Monroe v. State

419 N.E.2d 831, 1981 Ind. App. LEXIS 1389

• Court: Indiana Court of Appeals
• Decided: April 29, 1981
• Docket: 2-879A231
• Status: Published

Opinions

SULLIVAN, Judge.

Appellant, David W. Monroe, appeals the revocation of his probation. He presents the following issue for review:

Whether the evidence was sufficient to support the finding upon which the revocation was based.

We reverse.

On February 13, 1978, because of a burned-out headlight and taillight, a police officer stopped Monroe, who in August 1977, had pleaded guilty to a charge of Delivery of a Controlled Substance for which he had received a suspended sentence with conditions. Kent Allen Persley, a convicted felon, was in the car with Monroe. One of the conditions of Monroe’s probation was: “You will not knowingly associate with anyone who has been convicted of a felony.” (emphasis supplied). The State filed a Petition to Revoke Probation on February 24, 1978, alleging that Monroe had violated this condition by being with Persley. Finding that Monroe had violated the condition, the court revoked his probation.

I.

Appellant asserts that the finding, that he “knowingly” associated with a convicted felon, was based upon insufficient evidence. When presented with a sufficiency of the evidence question, we do not reweigh the evidence nor judge the credibility of witnesses, rather we “will look to that evidence and the reasonable inferences therefrom which support the finding of the trial court.” Taylor v. State (1973) 260 Ind. 64, 66, 291 N.E.2d 890, 891. Therefore, we must determine whether from the evidence most favorable to the State it was reasonable to infer that Monroe knowingly associated with a convicted felon, i. e., Persley.

To associate “knowingly” with a convicted felon, one must know that the person with whom he associates is a convicted felon. Our conclusion in this regard is drawn from the only direct authority disclosed by our research. Prince v. State (Tex.Cr.App. 1972), 477 S.W.2d 542, 543; Shortnacy v. State (Tex.Cr.App. 1972), 474 S.W.2d 713, 715; Steed v. State (Tex.Cr.App. 1971), 467 S.W.2d 460, 461; Jackson v. State (Tex.Cr.App. 1971), 464 S.W.2d 153, 156. In each case probation was revoked because of an alleged violation of the probation condition that the probationer “avoid persons ... of disreputable or harmful character.” In each case the reviewing court held that the trial court by revoking the probation had abused its discretion, because there was no evidence that the probationer had had knowledge of the disreputable character of the person or persons with whom he had associated.

Authority exists affirming probation revocations when the evidence showed that the probationer was in a situation where he would have had reason to know that the person with whom he associated was of a character proscribed by his probation conditions. In Bunn v. State (1978), 144 Ga.App. 879, 243 S.E.2d 105, there was evidence that the probationer lived with his brother and a cousin-by-marriage who both had criminal records. In State v. W. (1968) 31 A.D.2d 163, 295 N.Y.S.2d 767, aff’d on other grounds, 24 N.Y.2d 732, 249 N.E.2d 882, 302 N.Y.S.2d 260 (1969), there was evidence that the probationer obtained and injected heroin with the person, who was also a probationer, and accompanied him to the probation office. In an appeal from the first attempt to revoke a probation, Gill v. State (Tex.Cr.App. 1977), 556 S.W.2d 354, the probation revocation was reversed and the cause remanded, because there was not sufficient evidence that the probationer knew of his associate’s criminal record. Later in Gill v. State (Tex.Cr.App. 1980), 593 S.W.2d 697, a review of a subsequent revocation, there was evidence that the probationer had known the person prior to their respective arrests, had visited this person in jail, and had been told expressly by his own probation officer to avoid this person. The contrasting results in the Gill appeals underscore the effect of establishing the probationer’s knowledge.

Thus the question before us is whether from the evidence most favorable to the State it was reasonable to infer that Monroe knew of Persley’s felony conviction.¹ If it was not reasonable, then the court abused its discretion in finding that Monroe violated the probation condition. In this connection we recognize that the State must prove the violation of a probation condition only by a preponderance of the evidence, I.C. 35-7-2-2(d) (Burns Code Ed. 1979), not beyond a reasonable doubt.

It is undisputed that Monroe was accompanied by Persley on February 13, 1978. It is clear from the record that Monroe had been acquainted with Persley for about one and a half years prior to that date, and that they had once been arrested together for drinking. However, there was no evidence from which a reasonable trier of fact could conclude that Monroe knew that Persley had been convicted of a felony in 1975. To do so might result in a correct conclusion, but a conclusion, nevertheless, premised solely upon surmise and conjecture.

We hold that the evidence was insufficient to permit a reasonable conclusion that Monroe violated this condition of his probation.

The judgment of the trial court is reversed, and the cause remanded for judgment consistent herewith.

SHIELDS, J. concurs. BUCHANAN, C. J., dissents and files separate opinion.

1 . In this context “knowingly” is not akin to our criminal code definition of “knowingly” which provides: “A person engages in conduct ‘knowingly’ if, when he engages in the conduct, he is aware of a high probability that he is doing so.” I.C. 35-41-2-2(b) (Bums Code Ed. 1979). While the precise meaning of the criminal code’s “knowingly” remains somewhat elusive, we need not here determine whether it is subsumed in subsection (d) dealing with culpability as Judge Buchanan concludes. Suffice it to say that we are here concerned with the word “knowing” as it relates to a probation revocation which is civil in nature and not as it relates to an alleged criminal offense as covered by I.C. 35-41-2-2(a) through (d).