Court of Appeals of Indiana | Memorandum Decision 20A-CR-705 | October 21, 2020 Page 1 of 9

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

R. Patrick Magrath

Alcorn Sage Schwartz & Magrath, LLP

Madison, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Benjamin J. Shoptaw

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Jerry Lee Jones,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff,

October 21, 2020

Court of Appeals Case No.

20A-CR-705

Appeal from the Decatur Superior 

Court

The Honorable Matthew D. 

Bailey, Judge

Trial Court Cause No.

16D01-1810-F5-1373

Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-705 | October 21, 2020 Page 2 of 9

Case Summary and Issues

[1] Jerry Jones appeals the trial court’s partial revocation of his previously 

suspended sentence upon finding he had violated his probation, raising two 

issues for our review: whether the State proved he had violated a condition of 

his probation and whether the trial court abused its discretion in the sanction it 

imposed upon finding a violation. Concluding the State proved the violation by 

sufficient evidence and the trial court did not abuse its discretion in the sanction 

it imposed for the violation, we affirm.

Facts and Procedural History

[2] In August 2019, Jones pleaded guilty to fraud on a financial institution, a Level 

5 felony, and in October, was sentenced to three years, with 240 days to be 

executed and 855 days suspended to probation, with 360 of those probationary 

days subject to home detention. Jones began his probation on November 18, 

2019. Conditions of his probation and community corrections placement

included that he “not commit any criminal act or violate any traffic law[,]” not 

“possess or consume alcohol[,]” and that he “maintain the monitoring 

equipment in good condition.” Appellant’s Appendix, Volume 2 at 52-54.

[3] On November 26, 2019, the probation department filed a petition for revocation 

of probation, alleging Jones violated the conditions of his probation by: 

failing a [portable breathalyzer] test for .35% [blood alcohol 

level]. Mr. Jones allowed his ankle monitor to shut down on 4 

different days. Mr. Jones no showed his appointment with 
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Home Detention on 11/25/19. He was found by Case Manager 

Barkdull and Case Manager Adkins wa[l]king down Lincoln 

Street. On 11/26/19, at 12:43AM, a low battery alert was 

triggered for Mr. Jones. At 3:17AM, [the GPS manufacturer] 

was unable to connect to Mr. Jones[’] ankle monitor due to 

insufficient charging. When this Probation Officer was given the 

Incident Report, Mr. Jones’ ankle monitor was not showing a 

location.

Id. at 55. A supplemental petition for revocation was filed on December 3, 

2019 alleging Jones had violated the conditions of his probation by being 

charged with public nudity, a Class C misdemeanor. The trial court held a 

hearing on February 20, 2020, and after hearing testimony from Jones’ 

probation officer, his community corrections supervisor, the police officer who 

arrested Jones for public nudity, and Jones himself, the trial court found:

Jones did, in fact, commit the offense of public nudity. Based on 

that finding to be in violation of conditions of probation by 

committing a new offense. Also find he committed a technical 

violation of drinking alcohol while on probation. Also find the 

technical violation of failing to maintain the charge in his 

monitoring unit . . . . 

Based on those things, find Mr. Jones to be in violation of the 

conditions of his probation.

Transcript, Volume 2 at 29. The trial court noted that “the most basic 

condition of probation is not to commit a new criminal offense, . . . [a]nd so 

that is also in my view the most serious violation[.]” Id. at 30. The trial court 

ordered 720 days of Jones’ previously suspended sentence revoked, to be served 
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as an executed sentence in the Indiana Department of Correction (“DOC”), 

with probation to be terminated as unsuccessful. Jones now appeals.

Discussion and Decision

I. Standard of Review

[4] Probation revocation is a two-step process: first, the trial court determines 

whether a violation has occurred and second, the court determines whether the 

violation warrants revocation. Overstreet v. State, 136 N.E.3d 260, 263 (Ind. Ct. 

App. 2019), trans. denied. Upon revoking probation, the trial court may impose 

one of several sanctions provided by statute. Ind. Code § 35-38-2-3(h). We 

review a trial court’s revocation and sanction decisions for an abuse of 

discretion. Overstreet, 136 N.E.3d at 263. An abuse of discretion occurs when 

the decision is clearly against the logic and effect of the facts and circumstances 

before the court. Id.

II. Proof of Violation

[5] On appeal of a probation revocation decision, we consider only the evidence 

most favorable to the judgment without reweighing that evidence or judging the 

credibility of the witnesses. Murdock v. State, 10 N.E.3d 1265, 1267 (Ind. 2014). 

If substantial evidence of probative value supports the trial court’s decision that 

a defendant has violated any terms of probation, we will affirm its decision to 

revoke probation. Id.
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[6] Jones contends the State failed to prove he had violated the condition of his 

probation that he not commit any criminal act. “When a probationer is 

accused of committing a criminal offense, an arrest alone does not warrant the 

revocation of probation.” Jackson v. State, 6 N.E.3d 1040, 1042 (Ind. Ct. App. 

2014) (quotation omitted). Likewise, the mere filing of a criminal charge 

against a defendant does not warrant the revocation of probation. Martin v. 

State, 813 N.E.2d 388, 391 (Ind. Ct. App. 2004). Instead, the State must prove 

the elements of the criminal offense by a preponderance of the evidence. Heaton 

v. State, 984 N.E.2d 614, 617 (Ind. 2013); Ind. Code § 35-38-2-3(f). 

“Preponderance of the evidence” “simply means the greater weight of the 

evidence.” Kishpaugh v. Odegard, 17 N.E.3d 363, 373 (Ind. Ct. App. 2014) 

(quotation omitted). 

[7] The notice of probation revocation alleged Jones had committed the new 

criminal offense of public nudity. A person commits Class C misdemeanor 

public nudity by “knowingly or intentionally appear[ing] in a public place in a 

state of nudity[.]” Ind. Code § 35-45-4-1.5(b). “[N]udity” means “the showing 

of the human male . . . genitals, pubic area, or buttocks with less than a fully 

opaque covering[.]” Ind. Code § 35-45-4-1(d). Jones concedes the State proved 

that he was in a public place and that his genitals were exposed. Appellant’s 

Brief at 10. Jones argues only that the State failed to prove he knowingly or 

intentionally exposed himself because he explained at the revocation hearing 

that he was “having trouble keeping his multi-layered, baggy, thin clothing 

from falling on the windy day [and] that [his] mental health impaired his 
Court of Appeals of Indiana | Memorandum Decision 20A-CR-705 | October 21, 2020 Page 6 of 9

thinking.” Id. He contends the exposure was “inadvertent.” Tr., Vol. 2 at 28. 

This argument, however, asks that we reweigh the evidence in his favor, which 

we cannot do. Murdock, 10 N.E.3d at 1267.

[8] Lieutenant Joe Radcliff testified that he had encountered Jones in the morning 

on November 27, 2019, and Jones “had his pants up without having any issues, 

same weather conditions.” Tr., Vol. 2 at 21. Within an hour of this encounter, 

Lieutenant Radcliff received a dispatch report “of a male matching a 

description of Mr. Jones who I spoke with earlier at a gas station, same clothing 

description with his genitals exposed to passersby, motorists, citizens in the area 

of Main Street.” Id. at 16. When Lieutenant Radcliff located Jones, he 

observed Jones’ exposed penis. Lieutenant Radcliff testified that Jones was 

facing the roadway so passersby could see his exposed genitals, but when Jones 

saw him, he started to walk away and began to pull his pants up. The 

encounter was captured on Lieutenant Radcliff’s body camera and shown to the 

trial court. A person acts “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). 

Lieutenant Radcliff’s testimony—which the trial court specifically noted that it 

found credible, see Tr., Vol. 2 at 28—that Jones was on a public street exposing 

his penis and that he turned away and began pulling up his pants when he saw 

Lieutenant Radcliff approach is sufficient to prove by a preponderance of the 

evidence that Jones knowingly appeared in a public place in a state of nudity. 
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III. Sanction

[9] Jones also contends the sanction the trial court imposed was an abuse of 

discretion because it was the “result of technical violation[s] and in light of 

Jones’ limitations due to homelessness and mental illness.” Appellant’s Br. at 

11. The trial court found the commission of a new criminal offense to be the 

most serious violation, but also found that the State had proved he consumed 

alcohol1 and failed to maintain his electronic monitoring device in working 

condition.

[10] Jones’ argument is premised on his success in his first argument – that there was 

insufficient evidence that he committed a new offense. See id. at 13-14 (arguing 

that “[i]n light of the State’s failure to prove by a preponderance of the evidence 

that Jones intended to show his genitals,” the “purely technical nature” of his 

remaining violations do not warrant a sanction “in excess of eighty percent 

(80%) of his suspended time”). It is true, as Jones argues, that we have 

previously found an abuse of discretion when a trial court revokes the entirety 

of a suspended sentence for technical violations. See, e.g., Johnson v. State, 62 

N.E.3d 1224, 1231 (Ind. Ct. App. 2016) (holding it was an abuse of discretion 

to order the defendant to serve the entirety of his suspended sentence in the 

DOC given, among other things, the nature of his violations). However, Jones 

did not commit mere technical violations. As we determined above, the State 

1

Jones admitted to this violation. See Tr., Vol. 2 at 27.
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did prove by a preponderance of the evidence that Jones had committed a new 

criminal offense, and therefore, his violations were not merely technical 

violations and his proportionality argument is inapposite. 

[11] Probation is a matter of grace and a conditional liberty that is a favor, not a 

right. Cox v. State, 706 N.E.2d 547, 549 (Ind. 1999). “Once a trial court has 

exercised its grace by ordering probation rather than incarceration, the judge 

should have considerable leeway in deciding how to proceed.” Prewitt v. State, 

878 N.E.2d 184, 188 (Ind. 2007). Indiana Code section 35-38-2-3(h) offers the 

trial court the following options when it finds a defendant has violated the terms 

of his probation: (1) “[c]ontinue the person on probation, with or without 

modifying or enlarging the conditions[,]” (2) “[e]xtend the person’s 

probationary period for not more than one (1) year beyond the original 

probationary period[,]” or (3) “[o]rder execution of all or part of the sentence 

that was suspended at the time of initial sentencing.” Thus, a trial court has 

great latitude to fashion the terms of a probation violation sanction. 

[12] Here, less than two weeks after being placed on probation, Jones had consumed 

alcohol, his electronic monitoring unit shut down at least four times, he missed 

an appointment with his supervisor, and he committed a new offense by 

exposing himself on the street. The trial court was well within its discretion to 

determine that Jones had abused the grace previously offered to him and to 
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revoke a substantial portion of his previously suspended sentence.2 See Terpstra 

v. State, 138 N.E.3d 278, 289-90 (Ind. Ct. App. 2019) (affirming trial court’s 

imposition of entire previously suspended sentence because defendant’s 

commission of a new offense less than a year after being placed on probation 

was not a mere technical violation of the terms of probation), trans. denied.

Conclusion

[13] The State met its burden of proving by a preponderance of the evidence that 

Jones had violated his probation and the terms of his community corrections 

placement by committing a new criminal offense and the trial court therefore 

did not abuse its discretion in revoking his probation or in imposing a sanction 

for the violation. Accordingly, the judgment of the trial court is affirmed.

[14] Affirmed.

Crone, J., and Brown, J., concur.

2 We do acknowledge that the fact Jones was homeless and living in a shelter probably contributed to his 

failure to keep his electronic monitoring device charged and made home detention a dubious choice in the 

first place. However, the trial court did not revoke Jones’ probation and impose a sanction primarily because 

of that violation. Moreover, his mental health issues may have contributed to his behavior. Nonetheless, the 

State did prove a violation and it is possible that the DOC, a significant provider of mental health services, is 

the best place for Jones to be.