Rickey Dawane Gosha v. State of Indiana (NFP)

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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 establishing the defense of res judicata, collateral estoppel, or the law of the case. ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE: WILLIAM BYER, JR. Byer & Byer Anderson, Indiana GREGORY F. ZOELLER Attorney General of Indiana ARTURO RODRIGUEZ II Deputy Attorney General Indianapolis, Indiana IN THE COURT OF APPEALS OF INDIANA RICKEY D. GOSHA, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) ) June 16, 2010 MEMORANDUM DECISION - NOT FOR PUBLICATION CLERK of the supreme court, court of appeals and tax court No. 48A02-0910-CR-1006 APPEAL FROM THE MADISON SUPERIOR COURT The Honorable David A. Happe, Judge Cause No. 48E01-0802-FD-34 MAY, Judge FILED Jun 16 2010, 9:50 am Rickey Gosha s probation was revoked and he was ordered to serve the remainder of his sentence. He challenges the sufficiency of the evidence to support the revocation. We affirm. FACTS AND PROCEDURAL HISTORY On June 3, 2009, Gosha agreed to plead guilty to carrying a handgun without a license and was sentenced to 365 days of incarceration, with 361 days suspended. On July 11, 2009, Gosha was present near a traffic stop conducted by Officers Williams and Naselroad. Although Gosha was not involved in the traffic stop, he began speaking and rapping in a derogatory manner about the officers, which drew a crowd. The officers asked him to stop, but he refused. When Officer Williams attempted to detain Gosha, he resisted. The officer subdued Gosha and arrested him for disorderly conduct, resisting law enforcement, and a curfew violation. At a hearing on October 2, 2009, Gosha was found to have violated his probation and was ordered to serve the rest of his sentence incarcerated. DISCUSSION AND DECISION When reviewing whether the evidence was sufficient to revoke probation, we do not reweigh evidence or judge the credibility of witnesses. Morgan v. State, 691 N.E. 2d 466, 468 (Ind. Ct. App. 1998). If there is substantial evidence of probative value to support the conclusion the defendant has violated a term of probation, we will affirm. Menifee v. State, 600 N.E. 2d 967, 970 (Ind. Ct. App. 1992), clarified on denial of reh g on other grounds, 605 N.E.2d 1207 (Ind. Ct. App. 1993). The State alleged Gosha violated his probation by committing new criminal offenses, 2 namely resisting law enforcement and disorderly conduct; by not reporting his arrest to the Probation Department within 48 hours; and by violating the curfew ordered as a term of his probation. During the hearing, the following exchange took place regarding Gosha s presence at an address that was not listed as his residence with the Probation Department: Q: So you weren t where you were suppose [sic] to be that night, were you? A: Basically, nope. (Tr. at 67.) We will uphold a probation revocation if there is substantial evidence to support the conclusion that a probationer violated any term of the probation. Cox v. State, 706 N.E.2d 547, 551 (Ind. 1999). As Gosha admitted to being present in a place other than the residence listed with the Probation Department after 12:00 a.m., a curfew violation of his probation, the evidence is sufficient to support the revocation of his probation. Affirmed. BAILEY, J., and BARNES, J., concur. 3

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