Court of Appeals of Indiana | Memorandum Decision 48A02-1703-CR-662 | September 6, 2017 Page 1 of 9

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

David W. Stone, IV

Anderson, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Christina D. Pace

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Michael Bryant McDonald,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

September 6, 2017

Court of Appeals Case No.

48A02-1703-CR-662

Appeal from the Madison Circuit 

Court

The Honorable Mark Dudley, 

Judge

Trial Court Cause No.

48C06-1210-FC-1936

Riley, Judge.
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STATEMENT OF THE CASE

[1] Appellant-Defendant, Michael McDonald (McDonald), appeals the trial court’s 

revocation of his work release placement and the imposition of his previously 

suspended sentence following the violation of his probation. 

[2] We affirm. 

ISSUE

[3] McDonald raises one issue on appeal, which we restate as: Whether the trial 

court abused its discretion by admitting certain evidence at McDonald’s 

revocation hearing.

FACTS AND PROCEDURAL HISTORY

[4] On October 17, 2012, under Cause Number 48C06-1210-F6-001936 (F6-1936), 

the State charged McDonald with burglary, a Class C felony; theft, a Class D 

felony; and unlawful possession or use of a legend drug, a Class D felony. The 

State also charged McDonald as a habitual offender. On November 26, 2012, 

pursuant to a plea agreement, McDonald agreed to plead guilty as charged. 

With regard to sentencing, the plea agreement provided for a sentencing cap of 

two years on the executed portion of McDonald’s sentence. On December 31, 

2012, the trial court conducted a sentencing hearing. The trial court 

subsequently sentenced McDonald to concurrent terms of seven years for the 

burglary offense, and three years each for the theft and unlawful possession or 

use of a legend drug convictions. Based on McDonald’s plea agreement, the 

trial court ordered McDonald to serve two years of his executed sentence in the 
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Department of Correction (DOC), and it suspended the remaining five years to 

probation. 

[5] On April 10, 2016, under Cause Number 48C06-1604-F6-000756 (F6-756), the 

State charged McDonald with residential entry, a Level 6 felony; interference 

with reporting a crime, a Class A misdemeanor; and invasion of privacy, a 

Class A misdemeanor. The victim of McDonald’s invasion of privacy offense 

was McDonald’s ex-girlfriend, Jaime Shaw (Shaw). As a condition of his 

release from custody pending his trial, the trial court issued a no-contact order 

against McDonald. On April 13, 2016, the State filed a petition to revoke 

McDonald’s probation based on the charges under Cause Number F6-756. On 

July 11, 2016, McDonald admitted to the probation violation. 

[6] On June 19, 2016, under Cause Number 48C06-1607-F6-001347 (F6-1347), the 

State charged McDonald with two Counts of invasion of privacy, a Class A 

misdemeanor and a Level 6 felony. McDonald’s alleged crimes were related to

Shaw. Again, the trial court issued a no-contact order against McDonald. On 

July 25, 2016, the State filed an amended notice of probation violation alleging 

that McDonald had been charged with two Counts of invasion of privacy, 

under Cause Number F6-1347. On August 8, 2016, McDonald admitted to the 

probation violation. Accordingly, the trial court revoked three years of

McDonald’s previously-suspended sentence under Cause Number F6-1936, and 

ordered it to be executed at the Madison County Work Release Center. 
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[7] On September 12, 2016, the State filed a petition to terminate McDonald’s 

work release. Specifically, the State alleged that McDonald had violated the 

terms of his work release by failing two drugs screens, and for admittedly using 

methamphetamine. On September 26, 2016, the State filed a notice of violation 

of suspended/executed sentence making similar allegations. On September 27, 

2016, the trial court conducted an evidentiary hearing on the State’s petition to 

terminate McDonald’s work release and notice of violation of 

suspended/executed sentence. On October 11, 2016, the trial court issued an 

order finding that McDonald had violated the condition of his suspended 

sentence and conditions of his work release. Nevertheless, the trial court 

ordered McDonald’s return to work release, along with a substance abuse 

evaluation. 

[8] On November 16, 2016, the State filed another petition to terminate

McDonald’s work release alleging, in part, that McDonald had absconded from 

the work release facility for a period of over sixteen hours, failed to obtain a 

substance abuse evaluation, and violated a no-contact order against Shaw. 

Subsequently, on November 22, 2016, the State filed a notice of violation of 

suspended/executed sentence making the same allegations. On January 23, 

2017, McDonald admitted the allegations in the State’s notice of violation of 

suspended/executed sentence and petition to terminate work release. 

Notwithstanding the violations, the trial court returned McDonald to work 

release.
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[9] On February 13, 2017, the State filed yet another petition to terminate work 

release alleging, in part, that McDonald violated the terms of his work release 

by being in possession of “non-tobacco related contraband.” (Appellant’s App. 

Vol. II, p. 144). In addition, the State alleged that “On 02/12/2017, Mr. 

McDonald was arrested for new criminal offenses of [s]talking and two 

[C]ounts of [i]nvasion of privacy.”1

 (Appellant’s App. Vol. II, p. 144). Based 

on McDonald’s violations, on February 22, 2017, the State filed a notice of 

violation of suspended/executed sentence. 

[10] On March 7, 2017, the trial court conducted an evidentiary hearing on the 

State’s petition to terminate work release and notice of violation of 

suspended/executed sentence. At the revocation hearing, the State sought to 

introduce evidence that McDonald violated at least one of the no-contact orders 

in place for Shaw under Cause Numbers F6-1347 and F6-756, between 

February 11-12, 2017. Madison County Deputy Sherriff Derek Saylor (Deputy 

Saylor) testified for the State that on February 11, 2017, he was dispatched to 

investigate suspicious activity outside Shaw’s residence on 588 West County 

Road 700 North, in Madison County, Indiana. Deputy Saylor indicated that 

the dispatch information stated that there was no-contact order against 

McDonald for the benefit of Shaw. Deputy Saylor testified that when he 

questioned McDonald why he was in the area, and McDonald stated that he 

was visiting a friend who lived nearby, but he was on his way home. Deputy 

 

1 The charging information for these crimes was not included in the Appellant’s Appendix. 
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Saylor testified that he thereafter went to Shaw’s residence and made contact 

with Shaw, and Shaw’s ex-husband who was also present. Before Deputy 

Saylor could testify to Shaw’s ex-husband’s statements, McDonald objected to 

Deputy Saylor’s testimony as hearsay. The trial court overruled the objection 

and stated, “It’s all very clear this fits well within the reliable hearsay rule that 

I’m allowed to take reliable hearsay at a probation revocation hearing.” (Tr. p. 

9). Deputy Saylor then went on to state that Shaw’s ex-husband reported to 

him that Shaw was the one who alerted him about McDonald’s driving by her 

house. At that point, McDonald objected on double hearsay grounds. The 

State then rephrased its question and asked Deputy Saylor if he had spoken

with Shaw in the course of his investigation. Without further objection from 

McDonald, Deputy Saylor stated that Shaw informed him that on February 11, 

2017, at around 5:00 p.m., McDonald knocked on her back door, but Shaw 

“was scared to answer her door.” (Tr. p. 10). Deputy Saylor went on to state 

that Shaw informed him that she had seen McDonald’s truck parked to the west 

of her residence with its lights off, and “every once in a while” McDonald 

drove by her “residence very slowly with the lights off . . . and then park[ed] to 

the east.” (Tr. p. 10). Deputy Saylor stated that he encountered McDonald, “a 

quarter mile to half a mile to the east of” Shaw’s residence. (Tr. p. 11). Deputy 

Saylor stated that Shaw informed him that McDonald drove by her house for a

few hours during the evening on February 11 until the early morning on 

February 12, 2017. At the close of the hearing, the trial court found that 

McDonald had violated the condition of his suspended/executed sentence and 

work release. Consequently, the trial court revoked McDonald’s work release 
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placement and ordered him to serve the remainder of his previously-suspended 

sentence under Cause Number F6-1936 in the DOC. 

[11] McDonald now appeals. Additional facts will be provided as necessary. 

DISCUSSION AND DECISION 

[12] McDonald contends the trial court erred in considering hearsay evidence in 

revoking his placement in work release. Specifically, McDonald now asserts 

that the trial court erred in admitting Deputy Saylor’s testimony which 

contained hearsay statements of his ex-girlfriend, Shaw.2

[13] We begin with the premise that there is no right to probation, and a trial court 

has “discretion whether to grant it, under what conditions, and whether to 

revoke it if conditions are violated.” Reyes v. State, 868 N.E.2d 438, 440 (Ind. 

2007), reh’g denied. “The due process right applicable in probation revocation 

hearings allows for procedures that are more flexible than in a criminal 

prosecution.” Id. Accordingly, “courts may admit evidence during probation 

revocation hearings that would not be permitted in a full-blown criminal trial.” 

Id.; see also Ind. Evidence Rule 101(c)(2) (explaining that the Indiana Rules of 

Evidence are not applicable in probation proceedings). Nevertheless, “[t]his 

does not mean that hearsay evidence may be admitted willy-nilly in a probation 

 

2 McDonald’s entire argument on appeal is that the trial court erred in admitting Shaw’s hearsay statements 

to Deputy Saylor because the statements are unreliable solely based on the fact that Shaw is an ex-girlfriend. 

In his appellate brief, McDonald cites to United States v. Lloyd, 566 F.3d 341, 344 (3d Cir. 2009), and United 

States v. Comito, 177 F.3d 1166, 1167 (9th Cir. 1999). These authorities are not binding on our court and do 

not support his argument.
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revocation hearing.” Reyes, 868 N.E.2d at 440. In Cox v. State, 706 N.E.2d 547, 

551 (Ind. 1999), reh’g denied, the Indiana Supreme Court held that “judges may 

consider any relevant evidence bearing some substantial indicia of reliability[,]” 

including reliable hearsay. More recently, in Reyes, our Supreme Court adopted 

the substantial trustworthiness test as the approach to be used to determine the 

reliability of hearsay evidence in probation revocation proceedings. Reyes, 868 

N.E.2d at 441. In the substantial trustworthiness test, “the trial court 

determines whether the evidence reaches a certain level of reliability, or if it has 

a substantial guarantee of trustworthiness.” Id. “[T]he substantial 

trustworthiness test implicitly incorporates good cause into its calculus.” Id. 

When a trial court applies this substantial trustworthiness test, “ideally [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.” Id. at 442 (quoting United States v. Kelley, 446 F.3d 688, 693 (7th 

Cir. 2006)).

[14] Consistent with the foregoing principles, our task here is not to consider the 

hearsay statement pursuant to traditional rules of evidence, but instead to 

determine whether it was reliable enough to have been admitted. Cox, 706 

N.E.2d at 551. The record in this case indicates that Shaw’s statements to 

Deputy Saylor had substantial indicia of trustworthiness. The record shows 

that Deputy Saylor was dispatched to Shaw’s residence to investigate suspicious 

activity. The dispatch information indicated that there was a no-contact order 

against McDonald for the benefit of Shaw. Deputy Saylor testified that he 
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spoke with Shaw who informed him that McDonald drove by her “residence 

very slowly with the lights off . . . and then park[ed] to the east.” (Tr. p. 10). 

Deputy Saylor testified that he encountered McDonald, “a quarter mile to half 

a mile to the east of” Shaw’s residence. (Tr. p. 11). Deputy Saylor also stated 

that Shaw’s ex-husband corroborated Shaw’s narration of events by indicating 

that he saw McDonald’s vehicle drive back and forth in font of Shaw’s 

residence. Based on the foregoing, the trial court did not abuse its discretion by 

admitting Shaw’s statements to Deputy Saylor. 

CONCLUSION

[15] In light of the above, the trial court did not abuse its discretion by admitting 

Shaw’s statements to Deputy Saylor.

[16] Affirmed.

[17] Robb, J. and Pyle, J. concur