Devon D. Dokes, Jr. v. State of Indiana , 971 N.E.2d 178 ( 2012 )

FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
GARY L. GRINER GREGORY F. ZOELLER
Mishawaka, Indiana Attorney General of Indiana
GARY R. ROM
Deputy Attorney General
FILED
Indianapolis, Indiana
Jul 20 2012, 9:05 am
IN THE
COURT OF APPEALS OF INDIANA CLERK
of the supreme court,
court of appeals and
tax court
DEVON D. DOKES, JR., )
)
Appellant-Defendant, )
)
vs. ) No. 71A03-1111-CR-503
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
The Honorable R.W. Chamblee, Jr., Judge
Cause No. 71D08-0601-FB-5
July 20, 2012
OPINION - FOR PUBLICATION
MAY, Judge
Devon Dokes appeals the revocation of his probation for being a felon in possession
of a handgun. Finding the evidence sufficient to support the court’s decision, we affirm.
FACTS AND PROCEDURAL HISTORY
On January 3, 2007, Dokes pled guilty to Class B felony burglary1 and Class A
misdemeanor resisting law enforcement.2 The court sentenced him to ten years in the
Department of Correction with six years suspended to probation. Thereafter, Dokes was
released from prison and began probation. The terms of Dokes’ probation included, among
other things, a prohibition against possessing a firearm, a prohibition against committing
additional crimes, and a requirement he pay probation fees.
On April 27, 2011, the State charged Dokes with possession of a handgun by a serious
violent felon, a Class B felony.3 The State also petitioned to revoke Dokes’ probation based
on his commission of a new criminal offense and his failure to pay probation fees.
The trial court, with agreement from the parties, held the probation revocation hearing
simultaneously with the bench trial on the criminal charge. Dokes stipulated to his prior
felony conviction. Two witnesses testified to having seen Dokes handle or possess a small
handgun that later was found next to the dead body of Dokes’ cousin, Ramon Hamilton. The
court found Dokes not guilty of being a felon in possession of a handgun. Nevertheless, the
court found Dokes violated his probation, citing his commission of the new offense.
1
Ind. Code § 35-43-2-1.
2
Ind. Code § 35-44-3-3.
3
Ind. Code § 35-47-4-5.
2
DISCUSSION AND DECISION
“The court may revoke a person’s probation if: (1) the person has violated a condition
of probation during the probationary period . . . .” Ind. Code § 35-38-2-3(a). The State must
prove a violation of probation by a preponderance of the evidence. Ind. Code § 35-38-2-3(e);
Braxton v. State, 651 N.E.2d 268, 270 (Ind. 1995). On review, we will look to the evidence
most favorable to the State and neither reweigh the evidence nor judge the credibility of
witnesses. Id. at 271. If substantial evidence of probative value exists to support the trial
court’s finding that a violation occurred, we will affirm the revocation of probation. Id.;
Menifee v. State, 600 N.E.2d 967, 970 (Ind. Ct. App. 1992), decision clarified on denial of
reh’g.
Dokes argues two insufficiencies in the State’s evidence. He first alleges the State did
not meet its evidentiary burden to prove he was on probation. Second, because the trial judge
found Dokes not guilty of the criminal offense of being in possession of a weapon, Dokes
alleges the testimony he possessed the gun was incredibly dubious and thus insufficient to
support probation revocation.
As for whether the State proved Dokes was on probation, the record indicates Dokes
and the State agreed the probation revocation hearing would occur simultaneous with the
bench trial on the new criminal charge. See, e.g., State ex rel. Randall v. Long, 237 Ind. 389,
392, 146 N.E.2d 243, 245 (1957) (parties may not appeal from a procedural stipulation not
objected to at trial); Viccaro v. City of Ft. Wayne, 449 N.E.2d 1161, 1163 (Ind. Ct. App.
1983) (parties were bound by stipulations made at trial). At no time during the combined
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hearing did Dokes or his counsel allege he was not on probation, and two witnesses testified
Dokes was on probation. This evidence was sufficient.4
Dokes also asserts the testimony that he possessed the weapon is incredibly dubious
under the rule re-announced in Fajardo v. State, 859 N.E.2d 1201, 1208 (Ind. 2007). The
rule of incredibly dubious testimony states:
If a sole witness presents inherently improbable testimony and there is a
complete lack of circumstantial evidence, a defendant’s conviction may be
reversed. This is appropriate only where the court has confronted inherently
improbable testimony or coerced, equivocal, wholly uncorroborated testimony
of incredible dubiosity. Application of this rule is rare and the standard to be
applied is whether the testimony is so incredibly dubious or inherently
improbable that no reasonable person could believe it.
Love v. State, 761 N.E.2d 806, 810 (Ind. 2002).
That rule does not apply in the present case. While only one witness testified that
Dokes possessed the gun on or near April 21, 2011, there was nothing inherently improbable
in that testimony. The standard in Love requires that no reasonable person could believe the
sole witness’s testimony, and there is no indication that Ms. Taylor’s testimony was
inherently improbable, coerced, or equivocal. Neither was that testimony wholly
uncorroborated as a second witness testified she saw Dokes in possession of the gun a few
weeks earlier.
Finally, Dokes claims because the trial judge found him not guilty beyond a
4
We note Ind. Evidence Rule 201 permitted the trial court to take judicial notice of its own records regarding
Dokes’ conviction and sentence, which would have demonstrated Dokes was on probation. While Dokes and
the State appear to agree the trial court did not take judicial notice of those documents and the Prosecutor did
not introduce them into evidence, Dokes nevertheless included those documents in his Appendix, which should
not contain items that were not made part of the record at trial. See Ind. Appellate Rule 50 (requiring counsel
to verify the documents in the Appendix are accurate copies of the trial record).
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reasonable doubt of possessing the weapon in the criminal trial the evidence is not sufficient
to convict him of the probation violation. We cannot agree. Because of the difference
between the burden of proof required to convict someone of a crime and the burden of proof
required to revoke probation, the court could revoke probation after finding Dokes not guilty
based on the same evidence. See, e.g., Hoffa v. State 267 Ind. 133, 368 N.E.2d 250, 252
(1977) (a conviction need not precede revocation of probation for commission of a new
offense); Thornton v. State, 792 N.E.2d 94, 97 (Ind. Ct. App. 2003) (court revoked probation
on preponderance of the evidence after jury acquittal); Jackson v. State, 420 N.E.2d 1239
(Ind. Ct. App. 1981) (evidence from trial ending in acquittal was sufficient to revoke
defendant’s probation).
Because his arguments fail, we affirm the revocation of Dokes’ probation.
Affirmed.
FRIEDLANDER, J., and BARNES, J., concur.
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