Gordon Michael Vanbibber v. State of Indiana (mem. dec.)

Citation: Not availableDocket: 82A01-1705-CR-1024

Court: Indiana Court of Appeals; November 13, 2017; Indiana; State Appellate Court

Original Court Document: View Document

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Gordon Michael Vanbibber appealed the revocation of his probation, asserting insufficient evidence for the violation finding. The Indiana Court of Appeals affirmed the trial court's decision. Vanbibber had been charged on July 29, 2016, with several offenses, ultimately pleading guilty to battery by means of a deadly weapon (Level 5 felony) and resisting law enforcement (Class A misdemeanor) on October 18, 2016. He was sentenced to two years for the battery conviction and a concurrent one-year sentence for resisting law enforcement, with the latter part of his sentence suspended to Drug Abuse Probation Services (DAPS) and Alcohol Abuse Probation Services (AAPS).

On February 6, 2017, the State filed a petition to revoke his probation due to missed appointments and screenings, which Vanbibber admitted, leading to a brief jail sentence. A second petition was filed on February 10, 2017, after he tested positive for cocaine, which he also admitted. The trial court allowed him to continue probation after his release. A third petition was filed on March 7, 2017, following another positive cocaine test, resulting in his detention until a placement became available at the Stepping Stone drug treatment program.

Upon admission to Stepping Stone on March 23, 2017, Vanbibber's belongings were searched, revealing a condom, which he remarked he hoped to use at the facility. His comments, including a suggestion regarding a female staff member, were interpreted as sexual innuendos, leading staff to warn him about inappropriate behavior that could result in his discharge from the program.

On his first day at the treatment facility, Vanbibber was informed of program rules requiring appropriate interaction with others, with inappropriate comments potentially leading to discharge. Later that day, he made a remark about a staff member's daughter, prompting a reminder about the rules and a recommendation to avoid contact with women. He was subsequently accused of making inappropriate sexual comments and touching a female patient, leading to his discharge from the in-patient program on March 27. Although discharged, he was permitted to continue in an out-patient program. Following his discharge, the State filed a fourth petition to revoke his probation, claiming he failed to comply with treatment. Vanbibber denied these allegations.

A fact-finding hearing was held on April 20, 2017, where the trial court found sufficient evidence to support the State's claims. During a dispositional hearing on May 5, 2017, the court deemed Vanbibber not a suitable candidate for probation due to multiple violations and sentenced him to 450 days at the Department of Correction, alongside a concurrent one-year sentence on another count. Vanbibber appealed, arguing that the evidence was insufficient for the probation revocation, asserting he participated in treatment during his brief stay at the facility and was not unwilling to engage in out-patient treatment. The State contended he violated probation by being discharged unsatisfactorily from residential treatment due to his inappropriate behavior, which breached probation rule number two requiring compliance with treatment facility rules.

Vanbibber received multiple warnings regarding inappropriate comments that could lead to his discharge from the treatment program. Specific incidents included comments about a condom found in his belongings, suggestive remarks to a staff member about her visiting his room, and an unsettling inquiry about calling a staff member's teenage daughter. Additionally, evidence indicated that he made inappropriate sexual comments to female patients. After approximately four days in the program, he was discharged due to his behavior. Vanbibber's probation required adherence to facility rules, which he violated. Upon his third probation violation, the trial court ordered him to be held without bond until a bed became available in the treatment program, emphasizing the need for in-patient treatment. His unsatisfactory discharge from the program constituted a breach of probation conditions. The trial court's finding of probation violation was upheld, affirming its decision to revoke his probation. The judgment was confirmed by the Court of Appeals of Indiana.