Court of Appeals of Indiana | Memorandum Decision 48A02-1412-CR-868 | July 15, 2015 Page 1 of 12

MEMORANDUM DECISION

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

William Byer, Jr.

Byer & Byer

Anderson, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Richard C. Webster

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Brandy L. Bennett,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

July 15, 2015

Court of Appeals Case No.

48A02-1412-CR-868

Appeal from the Madison Circuit 

Court

Lower Court Cause No. 

48D04-0911-FD-466

The Honorable David A. Happe, 

Judge

Pyle, Judge.

Statement of the Case

[1] Appellant/Defendant, Brandy L. Bennett (“Bennett”), appeals the trial court’s 

revocation of her probation. Specifically, she argues that the trial court abused 
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its discretion in revoking her probation because there was insufficient evidence

that she violated her probation by committing a new offense, failing to report to 

the Probation Department, and failing to provide verification of her 

employment. We disagree and conclude that the trial court did not abuse its

discretion.

[2] We affirm.1

Issue

Whether the trial court abused its discretion by revoking Bennett’s 

probation.

Facts

[3] On November 4, 2009, the State charged Bennett with Class D felony operating 

a vehicle as an habitual traffic violator.2 On November 16, 2009, Bennett 

entered into a plea agreement where she pled guilty to the Class D felony as 

charged. The trial court sentenced Bennett to thirty-six (36) months in the 

Department of Correction, with twenty-four (24) months executed, and twelve 

(12) months suspended to probation. The trial court ordered her sentence to 

 

1 We note that Bennett included a copy of the Transcript in her Appellant’s Appendix. We direct counsel’s 

attention to Indiana Appellate Rule 50(F), which provides that “[b]ecause the Transcript is transmitted to the 

Court on Appeal pursuant to Rule 12(B), parties should not reproduce any portion of the Transcript in the 

Appendix.”

2

IND. CODE § 9-30-10-16(a)(1). We note that effective July 1, 2014, a new version of this habitual traffic 

violator statute was enacted and that the Class D felony offense is now a Level 6 felony. Subsequently, the 

legislature amended this statute during the most recent legislative session, and this amendment went into 

effect on July 1, 2015. However, we will apply the version of the statute in effect at the time of Bennett’s 

offense.
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run consecutive to another cause and placed her in community corrections on 

home detention for her executed time.

[4] On November 25, 2013, the State filed a notice of probation violation, alleging:

3. That [Bennett] violated these conditions of [her] sentence 

and/or probation as follows: 

a. Not to violate the laws of Indiana or the U.S. and failure to 

behave well in society: On/about 03/29/13, you are alleged to 

have committed the following new criminal offense(s): [count]

I: Forgery, Class C Felony, as filed in Madison County Circuit 

Court IV under Cause Number 48C04-1308-FC-001492

[(“forgery cause”)];

b. Failed to report timely to the Probation Department;

c. Failed to report to the Probation Department your new arrest 

of 11/24/13 within 48 hours of said arrest;

d. Failed to maintain employment and/or verify employment to 

the Probation Department.

[5] (App. 40). The trial court set a probation revocation hearing for December 

2013, but Bennett failed to appear. Thereafter, the trial court issued a warrant 

for her arrest.

[6] Almost a year later, on November 10, 2014, the trial court held an initial

hearing on Bennett’s probation violation and an initial hearing on her forgery
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cause.

3

 In regard to her probation revocation notice, she denied the allegations,

and the trial court set an evidentiary hearing.4

[7] At the probation revocation evidentiary hearing on November 17, 2014, Carl 

Chambers (“Chambers”), a probation officer, testified that Bennett had failed to 

report to the Probation Department for her appointment on October 3, 2013 

and had failed to provide any verification of employment. Chambers was not 

her assigned probation officer, but he testified that he was familiar with her file. 

During the hearing, and upon the State’s request, the trial court also took 

judicial notice of the probable cause affidavit and the charging information 

from the forgery cause. The following excerpt is the conversation between the 

trial court, the State, and defense counsel regarding the judicial notice:

[State]: No, Your Honor. The State would request that the court 

take notice of its file in [Bennett’s forgery cause].

Court: [Defense Counsel], any reason not to do that?

[Defense Counsel]: I guess I would object as to taking notice of 

anything within the file. But I mean as far as the fact that there is 

a cause number, no objection as to the fact that there’s a cause 

number.

 

3 During the joint hearing the trial court read the forgery cause charging information, which provided that 

“[o]n or about March 29, 2013, in Madison County, State of Indiana, Brandy Lou Bennett did, with intent to 

defraud, make, utter, or possess a written instrument, to wit: a drug screen medical report, in such a manner 

that it purported to have been made by another person, at another time, with different provisions or by 

authority of one who did not give authority.” (Tr. 8).

4 Additionally, at the end of the hearing on November 10, 2014, the trial court asked Bennett about her 

failure to appear at prior hearings, and she admitted that she intentionally failed to appear. The trial court 

ordered her to serve fourteen days for contempt of court.
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Court: Specifically, [State], are you asking me to take judicial 

notice of the probable cause affidavit in that case?

[State]: Yes, Your Honor, the probable cause affidavit and the 

charging information.

Court: All right.

[Defense Counsel]: And that I would object to as it contains 

multiple amounts of hearsay.

Court: All right. [State]?

[State]: And in the violation setting, Your Honor, that hearsay 

would be sufficiently reliable for the court to make a determination 

based on that document.

Court: And what is it that makes it reliable in this context?

[State]: Your Honor, it is referencing specifically the charges in 

the notice of violation of probation, the investigation done by 

Detective Brett Busby, and he has signed the affidavit.

Court: All right. We’ll retrieve that file, I will take judicial notice 

of the file including the documents contained therein including the 

probable cause affidavit.

[8] (Tr. 22-24).5 After the trial court reviewed the records from the forgery cause, 

the trial court referenced an additional “indicia of reliability” from the probable 

cause affidavit, noting that it “extensively cross reference[d] communications 

with medical institutions and medical care providers.” (Tr. 24). The trial court 

noted that the reliability of the document was enhanced because the cross 

references could easily be checked with the listed individuals, which made the 

 

5 The record reveals that the State had requested a subpoena for Detective Busby to appear in court. Due to a 

processing issue with the subpoena, the trial court was not able to serve it in time for the hearing.
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document less likely to be fabricated. After the State rested, Bennett did not 

testify, present evidence, or otherwise challenge the contents of the probable 

cause affidavit and the charging information.

[9] At the end of the hearing, the trial court concluded that, “[b]ased on the 

uncontroverted evidence from the State[,]” Bennett had violated the conditions 

of her probation, specifically paragraphs 3(a), 3(b), and 3(d) of the notice. (Tr. 

26). The trial court revoked Bennett’s probation and sentenced her to one (1) 

year in the Department of Correction. Bennett now appeals.

Decision

[10] Bennett challenges the trial court’s determination that she violated probation. 

Specifically, she argues that the trial court’s decision was based on insufficient 

evidence, and she requests that she be returned to probation.

[11] “Probation is a matter of grace left to trial court discretion, not a right to which 

a criminal defendant is entitled.” Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 

2007). The trial court determines the conditions of probation and may revoke 

probation when the conditions are violated. Id. Probation revocation is a twostep process. Parker v. State, 676 N.E.2d 1083, 1085 (Ind. Ct. App. 1997). First, 

the trial court must make a factual determination that a violation of probation 

has occurred. Id. If that violation is proven, the trial court then must determine 

if it warrants revocation of probation. Id. 

[12] In determining whether to revoke probation, a court may consider “any

relevant evidence bearing some substantial indicia of reliability,” including 
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“reliable hearsay.” Cox v. State, 706 N.E.2d 547, 551 (Ind. 1999), reh’g denied.

See also Reyes v. State, 868 N.E.2d 438, 442 (Ind. 2007) (quoting U.S. v. Kelley, 

446 F.3d 688, 693 (7

th Cir. 2006)) (holding that the substantial trustworthiness 

test should be employed in evaluating “the reliability of the hearsay evidence”

in which the trial court explains on the record why the hearsay is reliable and 

sufficient), reh’g denied.

[13] We review a trial court’s probation violation determination for an abuse of 

discretion. Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013). An abuse of 

discretion occurs where the decision is clearly against the logic and effect of the 

facts and circumstances or when the trial court misinterprets the law. Id. We 

consider only the evidence most favorable to the judgment without reweighing 

that evidence or judging the credibility of the witnesses. Murdock v. State, 10 

N.E.3d 1265, 1267 (Ind. 2014). We will affirm the trial court’s decision to

revoke probation if there is substantial evidence of probative value to support 

the court’s decision. Id. A violation of a single condition is sufficient to revoke 

probation. Wilson v. State, 708 N.E.2d 32, 34 (Ind. Ct. App. 1999). The alleged 

violation need only be proven by a preponderance of evidence. Id.

[14] Bennett argues that the State failed to prove, by a preponderance of evidence, 

that she violated a condition of her probation. She contends that there is no 

evidence in the record that she: (1) committed a new offense; (2) failed to 

report to the Probation Department; or (3) failed to submit employment 

verification.
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[15] First, Bennett asserts that there is no evidence or documentation in the record to 

show that she violated probation by committing another offense. Before 

addressing her argument, we note that an arrest alone or the mere filing of a 

criminal charge does not warrant revocation. Jackson v. State, 6 N.E.3d 1040, 

1042 (Ind. Ct. App. 2014). “Instead, when the State alleges that the defendant 

violated probation by committing a new criminal offense, the State is required 

to prove—by a preponderance of the evidence—that the defendant committed 

the offense.” Id.

[16] In support of her argument, Bennett cites Jackson, in which this Court held that 

a copy of an indictment alone was not sufficient evidence to show that the 

defendant had violated probation by committing a new offense. Id. Rather, it 

only showed that he was “being charged with a new offense.” Id. Unlike in 

Jackson, where a copy of an indictment was the only evidence, the trial court in 

this case took judicial notice of both a probable cause affidavit and charging 

information. Bennett claims that judicial notice of the probable cause affidavit 

and the charging information from her forgery cause should not stand as 

sufficient evidence because it was not included in the record. Thus, she appears 

to argue that the trial court erred by taking judicial notice of the records in her 

forgery cause and challenges the sufficiency of the evidence contained therein.

[17] In regard to her challenge to the trial court’s ability to take judicial notice, we 

have held that trial courts can take judicial notice of its own records in another 

case previously before the court on a related case with related parties in 

probation revocation proceedings. See Whatley v. State, 847 N.E.2d 1007, 1009 
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(Ind. Ct. App. 2006) (relying on Henderson v. State, 544 N.E.2d 507, 513 (Ind. 

1989)) (holding that the trial court did not err during a probation revocation 

proceeding, by taking judicial notice of a record from another case). Presently, 

Indiana Rule of Evidence 201 provides that “court[s] may judicially notice a 

fact that . . . can be accurately and readily determined from sources whose 

accuracy cannot reasonably be questioned.” It also states that “[a] court may 

judicially notice a law, which includes . . . records of a court of this state[.]”6 

Therefore, the trial court did not err in taking judicial notice of the probable 

cause affidavit and the charging information from Bennett’s forgery cause. See, 

e.g. Whatley, 847 N.E.2d at 1010; Withers v. State, 15 N.E.3d 660, 664 (holding 

that a trial court, when terminating a defendant’s placement in a drug court 

program, could take judicial notice of attendance reports and reinstate the 

sentence).

[18] To the extent that Bennett now challenges the sufficiency of the probable cause 

affidavit and the charging information, she has waived this argument by failing 

to include the judicially-noticed documents in the record on appeal. See Nasser 

v. State, 727 N.E.2d 1105, 1110 (Ind. Ct. App. 2000) (holding that a defendant 

waived appellate review of his sentencing issue where he failed to provide our

Court with his presentence investigation report). Another panel of this Court 

 

6 We recognize that the Rules of Evidence do not generally apply in probation revocation proceedings. See 

Reyes, 868 N.E.2d at 440; Indiana Evidence Rule 101(d)(2) (formerly Evid. R. 101(c)(2)).
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has discussed the difficulty that judicial notice can pose for appellate review and 

the need to include judicially-noticed records from another court into the record 

of a case on appeal.7 See In re D.K., 968 N.E.2d 792, 797 (Ind. Ct. App. 2012) 

(citing Graham v. State, 941 N.E.2d 1091, 1097 (Ind. Ct. App. 2011), aff’d on 

reh’g, 947 N.E.2d 962 (Ind. Ct. App. 2011).

[19] In D.K., we addressed the use of judicially-noticed documents from a children 

in need of services (“CHINS”) proceeding in a termination of parental rights 

(“TPR”) proceeding. D.K., 968 N.E.2d at 796 (citing Graham, 941 N.E.2d at 

1097). We also addressed the difficulty posed on appeal when these judiciallynoticed documents, which were relied upon by the trial court in deciding the 

TPR case, were not included in the appendix nor otherwise included in the 

record on appeal. Id. We compared the procedural and evidentiary similarities 

of a TPR case and a post-conviction relief (“PCR”) case as both “refer to and 

rely heavily upon records in different, but related, proceedings.” Id. We then 

generally explained that when a trial court takes judicial notice of records of 

another court under Evidence Rule 201(b), “there must be some effort made to 

include such ‘other’ records in the record of the current proceeding.” Id. at 796 

(relying on Graham, 947 N.E.2d at 964-65). However, we more specifically 

explained that “if a party on appeal wishes to rely on parts of the ‘other’ record 

or records in making an argument before this court, it should include those 

 

7 Generally, it is good practice by the trial court to include judicially-noticed documents in the record because 

of the possibility that the case could be reviewed on appeal.
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parts in an appendix submitted to this court[.]” Id. at 797. We explained that 

such action is required by the party relying on the judicially-noticed court 

records because our Court has “limited access” to the contents of filings in the 

records of a trial court. Id. at 797 n.3.

[20] Here, the trial court relied upon records from Bennett’s forgery cause, 

specifically her probable cause affidavit, when deciding this revocation case. 

On appeal, Bennett now challenges the content of this judicially-noticed 

probable cause affidavit, arguing that it was not sufficient to show that she 

violated probation by committing another crime. Because her appellate 

argument relies on this record, she should have included it in her Appellant’s 

Appendix. See Id. at 797. Indeed, we have clarified that the appellant bears the 

burden of presenting a complete record with respect to the issues raised on 

appeal, and the failure to do so “hampers our ability to consider the appellate 

argument.” Eiler v. State, 938 N.E.2d 1235, 1237 n.2 (Ind. Ct. App. 2010), reh’g 

denied. See also Ford v. State, 704 N.E.2d 457, 461 (Ind. 1998), reh’g denied. 

[21] We recognize that, Indiana Appellate Rule 49(B) states that a party’s failure to 

include any item in an appendix shall not waive any issue on argument. 

However, here, because Bennett appears to be challenging the sufficiency of the 

judicially-noticed documents from her forgery cause, she needed to abide by our 

appellate rules and include those documents in the record on appeal. See D.K.,

968 N.E.2d at 797. Because she has failed to do so, she has waived any 

challenge to the sufficiency of the judicially-noticed records. See Nasser v. State, 

727 N.E.2d at 1110.
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[22] Bennett also contends that there was insufficient evidence to show that she 

failed to report to the Probation Department or that she failed to verify her 

employment. She claims that because Chambers testified that he was unaware 

as to whether her probation officer was present in the office on the day that she 

was supposed to appear, it cannot be proven by a preponderance of evidence 

that she failed to report to the office or verify her employment. However, 

Chambers also testified that Bennett had not reported to probation on October 

3, 2013, and that she never provided any verification of her employment. 

Therefore, Bennett’s argument amounts to nothing more than a request to 

reweigh the evidence, which we will not do. Murdock, 10 N.E.3d at 1267.

[23] Based on the record before us, we conclude that the trial court did not abuse its 

discretion by revoking Bennett’s probation, and we affirm the trial court’s 

revocation of her probation.

[24] Affirmed. 

Crone, J., and Brown, J., concur.