Deborah Birge v. State of Indiana ( 2014 )

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 Dec 17 2014, 6:30 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
PAUL J. PODLEJSKI GREGORY F. ZOELLER
Anderson, Indiana Attorney General of Indiana
KATHERINE MODESITT COOPER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
DEBORAH BIRGE, )
)
Appellant-Defendant, )
)
vs. ) No. 48A05-1405-CR-230
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MADISON CIRCUIT COURT
The Honorable David A. Happe, Judge
Cause No. 48C04-1203-FB-590
December 17, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
BRADFORD, Judge
CASE SUMMARY
In January of 2013, Appellant-Defendant Deborah Birge pled guilty to Class C felony
attempted trafficking with an inmate. On February 4, 2013, the trial court accepted Birge’s
guilty plea and sentenced her to a term of four years, with two years to be served on home
detention and two years suspended to probation. On February 3, 2014, Appellee-Plaintiff
the State of Indiana (the “State”) filed an allegation that Birge had violated the terms of her
probation by committing new criminal offenses and by being in arrears of her home detention
fees.
Following an evidentiary hearing, the trial court determined that Birge had violated
the terms of her probation. In light of Birge’s probation violation, the trial court ordered that
Birge serve one year of her previously-suspended sentence in the Department of Correction
(“DOC”). On appeal, Birge challenges the trial court’s determination that she had violated
the terms of her probation. Concluding that the trial court did not err in determining that
Birge had violated the terms of her probation, we affirm the judgment of the trial court.
FACTS AND PROCEDURAL HISTORY
The facts most favorable to the judgment of the trial court are as follows: On January
9, 2013, Birge pled guilty to Class C felony attempted trafficking with an inmate. On
February 4, 2013, the trial court accepted Birge’s guilty plea and sentenced Birge to four
years, with two years executed on home detention and two years suspended to probation. On
February 3, 2014, the State filed an allegation that Birge had violated the terms of her
probation. Specifically, the State alleged that Birge had violated the terms of her probation in
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the following ways:
a. Failure to obey all Municipal, State, and Federal Laws and Failure to
behave well in society to wit: On or about 1/28/14 charges were filed and
[Birge] is alleged to have committed the following new criminal offenses:
Count I-III: Forgery, Class C Felonies, and Counts IV-VI: Obtaining a
Controlled Substances by Fraud or Deceit, Class D Felonies.…
b. As of 2/3/14 [Birge] is in arrears to the Office of Home Detention in the
amount of $75.00.…
Appellant’s App. p. 1.
The trial court conducted an evidentiary hearing on the matter on April 21, 2014.
Birge stipulated to the factual accuracy of the allegation that she was in arrears of her home
detention fees but denied the allegation “for the purposes of appeal.” Tr. p. 42. Birge also
denied that she had violated the terms of her probation by committing new criminal offenses.
With respect to the alleged new criminal offenses, Detective Bret Busby of the
Madison County Drug Task Force testified that “shortly before Thanksgiving of 2013,” he
received notification from a CVS Pharmacy in Lapel that Doctor Neva Lynch-Jackson (“Dr.
Lynch-Jackson”) had alerted the pharmacy that one of her former patients, Charles Tippet,
had been receiving duplicate medications prescribed by another physician in northern
Indiana, where Tippet resided in an assisted-living facility. Tr. p. 43. After speaking to both
Dr. Lynch-Jackson and the doctor treating Tippet at the assisted-living facility, Detective
Busby went to the CVS “to find out who was picking up the medications that had been
prescribed by [Dr. Lynch-Jackson.]” Tr. p. 44. Detective Busby identified the individual as
Birge after the pharmacists described her appearance and allowed Detective Busby to review
the pharmacy’s surveillance video. Detective Busby also reviewed the records relating to the
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pharmacy’s policy for dispensing a controlled substance, including Birge’s driver’s license
information and an electronic capture of the signature of the person picking up the
prescription. The records indicated that while Birge provided her driver’s license
information, she signed the name “Charles Tippet” in the signature box for the medications in
question. Tr. p. 52. Detective Busby indicated that based on his training and experience, it
was his “understanding that [it] is the general practice that when a customer comes in and
signs for a prescription that they are to sign their name and not someone else’s [name].” Tr.
p. 57.
Detective Busby further testified that during the course of his investigation, he
discovered that Tippet did not currently reside in Madison County at the time the signatures
were provided. Detective Busby further discovered that Birge was Tippet’s niece. Detective
Busby also testified that he discovered that the attending physician at the assisted-living
facility where Tippet resided had “limited the medications [Tippet] was to be receiving to the
medications that [the] attending physician was prescribing.” Tr. p. 62.
At the conclusion of the evidentiary hearing, the trial court found that Birge had
violated the terms of her probation “as alleged.” Appellant’s App. p. 2. Specifically, the trial
court found that the State had proved the allegations by a preponderance of the evidence,
stating as follows:
Well we have a situation here, um, aggravated by both the physician’s office
and the pharmacy’s procedures. But at the end I do find that Ms. Birge did
violate as alleged in 3A and 3B. Had Ms. Birge showed up and signed her
own name here we might have a different case, but she didn’t, she signed
someone else’s name and this signature has legal consequences. This is a
signature that authorizes you to get the drugs from the pharmacy, and Ms.
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Birge didn’t go in and say, I’m Ms. Birge and I’m here signing as Ms. Birge
for someone else’s prescription, she signed the patient’s name representing that
she was someone else, and you can’t do that. Apparently it worked for a
period of time and maybe she thought that by providing this, if it was ever
reviewed, they’d see the patient’s name and not look farther. But that didn’t
happen. And it’s particularly aggravated here because what Ms. Birge is here
for in the first place was a conspiracy to smuggle drugs into a [DOC] facility.
So, um, it’s a little bit mind boggling to me that Ms. Birge, having gotten in
trouble for that already, would somehow think it was okay to do what she was
doing with Mr. Trippet. (sic) So she’s found in violation.
Tr. pp. 73-74 (brackets added, parentheses in original). As a result of the violation, the trial
court revoked Birge’s probation and order that she serve one year of her previously-
suspended sentence in the DOC. The trial court further ordered that “[u]pon completion of
the executed sentence [Birge] shall run to probation for the balance of the suspended
sentence under all original terms and conditions.” Appellant’s App. p. 2. This appeal
follows.
DISCUSSION AND DECISION
Birge appeals the trial court’s determination that she violated the terms of her
probation.
Probation is a matter of grace left to trial court discretion, not a right to
which a criminal defendant is entitled. The trial court determines the
conditions of probation and may revoke probation if the conditions are
violated. Once a trial court has exercised its grace by ordering probation rather
than incarceration, the judge should have considerable leeway in deciding how
to proceed. If this discretion were not afforded to trial courts and sentences
were scrutinized too severely on appeal, trial judges might be less inclined to
order probation to future defendants. Accordingly, a trial court’s sentencing
decisions for probation violations are reviewable using the abuse of discretion
standard. An abuse of discretion occurs where the decision is clearly against
the logic and effect of the facts and circumstances.
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Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007) (citations and quotation marks omitted).
A probation revocation hearing is in the nature of a civil proceeding.
Therefore, an alleged violation of probation only has to be proven by a
preponderance of the evidence. When we review the determination that a
probation violation has occurred, we neither reweigh the evidence nor reassess
witness credibility. Instead, we look at the evidence most favorable to the
[trial] court’s judgment and determine whether there is substantial evidence of
probative value supporting revocation. If so we will affirm.
Whatley v. State, 847 N.E.2d 1007, 1010 (Ind. Ct. App. 2006) (citations and quotations
omitted).
Indiana Code section 35-38-2-3 provides, in relevant part, as follows:
(a) The court may revoke a person’s probation if:
(1) the person has violated a condition of probation during the
probationary period;
****
(h) If the court finds that the person has violated a condition at any time before
termination of the period, and the petition to revoke is filed within the
probationary period, the court may impose one (1) or more of the following
sanctions:
(1) Continue the person on probation, with or without modifying or
enlarging the conditions.
(2) Extend the person’s probationary period for not more than one (1)
year beyond the original probationary period.
(3) Order execution of all or part of the sentence that was suspended
at the time of initial sentencing.
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).
Again, the trial court found that Birge violated the terms of her probation by
committing new criminal offenses and in being in arrears of her home detention fees. With
respect to the new criminal offenses, the trial court found that the State proved by a
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preponderance of the evidence that Birge had committed at least one new criminal offense by
forging Tippet’s name in order to receive a controlled substance that was prescribed to
Tippet. The version of Indiana Code section 35-43-5-2(b) that was in effect at the time Birge
is alleged to have committed the new criminal offenses1 reads as follows:
A person who, with intent to defraud, makes, utters, or possesses a written
instrument in such a manner that it purports to have been made:
(1) by another person;
(2) at another time;
(3) with different provisions; or
(4) by authority of one who did not give authority;
commits forgery, a Class C felony.
As used in Indiana Code section 35-43-2-5(b), the term “make” is defined as “to draw,
prepare, complete, counterfeit, copy or otherwise reproduce, or alter any written instrument
in whole or in part.” Ind. Code § 35-43-5-1(m). Indiana Code section 35-43-5-1(t) defines a
“written instrument” as
a paper, a document, or other instrument containing written matter and
includes money, coins, tokens, stamps, seals, credit cards, badges, trademarks,
medals, retail sales receipts, labels or markings (including a universal product
code (UPC) or another product identification code), or other objects or
symbols of value, right, privilege, or identification.
Further, in Indiana, electronic signatures have the same legal effect as written signatures.
Green v. State, 945 N.E.2d 205, 208 (Ind. Ct. App. 2011) (citing Ind. Code § 26-2-8-106).
In revoking Birge’s probation, the trial court noted that “[t]o forge someone else’s
name to get drugs after you were on felony probation for trying to get drugs to other people.
That’s really shocking.” Tr. p. 80. The State’s evidence demonstrates that Birge forged
1
This statute has since been amended to reflect the changes to Indiana’s criminal code that went into
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Tippet’s signature when picking up the prescriptions at issue. This evidence was sufficient to
prove, again by a preponderance of the evidence, that Birge committed a new criminal
offense. Birge’s challenge to the trial court’s determination that she violated the terms of her
probation effectively amounts to a request for this court to reweigh the evidence, which we
will not do. See Whatley, 847 N.E.2d at 1010.
In addition, Birge does not challenge the trial court’s determination that she was
$75.00 in arrears of her home detention fees on appeal. Again, the violation of a single
condition of probation is sufficient to revoke probation. Wilson, 708 N.E.2d at 34. As such,
even if the trial court had erroneously determined that Birge violated the terms of her
probation by committing new criminal offenses, the trial court could properly determine that
Birge had violated the terms of her probation by being in arrears of her home detention fees.
Furthermore, to the extent that Birge argues that the trial court abused its discretion in
ordering her to serve one year of her previously-suspended sentence, we conclude otherwise.
Indiana Code section 35-38-2-3(h) provides that if the trial court determines that a person has
violated the terms of their probation, the trial court may “[o]rder execution of all or part of
the sentence that was suspended at the time of initial sentencing.” (Emphasis added). Thus,
pursuant to the clear language of Indiana Code section 35-38-2-3(h), the trial court acted
within its discretion in ordering execution of one year of Birge’s two-year suspended
sentence. Concluding that the trial court did not err in finding that Birge violated the terms
of her probation or abuse its discretion in ordering Birge to serve one year of her two-year
effect July 1, 2014.
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suspended sentence following her violation of the terms of her probation, we affirm the
judgment of the trial court.
The judgment of the trial court is affirmed.
NAJAM, J., and MATHIAS, J., concur.
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