Jerry Lee Jones v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Oct 21 2020, 9:54 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
R. Patrick Magrath Curtis T. Hill, Jr.
Alcorn Sage Schwartz & Magrath, LLP Attorney General of Indiana
Madison, Indiana
Benjamin J. Shoptaw
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jerry Lee Jones, October 21, 2020
Appellant-Defendant, Court of Appeals Case No.
20A-CR-705
v. Appeal from the Decatur Superior
Court
State of Indiana, The Honorable Matthew D.
Appellee-Plaintiff, Bailey, Judge
Trial Court Cause No.
16D01-1810-F5-1373
Robb, Judge.
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Case Summary and Issues
[1] Jerry Jones appeals the trial court’s partial revocation of his previously
suspended sentence upon finding he had violated his probation, raising two
issues for our review: whether the State proved he had violated a condition of
his probation and whether the trial court abused its discretion in the sanction it
imposed upon finding a violation. Concluding the State proved the violation by
sufficient evidence and the trial court did not abuse its discretion in the sanction
it imposed for the violation, we affirm.
Facts and Procedural History
[2] In August 2019, Jones pleaded guilty to fraud on a financial institution, a Level
5 felony, and in October, was sentenced to three years, with 240 days to be
executed and 855 days suspended to probation, with 360 of those probationary
days subject to home detention. Jones began his probation on November 18,
2019. Conditions of his probation and community corrections placement
included that he “not commit any criminal act or violate any traffic law[,]” not
“possess or consume alcohol[,]” and that he “maintain the monitoring
equipment in good condition.” Appellant’s Appendix, Volume 2 at 52-54.
[3] On November 26, 2019, the probation department filed a petition for revocation
of probation, alleging Jones violated the conditions of his probation by:
failing a [portable breathalyzer] test for .35% [blood alcohol
level]. Mr. Jones allowed his ankle monitor to shut down on 4
different days. Mr. Jones no showed his appointment with
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Home Detention on 11/25/19. He was found by Case Manager
Barkdull and Case Manager Adkins wa[l]king down Lincoln
Street. On 11/26/19, at 12:43AM, a low battery alert was
triggered for Mr. Jones. At 3:17AM, [the GPS manufacturer]
was unable to connect to Mr. Jones[’] ankle monitor due to
insufficient charging. When this Probation Officer was given the
Incident Report, Mr. Jones’ ankle monitor was not showing a
location.
Id. at 55. A supplemental petition for revocation was filed on December 3,
2019 alleging Jones had violated the conditions of his probation by being
charged with public nudity, a Class C misdemeanor. The trial court held a
hearing on February 20, 2020, and after hearing testimony from Jones’
probation officer, his community corrections supervisor, the police officer who
arrested Jones for public nudity, and Jones himself, the trial court found:
Jones did, in fact, commit the offense of public nudity. Based on
that finding to be in violation of conditions of probation by
committing a new offense. Also find he committed a technical
violation of drinking alcohol while on probation. Also find the
technical violation of failing to maintain the charge in his
monitoring unit . . . .
Based on those things, find Mr. Jones to be in violation of the
conditions of his probation.
Transcript, Volume 2 at 29. The trial court noted that “the most basic
condition of probation is not to commit a new criminal offense, . . . [a]nd so
that is also in my view the most serious violation[.]” Id. at 30. The trial court
ordered 720 days of Jones’ previously suspended sentence revoked, to be served
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as an executed sentence in the Indiana Department of Correction (“DOC”),
with probation to be terminated as unsuccessful. Jones now appeals.
Discussion and Decision
I. Standard of Review
[4] Probation revocation is a two-step process: first, the trial court determines
whether a violation has occurred and second, the court determines whether the
violation warrants revocation. Overstreet v. State, 136 N.E.3d 260, 263 (Ind. Ct.
App. 2019), trans. denied. Upon revoking probation, the trial court may impose
one of several sanctions provided by statute. Ind. Code § 35-38-2-3(h). We
review a trial court’s revocation and sanction decisions for an abuse of
discretion. Overstreet, 136 N.E.3d at 263. An abuse of discretion occurs when
the decision is clearly against the logic and effect of the facts and circumstances
before the court. Id.
II. Proof of Violation
[5] On appeal of a probation revocation decision, we consider only the evidence
most favorable to the judgment without reweighing that evidence or judging the
credibility of the witnesses. Murdock v. State, 10 N.E.3d 1265, 1267 (Ind. 2014).
If substantial evidence of probative value supports the trial court’s decision that
a defendant has violated any terms of probation, we will affirm its decision to
revoke probation. Id.
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[6] Jones contends the State failed to prove he had violated the condition of his
probation that he not commit any criminal act. “When a probationer is
accused of committing a criminal offense, an arrest alone does not warrant the
revocation of probation.” Jackson v. State, 6 N.E.3d 1040, 1042 (Ind. Ct. App.
2014) (quotation omitted). Likewise, the mere filing of a criminal charge
against a defendant does not warrant the revocation of probation. Martin v.
State, 813 N.E.2d 388, 391 (Ind. Ct. App. 2004). Instead, the State must prove
the elements of the criminal offense by a preponderance of the evidence. Heaton
v. State, 984 N.E.2d 614, 617 (Ind. 2013); Ind. Code § 35-38-2-3(f).
“Preponderance of the evidence” “simply means the greater weight of the
evidence.” Kishpaugh v. Odegard, 17 N.E.3d 363, 373 (Ind. Ct. App. 2014)
(quotation omitted).
[7] The notice of probation revocation alleged Jones had committed the new
criminal offense of public nudity. A person commits Class C misdemeanor
public nudity by “knowingly or intentionally appear[ing] in a public place in a
state of nudity[.]” Ind. Code § 35-45-4-1.5(b). “[N]udity” means “the showing
of the human male . . . genitals, pubic area, or buttocks with less than a fully
opaque covering[.]” Ind. Code § 35-45-4-1(d). Jones concedes the State proved
that he was in a public place and that his genitals were exposed. Appellant’s
Brief at 10. Jones argues only that the State failed to prove he knowingly or
intentionally exposed himself because he explained at the revocation hearing
that he was “having trouble keeping his multi-layered, baggy, thin clothing
from falling on the windy day [and] that [his] mental health impaired his
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thinking.” Id. He contends the exposure was “inadvertent.” Tr., Vol. 2 at 28.
This argument, however, asks that we reweigh the evidence in his favor, which
we cannot do. Murdock, 10 N.E.3d at 1267.
[8] Lieutenant Joe Radcliff testified that he had encountered Jones in the morning
on November 27, 2019, and Jones “had his pants up without having any issues,
same weather conditions.” Tr., Vol. 2 at 21. Within an hour of this encounter,
Lieutenant Radcliff received a dispatch report “of a male matching a
description of Mr. Jones who I spoke with earlier at a gas station, same clothing
description with his genitals exposed to passersby, motorists, citizens in the area
of Main Street.” Id. at 16. When Lieutenant Radcliff located Jones, he
observed Jones’ exposed penis. Lieutenant Radcliff testified that Jones was
facing the roadway so passersby could see his exposed genitals, but when Jones
saw him, he started to walk away and began to pull his pants up. The
encounter was captured on Lieutenant Radcliff’s body camera and shown to the
trial court. A person acts “knowingly” if, when he engages in the conduct, “he
is aware of a high probability that he is doing so.” Ind. Code § 35-41-2-2(b).
Lieutenant Radcliff’s testimony—which the trial court specifically noted that it
found credible, see Tr., Vol. 2 at 28—that Jones was on a public street exposing
his penis and that he turned away and began pulling up his pants when he saw
Lieutenant Radcliff approach is sufficient to prove by a preponderance of the
evidence that Jones knowingly appeared in a public place in a state of nudity.
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III. Sanction
[9] Jones also contends the sanction the trial court imposed was an abuse of
discretion because it was the “result of technical violation[s] and in light of
Jones’ limitations due to homelessness and mental illness.” Appellant’s Br. at
11. The trial court found the commission of a new criminal offense to be the
most serious violation, but also found that the State had proved he consumed
alcohol1 and failed to maintain his electronic monitoring device in working
condition.
[10] Jones’ argument is premised on his success in his first argument – that there was
insufficient evidence that he committed a new offense. See id. at 13-14 (arguing
that “[i]n light of the State’s failure to prove by a preponderance of the evidence
that Jones intended to show his genitals,” the “purely technical nature” of his
remaining violations do not warrant a sanction “in excess of eighty percent
(80%) of his suspended time”). It is true, as Jones argues, that we have
previously found an abuse of discretion when a trial court revokes the entirety
of a suspended sentence for technical violations. See, e.g., Johnson v. State, 62
N.E.3d 1224, 1231 (Ind. Ct. App. 2016) (holding it was an abuse of discretion
to order the defendant to serve the entirety of his suspended sentence in the
DOC given, among other things, the nature of his violations). However, Jones
did not commit mere technical violations. As we determined above, the State
1
Jones admitted to this violation. See Tr., Vol. 2 at 27.
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did prove by a preponderance of the evidence that Jones had committed a new
criminal offense, and therefore, his violations were not merely technical
violations and his proportionality argument is inapposite.
[11] Probation is a matter of grace and a conditional liberty that is a favor, not a
right. Cox v. State, 706 N.E.2d 547, 549 (Ind. 1999). “Once a trial court has
exercised its grace by ordering probation rather than incarceration, the judge
should have considerable leeway in deciding how to proceed.” Prewitt v. State,
878 N.E.2d 184, 188 (Ind. 2007). Indiana Code section 35-38-2-3(h) offers the
trial court the following options when it finds a defendant has violated the terms
of his probation: (1) “[c]ontinue the person on probation, with or without
modifying or enlarging the conditions[,]” (2) “[e]xtend the person’s
probationary period for not more than one (1) year beyond the original
probationary period[,]” or (3) “[o]rder execution of all or part of the sentence
that was suspended at the time of initial sentencing.” Thus, a trial court has
great latitude to fashion the terms of a probation violation sanction.
[12] Here, less than two weeks after being placed on probation, Jones had consumed
alcohol, his electronic monitoring unit shut down at least four times, he missed
an appointment with his supervisor, and he committed a new offense by
exposing himself on the street. The trial court was well within its discretion to
determine that Jones had abused the grace previously offered to him and to
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revoke a substantial portion of his previously suspended sentence.2 See Terpstra
v. State, 138 N.E.3d 278, 289-90 (Ind. Ct. App. 2019) (affirming trial court’s
imposition of entire previously suspended sentence because defendant’s
commission of a new offense less than a year after being placed on probation
was not a mere technical violation of the terms of probation), trans. denied.
Conclusion
[13] The State met its burden of proving by a preponderance of the evidence that
Jones had violated his probation and the terms of his community corrections
placement by committing a new criminal offense and the trial court therefore
did not abuse its discretion in revoking his probation or in imposing a sanction
for the violation. Accordingly, the judgment of the trial court is affirmed.
[14] Affirmed.
Crone, J., and Brown, J., concur.
2
We do acknowledge that the fact Jones was homeless and living in a shelter probably contributed to his
failure to keep his electronic monitoring device charged and made home detention a dubious choice in the
first place. However, the trial court did not revoke Jones’ probation and impose a sanction primarily because
of that violation. Moreover, his mental health issues may have contributed to his behavior. Nonetheless, the
State did prove a violation and it is possible that the DOC, a significant provider of mental health services, is
the best place for Jones to be.
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