Harley Bud Davidson v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Mar 29 2019, 8:08 am regarded as precedent or cited before any court except for the purpose of establishing CLERK Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE David W. Stone IV Curtis T. Hill, Jr. Anderson, Indiana Attorney General of Indiana Josiah Swinney Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Harley Bud Davidson, March 29, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-1806 v. Appeal from the Madison Circuit Court State of Indiana, The Honorable Mark Dudley, Appellee-Plaintiff. Judge Trial Court Cause No. 48C06-1207-FB-1321

Brown, Judge. Court of Appeals of Indiana | Memorandum Decision 18A-CR-1806 | March 29, 2019 Page 1 of 7 [1] Harley Bud Davidson appeals the trial court’s determination that he violated

the conditions of his in-home detention. We affirm.

Facts and Procedural History [2] In March 2013, the trial court entered judgment of conviction against Davidson

for attempted robbery as a class B felony and sentenced him consistent with a

plea agreement to ten years with six years executed and four years suspended to

probation. The court also ordered that Davidson serve three years of his

executed sentence in the Department of Correction (the “DOC”) and three

years on in-home detention. In June 2016 the probation department filed a

notice of violation of probation, and the court held a hearing in July 2016 at

which Davidson admitted to violations of taking substantial steps toward the

commission of the crime of maintaining a common nuisance as a level 6

felony, 1 failing to verify employment, and failing to submit a urine drug screen.

In August 2016, the court held a sanctions hearing, ordered that Davidson’s

previously-suspended sentence of four years be revoked and executed on in-

home detention, and ordered that he find and maintain employment of thirty-

five or more hours per week. [3] In January 2017, the home detention office filed a Notice of Violation of

Executed Sentence. In February 2017, the court held a hearing and found that

Davidson failed to pay home detention fees, submitted a drug screen which

1 Davidson was charged with maintaining a common nuisance under cause number 48C06-1606-F6-1219.

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tested positive for morphine, and failed to maintain or verify employment. The

court ordered Davidson to obtain a new substance abuse evaluation, comply

with all treatment recommendations, and provide written verification to the

probation department. One of the conditions of Davidson’s sentence was that

he would not be at a place where illegal drugs were being used or possessed or

where others were engaging in illegal activities. In October 2017, the home

detention office filed a notice of violation of executed sentence alleging

Davidson failed to pay home detention fees and was in arrears $2,667, and in

November 2017 the court found that Davidson had failed to pay his home

detention fees, stated that no putative sanctions were imposed, and ordered him

to pay an additional amount toward his arrearage. [4] On April 16, 2018, the home detention office filed a Notice of Violation of

Executed Sentence, and on May 21, 2018, the home detention office filed an

Amended Notice of Violation of Executed Sentence which alleged: (a)

Davidson failed to maintain and/or verify employment; (b) a home visit was

conducted on April 10, 2018, “and marijuana was located with the defendant’s

property”; (c) Davidson failed to pay home detention fees; (d) Davidson

allegedly committed possession of paraphernalia on May 18, 2018; and (e)

Davidson “[f]ailed to report on 05/18/18 to the Madison County Circuit Adult

Probation Department for a urine drug screen.” Appellant’s Appendix Volume

II at 162. On June 27, 2018, the trial court held a violation hearing at which

Davidson admitted to the violations of (a) and (c) above and the State presented

evidence. The court found that Davidson violated the conditions of his

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executed sentenced for reasons (a), (b), (c), and (e) and that the State failed to

prove allegation (d). The court ordered: “Four (4) years is now ordered

executed at the Madison County Work Release Center. . . No return to

probation.” Id. at 18.

Discussion [5] A defendant generally is not entitled to serve a sentence in either probation or a

community corrections program. Monroe v. State, 899 N.E.2d 688, 691 (Ind. Ct.

App. 2009). Rather, placement in either is a matter of grace and a conditional

liberty that is a favor, not a right. Id. (citing Cox v. State, 706 N.E.2d 547, 549

(Ind. 1999), reh’g denied). For the purposes of appellate review, we treat a

hearing on a petition to revoke a placement in a community corrections

program such as home detention the same as we do a probation revocation

hearing. Id. (citing Cox, 706 N.E.2d at 549). The State needs to prove the

alleged violations by a preponderance of the evidence. Id. We will consider all

the evidence most favorable to supporting the judgment of the trial court

without reweighing that evidence or judging the credibility of the witnesses. Id.

If there is substantial evidence of probative value to support the trial court’s

conclusion that a defendant has violated any terms of home detention, we will

affirm its decision to revoke home detention. Id. The violation of a single

condition of home detention is sufficient to revoke home detention. See Wilson

v. State, 708 N.E.2d 32, 34 (Ind. Ct. App. 1999). [6] Davidson argues: “It is not disputed that marijuana was found at the property

defendant shared with his significant other and with whom he had been in a 4 Court of Appeals of Indiana | Memorandum Decision 18A-CR-1806 | March 29, 2019 Page 4 of 7

year relationship. It was her marijuana however, and it was in a closed safe.”

Appellant’s Brief at 10. He argues there was no showing by the State that he

knew there was marijuana on the property where he lived and a requirement of

knowledge of the presence of the contraband must be read into the probation

term to avoid revocation for unintentional violations. He further argues that he

was told to report for a drug screen “as soon as possible” which “does not

automatically mean the same day” and that he was in the hospital on May

18th. Id. at 18. He argues the case should be remanded to redetermine the

sanction without reliance on the drug violation and drug screen violation. The

State maintains that it presented sufficient evidence that Davidson violated the

conditions of his in-home detention and that the trial court acted well within its

discretion in sanctioning him. [7] With respect to the discovery of marijuana, the trial court found that “the State

has met its burden of proof . . . by a preponderance of the evidence that

marijuana was located . . . within the defendant’s property,” “it’s pretty clear

from the admission from Ms. Goins it was marijuana,” “she had further

testified and Mr. Davidson [agreed] with it that they resided together at the

same property so as the allegation is phrased marijuana was located on

defendant’s property,” and “so as to how it’s phrased the State has met its

burden of proof.” Transcript Volume II at 51. The evidence most favorable to

the court’s judgment supports the finding that Davidson violated the condition

of his placement that he not be at a place where illegal drugs were possessed.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1806 | March 29, 2019 Page 5 of 7 [8] As to the failure to submit to a drug screen, when asked if he had any

knowledge regarding the allegation that Davidson failed to report on May 18th

for a urine screen, Devon Burris, a probation officer, replied “yes, I actually

instructed [Davidson] to report that, that day um.” Id. at 22. When asked

“[w]hen did you tell him to report for a drug screen,” he replied “[a]s soon as

possible.” Id. The State elicited testimony from an employee of the probation

department indicating that he worked until 2:00 p.m. on May 18, 2018, and

when asked if he received any information that Davidson “was ordered to come

for a urine screen on that date,” the employee replied “I did. I received a text

message from [Burris] that said uh we disconnected a home visit on Harley

Davidson . . . and we sent him to you guys for a urine screen.” Id. at 35. The

employee indicated that Davidson did not report to the probation department

on that date for a urine screen. When asked “[w]hy weren’t you there again,”

Davidson stated “I was at uh St. John’s” and “I was at the hospital,” and when

asked what he was being treated for at the hospital, he replied “I just felt uh

sick.” Id. at 38. Davidson indicated he was in the hospital “probably until

about six . . . a night” and he “called Home Detention that Monday and uh

nobody ever called me back, they just issued a warrant.” Id. at 39. Davidson

indicated he did not bring any documentation regarding his hospital visit with

him to court, that he had it at home, and that he did not provide it to his

probation officer. The trial court found the “uncontroverted evidence is that

Mr. Davidson did not report as ordered on May 18th for a drug screen,” “[h]is

excuse is unavailing. I didn’t feel well so I went to the hospital, I didn’t report,

I called on Monday because May 18th was a Friday,” “the State has met its Court of Appeals of Indiana | Memorandum Decision 18A-CR-1806 | March 29, 2019 Page 6 of 7

burden of proof that [] Davidson did not report and does not give me a legally

sufficient justification for not doing so when the only testimony I have is I

didn’t feel well so I went to the hospital.” Id. at 52. The evidence most

favorable to the court’s determination without reweighing that evidence or

judging the credibility of the witnesses supports its finding. [9] Based on the evidence most favorable to the revocation, we conclude the State

presented sufficient evidence from which the trial court could find by a

preponderance of the evidence that Davidson violated conditions of his in-

home detention and enter an order that he serve his sentence on work release. [10] For the foregoing reasons, we affirm trial court’s ruling. [11] Affirmed.

May, J., and Mathias, J., concur.

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