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

                                                3
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).
                                                       4
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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