was seeking revocation based on his conduct on
February 19. See Braxton v. State, 651 N.E.2d 268, 270 (Ind. 1995) (rejecting
defendant’s claim that petition did not provide notice upon which revocation
was being sought where the notice of violation alleged that defendant violated
condition of suspended sentence because on a certain date defendant had
committed disorderly conduct and possession of marijuana). Alexander has
failed to show that his due process rights were violated due to lack of notice.
2. Confrontation of Witnesses
[26] Alexander next argues that his right to due process was violated through the
admission of Burton’s testimony because his testimony “as to all of the alleged
violations” consisted of “extensive, unreliable, and often multi-level hearsay,”
and, consequently, Alexander was denied his right “to confront the sources of Court of Appeals of Indiana | Memorandum Decision 18A-CR-1638 | April 25, 2019 Page 14 of 19 most of the evidence against him.” Appellant’s Brief at 17, 22. As Alexander
acknowledges, Indiana’s Rules of Evidence do not apply in probation and
community corrections proceedings. See Holmes, 923 N.E.2d at 482 (“[T]he
Indiana Rules of Evidence in general and the rules against hearsay in particular
do not apply in community corrections placement revocation hearings.”). In
probation and community corrections placement revocation hearings, judges
may consider any relevant evidence bearing some substantial indicia of
reliability, and this includes reliable hearsay. Id. “The absence of strict
evidentiary rules places particular importance on the fact-finding role of judges
in assessing the weight, sufficiency and reliability of proffered evidence.” Id. at
482-83.
[27] In determining the admissibility of hearsay evidence in revocation proceedings
and whether such admission violates an accused’s right to due process, Indiana
has adopted a substantial trustworthiness test. Reyes v. State, 868 N.E.2d 438,
441 (Ind. 2007). “The substantial trustworthiness test requires that the trial
court evaluate the reliability of the hearsay evidence.” Id. at 442. Alexander
claims on appeal that “[t]he hearsay admitted or considered by the trial court in
this case does not pass [the substantial trustworthiness] test.” Appellant’s Brief at
18. We disagree.
[28] We have previously upheld a trial court’s decision to admit a law enforcement
officer’s testimony concerning notifications from fellow law enforcement
personnel. See, e.g., Monroe, 899 N.E.2d at 691 (holding that community
corrections officer’s testimony regarding fellow officers’ report of discovering
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1638 | April 25, 2019 Page 15 of 19 firearm at probationer’s residence did not lack indicia of reliability where
officers knew each other and had history of working together). We
acknowledge that, in this case, the evidence presented concerning the officers
who reported the violations to case manager Burton did not include how long
each community corrections officer had been working as such or whether
Burton had a history of working with the officer. Nevertheless, we are satisfied
that the trial court was presented with sufficient evidence from which it could
have determined that the hearsay was reliable.
[29] Burton testified with some specificity as to each separate violation, including
identification on several occasions of the officer that saw the conduct and
reported it. For instance, “Officer Freeman” found the lighter, and he was also
the officer who saw Alexander return late to the facility on March 28, when he
was to have had an appointment at Hamilton Center. Transcript Vol. 2 at 27.
Officer Freeman also was the person who called “Tammy” in “Scheduling” and
“Melissa” in “Reception” at Hamilton Center. Id. at 30. “Officer Ruddock”
was the officer who observed Alexander playing cards rather than being in his
bunk at 11:00 p.m. Id. at 33. Burton identified the name of the lab where the
March 1 drug screen was sent for testing, namely Norchem Solutions. Burton
identified the written rules that had been violated, and he also frankly
acknowledged that the mall rule was “unwritten” and he was unsure if it was
ever directly told to Alexander. Id. at 30. The trial court ultimately determined
that Alexander had committed the violations as alleged in the Petition, and
implicit in that decision is the trial court’s determination that it had evaluated
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1638 | April 25, 2019 Page 16 of 19 Burton’s testimony and found the hearsay evidence to be credible and reliable. 3
We conclude that, under the facts of this case, the trial court had sufficient
information to determine that the hearsay was substantially trustworthy.
[30] Furthermore, the State argues, and we agree, any error was harmless and
reversal is not warranted. Here, even excluding Burton’s testimony regarding
the lighter, interference with count, lack of required job search signatures, and
unknown whereabouts on March 6 when he was at the mall, Alexander
admitted other matters upon which the trial court could have based revocation.
For instance, Alexander testified that he took a pill on March 1 and thereafter
tested positive in a screen for Xanax. As to the allegation that on March 28 he
violated the conditions of temporary leave by not attending a scheduled
appointment at Hamilton Center, Alexander testified that he walked to
Hamilton Center, but did not attend his appointment, cancelled and
rescheduled it, and walked back, returning late to the work release facility.
Burton testified that he spoke to Alexander about it, and Alexander did not
provide any verification of being there or of a rescheduled appointment. The
trial court expressly found that Alexander’s testimony, with excuses for the
violations, was not credible. Thus, the trial court could have revoked direct
placement on the basis of the failed drug test or violation of temporary leave,
3 Our Supreme Court in Reyes v. State stated, “[I]deally [the trial court should explain] on the record why the hearsay [is] reliable and why that reliability [is] substantial enough to supply good cause for not producing ... live witnesses.’” 868 N.E.2d 438, 442 (Ind. 2007) (quoting United States v. Kelley, 446 F.3d 688, 693 (8th Cir. 2004)). However, “[i]f the test of substantial trustworthiness of hearsay evidence is met, a finding of good cause has also implicitly been made.” Id.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1638 | April 25, 2019 Page 17 of 19 and any error in the admission of Burton’s testimony on the other violations
was harmless. See Grubb v. State, 734 N.E.2d 589, 593 (Ind. Ct. App. 2000)
(applying harmless error analysis to find that even assuming it was error to
admit videotaped statements of children in support of revocation based on
allegations of child molestation, defendant’s probation could have been revoked
because he consumed alcohol), trans. denied. Alexander’s due process rights
were not violated by Burton’s testimony at the revocation hearing.
II. Sufficiency of the Evidence [31] Alexander argues that, even if no violation of due process occurred, the
evidence was insufficient to support the trial court’s finding that Alexander
violated the terms of his direct placement. The State must prove the alleged
violations by a preponderance of the evidence. Holmes, 923 N.E.2d at 483
(quoting Monroe, 899 N.E.2d at 691). When reviewing the sufficiency of the
evidence to support revocation of a community corrections placement or
probation, we consider only the evidence most favorable to the trial court’s
decision without reweighing evidence or judging witness credibility. Id. We
will affirm if there is substantial evidence of probative value to support the
conclusion that a defendant has violated any terms of community corrections
placement or probation. Id. Even if a trial court has made erroneous findings
with respect to some alleged violations, proof of any one violation of
community corrections rules or probation is sufficient on appeal to affirm
revocation. See id.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1638 | April 25, 2019 Page 18 of 19 [32] While Alexander argues that the State failed to present sufficient evidence to
revoke his probation, more precisely, his argument is that the State failed to
offer sufficient admissible evidence to support the revocation. We have already
determined that the record supported the trial court’s determination that the
hearsay testimony met the substantial trustworthiness test. The State’s evidence
showed that Alexander possessed a lighter, was not in his bunk at 11:00 p.m.
for count, failed to obtain required job signatures, and failed to comply with
conditions of temporary release when he did not attend the scheduled
appointment at Hamilton Center. By his own admission, Alexander tested
positive on March 1 to a Xanax product.
[33] We conclude that the State presented sufficient evidence from which the court
could find by a preponderance of the evidence that Alexander violated one or
more terms of the work release program. The trial court properly revoked
Alexander’s direct placement.
[34] Judgment affirmed.
Najam, J. and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1638 | April 25, 2019 Page 19 of 19