John A. Gall v. State of Indiana ( 2014 )

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before Jun 25 2014, 10:39 am
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:
PAUL J. PODLEJSKI GREGORY F. ZOELLER
Anderson, Indiana Attorney General of Indiana
CYNTHIA L. PLOUGHE
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
JOHN A. GALL, )
)
Appellant-Defendant, )
)
vs. ) No. 48A02-1309-CR-769
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MADISON CIRCUIT COURT
The Honorable Thomas Newman, Jr., Judge
Cause No. 48D03-0203-FA-95
June 25, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
MAY, Judge
John A. Gall appeals the revocation of his probation. He asserts the evidence was
insufficient to support finding he violated probation and he was deprived of due process at
the evidentiary hearing. We affirm.
FACTS AND PROCEDURAL HISTORY
On December 6, 2002, a jury found Gall guilty of Class A misdemeanor dangerous
possession of a firearm,1 Class A felony attempted murder,2 and two counts of Class D felony
criminal recklessness.3 The court sentenced Gall to thirty years imprisonment, but after a
hearing on January 23, 2013, the court ordered Gall to serve the remainder of his sentence on
probation.
On July 16, 2013, the State filed a Notice of Violation of Probation that alleged Gall
failed to behave well in society as demonstrated by acts that resulted in charges of two counts
of Class C felony attempted criminal confinement4 and violation of a custody order of a
person under the age of 14.5 The court set a hearing for August, but Gall requested a
continuance and the court reset the hearing for August 12.
At the evidentiary hearing, Gall’s attorney stated he received the notice of probation
violation that morning but he had not yet received discovery. The record does not reflect the
State had any discovery at that time. The State indicated it intended to file an amended
probation violation notice to add allegations of arson and intimidation, and it asked for a two-
1
Ind. Code § 35-47-10-5.
2
Ind. Code § 35-41-5-1.
3
Ind. Code § 35-42-2-2.
4
Ind. Code § 35-41-5-1 (attempt); Ind. Code § 35-42-3-3 (confinement).
5
Ind. Code § 35-42-3-4.
2
week continuance. The court did not grant a continuance and asked the State to bring its
witness.
The State called Detective Rachel Lee of the Clark County Sheriff’s Department, who
testified that she received a complaint from Ashley Coop, the mother of Gall’s two-year-old
daughter. Coop alleged Gall and a female arrived at her residence and presented a document
that demanded emergency guardianship of their daughter. The document was a falsified
temporary guardianship order. Lee also testified about an arson with which Gall was
believed to have been involved. Lee testified she had an order for Gall’s arrest for forgery
and attempted criminal confinement.
The trial court found the State proved by a preponderance of the evidence that Gall
perpetrated fraud and failed to behave well in society by attempting to commit criminal
confinement. The court revoked Gall’s probation and ordered him to serve his remaining
sentence in the Department of Correction.
DISCUSSION AND DECISION
1. Sufficiency of Evidence
There was sufficient evidence Gall violated the terms of his probation by attempting to
commit criminal confinement. Probation revocation proceedings are civil in nature and the
State needs to prove a violation by only a preponderance of the evidence. Ind. Code § 35-38-
2-3(e); Thornton v. State, 792 N.E.2d 94, 96 (Ind. Ct. App. 2003). When reviewing a
revocation, we consider only the evidence most favorable to the judgment without assessing
the credibility of witnesses. McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005). We review
3
the revocation for an abuse of discretion. Sanders v. State, 825 N.E.2d 952, 956 (Ind. Ct.
App. 2005), trans. denied.
If a person on probation commits another crime, probation may be revoked. Ind. Code
§ 35-38-2-1(b). The State need not demonstrate the probationer was convicted of the new
crime. Whatley v. State, 847 N.E.2d 1007, 1010 (Ind. Ct. App. 2006). The State must
demonstrate the commission of that new crime by only a preponderance of the evidence.
Heaton v. State, 984 N.E.2d 614, 617 (Ind. 2013).
The State alleged Gall violated his probation by failing to behave well in society
because he attempted to criminally confine a child. “A person who knowingly or
intentionally: . . . removes another person, by fraud, enticement, force, or threat of force,
from one (1) place to another . . .” commits criminal confinement. Ind. Code § 35-42-3-3. A
person “attempts” a crime by engaging in conduct that constitutes a substantial step toward
commission of the crime. Ind. Code § 35-41-5-1. What constitutes a “substantial step” is a
question for the fact finder, and we will not reweigh the evidence. Burdine v. State, 646
N.E.2d 696, 699-700 (Ind. Ct. App. 1995), trans. denied.
Gall arrived at Coop’s residence with a falsified document demanding guardianship
over his daughter. A fact finder could infer that arriving at Coop’s residence, and presenting
the falsified document were steps toward removing Gall’s daughter by fraud. See Ind. Code
§ 35-42-3-3. The State demonstrated by a preponderance of the evidence that Gall attempted
to commit criminal confinement.
4
2. Due Process at the Evidentiary Hearing
Gall asserts the revocation proceedings did not satisfy his right to due process. The
Due Process Clause of the Fourteenth Amendment places procedural and substantive limits
on the revocation of the conditional liberty created by probation. Woods v. State, 892 N.E.2d
637, 640 (Ind. 2008). The minimum requirements of procedural due process in probation
revocation include: (1) written notice of the claimed violations of probation, (2) disclosure to
the probationer of the evidence against him, (3) the opportunity to be heard in person and to
present witnesses, (4) the right to a neutral and detached hearing body, and (5) a written
statement by the fact finder as to the evidence relied on and reasons for revoking probation.
Washington v. State, 758 N.E.2d 1014, 1017 (Ind. Ct. App. 2001). Gall claims he did not
have notice of the violation, access to the evidence against him, a neutral and detached
hearing body, or a written statement of the evidence relied on.
The court found Gall perpetrated fraud and failed to behave well in society by
attempting to commit criminal confinement, and Gall alleges he did not receive notice of
“violations for . . . fraud, or any attempt to commit fraud.” (Appellant’s Br. at 8.) However,
the Notice of Violation of Probation stated Gall’s violation was: “Failure to behave well in
society, to wit: On/about 06/18/13, [Gall] took substantial steps towards commission of the
new criminal offense of Attempted Criminal Confinement.” (App. at 1.) Fraud is an element
of criminal confinement. See Ind. Code § 35-42-3-3. Therefore, Gall had notice the alleged
probation violation included fraud.
Gall asserts the evidence against him was not disclosed prior to the evidentiary
5
hearing. Between the filing of the Notice of Probation Violation and the evidentiary hearing,
neither Gall nor his attorney made discovery requests. At the initial hearing, Gall stated he
understood the charges against him. He knew the detective on the case because he contacted
the detective about filing a report. The only evidence the State had was the falsified
document that Gall delivered to Coop’s door. Gall’s attorney did not object to this document
being admitted as evidence, and he was able to cross-examine the detective. As Gall was
aware of the evidence against him, he was not deprived of due process. See Ind. Code § 35-
38-2-3(f) (stating evidence must be presented in open court).
Gall also asserts the judge who ruled on his revocation was not neutral and detached
because the judge stated he did not need to be reminded of Gall’s prior offenses when
determining whether to revoke Gall’s probation. We presume a judge is not biased or
prejudiced in the matters that come before the court. Flowers v. State, 738 N.E.2d 1051,
1060 (Ind. 2000), reh’g denied. A judgment will not be reversed unless the record shows
actual bias against the defendant that prejudiced his case. Id. at 1061. We decline to infer
bias from the mere fact that a judge remembered a probationer’s prior offenses. Gall has not
established prejudicial bias. See Washington, 758 N.E.2d at 1018 (finding no deprivation of
a neutral and detached fact finder when the court made comments during revocation of
probation proceedings about defendant’s substance abuse).
Finally, Gall notes his probation was revoked because he “perpetrated a fraud and
failed to behave well in society,” (App. at 10), and he claims this does not satisfy the
requirement he receive written notice of the claimed violations of probation. The
6
requirement that a probationer receive written notice of the evidence relied on can be
satisfied by placement of the transcript of the evidentiary hearing in the record, if the
transcript contains a clear statement of the trial court’s reasons for revoking probation.
Crump v. State, 740 N.E.2d 564, 568-69 (Ind. Ct. App. 2000), trans. denied. Here, the
transcript contains the statement: “[Gall has] attempted to perpetrate a fraud in regards to an
alleged court document . . . which is false on its face.” (Tr. at 33.) Because Gall received
notice of the evidence relied on, he has not demonstrated error.
As all of Gall’s arguments fail, he has not demonstrated a violation of his right to due
process in the revocation proceedings.
CONCLUSION
As the evidence demonstrated Gall attempted criminal confinement and his due
process rights were satisfied, we find no abuse of discretion in the probation revocation.
Accordingly, we affirm.
Affirmed.
KIRSCH, J., and BAILEY, J., concur.
7