MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                          FILED
this Memorandum Decision shall not be                                      Dec 12 2018, 10:20 am
regarded as precedent or cited before any                                       CLERK
court except for the purpose of establishing                                Indiana Supreme Court
                                                                               Court of Appeals
the defense of res judicata, collateral                                          and Tax Court


estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
David W. Stone IV                                       Curtis T. Hill, Jr.
Anderson, Indiana                                       Attorney General of Indiana
                                                        Matthew B. MacKenzie
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Baris L. Joyner,                                        December 12, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-1570
        v.                                              Appeal from the Madison Circuit
                                                        Court
State of Indiana,                                       The Honorable Mark K. Dudley,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        48C06-1401-FB-85



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1570 | December 12, 2018                   Page 1 of 7
                                          Case Summary
[1]   Baris L. Joyner (“Joyner”) appeals following the revocation of his probation.

      Arguing that there is insufficient evidence supporting certain alleged grounds

      for revocation, Joyner asks that we remand for reconsideration of his sanction.


[2]   We affirm.



                            Facts and Procedural History
[3]   In 2014, Joyner pleaded guilty to several offenses, and was sentenced to thirteen

      years in the Indiana Department of Correction with seven years executed and

      six years suspended. He was placed on probation in February 2017.


[4]   In August 2017, the Madison County Probation Department filed a Notice of

      Violation of Probation, which was later amended. The notice alleged that

      Joyner had failed to (a) timely report to probation; (b) pay court costs; (c) pay

      probation fees; and (d) maintain employment. Joyner later admitted to these

      allegations. The notice also alleged that Joyner had committed several new

      criminal offenses on January 26, 2018, February 27, 2018, and March 12, 2018.


[5]   An evidentiary hearing was held on May 16, 2018, and June 6, 2018, largely

      focusing on the specific allegations of criminal conduct. Officer John Owen

      from the Madison County Sheriff’s Department (“Officer Owen”) testified that

      he saw a vehicle run a red light on January 26, 2018. Officer Owen attempted a

      traffic stop, and the vehicle accelerated. With lights and siren activated, Officer

      Owen followed the vehicle for about one mile. The vehicle eventually slowed,
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1570 | December 12, 2018   Page 2 of 7
      and the male driver exited while the vehicle was still in gear. The vehicle then

      struck a telephone pole. The driver fled on foot, and Officer Owen chased the

      driver for two or three minutes, eventually losing sight of him. Officers later

      spoke with the owner of the vehicle, who said that she had loaned the vehicle to

      Joyner. Officer Owen then searched police records for a photo of Joyner.

      Officer Owen identified Joyner as the person who had fled from the vehicle.


[6]   After the pursuit, Officer Owen would sometimes patrol the same area. While

      patrolling the area on February 27, 2018, Officer Owen saw Joyner on the

      balcony of a second-floor apartment. Officer Owen spoke with someone from

      the lower apartment who said Joyner lived upstairs. At that time, there was a

      warrant out for Joyner’s arrest. Law enforcement knocked on the door and

      tried to contact Joyner with a loudspeaker, but Joyner did not answer. Law

      enforcement then obtained and executed a warrant. There was a young child

      crying on a bed, and Joyner—the only other occupant—was in the bathroom.

      Joyner was arrested. At that time, he had $978 in his pocket. The apartment

      had a strong odor of marijuana, and law enforcement obtained a warrant to

      search the residence. Law enforcement then found an assault rifle under the

      mattress of the bed where the child was found. Law enforcement also found a

      suitcase with a handgun and 141.5 grams of a substance that Officer Owen

      believed was marijuana, and that a field test indicated was marijuana.


[7]   About two weeks later, on March 12, 2018, Officer Joseph Hancock of the

      Fisher’s Police Department (“Officer Hancock”) saw a vehicle straddling lanes.

      Officer Hancock stopped the vehicle and asked the occupants for identification.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1570 | December 12, 2018   Page 3 of 7
      The front passenger—who appeared nervous—wrote down Brandon Joyner.

      An ensuing search revealed a jar under the front passenger seat that contained

      approximately sixty-six grams of a substance that Officer Hancock believed was

      marijuana, and that a field test indicated was marijuana. Elsewhere in the

      vehicle, there was a container with about 17 grams of that substance. There

      was also a grinder in the driver’s door. At some point, the front passenger said

      that “all the marijuana was his.” Tr. Vol. II at 58. That person—who Officer

      Hancock identified as Joyner—later admitted that he was not named Brandon.


[8]   With respect to the specific allegations of criminal conduct, the trial court

      determined that Joyner had committed criminal offenses on January 26, 2018,

      February 27, 2018, and March 12, 2018. As to January 26, 2018—the date of

      the pursuit—the trial court determined that Joyner had committed Resisting

      Law Enforcement and Operating a Motor Vehicle without Ever Receiving a

      License. As to February 27, 2018—the date of the apartment search—the trial

      court determined that Joyner had committed Dealing in Marijuana,

      Maintaining a Common Nuisance, Neglect of a Dependent, and Unlawful

      Possession of a Firearm by a Serious Violent Felon. As to the traffic stop on

      March 12, 2018, the trial court determined that Joyner had committed

      Synthetic Identity Deception and Possession of Marijuana, but not Possession

      of Paraphernalia. In reflecting on Joyner’s conduct, the trial court noted that it

      had not taken Joyner “much time to go back to [his] older ways.” Id. at 81.

      The trial court also twice remarked that Joyner had “committed additional




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1570 | December 12, 2018   Page 4 of 7
       felonies.” Id. The trial court ultimately decided to revoke five of the six years

       of probation, and placed Joyner in the Indiana Department of Correction.


[9]    Joyner now appeals.



                                 Discussion and Decision
[10]   “In appeals from trial court probation violation determinations and sanctions,

       we review for abuse of discretion.” Heaton v. State, 984 N.E.2d 614, 616 (Ind.

       2013). The trial court abuses its discretion when its “decision is clearly against

       the logic and effect of the facts and circumstances . . . or when the trial court

       misinterprets the law.” Id. In general, “[p]robation revocation is a two-step

       process. First, the court must make a factual determination that a violation of a

       condition of probation actually occurred.” Woods v. State, 892 N.E.2d 637, 640

       (Ind. 2008). With respect to this initial determination, “[a] probation hearing is

       civil in nature,” Braxton v. State, 651 N.E.2d 268, 270 (Ind. 1995), and the State

       “must prove the violation by a preponderance of the evidence,” Ind. Code § 35-

       38-2-3(f). If the court identifies a violation, then the court next “determine[s]

       the appropriate sanctions for the violation.” Heaton, 984 N.E.2d at 616.

       Depending on the nature of the violation, the court “may decide to continue the

       probationer on probation without modification.” Id. at 618. Nonetheless,

       “[t]he violation of a single condition of probation is sufficient to revoke

       probation.” Luke v. State, 51 N.E.3d 401, 421 (Ind. Ct. App. 2016), trans. denied.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1570 | December 12, 2018   Page 5 of 7
[11]   The instant probation order required that Joyner “obey all municipal, state, and

       federal laws, and behave well in society,” App. Vol. II at 98—and even if it had

       not so stated, “refrain[ing] from committing additional crime is one of the

       conditions of probation, regardless of whether the probation order mentions the

       requirement,” Bane v. State, 579 N.E.2d 1339, 1340 (Ind. Ct. App. 1991), trans.

       denied. Joyner does not dispute that he violated conditions of probation. He

       instead argues that there was insufficient evidence supporting certain identified

       violations. According to Joyner, because there were fewer violations, we

       should remand to give the court the opportunity to re-evaluate the sanction.


[12]   Joyner focuses only on the grounds for revocation related to the search of the

       apartment, arguing that the State failed to prove those allegations with sufficient

       evidence. Yet, even assuming arguendo that there was insufficient evidence to

       support those allegations, the following unchallenged grounds remain: (a) the

       admitted failure to timely report to probation, pay fees and costs, and maintain

       employment; (b) criminal conduct—committed approximately one year after

       being placed on probation—where Joyner fled law enforcement, abandoning a

       vehicle that was in gear and then crashed into a telephone pole; and (c) months

       later, an incident where Joyner possessed marijuana and gave the wrong name

       to police. These unchallenged grounds are serious acts that could be punishable

       as two Level 6 felonies (Resisting Law Enforcement and Synthetic Identity

       Deception); a Class B misdemeanor (Possession of Marijuana); and a Class C

       misdemeanor (Operating a Vehicle without Ever Receiving a License). See I.C.

       §§ 35-44.1-3-1, 35-43-5-3.8, 35-48-4-11 & 9-24-18-1.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1570 | December 12, 2018   Page 6 of 7
[13]   Ultimately, “[p]robation 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). In this case, the trial court expressed concern about how

       quickly Joyner had reverted to criminal behavior, and observed that Joyner had

       “committed additional felonies.” Tr. Vol. II at 81. Upon review, we are

       unconvinced the court would have imposed a lesser sanction had it concluded

       that Joyner had violated his probation in only the aforementioned ways. See

       Ind. T.R. 61 (“The court at every stage of the proceeding must disregard any

       error or defect in the proceeding which does not affect the substantial rights of

       the parties.”); cf. Figures v. State, 920 N.E.2d 267, 273 (Ind. Ct. App. 2010)

       (observing that the “trial court did nothing to indicate it would have reached a

       different decision had it considered only the two unchallenged violations”).

       Therefore, we decline to disturb the sanction imposed by the trial court.


[14]   Affirmed.


       Bradford, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1570 | December 12, 2018   Page 7 of 7
