Latoy Kisha Jordan v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any
court except for the purpose of establishing Sep 11 2017, 5:40 am
the defense of res judicata, collateral CLERK
Indiana Supreme Court
estoppel, or the law of the case. Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Richard Walker Curtis T. Hill, Jr.
Anderson, Indiana Attorney General
Chandra K. Hein
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Latoy Kisha Jordan, September 11, 2017
Appellant-Defendant, Court of Appeals Case No.
48A04-1702-CR-407
v. Appeal from the Madison Circuit
Court
State of Indiana, The Honorable David A. Happe,
Appellee-Plaintiff Judge
Trial Court Cause No.
48C04-1512-F5-2099
Crone, Judge.
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Case Summary
[1] Latoy Kisha Jordan appeals the trial court’s revocation of her probation. She
contends that the evidence is insufficient to support revocation. Finding the
evidence sufficient, we affirm.
Facts and Procedural History
[2] On December 9, 2015, the State charged Jordan with level 6 felony criminal
recklessness and level 5 felony carrying a handgun without a license. In March
2016, Jordan and the State entered into a plea agreement whereby Jordan
agreed to plead guilty to both charges in exchange for a sentencing cap of two
years on any executed sentence imposed. The agreement further provided that
Jordan would have no contact with the victim of one of her offenses, Amanda
Folden. On April 11, 2016, the trial court sentenced Jordan to concurrent terms
of two years executed for the level 6 felony and two years executed, plus three
years suspended to probation for the level 5 felony. The terms and conditions
of Jordan’s probation reiterated that she must comply with the no-contact order
regarding Folden.
[3] The State filed a notice of probation violation on October 26, 2016, alleging that
Jordan violated her probation by committing a new criminal offense, i.e., class
A misdemeanor invasion of privacy. During the probation revocation hearing,
Folden testified that, despite the no-contact order, Jordan had contacted her at
least six times. Jordan told Folden that she wished Folden was dead. Folden
contacted the authorities, and a caseworker spoke with Jordan and warned her
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to stop contacting Folden. Jordan did not stop, and continued to contact
Folden. Based on the evidence presented, the trial court found that Jordan
violated her probation, revoked one year of her probation, and ordered her to
serve that year on in-home detention. This appeal ensued.
Discussion and Decision
[4] “Probation is a matter of grace left to trial court discretion, not a right to which
a criminal defendant is entitled.” Prewitt v. State, 878 N.E.2d 184, 188 (Ind.
2007). It is within the trial court’s discretion to determine the conditions of
probation and to revoke probation if those conditions are violated. Heaton v.
State, 984 N.E.2d 614, 616 (Ind. 2013). A revocation proceeding is civil in
nature, and the State must prove its allegations by only a preponderance of the
evidence. Ind. Code § 35-38-2-3(f). We review insufficiency of evidence claims
in a probation proceeding as we do any other sufficiency of the evidence
question. Pierce v. State, 44 N.E.3d 752, 755 (Ind. Ct. App. 2015). We will not
reweigh evidence or judge credibility of witnesses. Id. We look only at the
evidence favorable to the State and all reasonable inferences therefrom. Id. One
violation of a condition of probation is enough to support a probation
revocation. Id. 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. Id.
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[5] Pursuant to her plea agreement, Jordan was ordered to have no contact with
Folden, and one of the terms and conditions of Jordan’s probation was that she
comply with the no-contact order regarding Folden. Tr. at 22; Appellant’s App.
Vol. 2 at 49, 52. Another condition of Jordan’s probation was that she not
commit any criminal offense. In its notice of probation violation, the State
alleged that on or about October 17, 2016, Jordan committed invasion of
privacy. To prove that Jordan committed that offense, the State was required to
prove that she knowingly or intentionally violated a no-contact order issued as a
condition of probation. See Ind. Code § 35-46-1-15.1(a)(6).
[6] The State established Jordan’s commission of invasion of privacy by a
preponderance of the evidence. The State presented evidence that Jordan
contacted Folden numerous times while Jordan was incarcerated at the Marion
County Volunteers of America. Jordan maintains that there was insufficient
“proof that [a no-contact order] actually existed” regarding Folden because the
State failed to specifically offer such order into evidence. Appellant’s Br. at 11.
However, Randy Tracy, an investigator with the prosecutor’s office, testified
that he specifically determined that there was a no-contact order in place under
cause number 48C04-1512-F5-2099, before he requested Jordan’s caseworker to
speak to Jordan and instruct her to cease contacting Folden. Moreover, there is
no question that the terms and conditions of probation, as well as the plea
agreement which included the no-contact order, were part of the trial court’s
record in this cause. During the revocation hearing, Jordan never challenged
the existence of the no-contact order or her knowledge thereof, she simply
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claimed that it was Folden who was initiating the contact. Jordan’s
insufficiency of the evidence argument in this regard is without merit, and her
additional assertions challenging the sufficiency of the evidence are simply
requests for this Court to reweigh the evidence, a task not within our
prerogative on appeal. As the State proved by a preponderance of the evidence
that Jordan committed invasion of privacy, we affirm the trial court’s
revocation of one year of her probation.
[7] Affirmed.
Vaidik, C.J., and Mathias, J., concur.
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