Jeffrey Adams v. State of Indiana

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
Dec 26 2012, 9:38 am
regarded as precedent or cited before any
court except for the purpose of
establishing the defense of res judicata, CLERK
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ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MICHAEL FRISCHKORN GREGORY F. ZOELLER
Frischkorn Law LLC Attorney General of Indiana
Fortville, Indiana
JOSEPH Y. HO
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
JEFFREY ADAMS, )
)
Appellant-Defendant, )
)
vs. ) No. 48A02-1205-CR-385
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MADISON CIRCUIT COURT
The Honorable Dennis Carroll, Judge
Cause No. 48C03-0605-FB-255
December 26, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
FRIEDLANDER, Judge
Jeffrey Adams appeals the revocation of his probation and the execution of the
remainder of his suspended sentence. He presents the following restated issue for review:
Did the trial court abuse its discretion in determining that Adams had resisted law
enforcement and, thus, violated a condition of his probation?
We affirm.
On March 5, 2007, Adams pleaded guilty to armed robbery and burglary, both as class
B felonies. Thereafter, he was sentenced to concurrent twelve-year terms of imprisonment,
with six of those years suspended to probation.
On July 19, 2011, the State filed a notice of violation of probation, which was
subsequently amended on two occasions. In sum, the State alleged that Adams violated
probation by: (1) committing a new criminal offense – resisting law enforcement – on July 9,
2011; (2) failing to pay probation fees; (3) possessing a hand grenade and a pistol on October
15, 2011; and (4) failing to behave well in society by taking a substantial step toward the
possession of marijuana on October 15, 2011.
At the evidentiary hearing on April 23, 2012, Adams admitted violations 2 through 4
above but denied the first allegation regarding resisting law enforcement. With regard to this
allegation, the State presented evidence that on the evening of July 9, 2011, officers and
emergency personnel responded to an accident involving an overturned vehicle in a school
playground. Paramedics informed the responding officers that the possible driver had fled
the scene running northbound. Two officers, in full uniform and driving marked police
vehicles with activated emergency lights, encountered Adams about two blocks away in an
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alley. Adams fit the description given at the scene. Both officers commanded Adams to
stop, yelling “police stop.” Transcript at 11. Adams did not stop and ran for about a block
as the officers chased after him. When an officer caught up to him, Adams finally stopped.
Although he went to the ground as directed, Adams cursed at the officers and refused to keep
his hands out to his sides, instead placing a cigarette in his mouth. When one of the officers
removed the cigarette from Adams’s mouth, Adams cursed and began to get up off the
ground in an aggressive manner. He was then tased.
At the conclusion of the probation hearing, the trial court determined that the State
had established by a preponderance of the evidence that Adams resisted law enforcement.
Specifically, the court noted that Adams continued to run from the officers after the officers
identified themselves as police and ordered him to stop.
Upon revoking Adams’s probation, the trial court explained:
[T]here’s a new criminal offense, serious criminal offense. Weapons charges
out of Marion County and then also the evidence today of resisting law
enforcement. And so one of the worst things you can do while you’re on
probation is commit a new crime. Especially when you’ve been convicted of
an armed robbery and to then be found in possession of another not only hand
gun but a hand grenade. So, I don’t think it’s any surprise as to you as to
what’s going to happen. If you’re going to commit new crimes while you’re
on probation you might as well go back and finish up the original sentence. It
shows disrespect to the community and to the Court that’s supervising you and
so six (6) years of the previously suspended sentence is ordered executed to the
Department of Corrections.
Id. at 24. Adams now appeals, challenging the sufficiency of the evidence with respect to the
resisting law enforcement violation.
Probation is a matter of grace and is a conditional liberty that is a favor, not a right.
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See Jenkins v. State, 956 N.E.2d 146 (Ind. Ct. App. 2011), trans. denied. The trial court
determines the conditions of probation and may revoke probation if the probationer violates a
condition of probation. See Kincaid v. State, 736 N.E.2d 1257 (Ind. Ct. App. 2000). A trial
court’s order regarding revocation of probation is reviewed for an abuse of discretion.
Jenkins v. State, 956 N.E.2d 146. We neither reweigh the evidence nor judge the credibility
of witnesses, and we look only to the evidence most favorable to the judgment. Id. Further,
because a probation hearing is civil in nature, the State need prove a violation only by a
preponderance of the evidence. Id.With respect to the challenged violation, the State presented evidence that Adams
continued to run after two officers identified themselves and ordered him to stop. He lead
officers on a one-block chase and stopped only when one of the officers was about to catch
up with him. This evidence establishes by a preponderance of the evidence that Adams
committed resisting law enforcement. See Ind. Code Ann. § 35-44.1-3-1(a)(3) (West,
Westlaw current through 2012 2nd Regular Session). The trial court did not err in this regard.
Moreover, the revocation of Adams’s probation is amply supported by his other
violations, most notably possession of a grenade and a handgun. Adams was found in
possession of these weapons, as well as marijuana, when stopped in a vehicle in Marion
County three months after the notice of violation had been filed for resisting law enforcement
in Madison County. This weapon violation alone supports the revocation of probation. See
Jenkins v. State, 956 N.E.2d at 149 (“violation of a single condition of probation is sufficient
to revoke probation”), trans. denied.
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Judgment affirmed.
NAJAM, J., and BRADFORD, J., concur.
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