      MEMORANDUM DECISION
                                                                              Mar 20 2015, 10:17 am
      Pursuant to Ind. Appellate Rule 65(D), this
      Memorandum Decision shall not be regarded as
      precedent or cited before any 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
      Leanna Weissmann                                         Gregory F. Zoeller
      Lawrenceburg, Indiana                                    Attorney General of Indiana
                                                               Angela N. Sanchez
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Billy G. Luke,                                           March 20, 2015

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               15A01-1409-CR-418
              v.                                               Appeal from the Dearborn Superior
                                                               Court
                                                               The Honorable Jonathan N. Cleary,
      State of Indiana,                                        Judge
      Appellee-Plaintiff.                                      Cause No. 15D01-1202-CM-111




      Bradford, Judge.



                                            Case Summary
[1]   Appellant-Defendant Billy Gene Luke was convicted of four counts of public

      indecency after exposing his genitals on several occasions to four female


      Court of Appeals of Indiana | Memorandum Decision 15A01-1409-CR-418 | March 20, 2015            Page 1 of 6
      pharmacy employees. Luke was sentenced to an aggregate term of 1095 days

      with 725 days suspended to probation. During Luke’s probationary period, he

      was convicted of several additional misdemeanor and criminal offenses and,

      while incarcerated, Luke attempted to solicit another individual to intimidate

      the four female victims. Ultimately, the trial court revoked Luke’s home

      detention as a result of his subsequent convictions. Luke argues that his

      probationary period did not begin until he was actually released on probation

      and that criminal offenses committed after sentencing but prior to release on

      probation are not sufficient to support probation or home detention revocation.

      We disagree with Luke and affirm the trial court’s revocation of his home

      detention.



                            Facts and Procedural History
[2]   On July 25, 2012, Luke was convicted of four counts of public indecency, a

      Class A misdemeanor, after it was found that he had exposed his genitals on

      multiple occasions to four women who worked at the pharmacy across the

      street from his residence in Dillsborough. On August 3, 2012, the trial court

      sentenced Luke to an aggregate term of 1095 days with 725 days suspended to

      probation. On May 23, 2013, Luke was released on probation. Between June

      and August of 2013, while on probation, Luke broke multiple windows at the

      pharmacy, the local police station, and other stores in the area. On July 9,

      2013, Appellee-Plaintiff the State of Indiana (“the State”) requested a probation

      revocation hearing and amended the request on August 23, 2013, after Luke


      Court of Appeals of Indiana | Memorandum Decision 15A01-1409-CR-418 | March 20, 2015   Page 2 of 6
      was charged with invasion of privacy, criminal trespass, and voyeurism (these

      charges were unrelated to Luke’s breaking the windows). On December 23,

      2013, the court revoked 730 days of the suspended sentence and ordered Luke

      serve the remainder of his sentence on home detention. Luke was released on

      home detention on January 2, 2014 but was arrested on January 10, 2014 for

      Class D felony invasion of privacy, for which he was convicted in July of 2014.


[3]   While incarcerated, Luke made multiple phone calls to his former cellmate,

      Chase Merkel. (State’s Ex. 3-5) During these calls, Luke asked Merkel to break

      windows at the pharmacy where the four victims worked, intimidate the victims

      by throwing a “toy” (believed to be a dildo) inside the pharmacy, slash one of

      the victim’s tires, and leave a condom full of bullets with a note reading “last

      warning” at one of the victim’s residences. State’s Ex. 4. Also while

      incarcerated, Luke wrote letters to the trial court and prosecutor. In his letter to

      the prosecutor, Luke threatened to kill a Dillsboro police officer and threatened

      the four pharmacy employee-victims.


[4]   On August 21, 2014, Luke was convicted of seven counts of Class A

      misdemeanor criminal mischief, relating to the broken windows, as well as one

      count of Class C felony stalking for violating a no-contact order and stalking the

      same four pharmacy employees. The acts supporting the stalking charge were

      committed at various times between January 24, 2012 and February 19, 2014.

      On August 28, 2014, the trial court revoked Luke’s home detention based on

      his subsequent criminal convictions.



      Court of Appeals of Indiana | Memorandum Decision 15A01-1409-CR-418 | March 20, 2015   Page 3 of 6
                                Discussion and Decision
      Luke argues that the State provided insufficient evidence that he violated the

      terms of his home detention.


                                      I. Standard of Review
[5]           The State must prove a probation violation by a preponderance of the
              evidence. Braxton v. State, 651 N.E.2d 268, 270 (Ind. 1995), reh. denied.
              On review, we neither weigh the evidence nor judge the credibility of
              witnesses. Id. We look only to the evidence most favorable to the
              State. Id. So long as substantial evidence of probative value exists to
              support the trial court’s finding that a violation occurred, we will
              affirm the judgment. Id.
[6]   Parker v. State, 676 N.E.2d 1083, 1086 (Ind. Ct. App. 1997). The violation of a

      single condition of probation is sufficient to revoke probation. Wilson v. State,

      708 N.E.2d 32, 34 (Ind. Ct. App. 1999). “[T]he standard of review for a

      petition for termination of in-home detention privileges is analogous to that of a

      probation revocation hearing.” Brooks v. State, 692 N.E.2d 951, 953 (Ind. Ct.

      App. 1998).


                                 II. Sufficiency of Evidence
[7]   Luke does not argue that there was insufficient evidence that he engaged in

      conduct that would violate the rules of his home detention. Rather, Luke

      argues that he did not engage in such conduct during his “probationary period”

      for the purposes of Indiana Code section 35-38-2-3. Luke argues that Section

      35-38-2-3 requires that, to revoke a person’s probation, the trial court must find

      that a violation occurred specifically during the period in which the person was


      Court of Appeals of Indiana | Memorandum Decision 15A01-1409-CR-418 | March 20, 2015   Page 4 of 6
      released on probation. Such an interpretation would mean that violations

      during any period of time after sentencing, but prior to being released on

      probation, would not be sufficient to justify revocation of probation. However,

      we have previously interpreted Section 35-38-2-3 and reached a different

      conclusion.

               In Ashley v. State, 717 N.E.2d 927, 928 (Ind. Ct. App. 1999), reh’g
              denied, this court held that the probationary period begins immediately
              after sentencing and ends at the conclusion of the probationary phases
              of the defendant’s sentence. Furthermore, in Gardner v. State, 678
              N.E.2d 398, 400-401 (Ind. Ct. App. 1997), this court held that:
                      In Ashba v. State [(1991) Ind. App., 570 N.E.2d 937] ...,
                      we held that a defendant who was on parole from the
                      Indiana Department of Correction, but not yet on
                      probation, can violate his probation prospectively. The court
                      noted that [Indiana Code section 35-38-2-3(h)] allows
                      the court to revoke probation if it finds that the
                      defendant violated “a condition at any time before
                      termination of the [probationary] period.”
      Crump v. State, 740 N.E.2d 564, 568 (Ind. Ct. App. 2000) (emphasis added).

      We have applied these same probation revocation standards to placements in

      Community Corrections, such as home detention. Million v. State, 646 N.E.2d

      998, 1002 (Ind. Ct. App. 1995).


[8]   Luke was sentenced on August 3, 2012, and his probation, had it been

      successfully completed, would have terminated on August 3, 2015. (App. 153-

      56, 158) Pursuant to Ashley, this entire three-year period represents Luke’s

      “probationary period,” during which Luke committed and was convicted of a

      host of new offenses. On August 22, 2013, Luke was charged with invasion of

      privacy, criminal trespass, and voyeurism. Luke admitted to those charges
      Court of Appeals of Indiana | Memorandum Decision 15A01-1409-CR-418 | March 20, 2015   Page 5 of 6
       following the State’s August 23, 2013 probation revocation petition and, based

       thereon, the trial court revoked Luke’s probation and ordered him to serve the

       remainder of his sentence on home detention. On August 21, 2014, Luke was

       convicted of eight counts of criminal mischief as a result of offenses which were

       committed between June and August of 2013. These offenses were

       undoubtedly committed during Luke’s probationary period. It is irrelevant that

       they were committed prior to when Luke began his home detention. As such,

       the court had sufficient evidence that Luke violated the terms of his home

       detention.


[9]    The judgment of the trial court is affirmed.


[10]   Vaidik, C.J., and Kirsch, J., concur.




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