Latoy Kisha Jordan v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: September 11, 2017
• Docket: 48A04-1702-CR-407
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any court except for the purpose of establishing Sep 11 2017, 5:40 am

the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Richard Walker Curtis T. Hill, Jr. Anderson, Indiana Attorney General

Chandra K. Hein Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Latoy Kisha Jordan, September 11, 2017 Appellant-Defendant, Court of Appeals Case No. 48A04-1702-CR-407 v. Appeal from the Madison Circuit Court State of Indiana, The Honorable David A. Happe, Appellee-Plaintiff Judge Trial Court Cause No. 48C04-1512-F5-2099

Crone, Judge.

Court of Appeals of Indiana | Memorandum Decision 48A04-1702-CR-407 | September 11, 2017 Page 1 of 5 Case Summary [1] Latoy Kisha Jordan appeals the trial court’s revocation of her probation. She

contends that the evidence is insufficient to support revocation. Finding the

evidence sufficient, we affirm.

Facts and Procedural History [2] On December 9, 2015, the State charged Jordan with level 6 felony criminal

recklessness and level 5 felony carrying a handgun without a license. In March

2016, Jordan and the State entered into a plea agreement whereby Jordan

agreed to plead guilty to both charges in exchange for a sentencing cap of two

years on any executed sentence imposed. The agreement further provided that

Jordan would have no contact with the victim of one of her offenses, Amanda

Folden. On April 11, 2016, the trial court sentenced Jordan to concurrent terms

of two years executed for the level 6 felony and two years executed, plus three

years suspended to probation for the level 5 felony. The terms and conditions

of Jordan’s probation reiterated that she must comply with the no-contact order

regarding Folden.

[3] The State filed a notice of probation violation on October 26, 2016, alleging that

Jordan violated her probation by committing a new criminal offense, i.e., class

A misdemeanor invasion of privacy. During the probation revocation hearing,

Folden testified that, despite the no-contact order, Jordan had contacted her at

least six times. Jordan told Folden that she wished Folden was dead. Folden

contacted the authorities, and a caseworker spoke with Jordan and warned her

Court of Appeals of Indiana | Memorandum Decision 48A04-1702-CR-407 | September 11, 2017 Page 2 of 5 to stop contacting Folden. Jordan did not stop, and continued to contact

Folden. Based on the evidence presented, the trial court found that Jordan

violated her probation, revoked one year of her probation, and ordered her to

serve that year on in-home detention. This appeal ensued.

Discussion and Decision [4] “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 trial court’s discretion to determine the conditions of

probation and to revoke probation if those conditions are violated. Heaton v.

State, 984 N.E.2d 614, 616 (Ind. 2013). A revocation proceeding is civil in

nature, and the State must prove its allegations by only a preponderance of the

evidence. Ind. Code § 35-38-2-3(f). We review insufficiency of evidence claims

in a probation proceeding as we do any other sufficiency of the evidence

question. Pierce v. State, 44 N.E.3d 752, 755 (Ind. Ct. App. 2015). We will not

reweigh evidence or judge credibility of witnesses. Id. We look only at the

evidence favorable to the State and all reasonable inferences therefrom. Id. One

violation of a condition of probation is enough to support a probation

revocation. Id. If the trial court’s finding of a violation is supported by

substantial evidence of probative value, then we will affirm the revocation of

probation. Id. When the alleged probation violation is the commission of a new

crime, conviction of the new crime is not required. Id.

Court of Appeals of Indiana | Memorandum Decision 48A04-1702-CR-407 | September 11, 2017 Page 3 of 5 [5] Pursuant to her plea agreement, Jordan was ordered to have no contact with

Folden, and one of the terms and conditions of Jordan’s probation was that she

comply with the no-contact order regarding Folden. Tr. at 22; Appellant’s App.

Vol. 2 at 49, 52. Another condition of Jordan’s probation was that she not

commit any criminal offense. In its notice of probation violation, the State

alleged that on or about October 17, 2016, Jordan committed invasion of

privacy. To prove that Jordan committed that offense, the State was required to

prove that she knowingly or intentionally violated a no-contact order issued as a

condition of probation. See Ind. Code § 35-46-1-15.1(a)(6).

[6] The State established Jordan’s commission of invasion of privacy by a

preponderance of the evidence. The State presented evidence that Jordan

contacted Folden numerous times while Jordan was incarcerated at the Marion

County Volunteers of America. Jordan maintains that there was insufficient

“proof that [a no-contact order] actually existed” regarding Folden because the

State failed to specifically offer such order into evidence. Appellant’s Br. at 11.

However, Randy Tracy, an investigator with the prosecutor’s office, testified

that he specifically determined that there was a no-contact order in place under

cause number 48C04-1512-F5-2099, before he requested Jordan’s caseworker to

speak to Jordan and instruct her to cease contacting Folden. Moreover, there is

no question that the terms and conditions of probation, as well as the plea

agreement which included the no-contact order, were part of the trial court’s

record in this cause. During the revocation hearing, Jordan never challenged

the existence of the no-contact order or her knowledge thereof, she simply

Court of Appeals of Indiana | Memorandum Decision 48A04-1702-CR-407 | September 11, 2017 Page 4 of 5 claimed that it was Folden who was initiating the contact. Jordan’s

insufficiency of the evidence argument in this regard is without merit, and her

additional assertions challenging the sufficiency of the evidence are simply

requests for this Court to reweigh the evidence, a task not within our

prerogative on appeal. As the State proved by a preponderance of the evidence

that Jordan committed invasion of privacy, we affirm the trial court’s

revocation of one year of her probation.

[7] Affirmed.

Vaidik, C.J., and Mathias, J., concur.

Court of Appeals of Indiana | Memorandum Decision 48A04-1702-CR-407 | September 11, 2017 Page 5 of 5