MEMORANDUM DECISION FILED
Nov 14 2017, 10:10 am
Pursuant to Ind. Appellate Rule 65(D),
CLERK
this Memorandum Decision shall not be Indiana Supreme Court
Court of Appeals
regarded as precedent or cited before any and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Yvette M. LaPlante Curtis T. Hill, Jr.
Evansville, Indiana Attorney General of Indiana
Caroline G. Templeton
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Gordon Michael Vanbibber, November 14, 2017
Appellant-Defendant, Court of Appeals Case No.
82A01-1705-CR-1024
v. Appeal from the Vanderburgh
Circuit Court
State of Indiana, The Honorable David D. Kiely,
Appellee-Plaintiff Judge
The Honorable Kelli E. Fink,
Magistrate
Trial Court Cause No.
82C01-1607-F5-4364
Altice, Judge.
Case Summary
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[1] Gordon Vanbibber appeals the revocation of his probation, arguing that the
evidence is insufficient to support a finding that he violated the terms of his
probation.
[2] We affirm.
Facts & Procedural History
[3] On July 29, 2016, Vanbibber was charged with Count I, battery by means of a
deadly weapon, a Level 5 felony; Count II, attempted strangulation, a Level 6
felony; and Count III, resisting law enforcement as a Class A misdemeanor.
On October 18, 2016, Vanbibber pled guilty to Counts I and III, and Count II
was dismissed. On January 24, 2017, the trial court sentenced Vanbibber to
two years for the battery conviction and a concurrent one-year sentence for the
resisting law enforcement conviction. Vanbibber was given credit for serving
108 days and the balance of his sentence was suspended to Drug Abuse
Probation Services (DAPS) and Alcohol Abuse Probation Services (AAPS).
Vanbibber was ordered to comply with whatever treatment was deemed
appropriate.
[4] On February 6, 2017, the State filed a petition to revoke probation, alleging that
Vanbibber failed to report for his random urine screen, his daily breathalyzer,
and another appointment. After admitting to the violation, Vanbibber was
ordered to serve three actual days at the Vanderburgh County Jail and then
return to probation. The State filed a second petition to revoke probation on
February 10, 2017, after Vanbibber tested positive for cocaine. Vanbibber
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admitted to using cocaine. The trial court ordered Vanbibber released from
custody and that he report to his probation officer to continue his term of
probation. On March 7, 2017, the State filed a third petition to revoke
Vanbibber’s probation based on another positive test for cocaine. After
Vanbibber admitted to using cocaine, the trial court ordered him held without
bond until “a bed is available” with the Stepping Stone drug treatment program.
Appellant’s Appendix at 10. The court further ordered Vanbibber to “successfully
complete program at Stepping Stone and return to Probation.” Id.
[5] On March 23, 2017, Vanbibber reported to Stepping Stone. As part of the
admittance process, Vanbibber’s possessions were searched and staff located a
condom. Vanbibber indicated that he hoped he would have a chance to use it
while at the facility. Although not yet aware of the facility’s rules, Vanbibber’s
comment set the tone for his continued interactions with staff members.
[6] During his intake at the facility, Vanbibber was required to sign initial
paperwork. Once in the female staff member’s office, he was informed that it
was a quick process. Vanbibber responded that the staff member “could have
just come down to his room” and that it was “just wishful thinking” that the
staff member would come to his room. Supplemental Transcript Vol. II at 20.
The staff member interpreted the latter comment as “sexual innuendo.” Id.
The staff member confronted Vanbibber and informed him that the comment
was inappropriate and that further inappropriate comments could result in
discharge from the program.
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[7] Also on his first day at the facility, another staff member informed Vanbibber of
the program rules, including that it was expected that he interact appropriately
with others and that further inappropriate comments could be grounds for
discharge. Later that same day, Vanbibber asked a support staff member if
signing a release of information meant that the staff member’s daughter, of
whom he had seen a picture, could call him. Vanbibber was reminded that
inappropriate comments could result in removal and it was recommended that
he avoid contact with women. In addition, Vanbibber was accused of making
inappropriate sexual comments to female patients and of inappropriately
touching one of them.
[8] As a result of Vanbibber’s inappropriate conduct, he was discharged from
Stepping Stone’s in-patient treatment program on March 27. Stepping Stone
indicated, however, that Vanbibber could continue to participate in an out-
patient program. Upon being informed of Vanbibber’s discharge from the in-
patient program, the State filed a fourth petition to revoke probation, alleging
that he failed to comply with treatment. Vanbibber denied the allegation.
[9] The trial court held a fact-finding hearing on April 20, 2017. On April 26, the
trial court entered an order finding that the State had established the allegations
in the petition to revoke by a preponderance of the evidence. On May 5, 2017,
the trial court held a dispositional hearing, during which the court expressly
found that Vanbibber “[i]s not a good candidate for probation because he’s had
so many violations.” Sentencing Transcript at 7. The trial court then ordered
Vanbibber to serve 450 days of his sentence on Count I at the Department of
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Correction and a concurrent one year executed sentence on Count III.
Vanbibber now appeals. Additional facts will be provided as necessary.
Discussion & Decision
[10] Vanbibber argues that the State presented insufficient evidence to support the
revocation of his probation. A probation revocation hearing is civil in nature,
and the State must prove the alleged violation by a preponderance of the
evidence. Mateyko v. State, 901 N.E.2d 554, 558 (Ind. Ct. App. 2009), trans.
denied. When reviewing a claim of insufficient evidence to support a trial
court’s decision to revoke probation, we consider only the evidence most
favorable to the judgment, and we neither reweigh the evidence nor judge the
credibility of witnesses. Id. Revocation is appropriate if there is substantial
evidence of probative value to support the trial court’s conclusion that the
probationer has violated the terms of probation. Lightcap v. State, 863 N.E.2d
907, 911 (Ind. Ct. App. 2007).
[11] Vanbibber asserts that the State has not shown that he violated a rule of
probation by failing to participate in drug treatment. He notes that aside from
the conduct described above, he participated in the treatment programs offered
by Stepping Stone during the few days he was at the facility. He further notes
that although Stepping Stone discharged him from the in-patient treatment
program, he was offered treatment through its out-patient program. Vanbibber
asserts that there is nothing in the record indicating that he was unwilling to
participate in the out-patient treatment or explore other treatment options. He
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therefore argues that the trial court abused its discretion by revoking his
probation.
[12] Here, the basis for the petition to revoke probation was that Vanbibber “failed
to comply with treatment” in that he was “discharged unsatisfactorily from
residential treatment at Stepping Stone” because of inappropriate behavior.
Appellant’s Appendix at 88, 90. The State asserts that such was a violation of
probation rule number two, which required Vanbibber to comply with the rules
of the treatment facility. Specifically, Vanbibber was ordered to “follow all
orders or instructions, written or verbal, of your probation officer and other
designated program office(s) to include, evaluation, counseling and treatment.”
Appellant’s Appendix at 90.
[13] The State’s evidence established that Vanbibber was made aware on a least
three separate occasions that inappropriate comments could result in his
discharge from the program. One such warning stemmed from Vanbibber’s
comments after a condom was found among his personal belongings. A staff
member reported that she felt his comments were inappropriate. A second
warning came after Vanbibber made comments to a staff member about
“wishful thinking” of her coming to his room. Supplemental Transcript Vol. II at
20. The staff member interpreted such comment to be sexual innuendo and
confronted him. Vanbibber was warned a third time about the consequences of
his inappropriate comments after he asked a support staff member if her teenage
daughter, whose picture was within view, could call him during his stay at the
facility. Whether in jest or not, the staff member found the comments to be
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unsettling. In addition to his inappropriate behavior toward Stepping Stone
staff members, the State also presented evidence of reports that Vanbibber made
inappropriate sexual comments to female patients. Vanbibber had been at
Stepping Stone for approximately four days when the decision was made to
discharge him from the in-patient program due to his inappropriate comments
and behavior.
[14] Here, Vanbibber was obligated by the terms of his probation to do more than
complete the program. He was required to follow the rules of the facility that
was providing him treatment. His failure to do so violated the terms of his
probation.
[15] We further note that upon finding that Vanbibber violated his probation a third
time, the trial court ordered that he be held without bond until “a bed is
available” with the Stepping Stone drug treatment program. Appellant’s
Appendix at 10. The trial court clearly indicated that Vanbibber receive
treatment on an in-patient basis. Vanbibber, however, was discharged
unsatisfactorily from the in-patient program. As alleged in the petition to
revoke his probation, Vanbibber failed to comply with this condition of his
probation.
[16] In sum, the evidence is sufficient to support the trial court’s finding that
Vanbibber violated the terms of probation. Thus, the trial court did not abuse
its discretion in revoking Vanbibber’s probation.
[17] Judgment affirmed.
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[18] Baker, J. and Bailey, J., concur.
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Gordon Michael Vanbibber v. State of Indiana (mem. dec.)
Combined Opinion