Shaun Pierce v. State of Indiana ( 2015 )

Sep 23 2015, 8:23 am
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Mark Small Gregory F. Zoeller
Indianapolis, Indiana Attorney General of Indiana
Christina D. Pace
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Shaun Pierce, September 23, 2015
Appellant-Defendant, Court of Appeals Case No.
28A05-1502-CR-57
v. Appeal from the Greene Superior
Court;
State of Indiana, The Honorable Dena Martin,
Judge;
Appellee-Plaintiff. 28D01-0901-FB-23
May, Judge.
Court of Appeals of Indiana | Opinion 28A05-1502-CR-57 | September 23, 2015 Page 1 of 6
[1] Shaun Pierce appeals the revocation of his probation after the trial court found
he had committed new crimes of Class A misdemeanor trespass 1 and Class A
misdemeanor theft. 2 As there was sufficient evidence to support the revocation
of his probation, we affirm.
Facts and Procedural History
[2] On March 2, 2010, Pierce pleaded guilty to Class B felony dealing in
methamphetamine pursuant to an agreement that called for dismissal of a
remaining charge of Class D felony possession of precursors with intent to
manufacture. The trial court sentenced Pierce to thirteen years at the
Department of Correction with six years suspended to probation. Pierce started
probation on October 8, 2013.
[3] On October 8, 2014, Brent and Kathleen Ferree saw a truck drive onto their
property. Four people exited the truck and loaded tin that belonged to the
Ferrees onto the truck. The Ferrees informed police a theft was in progress and
then used their vehicle to chase the thieves’ truck. During the chase the tin fell
out of the truck, the truck went into a ditch, and Pierce and the other occupants
fled into the woods. The police retrieved Pierce and the others from the woods
and arrested them.
1
Ind. Code § 35-43-2-2 (2014).
2
Ind. Code § 35-43-4-2 (2014).
Court of Appeals of Indiana | Opinion 28A05-1502-CR-57 | September 23, 2015 Page 2 of 6
[4] On October 16, 2014, the State filed a Petition to Revoke Suspended Sentence
alleging Pierce had violated his probation by committing new criminal offenses
of theft and trespass. On January 27, 2015, the trial court held an evidentiary
hearing. The court found the State had proven Pierce committed theft and
trespass and, based thereon, determined Pierce had violated his probation. The
court ordered Pierce to serve five years of his previously-suspended sentence.
Discussion and Decision
[5] “Probation is a matter of grace left to trial court discretion, not a right to which
a criminal defendant is entitled.” Heaton v. State, 984 N.E.2d 614, 616 (Ind.
2013) (quoting Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007)). The
conditions for probation and whether to revoke probation when those
conditions are violated are left to the discretion of the trial court. Id. We
review probation violation determinations and sanctions for abuse of discretion.
Id.
[6] In deciding whether to revoke probation, a trial court first must make a factual
determination as to whether there was a violation of a condition of probation.
Id. If a violation is found, then the trial court must determine the sanctions for
the violation. Id. A revocation proceeding is civil in nature and the State has to
prove its allegations by only a preponderance of the evidence. Ind. Code § 35-
38-2-3; Morgan v. State, 691 N.E.2d 466, 468 (Ind. Ct. App. 1998).
[7] We review insufficiency of evidence claims in a probation proceeding as we do
any other sufficiency of the evidence question. Smith v. State, 727 N.E.2d 763,
Court of Appeals of Indiana | Opinion 28A05-1502-CR-57 | September 23, 2015 Page 3 of 6
765 (Ind. Ct. App. 2000). We will not reweigh evidence or judge credibility of
witnesses. Morgan, 691 N.E.2d at 468. We look only at the evidence favorable
to the State and all reasonable inferences therefrom. Id.
[8] One violation of a condition of probation is enough to support a probation
revocation. Hubbard v. State, 683 N.E.2d 618, 622 (Ind. Ct. App. 1997). If the
trial court’s finding of a violation is supported by substantial evidence of
probative value, then we will affirm the revocation of probation. Id. When the
alleged probation violation is the commission of a new crime, conviction of the
new crime is not required. Richeson v. State, 648 N.E.2d 384, 389 (Ind. Ct App.
1995), trans. denied.
[9] Pierce was on probation on October 8, 2014. A condition of his probation was
that he could not commit any criminal offense. The State alleged he committed
trespass and theft. Specifically, as to the trespass, the State alleged Pierce “did
knowingly or intentionally interfere with the possession or use of the property
of another person without the person’s consent, to-wit: property of Brent Ferree
located [at specific address deleted],” (App. at 119), in violation of Ind. Code §
35-43-2-2(b)(4) (2014). The allegation of theft stated Pierce “did knowingly or
intentionally exert unauthorized control over the property of Brent Ferree with
Court of Appeals of Indiana | Opinion 28A05-1502-CR-57 | September 23, 2015 Page 4 of 6
the intent to deprive Brent Ferree of some or all of the value or use thereof,” 3
(App. at 119), in violation of Indiana Code § 35-43-4-2(a) (2014).
[10] On October 8, 2014, the Ferrees saw four persons, one of whom was later
identified as Pierce, load tin from the Ferrees’ property into a pickup truck and
then attempt to leave the Ferrees’ property with the tin. Police apprehended
Pierce when he fled from the truck after it went into a ditch. Pierce admitted he
was on the Ferrees’ property at the time of the alleged trespass. Brandon Jacob
Starr, a co-defendant to the trespass and theft charges, testified Pierce was
knowingly and voluntarily involved in the attempted theft of the tin. These
facts demonstrate Pierce committed trespass by knowingly or intentionally
interfering with the possession or use of Ferree’s real property without his
consent, and they also demonstrate Pierce committed theft by knowingly or
intentionally exerting unauthorized control over the personal property of Brent
Ferree with the intent to deprive Ferree of some or all of the value or use of that
property. See Wilson v State, 835 N.E.2d 1044, 1051 (Ind. Ct. App. 2005)
(defendant guilty of theft where she exerted unauthorized control over diapers
3
Pierce asserts this allegation of theft was insufficient because indictments for theft are required to identify
the allegedly stolen property with specificity. (Appellant’s Br. at 10.) While that may be the case, this
proceeding was not a criminal trial based on an indictment. Rather, it was a probation revocation, which
does not endow a citizen with all the due process rights to which he is entitled prior to a conviction. Gleason
v. State, 634 N.E.2d 67, 68 (Ind. Ct. App. 1994). The due process rights that exist in this context are “written
notice of the claimed violations, disclosure of the evidence against him, an opportunity to be heard and
present evidence, the right to confront and cross-examine adverse witnesses, and a neutral and detached
hearing body.” Id. Pierce did not ask for clarification of the theft allegation prior to or at the hearing on the
revocation petition. The petition’s allegation of theft indicated the owner of the allegedly stolen property
and the date on which the theft allegedly occurred, and when read with the trespass allegation, which
occurred on the same date and at the same victim’s property, the petition indicates the address on which the
theft allegedly occurred. This was adequate notice of a violation for probation revocation purposes.
Court of Appeals of Indiana | Opinion 28A05-1502-CR-57 | September 23, 2015 Page 5 of 6
and wipes but was prevented from leaving the store with the items), trans.
denied.
[11] Pierce argues the evidence was insufficient because the tin was not admitted as
an exhibit and Starr was not a credible witness. 4 Addressing those arguments
would require us to reweigh evidence or judge credibility of witnesses – matters
that we leave to the trial court. See Morgan, 691 N.E.2d at 468 (weighing of
evidence and assessment of credibility are matters left to the trial court). As the
State proved by a preponderance of the evidence Pierce committed theft and
trespass, the trial court did not abuse its discretion by revoking Pierce’s
probation.
Conclusion
[12] As there was sufficient evidence Pierce committed trespass and theft, the trial
court did not abuse its discretion by revoking Pierce’s probation. Accordingly,
we affirm.
[13] Affirmed.
Crone, J., and Bradford, J., concur.
4
Pierce also argues the stolen items were not introduced into evidence. However, evidence that a person
exerted unauthorized control over property may be proven by witness testimony and circumstantial evidence,
as occurred in the instant case, without admitting evidence of the property itself. See Helton v State, 907
N.E.2d 1020, 1024 (Ind. 2009) (State not required to introduce the subject contraband to obtain conviction;
defendant’s possession can be established by witness testimony and circumstantial evidence).
Court of Appeals of Indiana | Opinion 28A05-1502-CR-57 | September 23, 2015 Page 6 of 6