Raymond Johnson v. State of Indiana (NFP)

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FILED 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. Jul 29 2010, 9:09 am CLERK of the supreme court, court of appeals and tax court ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE: WILLIAM BYER, JR. Byer & Byer Anderson, Indiana GREGORY F. ZOELLER Attorney General of Indiana MARJORIE LAWYER-SMITH Special Deputy Attorney General Indianapolis, Indiana IN THE COURT OF APPEALS OF INDIANA RAYMOND JOHNSON, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) ) No. 48A02-0912-CR-1285 APPEAL FROM THE MADISON SUPERIOR COURT The Honorable David A. Happe, Judge Cause No. 48D04-0906-FD-186 July 29, 2010 MEMORANDUM DECISION - NOT FOR PUBLICATION MAY, Judge Raymond Johnson appeals the revocation of his probation. As the evidence most favorable to the judgment shows Johnson violated his probation, we affirm. FACTS AND PROCEDURAL HISTORY Johnson entered a plea of guilty to theft1 and his sentence included six months probation. Conditions of Johnson s probation were to obey all laws, keep the probation department informed of his current address and of any new arrests, make certain payments, and maintain and verify employment. The State alleged Johnson violated those conditions by committing new criminal offenses of resisting arrest, driving while suspended, and driving while intoxicated; failing to pay certain fees and costs; failing to report a new address; and failing to maintain or verify employment. DISCUSSION AND DECISION Johnson contends the State presented insufficient evidence to support the revocation of his probation. Probation is a matter of grace, and whether probation is granted is within the trial court s discretion. Morgan v. State, 691 N.E.2d 466, 468 (Ind. Ct. App. 1998). A probation revocation hearing is civil in nature, and the State need only prove the alleged violations by a preponderance of the evidence. Cox v. State, 706 N.E.2d 547, 551 (Ind. 1999), reh g denied. If the court finds that the probationer has violated a condition of his probation at any time before the termination of the probationary period and the petition to revoke is filed within the probationary period, then the court may order execution of the sentence that had been suspended. Wilburn v. State, 671 N.E.2d 143, 147 (Ind. Ct. App. 1 Ind. Code ยง35-43-4-2. 2 1996), trans. denied. When reviewing the sufficiency of the evidence to revoke probation, we consider only the evidence most favorable to the judgment without reweighing that evidence or judging the credibility of the witnesses. Woods v. State, 892 N.E.2d 637, 639 (Ind. 2008). If there is substantial evidence of probative value to support the determination a probationer has violated any terms of probation, we will affirm. Id. at 639-40. If the trial court, after a hearing, finds an arrest was reasonable and there is probable cause to believe the defendant violated a criminal law, revocation will be sustained. Cooper v. State, 917 N.E.2d 667, 674 (Ind. 2009). Witnesses testified Johnson was speeding through an accident scene. Police, with lights and siren operating, chased the truck Johnson was driving. Johnson ran a stop sign and drove the truck into a field, then he and his passenger ran in different directions. After Johnson was apprehended, police learned his license was suspended. Johnson testified he was not driving the truck and he did not run away from the police. He asserts the police officer was too far away to identify him as the driver, and he is incapable of driving that manual-transmission truck. He also asserts after the truck was driven into the field, he walked back toward the road to talk to the police. We must decline Johnson s invitation to reweigh the evidence and judge the credibility of the witnesses, and we affirm the revocation of his probation.2 We need not address Johnson s challenges to the other probation violations the State alleged, as violation of a single condition of probation is sufficient to revoke probation. Wilson v. State, 708 N.E.2d 32, 34 (Ind. Ct. App. 1999). 2 3 Affirmed. BAILEY, J., and BARNES, J., concur. 4

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