MEMORANDUM DECISION
                                                                         FILED
Pursuant to Ind. Appellate Rule 65(D),                               Jun 30 2016, 8:54 am
this Memorandum Decision shall not be
regarded as precedent or cited before any                                CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
court except for the purpose of establishing                              and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Ian O’Keefe                                              Gregory F. Zoeller
Chicago, Illinois                                        Attorney General

                                                         Monika Prekopa Talbot
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

James F. Gibbons, Jr.,                                   June 30, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         12A02-1511-CR-1990
        v.                                               Appeal from the Clinton Superior
                                                         Court
State of Indiana,                                        The Honorable Justin H. Hunter,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         12D01-1506-F6-569



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 12A02-1511-CR-1990| June 30, 2016          Page 1 of 7
                                           Statement of the Case
[1]   James F. Gibbons, Jr. appeals his conviction for escape, as a Level 6 felony,

      following a jury trial. Gibbons presents three issues for our review:

                1.       Whether his conviction violates the prohibition against
                         double jeopardy.


                2.       Whether the trial court abused its discretion when it
                         admitted certain evidence over his objection.


                3.       Whether the State presented sufficient evidence to support
                         his conviction.


[2]   We affirm.


                                     Facts and Procedural History
[3]   On May 23, 2015, following a conviction,1 Gibbons became eligible to

      participate in a community transition program (“CTP”). On May 26, Gibbons

      signed an agreement to abide by the Clinton County Community Corrections

      Adult Home Detention Rules and Regulations (“the Agreement”). Under the

      Agreement, Gibbons was required to remain at home “at all times unless [he

      had] prior permission from the home detention officer to be elsewhere,” and he

      was to “provide verification of [his] whereabouts during time away from [his]




      1
          The record on appeal is devoid of information regarding this prior conviction.


      Court of Appeals of Indiana | Memorandum Decision 12A02-1511-CR-1990| June 30, 2016   Page 2 of 7
      residence.” State’s Ex. 2. Further, Gibbons acknowledged that any violation of

      the law would result in a violation of the CTP program.


[4]   Under the Agreement, Gibbons met with Brett Barton, his home detention

      officer, once per week to fill out his schedule for the week. The schedule listed

      all activities outside the range of his home monitor such as work, shopping, and

      doctor’s appointments. On the Agreement, Gibbons listed his home detention

      residence as “314 N. 1st,” which was the home of Lisa Smith, Gibbons’

      girlfriend. Id. In August 2013, Smith had obtained a “no contact” order

      against Gibbons, which was to remain “in effect during [Gibbons’] executed

      sentence and until probation has been terminated.” State’s Ex. 5. Thus, the no

      contact order was in effect at the time Gibbons signed the Agreement.


[5]   In late May 2015, William Farr hired Gibbons to work as a “body technician.”

      Tr. at 189. At some point, other employees reported to Farr that Gibbons was

      drinking alcoholic beverages on the job. And, on June 17, Gibbons was

      intoxicated when he arrived at work, and he was stumbling across the parking

      lot. Farr approached Gibbons and told him that he needed to straighten himself

      up as he was on house arrest, drinking on the job, and had not completed the

      work Farr had given him. Gibbons became belligerent and aggressive with

      Farr. As a result, Farr fired Gibbons and told him to leave the premises.


[6]   On that date, Gibbons was supposed to be home from work by 6:00 p.m. But,

      at approximately 7:00 p.m., Deputy Sheriff Spencer Kingery of the Carroll

      County Sheriff’s Office investigated an unwanted or unwelcome guest at a


      Court of Appeals of Indiana | Memorandum Decision 12A02-1511-CR-1990| June 30, 2016   Page 3 of 7
      Carroll County residence. Upon arriving, Kingery found Gibbons passed out in

      a Jeep near the garage of the residence. After speaking with the reporting party,

      Deputy Kingery returned to the vehicle and woke up the sleeping Gibbons.

      After Gibbons identified himself, Deputy Kingery arrested him.


[7]   On June 19, the State filed a notice of violation of terms of community

      corrections alleging that Gibbons had not returned to his residence after his

      employment was terminated and that he was arrested for operating a motor

      vehicle after forfeiture of license for life. On June 23, the State charged

      Gibbons with escape, as a Level 6 felony. And, on July 15, the trial court

      revoked Gibbons’ CTP. Following trial on the escape charge on October 6-7, a

      jury found Gibbons guilty as charged, and the trial court entered judgment and

      sentenced him to twelve months of incarceration. This appeal ensued.


                                     Discussion and Decision
                                      Issue One: Double Jeopardy

[8]   Gibbons first contends that both his CTP violation and his escape conviction

      cannot stand under double jeopardy principles. The Indiana Constitution

      provides that “[n]o person shall be put in jeopardy twice for the same offense.”

      Ind. Const. art. I, § 14. “[T]wo or more offenses are the ‘same offense’ in

      violation of Article I, Section 14 of the Indiana Constitution, if, with respect to

      either the statutory elements of the challenged crimes or the actual evidence used

      to convict, the essential elements of one challenged offense also establish the




      Court of Appeals of Indiana | Memorandum Decision 12A02-1511-CR-1990| June 30, 2016   Page 4 of 7
       essential elements of another challenged offense.” Richardson v. State, 717

       N.E.2d 32, 49 (Ind. 1999) (emphases original).


[9]    As the State correctly points out, there is no double jeopardy violation as

       alleged by Gibbons because he was only convicted of one crime, namely,

       escape. “Double jeopardy protection applies only to criminal proceedings, and

       revocation of community corrections placement proceedings are not criminal

       proceedings because violations must be proven only by a preponderance of the

       evidence.” McQueen v. State, 862 N.E.2d 1237, 1243 (Ind. Ct. App. 2007).

       Gibbons’ CTP violation was not a criminal violation. Rather, it was a violation

       of the Clinton County Community Corrections Adult Home Detention Rules

       and Regulations. Therefore, Gibbons’ contention is without merit.


                                   Issue Two: Admission of Evidence

[10]   Gibbons next contends that the trial court committed fundamental error when it

       admitted into evidence the no contact order and a sentencing order from an

       unrelated criminal case. However, as this court has routinely stated, merely

       calling an error fundamental does not make it so. See, e.g., Taylor v. State, 614

       N.E.2d 944, 947 (Ind. Ct. App. 1993), trans. denied. That is especially true

       where, as here, the refrain is not accompanied by cogent argument or citation to

       authority. Id. Rather, in order to be fundamental, the error must be so

       prejudicial to the rights of the defendant that he could not have received a fair

       trial. Id. We have also characterized fundamental error as error that constitutes

       a clear blatant violation of basic and elementary principles, and the resulting

       harm or potential for harm must be substantial. Id.
       Court of Appeals of Indiana | Memorandum Decision 12A02-1511-CR-1990| June 30, 2016   Page 5 of 7
[11]   At trial, Gibbons objected to the State’s proffer of the no contact order and

       sentencing order and alleged that they were inadmissible only because they

       were irrelevant. However, for the first time on appeal, Gibbons maintains that

       the trial court should have excluded those exhibits under Indiana Rules of

       Evidence 403 and 404(b). It is well settled that a party may not object on one

       ground at trial and seek reversal on appeal using a different ground. Malone v.

       State, 700 N.E.2d 780, 784 (Ind. 1998). Because Gibbons did not object to the

       proffered exhibits under either Evidence Rule 403 or 404(b) at trial, he has not

       preserved those issues for our review on appeal. And because his mere

       statement that the admission of that evidence constituted fundamental error is

       not supported by cogent argument or citation to relevant authority, we do not

       address the alleged fundamental error. See Taylor, 614 N.E.2d at 947.


                                Issue Three: Sufficiency of the Evidence

[12]   Finally, Gibbons contends that the State presented insufficient evidence to

       support his conviction.


               In reviewing sufficiency of evidence, we examine only the
               probative evidence and reasonable inferences that support the
               verdict. We do not assess witness credibility, nor do we reweigh
               the evidence to determine if it was sufficient to support a
               conviction. Under our appellate system, those roles are reserved
               for the finder of fact. Instead, we consider only the evidence
               most favorable to the trial court ruling and affirm the conviction
               unless no reasonable fact-finder could find the elements of the
               crime proven beyond a reasonable doubt.




       Court of Appeals of Indiana | Memorandum Decision 12A02-1511-CR-1990| June 30, 2016   Page 6 of 7
       Lock v. State, 971 N.E.2d 71, 74 (Ind. 2012) (citations and internal quotation

       marks omitted).


[13]   To prove that Gibbons committed escape, as a Level 6 felony, the State was

       required to prove that Gibbons knowingly or intentionally violated a home

       detention order. Ind. Code § 35-44.1-3-4(b) (2014). Gibbons’ sole contention

       on appeal is that he did not knowingly or intentionally violate the home

       detention order because he had a good reason to be away from home in

       violation of the Agreement, namely, he was attempting to find storage for his

       tools. But Gibbons’ contention amounts to a request that we reweigh the

       evidence, which we will not do.


[14]   The State presented evidence that, under the Agreement signed by Gibbons, he

       was required to be home by 6:00 p.m. on June 17, 2015. Instead of going

       home, Gibbons became intoxicated and drove to a Carroll County residence,

       and the residents there telephoned the Sheriff’s Department to complain about

       his presence. And Gibbons was arrested for operating a motor vehicle after

       forfeiture of license for life, which was a violation of the CTP. The State

       presented sufficient evidence to support Gibbons’ conviction for escape.


[15]   Affirmed.


       Robb, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 12A02-1511-CR-1990| June 30, 2016   Page 7 of 7
