INDIANAPOLIS METROPOLITAN POLICE DEPARTMENT, Appellant-Respondent,
DONALD A. PROUT, Appellee-Petitioner
APPEAL FROM THE MARION SUPERIOR COURT. The Honorable Annie Christ-Garcia, Judge. Cause No. 49F24-1204-FD-22330.
ATTORNEYS FOR APPELLANT: JULIA BLACKWELL GELINAS, ANTHONY W. OVERHOLT, MAGGIE L. SMITH, EMILY K. CREMEANS, Frost Brown Todd LLC, Indianapolis, Indiana; AMANDA J. GRIFFITH, BRANDON P. ELWARD, Office of Corporation Counsel, City of Indianapolis.
ATTORNEY FOR APPELLEE: MICHAEL E. MORKEN, Indianapolis, Indiana.
CRONE, Judge. MAY, J., and BRADFORD, J., concur.
Donald A. Prout, a full-time deputy with the Marion County Sheriff's Office (" MCSO" ), also worked security part time at a grocery store and a bus station. An MCSO detective was asked to investigate accusations that Prout was being paid by MCSO while he was working his other jobs. The detective obtained documents from MCSO and Prout's other employers indicating that his work schedules overlapped on four occasions. Prout was asked to explain the discrepancies, but he refused. The detective filed a probable cause affidavit, which resulted in Prout being charged with four counts of class D felony theft. Those charges were later dismissed due to unspecified evidentiary problems.
Prout filed a petition to expunge his arrest record, asserting that the charges against him were dropped because no offense was committed and there was no probable cause. The Indianapolis Metropolitan Police Department (" IMPD" ) objected to Prout's petition. At a hearing on the petition, Prout presented evidence that his work schedules had not overlapped. The trial court issued an order granting Prout's petition, finding that he had committed no offense and that no probable cause existed to support either the filing or the prosecution of the charges.
On appeal, IMPD argues that the issue of whether probable cause existed to file charges is irrelevant and that Prout failed to carry his burden to establish that no probable cause existed when the charges were dismissed and that no offense was committed. We conclude that the trial court did not abuse its discretion in concluding that no offense was committed and therefore affirm.
Facts and Procedural History
Prout was hired by MCSO in 2006 and was a member of the STAR Team, which " would assist in serving particularly dangerous warrants." Tr. at 15. In 2011, the commanding officer of MCSO's criminal investigation section, Captain Michael Hubbs, asked Detective Sergeant (now Lieutenant) Wayne Sharp to investigate accusations that Prout " was being paid by the Sheriff's Department while working at other places[.]" Id. at 182. In addition to working full time for MCSO, Prout worked security part time for Kroger and Greyhound Bus Lines. Lieutenant Sharp obtained documents regarding Prout's work schedules at MCSO, Kroger, and Greyhound. Official MCSO time cards signed by both Prout and his supervisor, Sergeant Kenny Sanders, indicated that Prout worked his normal 3:00 p.m.-to-11:00 p.m. shift on October 27, 2011, and February 6, 7, and 27, 2012. Respondent's Ex. 1-3. A document from Kroger indicated that Prout worked from 4:53 p.m. to 12:00 a.m. on October 27, 2011. Respondent's Ex. 6. A document from Greyhound indicated that Prout worked from 8:30 a.m. to 4:00 p.m. on February 6, from 12:00 p.m. to 4:00 p.m. on February 7, and from 8:00 a.m. to 4:00 p.m. on February 27. Respondent's Ex. 7A.
Lieutenant Sharp also obtained Prout's computer-assisted dispatch (" CAD" ) records, which indicate an officer's location and activity (such as " marking" on and off duty) as recorded by the officer on a computer. The computer does not verify the
officer's actual location or activity, however. At the expungement hearing, Prout acknowledged that the CAD system could have allowed him to " be at the Greyhound [station] and mark on duty with the Sheriff's Department[.]" Id. at 96. Prout's CAD record for October 27, 2011, indicated that he marked on duty at 7:49 a.m. at MCSO's training facility on North Post Road and apparently marked himself out of his vehicle (" OUTVEH" ) at 4:48 p.m. Petitioner's Ex. I.
Based on the discrepancies among these documents, Lieutenant Sharp " concluded that there was overlapping hours and double play [sic]." Tr. at 188. Lieutenant Sharp attempted to discuss the discrepancies with Prout, who " said he had counsel and didn't want to visit with [him]." Id. at 191. On April 4, 2012, Lieutenant Sharp drafted ...