Opinion
No. 54A04-1102-CR-65.
September 22, 2011.
ORDER
On September 1, 2011, this Court issued its opinion, marked Memorandum Decision/Not For Publication. It has come to the Court's attention that the opinion erroneously states on page five that Judge Bradford concurs in the opinion. Judge Bradford did not participate in the consideration of this appeal. Rather, Judge Brown participated in the consideration of this appeal, and Judge Bradford's name was placed on page five of the opinion due to a scrivener's error.
Having reviewed the matter, the Court FINDS AND ORDERS AS FOLLOWS:
1. The September 1, 2011 decision marked Memorandum Decision/Not For Publication is replaced by a corrected Memorandum Decision being issued with this order.
2. Because the Court is merely correcting a scrivener's error, the decision retains its handdown date of September 1, 2011, and the deadlines for filing any petition for rehearing or petition for transfer remain unchanged.
3. The Clerk of this Court is directed to send a copy of this order to all parties and counsel of record, the trial court, the Montgomery Circuit and Superior Courts Clerk, West/Thomson/Reuters, Lexis, and all other sources to which decisions/opinions of this Court are sent.
4. The Montgomery Circuit and Superior Courts Clerk is directed to file a copy of this order under the trial court cause number 54D01-1005-FD-184, and, pursuant to Indiana Trial Rule 77(D), the Clerk shall place the contents of this order in the Record of Judgments and Orders. ORDERED this 22 day of September, 2011. 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:
KIMBERLY A. JACKSON, Indianapolis, Indiana
ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana Indianapolis, Indiana
RICHARD C. WEBSTER Deputy Attorney General Indianapolis, Indiana
APPEAL FROM THE MONTGOMERY SUPERIOR COURT The Honorable David A. Ault, Judge Cause No. 54D01-1005-FD-184. IN THE COURT OF APPEALS OF INDIANA
RIKKIA WEATHERFORD, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plantiff.
No. 54A04-1102-CR-65 SEPTEMBER 1, 2011 MEMORANDUM DECISION — NOT FOR PUBLICATION
SULLIVAN, Senior Judge
Defendant-Appellant Rikkia K. Weatherford appeals the revocation of her probation. We affirm.
Weatherford pleaded guilty to dealing in marijuana, a Class D felony. Ind. Code § 35-48-4-10 (2001). On August 19, 2010, the trial court sentenced Weatherford to three years, with all but six months of the sentence suspended. The trial court further placed Weatherford on supervised probation for two and a half years. On that same day, the trial court ordered the county sheriff to release Weatherford from incarceration due to credit for time served.
On September 15, 2010, Officer Christopher J. Helmer of the Speedway Police Department was sitting in his car in the parking lot of a shopping center in Speedway, Indiana, when he saw two women run out of a shoe store towards a car. They were "running at a dead sprint." Tr. p. 5. A shoe store employee came out into the parking lot and told Helmer that the women had just stolen shoes.
Helmer drove his car over to the suspects' car and parked in front of it. As he got out of his car, one of the suspects, who was identified in Helmer's report as Rikkia Weatherford, got out of the driver's side of their car. Weatherford took off her shoes and told Helmer that she had money and could pay for them. She handed the shoes to a shoe store employee and told Helmer that she was just coming out to the car to get her money. The other woman in the car, Kristie Shear, was barefoot. Helmer arrested them. During an inventory search of the car, Helmer discovered a plastic wrapper near the driver's side door handle that contained six Amoxicillin pills, a Clonazepam pill, and an Alprazolam pill. Helmer also learned that Shear was on parole.
The State filed a petition to revoke Weatherford's probation. After a hearing, the trial court determined that Weatherford had violated the conditions of her probation and sentenced her to serve the remaining two and a half years of her sentence. This appeal followed.
Weatherford raises one issue, which we restate as: whether the evidence is sufficient to demonstrate that Weatherford violated a condition of her probation. A person's probation may be revoked if the person has violated a condition of probation during the probationary period. Ind. Code § 35-38-2-3(a)(1) (2010). The State must prove a violation of a condition of probation by a preponderance of the evidence. Ind. Code § 35-38-2-3(e). The decision to revoke probation is within the sole discretion of the trial court, and its decision is reviewed on appeal for abuse of that discretion. Woods v. State, 892 N.E.2d 637, 639 (Ind. 2008). On review, we consider only the evidence most favorable to the judgment 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 decision that a defendant has violated any terms of probation, the reviewing court will affirm its decision to revoke probation. Id. at 639-40.
Here, Weatherford contends that the State failed to prove at the hearing that she is the person who was arrested on September 15, 2010. Specifically, she contends that the State's witness, Helmer, failed to identify her during the hearing. At the hearing, the trial court noted, "Ms. Weatherford is appearing in person and with her attorney. . . ." Tr. p. 3. Later in the hearing, Helmer testified that he encountered Rikkia Weatherford on September 15, 2010. He named Weatherford in his report, which was admitted into evidence at the hearing. In addition, the State asked Helmer, "do you see her here in the courtroom?" Id. at p. 4. Helmer responded, "[y]es I do." Id. at p. 5. We conclude that this is substantial evidence of probative value to demonstrate that the Rikkia Weatherford that Helmer encountered on September 15, 2010, and the Rikkia Weatherford who appeared at the probation revocation hearing are the same person. Therefore, Weatherford's claim is without merit.
Next, Weatherford contends that the State failed to prove that she violated a condition of her probation. Among other conditions, Weatherford's probation order provided, "[y]ou shall not violate any law." Appellant's App. p. 26. In Indiana, "[a] person who knowingly or intentionally exerts unauthorized control over property of another person, with intent to deprive the other person of any part of its value or use, commits theft, a Class D felony." Ind. Code § 35-43-4-2(a) (2009). In this case, Weatherford put on shoes that she had not purchased and ran out of the shoe store to her car. She was detained by Helmer, at which time she returned the shoes to a store employee. A store employee told Helmer the shoes were worth approximately $145.00. The foregoing is substantial evidence of probative value to demonstrate that Weatherford committed the crime of theft, and the trial court did not err by determining that Weatherford violated a condition of her probation.
The State also alleged that Weatherford had violated the conditions of her probation by possessing a controlled substance and by associating with a person, Shear, who was on parole. A trial court need only determine that a probationer has violated one condition of probation in order to revoke probation. Ind. Code § 35-38-2-3(g). Stated another way, revocation is appropriate if the State proves any violation. Menifee v. State, 600 N.E.2d 967, 970 (Ind. Ct. App. 1992), clarified onreh'g, 605 N.E.2d 1207 (1993). Having determined that the trial court did not err by determining that Weatherford violated the terms of her probation by committing theft, we need not address Weatherford's remaining challenges to the sufficiency of the evidence.
The judgment of the trial court is affirmed. DARDEN, J., and BROWN, J., concur.