Dokes v. State
| Decision Date | 20 July 2012 |
| Docket Number | No. 71A03–1111–CR–503.,71A03–1111–CR–503. |
| Parties | Devon D. DOKES, Jr., Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Gary L. Griner, Mishawaka, IN, Attorney for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, Gary R. Rom, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Devon Dokes appeals the revocation of his probation for being a felon in possession of a handgun. Finding the evidence sufficient to support the court's decision, we affirm.
On January 3, 2007, Dokes pled guilty to Class B felony burglary 1 and Class A misdemeanor resisting law enforcement.2 The court sentenced him to ten years in the Department of Correction with six years suspended to probation. Thereafter, Dokes was released from prison and began probation. The terms of Dokes' probation included, among other things, a prohibition against possessing a firearm, a prohibition against committing additional crimes, and a requirement he pay probation fees.
On April 27, 2011, the State charged Dokes with possession of a handgun by a serious violent felon, a Class B felony.3 The State also petitioned to revoke Dokes' probation based on his commission of a new criminal offense and his failure to pay probation fees.
The trial court, with agreement from the parties, held the probation revocation hearing simultaneously with the bench trial on the criminal charge. Dokes stipulated to his prior felony conviction. Two witnesses testified to having seen Dokes handle or possess a small handgun that later was found next to the dead body of Dokes' cousin, Ramon Hamilton. The court found Dokes not guilty of being a felon in possession of a handgun. Nevertheless, the court found Dokes violated his probation, citing his commission of the new offense.
“The court may revoke a person's probation if: (1) the person has violated a condition of probation during the probationary period....” Ind.Code § 35–38–2–3(a). The State must prove a violation of probation by a preponderance of the evidence. Ind.Code § 35–38–2–3(e); Braxton v. State, 651 N.E.2d 268, 270 (Ind.1995). On review, we will look to the evidence most favorable to the State and neither reweigh the evidence nor judge the credibility of witnesses. Id. at 271. If substantial evidence of probative value exists to support the trial court's finding that a violation occurred, we will affirm the revocation of probation. Id.;Menifee v. State, 600 N.E.2d 967, 970 (Ind.Ct.App.1992), decision clarified on denial of reh'g.
Dokes argues two insufficiencies in the State's evidence. He first alleges the State did not meet its evidentiary burden to prove he was on probation. Second, because the trial judge found Dokes not guilty of the criminal offense of being in possession of a weapon, Dokes alleges the testimony he possessed the gun was incredibly dubious and thus insufficient to support probation revocation.
As for whether the State proved Dokes was on probation, the record indicates Dokes and the State agreed the probation revocation hearing would occur simultaneous with the bench trial on the new criminal charge. See, e.g., State ex rel. Randall v. Long, 237 Ind. 389, 392, 146 N.E.2d 243, 245 (1957) (); Viccaro v. City of Ft. Wayne, 449 N.E.2d 1161, 1163 (Ind.Ct.App.1983) (). At no time during the combined hearing did Dokes or his counsel allege he was not on probation, and two witnesses testified Dokes was on probation. This evidence was sufficient.4
Dokes also asserts the testimony that he possessed the weapon is incredibly dubious under the rule re-announced in Fajardo v. State, 859 N.E.2d 1201, 1208 (Ind.2007). The rule of incredibly dubious testimony states:
If a sole witness presents inherently improbable testimony and there is a complete lack of circumstantial evidence, a defendant's conviction may be reversed. This is appropriate only where the court has confronted inherently improbable testimony or coerced, equivocal, wholly uncorroborated testimony of incredible dubiosity. Application of this rule is rare and the standard to be applied is whether the testimony is so incredibly dubious or inherently improbable that no reasonable person could believe it.
Love v. State, 761 N.E.2d 806, 810 (Ind.2002).
That rule does not apply in the present case. While only one witness testified that Dokes possessed the gun on or near April 21, 2011, there was nothing inherently improbable in that testimony. The standard in Love requires that no reasonable person could believe the sole witness's testimony, and there is no indication that Ms. Taylor's testimony was inherently improbable, coerced, or equivocal. Neither was that testimony wholly uncorroborated as a second witness testified she saw Dokes in possession of the gun a few weeks earlier.
Finally, Dokes claims because the trial judge found him not guilty...
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