Gordon Michael Vanbibber v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: November 14, 2017
• Docket: 82A01-1705-CR-1024
• Status: Published

Opinion

MEMORANDUM DECISION FILED Nov 14 2017, 10:10 am Pursuant to Ind. Appellate Rule 65(D), CLERK this Memorandum Decision shall not be Indiana Supreme Court Court of Appeals regarded as precedent or cited before any and Tax Court

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 Yvette M. LaPlante Curtis T. Hill, Jr. Evansville, Indiana Attorney General of Indiana

Caroline G. Templeton Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Gordon Michael Vanbibber, November 14, 2017 Appellant-Defendant, Court of Appeals Case No. 82A01-1705-CR-1024 v. Appeal from the Vanderburgh Circuit Court State of Indiana, The Honorable David D. Kiely, Appellee-Plaintiff Judge The Honorable Kelli E. Fink, Magistrate Trial Court Cause No. 82C01-1607-F5-4364

Altice, Judge.

Case Summary

Court of Appeals of Indiana | Memorandum Decision 82A01-1705-CR-1024 | November 14, 2017 Page 1 of 8 [1] Gordon Vanbibber appeals the revocation of his probation, arguing that the

evidence is insufficient to support a finding that he violated the terms of his

probation.

[2] We affirm.

Facts & Procedural History

[3] On July 29, 2016, Vanbibber was charged with Count I, battery by means of a

deadly weapon, a Level 5 felony; Count II, attempted strangulation, a Level 6

felony; and Count III, resisting law enforcement as a Class A misdemeanor.

On October 18, 2016, Vanbibber pled guilty to Counts I and III, and Count II

was dismissed. On January 24, 2017, the trial court sentenced Vanbibber to

two years for the battery conviction and a concurrent one-year sentence for the

resisting law enforcement conviction. Vanbibber was given credit for serving

108 days and the balance of his sentence was suspended to Drug Abuse

Probation Services (DAPS) and Alcohol Abuse Probation Services (AAPS).

Vanbibber was ordered to comply with whatever treatment was deemed

appropriate.

[4] On February 6, 2017, the State filed a petition to revoke probation, alleging that

Vanbibber failed to report for his random urine screen, his daily breathalyzer,

and another appointment. After admitting to the violation, Vanbibber was

ordered to serve three actual days at the Vanderburgh County Jail and then

return to probation. The State filed a second petition to revoke probation on

February 10, 2017, after Vanbibber tested positive for cocaine. Vanbibber

Court of Appeals of Indiana | Memorandum Decision 82A01-1705-CR-1024 | November 14, 2017 Page 2 of 8 admitted to using cocaine. The trial court ordered Vanbibber released from

custody and that he report to his probation officer to continue his term of

probation. On March 7, 2017, the State filed a third petition to revoke

Vanbibber’s probation based on another positive test for cocaine. After

Vanbibber admitted to using cocaine, the trial court ordered him held without

bond until “a bed is available” with the Stepping Stone drug treatment program.

Appellant’s Appendix at 10. The court further ordered Vanbibber to “successfully

complete program at Stepping Stone and return to Probation.” Id.

[5] On March 23, 2017, Vanbibber reported to Stepping Stone. As part of the

admittance process, Vanbibber’s possessions were searched and staff located a

condom. Vanbibber indicated that he hoped he would have a chance to use it

while at the facility. Although not yet aware of the facility’s rules, Vanbibber’s

comment set the tone for his continued interactions with staff members.

[6] During his intake at the facility, Vanbibber was required to sign initial

paperwork. Once in the female staff member’s office, he was informed that it

was a quick process. Vanbibber responded that the staff member “could have

just come down to his room” and that it was “just wishful thinking” that the

staff member would come to his room. Supplemental Transcript Vol. II at 20.

The staff member interpreted the latter comment as “sexual innuendo.” Id.

The staff member confronted Vanbibber and informed him that the comment

was inappropriate and that further inappropriate comments could result in

discharge from the program.

Court of Appeals of Indiana | Memorandum Decision 82A01-1705-CR-1024 | November 14, 2017 Page 3 of 8 [7] Also on his first day at the facility, another staff member informed Vanbibber of

the program rules, including that it was expected that he interact appropriately

with others and that further inappropriate comments could be grounds for

discharge. Later that same day, Vanbibber asked a support staff member if

signing a release of information meant that the staff member’s daughter, of

whom he had seen a picture, could call him. Vanbibber was reminded that

inappropriate comments could result in removal and it was recommended that

he avoid contact with women. In addition, Vanbibber was accused of making

inappropriate sexual comments to female patients and of inappropriately

touching one of them.

[8] As a result of Vanbibber’s inappropriate conduct, he was discharged from

Stepping Stone’s in-patient treatment program on March 27. Stepping Stone

indicated, however, that Vanbibber could continue to participate in an out-

patient program. Upon being informed of Vanbibber’s discharge from the in-

patient program, the State filed a fourth petition to revoke probation, alleging

that he failed to comply with treatment. Vanbibber denied the allegation.

[9] The trial court held a fact-finding hearing on April 20, 2017. On April 26, the

trial court entered an order finding that the State had established the allegations

in the petition to revoke by a preponderance of the evidence. On May 5, 2017,

the trial court held a dispositional hearing, during which the court expressly

found that Vanbibber “[i]s not a good candidate for probation because he’s had

so many violations.” Sentencing Transcript at 7. The trial court then ordered

Vanbibber to serve 450 days of his sentence on Count I at the Department of

Court of Appeals of Indiana | Memorandum Decision 82A01-1705-CR-1024 | November 14, 2017 Page 4 of 8 Correction and a concurrent one year executed sentence on Count III.

Vanbibber now appeals. Additional facts will be provided as necessary.

Discussion & Decision

[10] Vanbibber argues that the State presented insufficient evidence to support the

revocation of his probation. A probation revocation hearing is civil in nature,

and the State must prove the alleged violation by a preponderance of the

evidence. Mateyko v. State, 901 N.E.2d 554, 558 (Ind. Ct. App. 2009), trans.

denied. When reviewing a claim of insufficient evidence to support a trial

court’s decision to revoke probation, we consider only the evidence most

favorable to the judgment, and we neither reweigh the evidence nor judge the

credibility of witnesses. Id. Revocation is appropriate if there is substantial

evidence of probative value to support the trial court’s conclusion that the

probationer has violated the terms of probation. Lightcap v. State, 863 N.E.2d

907, 911 (Ind. Ct. App. 2007).

[11] Vanbibber asserts that the State has not shown that he violated a rule of

probation by failing to participate in drug treatment. He notes that aside from

the conduct described above, he participated in the treatment programs offered

by Stepping Stone during the few days he was at the facility. He further notes

that although Stepping Stone discharged him from the in-patient treatment

program, he was offered treatment through its out-patient program. Vanbibber

asserts that there is nothing in the record indicating that he was unwilling to

participate in the out-patient treatment or explore other treatment options. He

Court of Appeals of Indiana | Memorandum Decision 82A01-1705-CR-1024 | November 14, 2017 Page 5 of 8 therefore argues that the trial court abused its discretion by revoking his

[12] Here, the basis for the petition to revoke probation was that Vanbibber “failed

to comply with treatment” in that he was “discharged unsatisfactorily from

residential treatment at Stepping Stone” because of inappropriate behavior.

Appellant’s Appendix at 88, 90. The State asserts that such was a violation of

probation rule number two, which required Vanbibber to comply with the rules

of the treatment facility. Specifically, Vanbibber was ordered to “follow all

orders or instructions, written or verbal, of your probation officer and other

designated program office(s) to include, evaluation, counseling and treatment.”

Appellant’s Appendix at 90.

[13] The State’s evidence established that Vanbibber was made aware on a least

three separate occasions that inappropriate comments could result in his

discharge from the program. One such warning stemmed from Vanbibber’s

comments after a condom was found among his personal belongings. A staff

member reported that she felt his comments were inappropriate. A second

warning came after Vanbibber made comments to a staff member about

“wishful thinking” of her coming to his room. Supplemental Transcript Vol. II at

20. The staff member interpreted such comment to be sexual innuendo and

confronted him. Vanbibber was warned a third time about the consequences of

his inappropriate comments after he asked a support staff member if her teenage

daughter, whose picture was within view, could call him during his stay at the

facility. Whether in jest or not, the staff member found the comments to be

Court of Appeals of Indiana | Memorandum Decision 82A01-1705-CR-1024 | November 14, 2017 Page 6 of 8 unsettling. In addition to his inappropriate behavior toward Stepping Stone

staff members, the State also presented evidence of reports that Vanbibber made

inappropriate sexual comments to female patients. Vanbibber had been at

Stepping Stone for approximately four days when the decision was made to

discharge him from the in-patient program due to his inappropriate comments

and behavior.

[14] Here, Vanbibber was obligated by the terms of his probation to do more than

complete the program. He was required to follow the rules of the facility that

was providing him treatment. His failure to do so violated the terms of his

[15] We further note that upon finding that Vanbibber violated his probation a third

time, the trial court ordered that he be held without bond until “a bed is

available” with the Stepping Stone drug treatment program. Appellant’s

Appendix at 10. The trial court clearly indicated that Vanbibber receive

treatment on an in-patient basis. Vanbibber, however, was discharged

unsatisfactorily from the in-patient program. As alleged in the petition to

revoke his probation, Vanbibber failed to comply with this condition of his

[16] In sum, the evidence is sufficient to support the trial court’s finding that

Vanbibber violated the terms of probation. Thus, the trial court did not abuse

its discretion in revoking Vanbibber’s probation.

[17] Judgment affirmed.

Court of Appeals of Indiana | Memorandum Decision 82A01-1705-CR-1024 | November 14, 2017 Page 7 of 8 [18] Baker, J. and Bailey, J., concur.

Court of Appeals of Indiana | Memorandum Decision 82A01-1705-CR-1024 | November 14, 2017 Page 8 of 8