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Votra v. State

Court of Appeals of Indiana

April 16, 2019

Mark Lee Votra, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff.

          Appeal from the Madison Circuit Court The Honorable David A. Happe, Judge Trial Court Cause No. 48C04-1210-FB-2003

          Attorney for Appellant Richard B. Walker Anderson, Indiana

          Attorneys for Appellee Curtis T. Hill, Jr. Attorney General of Indiana Ian A. T. McLean Supervising Deputy Attorney General Indianapolis, Indiana

          DARDEN, SENIOR JUDGE.

         Statement of the Case

         [¶1] Mark Lee Votra appeals the trial court's imposition of the balance of his previously suspended sentence after concluding that Votra had violated the terms of his probation on two occasions. We affirm.

         Issue

         [¶2] Votra presents two issues for our review which we consolidate and restate as the following question: Did the trial court abuse its discretion in the admission of certain evidence at the hearing for the alleged probation violations?

         Facts and Procedural History

         [¶3] On February 11, 2013, Votra pleaded guilty to dealing in methamphetamine, a Class B felony, pursuant to a plea agreement. The trial court sentenced him to eighteen years in the Department of Correction, with eight years suspended to probation, and with credit for 111 actual days served. Among the terms of Votra's conditions of probation was the requirement that he not violate the laws of Indiana or the United States and that he behave well in society.[1] Votra served the executed portion of his sentence and was released to probation.

         [¶4] On January 11, 2018, the probation department filed a notice of violation of the terms of Votra's probation. That notice, as amended, alleged that on January 9, 2018, Votra violated the conditions of his probation by committing the new criminal offenses of dealing in cocaine, a Level 2 felony; possession of a narcotic drug, a Level 4 felony; possession of methamphetamine, a Level 4 felony; and possession of paraphernalia, a Class C misdemeanor. Defendant was arrested on January 9, 2018. These charges against Votra were filed in Madison County under cause number 48C04-1801-F2-84 (F2-84) on January 10, 2018.

         [¶5] The notice further alleged that on March 14, 2018, Votra had violated the conditions of his probation by committing the new criminal offenses of possession of methamphetamine, a Level 6 felony; maintaining a common nuisance, a Level 6 felony; possession of marijuana, a Class B misdemeanor; unlawful possession of a syringe, a Level 6 felony; possession of a controlled substance, a Level 6 felony; and possession of paraphernalia, a Class C misdemeanor. These charges were also filed in Madison County, but under cause number 48C05-1803-F6-754 (F6-754) on March 20, 2018.

         [¶6] On May 1, 2018, the trial court held an evidentiary hearing on the amended petition. During the hearing, the State offered Exhibit 1, the affidavit of probable cause in F2-84. The affidavit set forth allegations of an encounter between Votra and law enforcement officers outside Votra's apartment on January 9, 2018. Votra was found to be in possession of a Crown Royal bag. When law enforcement officers examined the bag, they discovered numerous bags of a crystal substance, crystal rocks, a white powder substance, and cut straws with residue. Additionally, the bag contained a digital silver scale and a plastic container in which there were numerous bags of a crystal substance and crystal rocks.

         [¶7] Officer Matthew Mills of the Elwood Police Department prepared the probable cause affidavit. He stated that he had field tested the crystal substance, which tested positive for methamphetamine. He also tested the white powder, which tested positive for cocaine. Officer Mills used a digital scale and found that the crystal substance weighed approximately 45.24 grams. The white powder weighed approximately 11.3 grams. Officer Mills stated that Votra admitted he knew the Crown Royal bag contained methamphetamine when he took possession of it, but claimed that the bag had been placed in his jacket pocket by someone else.

         [¶8] Later with respect to F2-84, officers obtained a search warrant for Votra's apartment. They found numerous items of paraphernalia, including smoking devices (some containing residue), and two of which contained residue that field tested positive for methamphetamine. They also discovered 215 capsules, later identified as Gabapentin, a prescription-only medication.

         [¶9] The State also offered Exhibit 2 at the evidentiary hearing. The exhibit was the affidavit of probable cause filed in F6-754. The affidavit, prepared by Officer Matthew Walker of the Elwood Police Department, described his encounter with Votra on March 14, 2018. Officer Walker was accompanying the Madison County Unified Courts Adult Probation Services Department during a home visit on that date.

         [¶10] Officer Walker was shown a box found in one of two bedrooms in the residence. The box contained narcotics and paraphernalia. In the back bedrooms of the residence, probation officers located ten clear plastic baggies containing marijuana, which appeared to be packaged for sale; a clear plastic baggie and a clear container holding multiple burnt marijuana cigarettes; a clear plastic baggie containing four green tablets labeled MYLAN 457, (later identified as one-milligram tablets of Lorazepam, a Schedule IV Controlled Substance); a clear plastic baggie containing four and a half white tablets labeled 54 411, later identified as buprenorphine hydrochloride 8M6 (also known as Suboxone, a Schedule III Controlled Substance); five clear baggies containing a white powdery substance which field tested positive for methamphetamine; four marijuana smoking devices, including three devices containing burnt marijuana; several packages of rolling papers; three glass smoking devices typically used to consume methamphetamine, which held a white powdery substance; and a hypodermic syringe.

         [¶11] Votra told the officers he lived at the residence located at 121 S. K Street since his release from jail. He claimed that he did not sleep in either of the bedrooms but, instead, slept in the living room. He claimed that the woman present at the residence, Lorrie Wyatt (who happened to be his girlfriend), slept in one of the bedrooms. He denied that any of the contraband belonged to him. Wyatt, on the other hand, told officers that Votra slept with her in the back bedroom. Property belonging to both Votra and Wyatt was found in the ...


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