MEMORANDUM DECISION                                             FILED
                                                           Aug 05 2016, 7:43 am
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                           CLERK
                                                            Indiana Supreme Court
                                                               Court of Appeals
regarded as precedent or cited before any                        and Tax Court

court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Mark Small                                               Gregory F. Zoeller
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Karl Scharnberg
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jesse Jones,                                             August 5, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         54A01-1602-CR-297
        v.                                               Appeal from the Montgomery
                                                         Superior Court
State of Indiana,                                        The Honorable Heather Dennison,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         54D01-1401-FD-1



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 54A01-1602-CR-297 | August 5, 2016   Page 1 of 7
                                              Case Summary
[1]   Jesse Jones (“Jones”) pled guilty to Possession of Paraphernalia as a Class D

      felony1 and received a sentence of three years, six months executed, and two

      and a half years suspended to probation. While on probation, Jones allegedly

      left the scene of an automobile accident causing bodily injury, a Class A

      misdemeanor.2 Following a revocation hearing, the trial court entered a

      judgment revoking Jones’s probation. Jones appeals, claiming the State did not

      provide sufficient evidence to warrant probation revocation. We affirm.



                                     Facts and Procedural History
[2]   On March 20, 2014, Jones entered a guilty plea to Possession of Paraphernalia

      as a Class D felony pursuant to a plea agreement. He was sentenced to three

      years, with all but six months suspended to supervised probation. Under the

      probation order, Jones was prohibited from violating any law, and was

      compelled to pay $100 in initial probation user’s fees, $100 in administrative

      fees, and $30 monthly, the balance of which was to be paid before Jones was

      discharged from probation. (App. at 25) On October 2, 2014, Jones’s

      probation was modified to include at least six months of “inpatient treatment at




      1
        Ind. Code § 38-48-4-8.3(a) & (b). The offense was elevated from a Class A misdemeanor to a Class D
      felony because Jones had a prior unrelated conviction under this section. This offense would now be
      classified as a Class A misdemeanor. At all times, we refer to the version of the statute in effect at the time of
      Jones’s offense.
      2
          I.C. § 9-26-1-1.1(b)(1).


      Court of Appeals of Indiana | Memorandum Decision 54A01-1602-CR-297 | August 5, 2016                  Page 2 of 7
      New Life Recovery Program (“New Life”) and follow[ing] all the rules and

      recommendations made as a result of that program.” (App. at 35)


[3]   On May 10, 2015, Deputy Jeremy Minor (“Deputy Minor”) of the

      Montgomery County Sheriff’s Office was sent to search for a vehicle involved

      in a hit-and-run accident on Interstate 74 East. (Tr. at 15) Deputy Minor was

      advised to look for a black Pontiac car with front-end damage. (Tr. at 16-17)

      He came across a construction zone where he found Jones standing outside a

      black Pontiac with the hood open. (Tr. at 17) Upon approaching the vehicle,

      Deputy Minor noted the car had front-end damage. (Tr. at 18)


[4]   Deputy Minor asked Jones how his car had acquired the damage, and Jones

      stated the car had some previous damage and the hood was usually held down

      by a cable. (Tr. at 18) Deputy Minor then arrested Jones because he “had left

      the scene of an accident with injury.” (Tr. at 19) Jones stated that he did not

      know anyone had been hurt, and further claimed he thought he hit a toy. (Tr.

      at 20-21) While being transported to the jail, Jones was apologetic and

      appeared “bummed out with the whole situation.” (Tr. at 21) Jones later

      claimed he lied to the officer because he felt intimidated. (Tr. at 22)


[5]   On May 13, 2015, the Probation Officer for the Courts of Montgomery County

      filed a petition to revoke or modify probation, alleging Jones had violated three

      terms of his probation, namely: “[Term 1] You shall not violate any law”;

      “[Term 10] You shall pay Probation User’s Fees”; and, “[Term 17] You shall

      complete substance abuse evaluation/treatment/education as Probation/Court


      Court of Appeals of Indiana | Memorandum Decision 54A01-1602-CR-297 | August 5, 2016   Page 3 of 7
      Referral directs, pay all costs, and authorize release of information to Probation

      and the Court.” (App. at 37) On June 25, 2015, the trial court held a fact-

      finding hearing on this petition.


[6]   At this hearing, Deputy Minor testified to the facts detailed above. He also

      stated that an expert had determined that the damage to the front-end of Jones’s

      car likely came from the tow hitch on the victim’s vehicle. (Tr. at 22) Jones

      also testified, admitting to owing a balance of $590 in probation user’s fees (Tr.

      at 6); however, he testified he had a plan to pay in full before the end of his

      probation, complying with Term 10 of the probation order (Tr. at 34-35). Jones

      also testified to blacking out at the time of the accident due to a week-old head

      injury, but did admit he felt an “impact.” (Tr. at 39) Marilyn Ritchardson

      (“Ritchardson”) of Rainbow Recovery Resources, a program through New

      Life, testified that Jones had completed all program work except for the final

      paperwork. (Tr. at 31)


[7]   The trial court found that Jones had violated his probation, stating:

              The Court will find that Jesse Wayne Jones is in violation of the
              terms of his probation by committing a new criminal offense,
              specifically Failure to Stop After an Accident, a Class B
              Misdemeanor, failure to pay his probation user’s fees, and failure
              to successfully complete the program at New Life.


      (Tr. at 52-53) On January 11, 2016, after Jones made some attempts to repeat

      the New Life Recovery Program, the court held a disposition hearing.




      Court of Appeals of Indiana | Memorandum Decision 54A01-1602-CR-297 | August 5, 2016   Page 4 of 7
       Ultimately, the court revoked Jones’s probation and ordered him to serve the

       suspended time in the Department of Correction. Jones now appeals.



                                  Discussion and Decision
[8]    A defendant is not entitled to serve a sentence on probation. Monroe v. State,

       899 N.E.2d 688, 691 (Ind. Ct. App. 2009). Rather, such placement is a “matter

       of grace” and a “conditional liberty that is a favor, not a right.” Million v. State,

       646 N.E.2d 998, 1002 (Ind. Ct. App. 1995). Indiana Code Section 35-38-2-1(b)

       provides that if a probationer “commits an additional crime, the court may

       revoke the probation.”


[9]    During a revocation hearing, the trial court must make two determinations: (1)

       whether a violation of the terms of probation has occurred; and (2) if the

       probationer has violated the terms, what sanctions should be imposed. Pierce v.

       State, 44 N.E.3d 752, 755 (Ind. Ct. App. 2015). One violation of a condition of

       probation is enough to support a probation revocation. Id. Under Indiana law,

       the State must prove a probation violation by a preponderance of the evidence.

       Ind. Code § 35-38-2-3(f).


[10]   Jones first challenges the sufficiency of the evidence proving that he committed

       another criminal offense, specifically, leaving the scene of an accident. Under

       I.C. § 9-26-1-1.1, an operator who is in an accident is required to stop the

       vehicle immediately or as near to the accident as possible, remain at the scene

       until the operators can exchange names and license information, and, in the


       Court of Appeals of Indiana | Memorandum Decision 54A01-1602-CR-297 | August 5, 2016   Page 5 of 7
       event of injury, provide reasonable assistance and call law enforcement or

       emergency personnel. I.C. § 9-26-1-1.1(a). A person who fails to comply

       commits the Class B misdemeanor of leaving the scene. I.C. § 9-26-1-1.1(b).

       The trial court found by a preponderance of the evidence that Jones had

       committed this offense. The evidence most favorable to this finding shows that

       Jones’s car had front-end damage consistent with a collision involving the

       victim’s vehicle. Also, Jones appeared to have stopped because the hood of his

       car unlatched and obstructed his vision. He did not exchange information with

       the driver of the other vehicle. Furthermore, Jones apologized for lying to the

       officer about the source of his car’s damage, and stated that he did not know

       that anyone was injured in the accident. From these facts, a reasonable finder

       of fact could conclude by a preponderance of the evidence that Jones left the

       scene of an accident.


[11]   Jones argues that he lacked the required mens rea to commit this offense because

       he blacked out at the time of the accident. Jones also states that he stopped his

       car as cautiously and as quickly as possible once he regained consciousness and

       noticed his damaged hood. However, in presenting these arguments, Jones

       invites us to reweigh the evidence, which we will not do.


[12]   Jones further argues that he was not delinquent on his probation fees and, at the

       time of the new offense, had completed the treatment program at New Life.

       The State appears to concede these points. (Appellant’s Brief at 14) The

       language of the probation agreement specifically states that all fees “must be

       paid before you [Jones] are discharged from probation.” (App. at 25)

       Court of Appeals of Indiana | Memorandum Decision 54A01-1602-CR-297 | August 5, 2016   Page 6 of 7
       Furthermore, the testimony of Ritchardson demonstrated that, for all intents

       and purposes, Jones had in fact completed the required programming through

       New Life, and merely had to complete the discharging paperwork to formally

       end his treatment. Thus, we conclude that there was insufficient evidence to

       find that Jones had violated Terms 10 and 17 of his probation.


[13]   Nonetheless, we once again note that a single probation violation is enough to

       support probation revocation. Pierce, 44 N.E.3d at 755. Thus, because there

       was sufficient evidence to find that Jones had violated his probation by

       committing a new criminal offense, we affirm the trial court’s decision to

       revoke Jones’s probation.


[14]   Affirmed.


       Riley, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 54A01-1602-CR-297 | August 5, 2016   Page 7 of 7
