MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Oct 20 2016, 9:02 am
regarded as precedent or cited before any CLERK
court except for the purpose of establishing 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
Deborah Markisohn Gregory F. Zoeller
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
J.T. Whitehead
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Timothy Hooker, October 20, 2016
Appellant-Defendant, Court of Appeals Case No.
49A02-1602-CR-384
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Amy Jones, Judge
Appellee-Plaintiff. Trial Court Cause No.
49G08-1508-CM-27723
Robb, Judge.
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Case Summary and Issues
[1] Following a bench trial, Timothy Hooker was convicted of conversion as a
Class A misdemeanor. The trial court sentenced Hooker to one year in the
Marion County Jail with two days credit and 363 days suspended to probation.
Hooker now appeals his conviction and sentence, raising three issues for our
review, which we consolidate and restate as: (1) whether the State presented
sufficient evidence to rebut his mistake of fact defense, and (2) whether the trial
court abused its discretion in sentencing Hooker. Concluding the State
presented sufficient evidence to rebut Hooker’s mistake of fact defense but the
trial court abused its discretion in sentencing Hooker, we affirm his conviction
and remand with instructions.
Facts and Procedural History
[2] For over thirty years, Hooker and Donald Vick were close friends. In 2015,
Hooker worked for Vick, who was a painting contractor, and also lived with
Vick in Vick’s home. Vick owned a vehicle he used every day to get to and
from work. On the morning of Sunday, August 2, 2015, Hooker asked to
borrow the vehicle so he could go to his mother’s house. Vick obliged, stating,
“[Y]ou can run to your mother’s. . . . [S]ee ya in a little bit, be safe.”
Transcript at 7. Vick needed the vehicle for work the next day and expected
Hooker to return the vehicle later that day. Hooker did not return the vehicle
and Vick reported it stolen the following day.
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[3] Over the next couple of days, Vick called Hooker numerous times and left
voicemails, none of which Hooker returned. On August 5, 2015, Vick observed
his vehicle near a local gas station. He immediately called 911 and law
enforcement stopped the vehicle. Hooker, who was driving the vehicle, was
arrested.
[4] On August 6, 2015, the State charged Hooker with conversion as a Class A
misdemeanor. At a bench trial held on January 27, 2016, Hooker asserted a
mistake of fact defense and testified his extended possession of the car was
reasonable because he did not believe Vick needed to use the car. The trial
court found Hooker guilty as charged and sentenced him to one year in jail with
363 days suspended to probation, which would be discharged upon successful
completion of a substance abuse evaluation. The trial court then stated,
Undergo a substance abuse evaluation and treatment. If there is
anything [to the evaluation] you do [treatment], if there’s not
then I’ll show your probation—it can terminate as soon as you go
through [the evaluation]. . . . I’ll show that your probation fees
will be on a sliding fee scale. So work with probation, tell them
about you know, your lack—I understand, you’re in construction
and it’s a slow time. You don’t have any income right now,
they’re going to be able to adjust your fees accordingly. You’re
going to be on random drugs screens as a standard condition of
probation so I’ll put you in a three dollar slot for that, so it’s not
going to cost you thirteen bucks a pop for that. . . . I’ll find you
indigent to court costs and I’m not going to access [sic] a fine.
Id. at 29-30. Hooker completed a substance abuse evaluation and he was not
referred to treatment. On April 5, 2016, the trial court granted the probation
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department’s request to discharge Hooker from probation. The probation
department assessed $640 in fees, which Hooker had not yet paid. The trial
court ordered those fees be sent to collections. This appeal ensued.
Discussion and Decision
I. Mistake of Fact
[5] “A person who knowingly or intentionally exerts unauthorized control over
property of another person commits criminal conversion, a Class A
misdemeanor.” Ind. Code § 35-43-4-3(a). The State alleged Hooker knowingly
or intentionally exerted unauthorized control over Vick’s vehicle. “A person
engages in conduct ‘intentionally’ if, when he engages in the conduct, it is his
conscious objective to do so.” Ind. Code § 35-41-2-2(a). “A person engages in
conduct ‘knowingly’ if, when he engages in the conduct, he is aware of a high
probability that he is doing so.” Ind. Code § 35-41-2-2(b).
[6] Hooker contends the evidence is insufficient to support his conviction, arguing
the State failed to meet its burden of disproving his mistake of fact defense
beyond a reasonable doubt. Pursuant to Indiana Code section 35-41-3-7, a
mistake of fact defense “is a defense that the person who engaged in the
prohibited conduct was reasonably mistaken about a matter of fact, if the
mistake negates the culpability required for commission of the offense.”
When the State has made a prima facie case of guilt, the burden
is on the defendant to establish an evidentiary predicate of his
mistaken belief of fact, which is such that it could create a
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reasonable doubt in the fact-finder’s mind that the defendant had
acted with the requisite mental state. The State retains the
ultimate burden of proving beyond a reasonable doubt every
element of the charged crime, including culpability or intent,
which would in turn entail proof that there was no reasonably
held mistaken belief of fact. In other words, the State retains the
ultimate burden of disproving the defense beyond a reasonable
doubt. The State may meet its burden by directly rebutting
evidence, by affirmatively showing that the defendant made no
such mistake, or by simply relying upon evidence from its case-
in-chief.
Saunders v. State, 848 N.E.2d 1117, 1121 (Ind. Ct. App. 2006) (citations
omitted), trans. denied.
[7] Whether a defendant made a mistake of fact is a question for the finder of fact.
Id. On appeal, we review the issue under the same standard we generally
review a challenge to the sufficiency of the evidence. Id. We neither reweigh
the evidence nor assess witness credibility. Id. We look only to the probative
evidence supporting the judgment and the reasonable inferences from that
evidence to determine whether a reasonable trier of fact could conclude the
defendant was guilty beyond a reasonable doubt. Id. We will uphold a
conviction if there is substantial evidence of probative value to support it. Id.
[8] At trial, Vick testified he used the vehicle daily to get to and from work.
Hooker requested to borrow the vehicle to run to his mother’s house and Vick
permitted him to use the vehicle for that purpose. In addition, Vick needed the
vehicle for work the next day, and expecting Hooker to return with the vehicle
later that day, Vick told Hooker he would see him “in a little bit.” Tr. at 7.
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When Hooker did not return, Vick made several attempts to contact him, but
Hooker did not return Vick’s calls. Vick only heard from Hooker and received
his vehicle after the vehicle was reported as stolen, Vick discovered the vehicle’s
whereabouts, law enforcement stopped the vehicle, and Hooker was arrested.
Hooker testified he used the vehicle to run a few errands and he honestly
believed he could borrow the vehicle for a couple days because (1) he and Vick
had been friends for over thirty years, (2) Vick did not need the vehicle because
Vick was injured and was having either Hooker or another man drive him to
and from work, and (3) Vick did not tell him when to return the car. The fact-
finder was not required to believe Hooker’s testimony and his argument on
appeal invites us to reweigh the evidence and reassess witness credibility, which
we will not do. As the trial court stated in finding Hooker guilty,
Mr. Hooker you [sic] testimony was that you needed to run a few
places and you needed to run some errands. And it was Mr. Vick
that testified that you were going to run over to your mother’s
place. I find it really odd and when I look at the totality of the
circumstances that a couple of guys who’ve been buddies for 30
some years and you’re living with him, you’re staying the night
there, you’ve been staying the night there. You borrow the truck
to go do a couple of things and then you don’t come back to stay
the night anymore. You don’t answer any phone calls, you don’t
contact him, you don’t take his calls, and he has to go to the
drastic step of filing a police report and then just happens upon
you out on a public roadway, and has to call the police to get his
vehicle back. Those things that you’re telling me, that there’s no
end date, that there’s a mistake of fact; I think that your own
testimony extinguishes that defense as far as—extinguishes it—
that there being a mistake of fact. . . . I think the State has
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proven it beyond a reasonable doubt. You had no intention of
taking that truck back to him . . . .
Id. at 24-25. We conclude the State presented sufficient evidence to negate
Hooker’s mistake of fact defense.
II. Sentencing
A. Standard of Review
[9] Sentencing decisions include the imposition of fees and costs. Berry v. State, 950
N.E.2d 798, 799 (Ind. Ct. App. 2011). A trial court’s sentencing decision is
reviewed under an abuse of discretion standard. McElroy v. State, 865 N.E.2d
584, 588 (Ind. 2007). “An abuse of discretion has occurred when the
sentencing decision is clearly against the logic and effect of the facts and
circumstances before the court, or the reasonable, probable, and actual
deductions to be drawn therefrom.” Id. at 588 (citation and internal quotation
marks omitted).
B. Probation Conditions
[10] Hooker argues the trial court abused its discretion in sentencing him to
probation for the sole purpose of completing a substance abuse evaluation and
treatment. Specifically, he contends there is no evidence he had a substance
abuse problem either at the time he committed the crime or at sentencing and
therefore the condition that he submit to a substance abuse evaluation and
participate in random drug testing is based on pure speculation. Although
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neither party addresses the issue of mootness, we conclude Hooker’s claim in
this regard is moot.
[11] Generally, an issue is deemed moot and usually dismissed when a court is
unable to render effective relief to a party. Bell v. State, 1 N.E.3d 190, 192 (Ind.
Ct. App. 2013). The trial court sentenced Hooker to 363 days of probation on
January 27, 2016. The trial court noted if Hooker completed a substance abuse
evaluation and treatment was not deemed necessary, it would discharge him
from probation. On March 18, 2016, Hooker completed a substance abuse
evaluation and he was not referred to treatment. On April 5, 2016, at the
probation department’s request, the trial court discharged Hooker from
probation. Therefore, this allegation of error is moot. See Tharp v. State, 942
N.E.2d 814, 816 n.1 (Ind. 2011) (holding a probationer’s challenge to a
condition of his probation was moot in part because the probationer had been
discharged from probation).
[12] We further acknowledge Indiana courts have long recognized a case may be
decided on its merits under an exception to the general rule when the case
involves questions of great public interest. Bell, 1 N.E.3d at 192. However,
given the fact neither party addresses the issue of mootness and Hooker does
not detail the relief he seeks on this claim, we opt not to address whether the
trial court abused its discretion in ordering Hooker to submit to a substance
abuse evaluation and to participate in random drug testing as conditions of his
probation.
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C. Probation Fees
[13] Hooker argues the trial court abused its discretion in ordering him to pay
probation fees in excess of statutory limits. Generally, a trial court must impose
probation user’s fees upon an individual who is placed on probation after being
convicted of a felony. Ind. Code § 35-38-2-1(b). However, where, as here, a
person is convicted of a misdemeanor, the trial court has discretion to impose
probation user’s fees. Ind. Code § 35-38-2-1(b).
In addition to any other conditions of probation, the court may
order each person convicted of a misdemeanor to pay:
(1) not more than a fifty dollar ($50) initial probation
user’s fee;
(2) a monthly probation user’s fee of not less than ten
dollars ($10) nor more than twenty dollars ($20) for each
month that the person remains on probation;
***
(4) an administrative fee of fifty dollars ($50)[.]
Ind. Code § 35-38-2-1(e).
[14] Despite the trial court imposing a sliding fee scale on Hooker’s probation fees,
the probation department imposed Adult Probation Monthly and Initial User
Fees totaling $281.30. Even assuming the probation department imposed the
maximum amount on both fees—in light of the time period Hooker actually
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served probation—the maximum fees imposed should have totaled no more
than $130.1 See infra note 3. Thus, we conclude the amount of probation fees
imposed exceeded the statutory authority set out in Indiana Code section 35-38-
2-1(e).2
D. Indigency Hearing
[15] Hooker also argues the trial court abused its discretion in not holding an
indigency hearing prior to his successful discharge from probation. We agree.
[16] In Johnson v. State, 27 N.E.2d 793 (Ind. Ct. App. 2015), Johnson was convicted
of a Class A misdemeanor and a Class C misdemeanor. The trial court found
Johnson to be indigent for court costs and other fees and ordered a sliding fee
scale for probation fees, but delayed making an indigency determination until
more information regarding his financial situation came to light. Ultimately,
Johnson was assessed probation fees, which he had not yet paid at the time of
his appeal. On appeal, Johnson argued the trial court abused its discretion in
ordering him to pay probation fees without first conducting an indigency
1
In reaching this sum, we give the probation department the benefit of the doubt and assume the department
was entitled to impose the maximum monthly user’s fee for January, February, March, and April.
Therefore, the total maximum monthly user’s fee should total no more than $80. This sum, coupled with a
maximum initial user’s fee of $50, gives us a total of $130. We further note it appears the probation
department assessed a year’s worth of probation fees at the maximum amount. Hooker was sentenced to one
year of probation. If he served the entirety of his sentence on probation with the maximum user’s fees, he
could have been assessed probation user’s fees of $50(1) + $20(12), which equals $290—an amount just $8.70
more than what Hooker was assessed.
2
The State argues this issue is waived because Hooker did not object to the imposition of fees at the
sentencing hearing. However, Hooker did not have knowledge of the erroneous fees assessed by the
probation department until after he was successfully discharged from probation. For this reason, the State’s
argument fails.
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hearing. We acknowledged Indiana Code section 33-37-2-3 requires a trial
court to conduct an indigency hearing if it imposes costs upon a defendant. Id.
at 794. However, we further acknowledged the statute does not dictate when
the indigency hearing should be held. Id. at 794-95. Because a trial court has
the authority to wait and see if a defendant can pay probation fees before it
finds a defendant indigent, coupled with the fact a trial court has a duty to
conduct an indigency hearing at some point in time, we held, “At the latest, an
indigency hearing for probation fees should be held at the time a defendant
completes his sentence.” Id. at 795. We therefore remanded to the trial court
to conduct an indigency hearing upon the completion of Johnson’s sentence.3
[17] Similar to Johnson, the trial court found Hooker to be indigent for court costs
and did not assess a fine. However, the trial court did not find Hooker to be
indigent for probation fees and ordered he be placed on a sliding fee scale,
directing Hooker to “work with probation, tell them about you know, your
lack—I understand, you’re in construction and it’s a slow time. You don’t have
any income right now, they’re going to be able to adjust your fees accordingly.”
Tr. at 29. As noted above, the probation department did not adjust Hooker’s
fees accordingly. In addition, the trial court did not hold an indigency hearing
prior to Hooker’s successful discharge from probation. We therefore conclude
3
We further note Johnson was assessed a year’s worth of probation fees despite only serving five months of
probation; Johnson only served five months because his probation was revoked. We found this assessment
was made in error and remanded to the trial court to recalculate the amount of fees owed pursuant to the
amount of time Johnson actually served on probation. Johnson, 27 N.E.3d at 795. Johnson therefore stands
for the proposition probation fees must reflect the amount of time a defendant actually serves on probation.
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the trial court abused its discretion in not holding an indigency hearing and we
remand to the trial court to conduct an indigency hearing and determine the
amount of probation fees owed to correspond with the amount of time Hooker
actually served on probation.
Conclusion
[18] The State presented sufficient evidence to rebut Hooker’s mistake of fact
defense and we therefore affirm his conviction. However, the trial court abused
its discretion in imposing probation fees without an indigency hearing and we
therefore remand to the trial court with instructions to hold an indigency
hearing and assess fees consistent with this opinion.
[19] Affirmed and remanded.
Mathias, J., and Brown, J., concur.
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