MOORE v. STATE (2025)

MEMORANDUM DECISION

Case Summary

[1] A trial court determined that Joshua Lamar Moore ¹ violated his probation for committing several new offenses, namely unlawful possession of a firearm, resisting law enforcement, and possession of marijuana, and revoked the remainder of his previously suspended sentence. Moore asserts that the trial court's findings as to possession of marijuana and unlawful possession of a firearm “should be reversed for lack of evidence” and that remand is necessary “to allow the court to redetermine the appropriate sanction.” Appellant's Brief at 5.

[2] We affirm.

Facts & Procedural History

[3] On June 4, 2019, Moore pled guilty in the Madison Circuit Court (the trial court) to Level 4 felony burglary and Level 6 felony theft. In July 2019, the trial court sentenced him to an aggregate term of six years, with two years executed and four years suspended to probation.

[4] In November 2021, the State charged Moore in Marion County with Class A misdemeanor resisting law enforcement and Class B misdemeanor criminal mischief. On November 17, the State filed a notice of probation violation and, in January 2022, Moore admitted to violating his probation. The trial court revoked six months of his previously suspended sentence, ordering the six months to be served on home detention.

[5] On or about January 17, 2024, Marion Police Department officers were dispatched to a residence on a report of shots fired. Moore was determined to be a suspect in that incident, and Officer Steven Moore drove to a different residence, in search of Moore or his vehicle. Upon arriving, Officer Moore saw a vehicle registered to Moore parked outside the home. Additional officers arrived on the scene, knocked, and announced their presence. No one answered the door, but, looking through windows, officers saw Moore and a female walking around inside. At one point, Officer Moore observed Moore standing on the stairs and holding what appeared to be “a black coated handgun in his hand.” Transcript at 39.

[6] The officers continued to knock and announce for a time, and although one officer spoke to Moore through a window, Moore refused to exit the residence. Given the circumstances, including that Moore was seen inside with a handgun, police summoned the SWAT team to the scene. Eventually, Moore exited before SWAT made a forced entry.²

[7] Although “mostly cooperative” after initially coming outside, Moore then refused to enter the police car. Id. at 41. He was “arguing and yelling” with officers and “pushing himself against [them]” to avoid getting in the vehicle and had to be “forced” into it. Id. at 26, 41, 43. A search warrant was executed at the residence. When Officer Price, who had been trained in detecting the odor of marijuana and had nineteen years of experience as a police officer, entered a child's bedroom, he noticed that the room smelled of marijuana. He found a “green leafy substance” that appeared to him to be marijuana hidden under the mattress of a pack ’n play. Id. at 27-28. On the front porch of the residence, Officer Price found multiple spent shell casings, one 9mm and six .22 caliber.

[8] The State charged Moore in Grant County with Level 4 felony unlawful possession of a firearm, Level 5 felony criminal recklessness, Level 6 felony possession of a narcotic drug, Level 6 felony intimidation, Level 6 felony neglect of a dependent, Class A misdemeanor resisting law enforcement, Class B misdemeanor possession of marijuana, and Class C misdemeanor possession of paraphernalia. On January 23, 2024, the State filed a notice of probation violation alleging that Moore had committed the new offenses.

[9] The trial court held an evidentiary hearing on October 11, 2024. At the beginning of the hearing, the State advised that it was narrowing the probation revocation allegations to unlawful possession of a firearm, resisting law enforcement, and possession of marijuana.

[10] Sergeant Cody Weigle, who had prepared a written investigation report of the January 17 incident, was on military deployment at the time of the hearing. Officers Price and Moore each testified that Sgt. Weigle took part in the search, and they knew him as an honest officer whose reports were accurate. The State offered the report into evidence, and Moore objected, arguing that it was not substantially reliable hearsay and that he had no opportunity to cross-examine Sgt. Weigle. The trial court ultimately overruled Moore's objection finding that, in this case, “we do have multiple witnesses testifying to what they saw” at the residence, and the court admitted Sgt. Weigle's written report into evidence. Transcript at 47. In the report, Sgt. Weigle described finding, in the closet of an adult bedroom, a plastic baggie with a “green organic substance” that smelled and looked like marijuana according to his training and experience, and that, inside that baggie, was a smaller baggie containing a “tan-colored, powdery substance” consistent with what he believed to be heroin. Exhibit Vol. at 5. Sgt. Weigle reported that he also found a box of .22 caliber bullets in the same closet. In a bathroom, he found a Ruger 9mm pistol hidden in an air vent above the shower.

[11] The trial court found that the State had met its burden “as to all three” of the alleged offenses – that is, “gun, marijuana, resisting.” Transcript at 53. The court revoked the remainder of Moore's suspended sentence and ordered him to serve three and one-half years in the Indiana Department of Correction. Moore now appeals.

Discussion & Decision

[12] Probation is a matter of grace left to trial court discretion, not a right to which a criminal defendant is entitled. Cain v. State, 30 N.E.3d 728, 731 (Ind. Ct. App. 2015), trans. denied. “In a sense, all probation requires ‘strict compliance’ because ․ once the trial court extends this grace and sets its terms and conditions, the probationer is expected to comply with them strictly.” Id. at 731-32.

[13] Probation revocation is a two-step process. First, the trial court must make a factual determination that a violation of a condition of probation occurred; second, if a violation is found, the trial court must determine the appropriate sanction for the violation. Id. at 732. A probation revocation hearing is civil in nature, and the State's burden is to prove the alleged violations only by a preponderance of the evidence. Id. The trial court may consider “any relevant evidence bearing some substantial indicia of reliability.” Id. at 731.

[14] Our review of probation revocation determinations is well settled:

Violation determinations and sanctions are reviewed for abuse of discretion. An abuse of discretion occurs where the decision is clearly against the logic and effect of the facts and circumstances. We consider only the evidence most favorable to the judgment without reweighing that evidence or reassessing the credibility of the witnesses. 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 732 (citations and quotations omitted). “Violation of a single term or condition of probation is sufficient to revoke probation.” Id.

[15] Moore asserts that the State did not present sufficient evidence to support the trial court's finding of violation for possession of marijuana, arguing that “the evidence in this case falls short even of [the] lesser burden of proof” applicable to probation revocation proceedings. Appellant's Brief at 13. Specifically, Moore argues that the State did not show that the substance found was, in fact, marijuana, and that even if it was marijuana, there is no evidence that he actually or constructively possessed it, as he was not the only adult present in the residence at the time and there was no evidence as to who leased the house or if Moore's personal belongings were there.

[16] Even if we agreed with Moore that the State did not present sufficient evidence to support the trial court's finding concerning possession of marijuana – and we make no such determination – Officer Moore testified to observing Moore inside the residence with a black handgun in his hand. We agree with the State that “this was an obvious and undeniable violation of Moore's probation.”³ Appellee's Brief at 15. And, as acknowledged by Moore, “a violation of any condition is enough to support revocation of a suspended sentence.” Appellant's Brief at 20.

[17] Furthermore, the handgun offense aside, Officers Price and Moore each testified that Moore refused to get into the police car and had to be forced into it. Moore does not expressly challenge the sufficiency of the evidence to support the trial court's finding of violation for resisting; rather, he argues that “the resisting law enforcement violation was minor” and that – because the other two violations are not supported by the evidence – remand is warranted “so [the court] can redetermine if a sanction of three and a half years is appropriate for such a minor matter.” Id. at 9, 21. Remand is unnecessary, however.

[18] A trial court's sentencing decisions for probation violations are reviewed for abuse of discretion. Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). Once a trial court has exercised its grace by ordering probation rather than incarceration, the judge has considerable leeway in deciding how to proceed. Id. Here, Moore's probation was already revoked once, with the trial court ordering him to serve six months on home detention. And before the expiration of his remaining probation, Moore was charged with multiple offenses stemming from a shots fired incident that ultimately resulted in a SWAT standoff.

[19] As discussed, the State presented sufficient evidence from which the trial court could find by a preponderance of the evidence that Moore violated his probation by, at a minimum, unlawfully possessing a handgun and resisting law enforcement. The trial court's decision to revoke Moore's probation and order him to serve what was left of his suspended sentence was not an abuse of discretion.

[20] Judgment affirmed.

FOOTNOTES

1.   The record reflects that, sometime before June 14, 2024, Moore legally changed his name “back to [his] birth name,” Joshua Davis. Transcript at 7.

2.   A female and a child also exited the residence at some point.

3.   Moore also argues that the investigation report prepared by Sgt. Weigle was not substantially reliable hearsay, the trial court erred in admitting it, and, therefore, the possession of a firearm violation was not supported by the evidence. We need not reach Moore's argument, however, as we have found that Officer Moore's testimony to seeing Moore in the residence with a black handgun in his hand provided sufficient evidence to support the possession of a firearm violation.

Altice, Chief Judge.

Brown, J. and Tavitas, J., concur.