Court of Appeals of Indiana | Memorandum Decision 18A-CR-2928 | July 10, 2019 Page 1 of 7

MEMORANDUM DECISION

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

Barbara J. Simmons

Batesville, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Tiffany A. McCoy

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Jacob Shope,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

July 10, 2019

Court of Appeals Case No.

18A-CR-2928

Appeal from the Marion Superior 

Court

The Honorable Elizabeth A. 

Christ, Judge

Trial Court Cause No.

49G24-1705-F6-20242

Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2928 | July 10, 2019 Page 2 of 7

[1] Jacob Shope appeals the restitution order imposed by the trial court following 

his conviction for Level 6 Felony Operating While Intoxicated and 

Endangering a Person, arguing that the evidence was insufficient to support the 

restitution order and that the trial court erred by not inquiring into his ability to 

pay restitution. Finding the evidence sufficient and no error, we affirm.

Facts

[2] On the evening of May 24, 2017, Lakisha Covington was driving northbound 

on Shadeland Avenue in Indianapolis when she approached the 30th Street 

intersection. As she drove through the intersection while the light was green, a 

man later identified as Shope rode his bicycle directly in front of her, causing a 

traffic accident. Covington immediately stopped her car, got out to check on 

Shope, and called 911. Other bystanders also gathered around the scene. 

[3] Indianapolis Metropolitan Police Department Sergeant Michael Duke, a 

certified DUI Unit supervisor, was dispatched to the area and found Shope in 

the back of an ambulance. Sergeant Duke believed that Shope was intoxicated 

because his eyes were bloodshot, his behavior was erratic, and his breath 

smelled of alcohol. Shope quickly became “combative” with everyone around 

him and started yelling at medical personnel. Tr. Vol. II p. 32-33.

[4] With this information, Sergeant Duke decided to follow the ambulance to 

Eskenazi Hospital, where he continued his investigation of Shope. After 

Shope’s medical examination, Sergeant Duke spoke with Shope about the 
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2928 | July 10, 2019 Page 3 of 7

incident. Shope confessed that he had been drinking, so Sergeant Duke advised 

Shope about Indiana Implied Consent and asked the medical staff to perform a 

blood test. The results of that test showed that Shope’s blood had an alcohol 

concentration of 0.249 grams per 100 milliliters.

[5] Meanwhile, following the accident, Covington returned home and noticed that 

there was damage to the right side of her vehicle. Covington had the vehicle 

fixed, and her insurance paid for the necessary repairs. However, Covington 

was required to pay a $500 deductible for the claim. 

[6] On May 31, 2017, the State charged Shope with one count of Level 6 felony 

operating while intoxicated and endangering a person and one count of Level 6 

felony operating a vehicle with an ACE of 0.08 or more. Shope’s initial

February 6, 2018, trial resulted in a hung jury. Following Shope’s subsequent 

September 18, 2018, jury trial, he was found guilty as charged. At his October 

25, 2018, sentencing hearing, the following discourse regarding restitution took 

place: 

The Court: . . . State, do you have evidence you wish to present?

[The State]: Yes Judge. It would just be restitution information but 

that would be the only evidence we would present.

The Court: Have you had an opportunity to review the restitution 

information?

[Counsel for Shope]: I have Judge.

***
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2928 | July 10, 2019 Page 4 of 7

Just to be clear, as the court’s reviewing it, there are two amounts; 

there’s the amount that was covered by insurance and there’s the 

amount that is being requested by the victim and that’s the amount 

of her deductible, which was 500. That would be what we would 

be requesting is $500 for the victim and I believe that’s listed on 

page 4. 

The Court: And it’s check number—it’s identified as—not marked 

as page 4, but it’s the 4th page in the confidential packet, State’s 

Exhibit 1 and it has the blocked numbers—or the blocked letters, 

check # with the 526955 in the amount of $500.[1]

Id. at 80-81. Shope did not object to the trial court’s imposition of restitution or 

to the amount he would ultimately pay. In fact, Shope’s counsel stated that “we 

have no objection to $500 of restitution, if he is not on probation. Now, we 

think that if he is on probation that triggers a different restitution statute that 

requires the court to consider his ability to pay restitution[.]” Id. at 88. The trial 

court ordered that Shope pay restitution in the amount of $500 to cover

Covington’s deductible.

[7] The trial court then merged the two convictions into one conviction for Level 6 

felony operating while intoxicated and endangering a person. Finally, the trial 

court sentenced Shope to 365 days, with 352 days suspended to probation. 

Additionally, the trial court ordered that Shope attend an Advocates Against 

Impaired Driving (AAID) Destructive Decision Panel and that if Shope quickly 

 

1 The trial court never admitted “Exhibit 1” into evidence.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2928 | July 10, 2019 Page 5 of 7

paid the restitution and completed the AAID Panel, Shope’s probation would 

terminate early. Shope now appeals. 

Discussion and Decision

I. Sufficiency of Evidence

[8] First, Shope argues that the evidence was insufficient to support the trial court’s 

$500 restitution order. Specifically, Shope contends that the State failed to 

present sufficient evidence to show that Covington sustained any actual loss. 

[9] “A restitution order must be supported by sufficient evidence of actual loss 

sustained by the victim or victims of a crime.” Rich v. State, 890 N.E.2d 44, 49 

(Ind. Ct. App. 2008). “Evidence supporting a restitution order is sufficient ‘if it 

affords a reasonable basis for estimating loss and does not subject the trier of 

fact to mere speculation or conjecture.’” S.G. v. State, 956 N.E.2d 668, 683 (Ind. 

Ct. App. 2011) (quoting T.C. v. State, 839 N.E.2d 1222, 1227 (Ind. Ct. App. 

2005)).

[10] Indiana Code section 35-50-5-3(a)(1) specifies that a “[trial] court shall base its 

restitution order upon a consideration of: property damages of the victim 

incurred as a result of the crime, based on the actual cost of repair (or 

replacement if repair is inappropriate)[.]” Here, Shope argues that the evidence 

was generic because it only vaguely discussed Covington’s property damages 

and the $500 deductible for which she was trying to get reimbursed. He also 

notes that it was never admitted into evidence.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2928 | July 10, 2019 Page 6 of 7

[11] Immediately after the State and the trial court confirmed the $500 amount, 

Shope agreed that this was the proper restitution amount and did not object to 

the $500 he knew he would have to pay. See generally Morris v. State, 2 N.E.3d 7, 

9 (Ind. Ct. App. 2013) (holding that failure to object to being asked to pay 

restitution for expenses or to the “trial court’s consideration of the documents 

submitted before the sentencing hearing[]” constitutes waiver of a challenge to 

the award on appeal). Additionally, the State presented evidence in the form of 

a check detailing costs incurred by Covington as a result of the traffic accident.

[12] Therefore, in reviewing the sufficiency of the evidence to look for “any evidence 

supporting the trial court’s decision,” Gleason v. Bush, 689 N.E.2d 480, 484 (Ind. 

Ct. App. 1997), we find that the check and the ensuing discussion during 

sentencing constituted sufficient evidence to support the restitution order. 2

II. Inquiry

[13] Finally, Shope argues that the trial court erred when it did not inquire into his 

ability to pay the restitution amount. Specifically, Shope argues that the trial 

court ordered payment of restitution as a condition of his probation and was 

 

2

Shope directs our attention to two cases in which this Court held that the evidence was insufficient to 

support the restitution order. J.H. v. State, 950 N.E.2d 731 (Ind. Ct. App. 2011) (only evidence was conjecture 

on scraps of paper); Cooper v. State, 831 N.E.2d 1247 (Ind. Ct. App. 2005) (only evidence was an unsigned 

restitution claim form). Here, in contrast, the evidence was discussed at length and agreed upon by all parties, 

pointed to a concrete amount of actual losses ($500), and was documented during the sentencing hearing. 

Therefore, J.H. and Cooper are inapposite. 
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2928 | July 10, 2019 Page 7 of 7

therefore required to either hold a hearing or inquire into whether Shope could 

afford to pay the restitution amount. 

[14] If restitution is a condition of probation, then the trial court is required to hold a 

hearing or, at the very least, inquire into Shope’s financial status. Pearson v. 

State, 883 N.E.2d 770, 772 (Ind. 2008). If restitution is not a condition of 

probation, then the trial court is under no obligation to inquire into Shope’s 

financial status to determine if he could pay restitution. Id.

[15] Here, regardless of whether payment of restitution was a condition of Shope’s 

probation, the trial court conducted the necessary inquiry into Shope’s financial 

status. Towards the end of the sentencing hearing, the trial court asked Shope a 

series of questions about his residency, child support payments, current lack of 

income, and prospects for attaining another job in the near future. Tr. Vol. II p.

93-96. Though not a formal hearing, this dialogue between the trial court and 

Shope constituted the inquiry necessary to ensure that Shope had the financial 

ability to pay the $500 in restitution. 

[16] Therefore, any argument that the trial court did not conduct an inquiry into 

Shope’s financial status is unconvincing. 

[17] The judgment of the trial court is affirmed.

Najam, J., and Robb, J., concur.