MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jun 10 2016, 8:56 am
regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Kimberly A. Jackson Gregory F. Zoeller Indianapolis, Indiana Attorney General of Indiana Michael Gene Worden Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Keon D. Jones, June 10, 2016 Appellant-Defendant, Court of Appeals Case No. 52A02-1511-CR-1975 v. Appeal from the Miami Circuit Court State of Indiana, The Honorable Timothy P. Spahr, Appellee-Plaintiff. Judge Trial Court Cause No. 52C01-0503-FA-67
Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 52A02-1511-CR-1975 | June 10, 2016 Page 1 of 6 Case Summary and Issues [1] Keon Jones appeals the revocation of his probation, raising two issues: (1)
whether the trial court erred in admitting his drug screen results; and (2)
whether the evidence is sufficient to prove he violated the conditions of his
probation. Concluding any error in the admission of evidence was harmless
and the evidence is sufficient, we affirm.
Facts and Procedural History [2] On May 23, 2008, Jones pleaded guilty to conspiracy to commit armed robbery,
a Class B felony, and carrying a handgun without a license, a Class A
misdemeanor. Pursuant to the terms of the plea agreement, the trial court
ordered Jones pay restitution to the victim and serve an aggregate sentence of
twenty years executed in the Department of Correction, with ten years
suspended to probation and credit for time served. In November 2010, Jones
was released from incarceration and placed on probation.
[3] On June 2, 2015, the probation department filed a Petition to Modify or Revoke
Probation, alleging Jones violated the conditions of his probation by: (1) failing
to report to his probation officer for scheduled appointments on May 13, 2015,
and May 27, 2015; (2) using marijuana, as indicated by the positive results of
drug screens administered on October 1, 2014, and May 4, 2015; and (3) failing
to report for a drug screen on February 4, 2015. On August 25, 2015, the
probation department filed an Amended Petition to Modify or Revoke
Court of Appeals of Indiana | Memorandum Decision 52A02-1511-CR-1975 | June 10, 2016 Page 2 of 6 Probation, alleging two additional violations: (1) using methamphetamine, as
indicated by the positive results of a drug screen administered on August 20,
2015; and (2) failing to pay restitution to the victim. On September 25, 2015,
the probation department filed a Second Amended Petition to Modify or
Revoke Probation, alleging three more violations: (1) failing to notify his
probation officer of a change in his address at least twenty-four hours in
advance; (2) failing to report for a drug screen on September 9, 2015; and (3)
failing to call the random drug testing hotline from August 21, 2015, to
September 23, 2015.
[4] The trial court conducted a hearing on the petitions on October 22, 2015. At
the conclusion of the hearing, the trial court found the State proved the
following violations by a preponderance of the evidence: (1) use of illegal
substances, as indicated by the positive results of drug screens administered on
October 1, 2014, and August 20, 2015; (2) failure to report for a drug screen on
February 4, 2015; (3) failure to notify the probation department of an address
change at least twenty-four hours in advance; and (4) failure to call the random
drug testing hotline as ordered. The trial court terminated Jones’s probation as
unsuccessful, revoked six years of his previously suspended sentence, and
ordered the six years be served in the Department of Correction. This appeal
followed.
Court of Appeals of Indiana | Memorandum Decision 52A02-1511-CR-1975 | June 10, 2016 Page 3 of 6 Discussion and Decision I. Standard of Review [5] “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). “It is within the discretion of the trial court to determine probation
conditions and to revoke probation if the conditions are violated.” Heaton v.
State, 984 N.E.2d 614, 616 (Ind. 2013). Because probation hearings are civil in
nature, the State must prove violations by a preponderance of the evidence.
Murdock v. State, 10 N.E.3d 1265, 1267 (Ind. 2014); see also Ind. Code § 35-38-2-
3(f). When a probationer challenges the sufficiency of evidence, “we consider
only the evidence most favorable to the judgment—without regard to weight or
credibility—and will affirm if there is substantial evidence of probative value to
support the trial court’s conclusion that a probationer has violated any condition
of probation.” Murdock, 10 N.E.3d at 1267 (emphasis added) (citation and
internal quotation marks omitted).
II. Revocation of Probation [6] Jones contends because the trial court erred in admitting the results of his drug
screens, the evidence is insufficient to support the revocation of his probation.
Specifically, Jones argues the results should not have been admitted into
evidence because they were not substantially trustworthy. See Reyes v. State, 868
N.E.2d 438, 442 (Ind. 2007) (holding a probationer’s due process right to
confrontation is satisfied upon a finding by the trial court that hearsay evidence
Court of Appeals of Indiana | Memorandum Decision 52A02-1511-CR-1975 | June 10, 2016 Page 4 of 6 is “substantially trustworthy”). We conclude any error in the admission of his
drug screen results was harmless because the State proved Jones violated at
least three other conditions of his probation. See Pitman v. State, 749 N.E.2d
557, 560-61 (Ind. Ct. App. 2001) (holding any error in the admission of a police
report was harmless because the State proved the defendant violated another
condition of her probation with evidence that was properly admitted), trans.
denied. The State put forth substantial evidence showing Jones failed to report
for a drug screen in accordance with the probation department’s policies, failed
to timely notify his probation officer of a change in his address, and failed to
call the random drug testing hotline for over a month.
[7] One of Jones’s probation officers testified Jones was marked as failing to report
for a drug screen on February 4, 2015, because he had failed to pay for a prior
drug screen or complete community service in lieu of payment when he
reported that day:
[W]hen somebody takes a drug screen . . . the costs is [sic] sixteen dollars. If they’re unable to pay the sixteen dollars at the time of service, they are then given a voucher and they are given seven days to either pay twenty six dollars or perform five hours of community service in order to pay for the drug screen . . . . If the seven days comes and goes and they don’t do that, then our policy is . . .
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jun 10 2016, 8:56 am
regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Kimberly A. Jackson Gregory F. Zoeller Indianapolis, Indiana Attorney General of Indiana Michael Gene Worden Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Keon D. Jones, June 10, 2016 Appellant-Defendant, Court of Appeals Case No. 52A02-1511-CR-1975 v. Appeal from the Miami Circuit Court State of Indiana, The Honorable Timothy P. Spahr, Appellee-Plaintiff. Judge Trial Court Cause No. 52C01-0503-FA-67
Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 52A02-1511-CR-1975 | June 10, 2016 Page 1 of 6 Case Summary and Issues [1] Keon Jones appeals the revocation of his probation, raising two issues: (1)
whether the trial court erred in admitting his drug screen results; and (2)
whether the evidence is sufficient to prove he violated the conditions of his
probation. Concluding any error in the admission of evidence was harmless
and the evidence is sufficient, we affirm.
Facts and Procedural History [2] On May 23, 2008, Jones pleaded guilty to conspiracy to commit armed robbery,
a Class B felony, and carrying a handgun without a license, a Class A
misdemeanor. Pursuant to the terms of the plea agreement, the trial court
ordered Jones pay restitution to the victim and serve an aggregate sentence of
twenty years executed in the Department of Correction, with ten years
suspended to probation and credit for time served. In November 2010, Jones
was released from incarceration and placed on probation.
[3] On June 2, 2015, the probation department filed a Petition to Modify or Revoke
Probation, alleging Jones violated the conditions of his probation by: (1) failing
to report to his probation officer for scheduled appointments on May 13, 2015,
and May 27, 2015; (2) using marijuana, as indicated by the positive results of
drug screens administered on October 1, 2014, and May 4, 2015; and (3) failing
to report for a drug screen on February 4, 2015. On August 25, 2015, the
probation department filed an Amended Petition to Modify or Revoke
Court of Appeals of Indiana | Memorandum Decision 52A02-1511-CR-1975 | June 10, 2016 Page 2 of 6 Probation, alleging two additional violations: (1) using methamphetamine, as
indicated by the positive results of a drug screen administered on August 20,
2015; and (2) failing to pay restitution to the victim. On September 25, 2015,
the probation department filed a Second Amended Petition to Modify or
Revoke Probation, alleging three more violations: (1) failing to notify his
probation officer of a change in his address at least twenty-four hours in
advance; (2) failing to report for a drug screen on September 9, 2015; and (3)
failing to call the random drug testing hotline from August 21, 2015, to
September 23, 2015.
[4] The trial court conducted a hearing on the petitions on October 22, 2015. At
the conclusion of the hearing, the trial court found the State proved the
following violations by a preponderance of the evidence: (1) use of illegal
substances, as indicated by the positive results of drug screens administered on
October 1, 2014, and August 20, 2015; (2) failure to report for a drug screen on
February 4, 2015; (3) failure to notify the probation department of an address
change at least twenty-four hours in advance; and (4) failure to call the random
drug testing hotline as ordered. The trial court terminated Jones’s probation as
unsuccessful, revoked six years of his previously suspended sentence, and
ordered the six years be served in the Department of Correction. This appeal
followed.
Court of Appeals of Indiana | Memorandum Decision 52A02-1511-CR-1975 | June 10, 2016 Page 3 of 6 Discussion and Decision I. Standard of Review [5] “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). “It is within the discretion of the trial court to determine probation
conditions and to revoke probation if the conditions are violated.” Heaton v.
State, 984 N.E.2d 614, 616 (Ind. 2013). Because probation hearings are civil in
nature, the State must prove violations by a preponderance of the evidence.
Murdock v. State, 10 N.E.3d 1265, 1267 (Ind. 2014); see also Ind. Code § 35-38-2-
3(f). When a probationer challenges the sufficiency of evidence, “we consider
only the evidence most favorable to the judgment—without regard to weight or
credibility—and will affirm if there is substantial evidence of probative value to
support the trial court’s conclusion that a probationer has violated any condition
of probation.” Murdock, 10 N.E.3d at 1267 (emphasis added) (citation and
internal quotation marks omitted).
II. Revocation of Probation [6] Jones contends because the trial court erred in admitting the results of his drug
screens, the evidence is insufficient to support the revocation of his probation.
Specifically, Jones argues the results should not have been admitted into
evidence because they were not substantially trustworthy. See Reyes v. State, 868
N.E.2d 438, 442 (Ind. 2007) (holding a probationer’s due process right to
confrontation is satisfied upon a finding by the trial court that hearsay evidence
Court of Appeals of Indiana | Memorandum Decision 52A02-1511-CR-1975 | June 10, 2016 Page 4 of 6 is “substantially trustworthy”). We conclude any error in the admission of his
drug screen results was harmless because the State proved Jones violated at
least three other conditions of his probation. See Pitman v. State, 749 N.E.2d
557, 560-61 (Ind. Ct. App. 2001) (holding any error in the admission of a police
report was harmless because the State proved the defendant violated another
condition of her probation with evidence that was properly admitted), trans.
denied. The State put forth substantial evidence showing Jones failed to report
for a drug screen in accordance with the probation department’s policies, failed
to timely notify his probation officer of a change in his address, and failed to
call the random drug testing hotline for over a month.
[7] One of Jones’s probation officers testified Jones was marked as failing to report
for a drug screen on February 4, 2015, because he had failed to pay for a prior
drug screen or complete community service in lieu of payment when he
reported that day:
[W]hen somebody takes a drug screen . . . the costs is [sic] sixteen dollars. If they’re unable to pay the sixteen dollars at the time of service, they are then given a voucher and they are given seven days to either pay twenty six dollars or perform five hours of community service in order to pay for the drug screen . . . . If the seven days comes and goes and they don’t do that, then our policy is . . . if they’re called in to screen again, and they show up to screen it goes down as a no show because they are still failing to pay . . . .
Transcript at 79. As for Jones’s change of address, probation officer Lindsay
Long testified she attempted to contact Jones in May 2015 when she received a
Court of Appeals of Indiana | Memorandum Decision 52A02-1511-CR-1975 | June 10, 2016 Page 5 of 6 violation report but was unable to reach Jones because he had moved to a
different county without proper notice to the probation department. Long also
testified Jones was supposed to call the random drug testing hotline every day
but failed to call for over a month:
[T]here is a, a call log that we can click on . . . to see if they’ve called, when they’ve called . . . and it will give us . . . the phone number from where they’ve called . . . and there was zero indication beginning August 21st through when I actually filed the violation paperwork o[n] September 23rd, that [Jones] had ever called.
Id. at 53. Even without considering the drug screen results, we conclude the
State proved Jones violated several conditions of his probation. See 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.”).
Conclusion [8] Any error in the admission of Jones’s drug screen results was harmless because
the evidence shows Jones violated several other conditions of his probation.
Accordingly, sufficient evidence supports the trial court’s order revoking Jones’s
probation. The order is affirmed.
[9] Affirmed.
Najam, J., and Crone, J., concur.
Court of Appeals of Indiana | Memorandum Decision 52A02-1511-CR-1975 | June 10, 2016 Page 6 of 6