Marcus Jones v. State of Indiana ( 2014 )

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before Jan 31 2014, 9:09 am
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:
JILL M. ACKLIN GREGORY F. ZOELLER
Acklin Law Office, LLC Attorney General of Indiana
Westfield, Indiana
CHANDRA K. HEIN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
MARCUS JONES, )
)
Appellant-Defendant, )
)
vs. ) No. 48A04-1305-CR-251
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MADISON CIRCUIT COURT
The Honorable Dennis D. Carroll, Judge
Cause No. 48C06-0907-FB-540
January 31, 2014
MEMORANDUM DECISION – NOT FOR PUBLICATION
BARNES, Judge
Case Summary
Marcus Jones appeals the revocation of his probation. We affirm.
Issue
The sole issue before us is whether the trial court properly considered hearsay
evidence in making its decision to revoke Jones’s probation.
Facts
In March 2010, Jones was sentenced to a term of ten years, with seven years
executed and three years suspended to probation, for one count of Class B felony robbery.
On March 22, 2013, the State filed a petition alleging Jones had violated his probation after
his release from incarceration by committing several new offenses: Class A felony
attempted murder, Class A felony robbery resulting in serious bodily injury, and Class D
felony dealing in marijuana. The petition also alleged that Jones had violated probation by
failing to pay probation fees and failing to obtain employment.
At Jones’s probation revocation hearing, he admitted having failed to pay fees and
to obtain employment, but he did not admit to committing any new offenses. Detective
Norman Rayford of the Anderson Police Department testified regarding his investigation
into those offenses. He stated that the victim of the crime had been shot in the head and
that the victim had picked Jones out of a photo array as being present at the scene, which
was a drug deal “gone bad,” although the victim did not identify Jones as being the shooter.
Detective Rayford also testified that he spoke with Jones’s sister, who said Jones told her
he had been involved in the drug deal that led to the victim’s shooting. Finally, Detective
Rayford testified that he interviewed Jones directly regarding the incident, and Jones had
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admitted being involved in a marijuana dealing transaction, during which the shooting
occurred, but he denied any direct involvement in the shooting. Detective Rayford stated
that what Jones told him was “collaborated [sic]” by what others had told him. Tr. p. 13.
At the conclusion of the hearing, the trial court acknowledged that the State’s
evidence was based on hearsay but that it had “some substantial indicia [of] reliability.”
Id. at 15. It found there to be insufficient evidence that Jones had committed attempted
murder or robbery but sufficient evidence of “the marijuana charge that’s alleged.” Id. at
16. In conclusion, the trial court revoked Jones’s probation and ordered him to serve his
previously-suspended three-year term while also stating, “Now, candidly . . . I would not
revoke three years based on those technical violations,” i.e., the failure to pay fees and to
obtain employment. Id. at 20. Jones now appeals.
Analysis
Jones’s sole argument is that the trial court erred in relying on hearsay evidence
presented by the State, through Detective Rayford’s testimony, in finding that he had
committed dealing in marijuana as the primary basis for revoking his probation. 1 We first
note that Jones did not object to Detective Rayford’s testimony. Failure to object to
testimony generally waives on appeal any claim of error in the testimony. Morris v. State,
818 N.E.2d 143, 145 (Ind. Ct. App. 2004).
1
Ordinarily, we may affirm a revocation of probation if there is sufficient evidence that a defendant violated
any single condition of probation. Jenkins v. State, 956 N.E.2d 146, 149 (Ind. Ct. App. 2011), trans. denied.
Jones did admit to violating his probation by not paying fees and by failing to obtain employment.
However, given the trial court’s clear statement that it would not have revoked Jones’s probation if he had
committed only those violations, we will address his argument regarding the finding that he committed
dealing in marijuana.
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Waiver notwithstanding, we find no error. During a probation revocation hearing,
a trial court may admit hearsay evidence if the court determines that the hearsay is
substantially trustworthy, without making a separate explicit finding of good cause for
admitting the hearsay in lieu of live testimony. Reyes v. State, 868 N.E.2d 438, 442 (Ind.
2007). Here, the most critical piece of “hearsay” evidence against Jones was Detective
Rayford’s relating that Jones himself had admitted during an interview that he had
participated in a marijuana dealing transaction. An out-of-court statement by a defendant
used against the defendant qualifies as a statement by a party-opponent that is excluded
from the definition of hearsay in our evidentiary rules. See Amos v. State, 896 N.E.2d
1163, 1168 (Ind. Ct. App. 2008) (citing Ind. Evidence Rule 801(d)(2)(A)), trans. denied.
Thus, Jones’s admission to Detective Rayford is the type of statement already deemed so
“substantially trustworthy” under our evidentiary rules that it is not hearsay. As such, the
trial court did not err in relying upon Detective Rayford’s testimony in finding that Jones
violated his probation by committing dealing in marijuana.
Conclusion
The trial court did not erroneously rely upon hearsay evidence in deciding to revoke
Jones’s probation. We affirm.
Affirmed.
ROBB, J., and BROWN, J., concur.
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