Jesse Jones v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: August 5, 2016
• Docket: 54A01-1602-CR-297
• Status: Published

Opinion

MEMORANDUM DECISION FILED Aug 05 2016, 7:43 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be CLERK 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 Mark Small Gregory F. Zoeller Indianapolis, Indiana Attorney General of Indiana Karl Scharnberg Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Jesse Jones, August 5, 2016 Appellant-Defendant, Court of Appeals Case No. 54A01-1602-CR-297 v. Appeal from the Montgomery Superior Court State of Indiana, The Honorable Heather Dennison, Appellee-Plaintiff Judge Trial Court Cause No. 54D01-1401-FD-1

Bailey, Judge.

Court of Appeals of Indiana | Memorandum Decision 54A01-1602-CR-297 | August 5, 2016 Page 1 of 7 Case Summary [1] Jesse Jones (“Jones”) pled guilty to Possession of Paraphernalia as a Class D

felony1 and received a sentence of three years, six months executed, and two

and a half years suspended to probation. While on probation, Jones allegedly

left the scene of an automobile accident causing bodily injury, a Class A

misdemeanor.2 Following a revocation hearing, the trial court entered a

judgment revoking Jones’s probation. Jones appeals, claiming the State did not

provide sufficient evidence to warrant probation revocation. We affirm.

Facts and Procedural History [2] On March 20, 2014, Jones entered a guilty plea to Possession of Paraphernalia

as a Class D felony pursuant to a plea agreement. He was sentenced to three

years, with all but six months suspended to supervised probation. Under the

probation order, Jones was prohibited from violating any law, and was

compelled to pay $100 in initial probation user’s fees, $100 in administrative

fees, and $30 monthly, the balance of which was to be paid before Jones was

discharged from probation. (App. at 25) On October 2, 2014, Jones’s

probation was modified to include at least six months of “inpatient treatment at

1 Ind. Code § 38-48-4-8.3(a) & (b). The offense was elevated from a Class A misdemeanor to a Class D felony because Jones had a prior unrelated conviction under this section. This offense would now be classified as a Class A misdemeanor. At all times, we refer to the version of the statute in effect at the time of Jones’s offense. 2 I.C. § 9-26-1-1.1(b)(1).

Court of Appeals of Indiana | Memorandum Decision 54A01-1602-CR-297 | August 5, 2016 Page 2 of 7 New Life Recovery Program (“New Life”) and follow[ing] all the rules and

recommendations made as a result of that program.” (App. at 35)

[3] On May 10, 2015, Deputy Jeremy Minor (“Deputy Minor”) of the

Montgomery County Sheriff’s Office was sent to search for a vehicle involved

in a hit-and-run accident on Interstate 74 East. (Tr. at 15) Deputy Minor was

advised to look for a black Pontiac car with front-end damage. (Tr. at 16-17)

He came across a construction zone where he found Jones standing outside a

black Pontiac with the hood open. (Tr. at 17) Upon approaching the vehicle,

Deputy Minor noted the car had front-end damage. (Tr. at 18)

[4] Deputy Minor asked Jones how his car had acquired the damage, and Jones

stated the car had some previous damage and the hood was usually held down

by a cable. (Tr. at 18) Deputy Minor then arrested Jones because he “had left

the scene of an accident with injury.” (Tr. at 19) Jones stated that he did not

know anyone had been hurt, and further claimed he thought he hit a toy. (Tr.

at 20-21) While being transported to the jail, Jones was apologetic and

appeared “bummed out with the whole situation.” (Tr. at 21) Jones later

claimed he lied to the officer because he felt intimidated. (Tr. at 22)

[5] On May 13, 2015, the Probation Officer for the Courts of Montgomery County

filed a petition to revoke or modify probation, alleging Jones had violated three

terms of his probation, namely: “[Term 1] You shall not violate any law”;

“[Term 10] You shall pay Probation User’s Fees”; and, “[Term 17] You shall

complete substance abuse evaluation/treatment/education as Probation/Court

Court of Appeals of Indiana | Memorandum Decision 54A01-1602-CR-297 | August 5, 2016 Page 3 of 7 Referral directs, pay all costs, and authorize release of information to Probation

and the Court.” (App. at 37) On June 25, 2015, the trial court held a fact-

finding hearing on this petition.

[6] At this hearing, Deputy Minor testified to the facts detailed above. He also

stated that an expert had determined that the damage to the front-end of Jones’s

car likely came from the tow hitch on the victim’s vehicle. (Tr. at 22) Jones

also testified, admitting to owing a balance of $590 in probation user’s fees (Tr.

at 6); however, he testified he had a plan to pay in full before the end of his

probation, complying with Term 10 of the probation order (Tr. at 34-35). Jones

also testified to blacking out at the time of the accident due to a week-old head

injury, but did admit he felt an “impact.” (Tr. at 39) Marilyn Ritchardson

(“Ritchardson”) of Rainbow Recovery Resources, a program through New

Life, testified that Jones had completed all program work except for the final

paperwork. (Tr. at 31)

[7] The trial court found that Jones had violated his probation, stating:

The Court will find that Jesse Wayne Jones is in violation of the terms of his probation by committing a new criminal offense, specifically Failure to Stop After an Accident, a Class B Misdemeanor, failure to pay his probation user’s fees, and failure to successfully complete the program at New Life.

(Tr. at 52-53) On January 11, 2016, after Jones made some attempts to repeat

the New Life Recovery Program, the court held a disposition hearing.

Court of Appeals of Indiana | Memorandum Decision 54A01-1602-CR-297 | August 5, 2016 Page 4 of 7 Ultimately, the court revoked Jones’s probation and ordered him to serve the

suspended time in the Department of Correction. Jones now appeals.

Discussion and Decision [8] A defendant is not entitled to serve a sentence on probation. Monroe v. State,

899 N.E.2d 688, 691 (Ind. Ct. App. 2009). Rather, such placement is a “matter

of grace” and a “conditional liberty that is a favor, not a right.” Million v. State,

646 N.E.2d 998, 1002 (Ind. Ct. App. 1995). Indiana Code Section 35-38-2-1(b)

provides that if a probationer “commits an additional crime, the court may

revoke the probation.”

[9] During a revocation hearing, the trial court must make two determinations: (1)

whether a violation of the terms of probation has occurred; and (2) if the

probationer has violated the terms, what sanctions should be imposed. Pierce v.

State, 44 N.E.3d 752, 755 (Ind. Ct. App. 2015). One violation of a condition of

probation is enough to support a probation revocation. Id. Under Indiana law,

the State must prove a probation violation by a preponderance of the evidence.

Ind. Code § 35-38-2-3(f).

[10] Jones first challenges the sufficiency of the evidence proving that he committed

another criminal offense, specifically, leaving the scene of an accident. Under

I.C. § 9-26-1-1.1, an operator who is in an accident is required to stop the

vehicle immediately or as near to the accident as possible, remain at the scene

until the operators can exchange names and license information, and, in the

Court of Appeals of Indiana | Memorandum Decision 54A01-1602-CR-297 | August 5, 2016 Page 5 of 7 event of injury, provide reasonable assistance and call law enforcement or

emergency personnel. I.C. § 9-26-1-1.1(a). A person who fails to comply

commits the Class B misdemeanor of leaving the scene. I.C. § 9-26-1-1.1(b).

The trial court found by a preponderance of the evidence that Jones had

committed this offense. The evidence most favorable to this finding shows that

Jones’s car had front-end damage consistent with a collision involving the

victim’s vehicle. Also, Jones appeared to have stopped because the hood of his

car unlatched and obstructed his vision. He did not exchange information with

the driver of the other vehicle. Furthermore, Jones apologized for lying to the

officer about the source of his car’s damage, and stated that he did not know

that anyone was injured in the accident. From these facts, a reasonable finder

of fact could conclude by a preponderance of the evidence that Jones left the

scene of an accident.

[11] Jones argues that he lacked the required mens rea to commit this offense because

he blacked out at the time of the accident. Jones also states that he stopped his

car as cautiously and as quickly as possible once he regained consciousness and

noticed his damaged hood. However, in presenting these arguments, Jones

invites us to reweigh the evidence, which we will not do.

[12] Jones further argues that he was not delinquent on his probation fees and, at the

time of the new offense, had completed the treatment program at New Life.

The State appears to concede these points. (Appellant’s Brief at 14) The

language of the probation agreement specifically states that all fees “must be

paid before you [Jones] are discharged from probation.” (App. at 25)

Court of Appeals of Indiana | Memorandum Decision 54A01-1602-CR-297 | August 5, 2016 Page 6 of 7 Furthermore, the testimony of Ritchardson demonstrated that, for all intents

and purposes, Jones had in fact completed the required programming through

New Life, and merely had to complete the discharging paperwork to formally

end his treatment. Thus, we conclude that there was insufficient evidence to

find that Jones had violated Terms 10 and 17 of his probation.

[13] Nonetheless, we once again note that a single probation violation is enough to

support probation revocation. Pierce, 44 N.E.3d at 755. Thus, because there

was sufficient evidence to find that Jones had violated his probation by

committing a new criminal offense, we affirm the trial court’s decision to

revoke Jones’s probation.

[14] Affirmed.

Riley, J., and Barnes, J., concur.

Court of Appeals of Indiana | Memorandum Decision 54A01-1602-CR-297 | August 5, 2016 Page 7 of 7