OPINION

CRONE, Judge.

Case Summary

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 History1

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 a probable cause affidavit that reads in pertinent part as follows:

Petitioner's Ex. G1. Judge Annie Christ-Garcia signed the affidavit, indicating a finding of probable cause.

That same day, Prout was charged with four counts of class D felony theft. See Ind.Code § 35-43-4-2(a) ("A person who knowingly or intentionally exerts unauthorized control over property of another person, with intent to deprive the other person of any part of its value or use, commits theft, a Class D felony."). The charging information alleged that on each of the aforementioned dates, Prout "did knowingly exert unauthorized control over the property, that is: United States currency, of the Marion County Sheriff's Office, with intent to deprive the Marion County Sheriff's Office of any part of the value or use of said property[.]" Petitioner's Ex. G1. Prout was arrested sometime before April 12. On September 7, 2012, a deputy prosecutor filed a motion to dismiss all charges against Prout, citing "Evidentiary Problems" as the reason for dismissal without further explanation. Petitioner's Ex. H. Judge Christ-Garcia granted the motion.

On December 19, 2012, Prout filed a verified petition for expungement of arrest record pursuant to Indiana Code Section 35-38-5-1,2 which reads as follows:

(a) Whenever:

In his petition, Prout asserted that the charges against him "were dropped because no offense was in fact committed and there was an absence of probable cause." Appellant's App. at 5. IMPD filed a verified objection and notice of opposition to Prout's petition, asserting that the State dismissed the charges "due to evidentiary problems and not one of the statutory reasons for which and [sic] expungement is permitted." Id. at 8.

On February 13, 2013, the trial court held a hearing on Prout's petition. At the hearing, Prout testified that he was ordered to attend a STAR Team training session at the Post Road facility on October 27, 2011, from 8:00 a.m. to 4:00 p.m., instead of working his regular shift. Prout offered into evidence a text message from Deputy Justin Kaufman dated October 26, 2011, reminding him about the training session. Petitioner's Ex. L. Prout testified that he attended the entire session. Sergeant Sanders testified that he and Prout were at the session all day, as did Deputy Brad Allen and Deputy Gregory McWhirter, the training coordinator. Prout offered into evidence Deputy McWhirter's and Sergeant Sanders's CAD records, which showed that they marked on at the Post Road facility before 8:00 a.m. on October 27. Deputy McWhirter's CAD record showed that he stayed at the facility all day. Petitioner's Ex. B. Sergeant Sanders's CAD record showed that he marked in at the Post Road facility at 7:20 a.m., marked off at 7:47 a.m., and then marked on at MCSO's headquarters on South Alabama Street less than a minute later. Petitioner's Ex. C. Prout also offered into evidence a computer-generated training roster, which indicated the date and title of the training session and listed the names of the attendees, including Prout, Sergeant Sanders, and Deputies Allen and McWhirter. Petitioner's Ex. U.

Major Scott Mellinger, director of MCSO's training section, expressed "concern" that the roster had not been signed and hand-dated by Deputy McWhirter to affirm that "the information contained [on the roster was] complete and accurate to the best of [his] knowledge and belief." Tr. at 116; Petitioner's Ex. U. Evidence was presented that Deputy McWhirter had signed and dated rosters for other training sessions, Petitioner's Ex. U, and Deputy McWhirter acknowledged that he had "apparently" failed to make a hard copy of the roster or email it to the training facility receptionist after the session, as was his custom. Tr. at 131-32. Deputy McWhirter's testimony suggests that he did not become aware of these oversights until after Lieutenant Sharp asked him if he "had any training records[.]" Id. at 130. According to Lieutenant Sharp, he did not ask Deputy McWhirter for the records until after Prout was arrested. Id. at 210.

Captain Hubbs also expressed "concerns" about the roster and testified that several deputies who had attended the training session stated that they did not remember if Prout was there. Id. at 141. He acknowledged, however, that he had appeared at the training session for half an hour to an hour and saw Prout there. Id. at 144-45.3 He also acknowledged that Lieutenant Sharp never specifically asked him if Prout had attended the session. Deputies McWhirter and Allen and Sergeant Sanders testified that Lieutenant Sharp did not ask them if Prout had attended the session until after Prout was arrested.

Prout acknowledged that he signed an official time card indicating that he worked from 3:00 p.m. to 11:00 p.m. instead of 8:00 a.m. to 4:00 p.m. on October 27, 2011, and therefore received a "shift differential" of seventy cents per hour (totaling $5.60) to which he would not have been entitled for the earlier shift. Id. at 27. Prout testified that he "space[d]" changing his time card to reflect the actual hours of the training session. Id. at 83. He also testified that he worked at Kroger from "[j]ust before 5:00 [p.m.] up until midnight." Id. at 25. Sergeant Sanders acknowledged that he approved Prout's time card even though Prout did not actually work from 3:00 p.m. to 11:00 p.m. Id. at 167.

Regarding the February 2012 allegations, Prout testified that his supervisor at Greyhound, IMPD Sergeant Kevin Bandy, would let him leave before the scheduled 4:00 p.m. end of his shift at Greyhound to report for his 3:00 p.m. shift at MCSO, and then he would make up that time on another shift. Prout offered into evidence an affidavit from Sergeant Bandy that reads in pertinent part as follows:

Petitioner's Ex. T. Lieutenant Sharp acknowledged that he did not ask Sergeant Bandy if he let Prout leave Greyhound to begin his shift with MCSO. When asked if he thought "that might have been an important question to ask[,]" Lieutenant Sharp replied, "I think they should have put down the correct hours that he worked, whatever it is." Tr. at 213.

Prout also offered into evidence CAD records showing that on February 6, 2012, he marked off duty at Greyhound at 2:57 p.m. and marked on duty at MCSO's Concord Office at 2:59 p.m. Petitioner's Ex. M. He served a warrant from Shelby County during his shift; the last CAD entry for that date is 10:33 p.m. Petitioner's Exs. M and S. Prout testified that on February 7, 2012, he was scheduled to work at Greyhound from noon until 4:00 p.m., but he "was there for about an hour before [he] was forced to leave" for a "mandatory meeting" at 1:00 p.m. at MCSO's headquarters on South Alabama Street. Tr. at 66, 62. He testified that after the meeting, he participated in approximately an hour and a half of physical fitness training at the Post Road facility and then went on duty until "[j]ust after midnight." Id. at 66. Prout supported this testimony with a CAD record for that date. Petitioner's Ex. N. As for February 27, 2012, Prout testified that he left his Greyhound shift early and stopped at Riverside Garage just after 3:00 p.m. to have his vehicle's headlight fixed. Just after 4:00 p.m., he picked up warrants at the Concord Office and served them. Again, Prout supported this testimony with a CAD record for that date. Petitioner's Ex. O.

Captain Hubbs testified that he ordered several STAR Team members, including Deputies Kaufman, McWhirter, and Allen and Sergeant Sanders, to be interviewed by Lieutenant Sharp on April 12, 2012. According to Captain Hubbs, "There were frankly different statements given by different deputies.... [T]hey didn't all say the same thing and that's the problem we had with the one particular date [October 27, 2011]." Tr. at 157. Lieutenant Sharp opined that the deputies are "loyal to each other, that they count on each other for their lives, they defend each other no matter what." Id. at 208-09. He further opined that time cards are "chiseled in granite" and that "[y]ou've got to sign the card exactly showing when you worked." Id. at 198, 212. Also, Lieutenant Sharp acknowledged that the probable cause affidavit contained several typographical errors.

On March 19, 2013, the trial court issued an order that reads in pertinent part as follows:

Appellant's App. at 2. IMPD filed a motion to correct error, which the trial court denied. This appeal followed.

Discussion and Decision

Indiana Code Section 35-38-5-1 is "the `exclusive means' for expunging arrest records when no charges were filed or the charges were dropped." Zagorac v. State, 943 N.E.2d 384, 389 (Ind.Ct.App. 2011) (quoting State ex rel. Ind. State Police v. Arnold, 906 N.E.2d 167, 169 (Ind. 2009)). "The petitioner bears the burden of proof when requesting the expungement of his record." State v. Sotos, 558 N.E.2d 909, 911 (Ind.Ct.App.1990), trans. denied (1991). We review a trial court's ruling on a petition for expungement for an abuse of discretion. See Arnold, 906 N.E.2d at 171 ("We do not believe that the Legislature intended to give the trial court almost unfettered discretion to grant summarily or to deny summarily a petition for expungement without a hearing, only to take away that discretion completely when the court decides to conduct a fact-finding hearing.") (citation omitted).

IMPD first argues that "the trial court erred in drawing any conclusions as to whether there was probable cause to issue the arrest warrant.... because the appropriate frame of reference under § 35-38-5-1 deals with whether probable cause exists when the charges are dropped—not when the arrest warrant is issued." Appellant's Br. at 9. We need not address this argument, however, because we conclude that the trial court did not abuse its discretion in concluding that no offense was committed.4

IMPD points out the numerous conflicts in the testimony and documents regarding Prout's work hours as evidence that Prout failed to carry his burden and says,

Id. at 17 (citations to record omitted).

We note, however, that Prout received the shift differential pay increase only for October 27, 2011. Moreover, as Prout correctly observes, the theft charges were not based on his receipt of the pay increase, but rather "for not working at all for MCSO on October 27, 2011, and working less than required of him on each of the three days in February, 2012." Appellee's Br. at 16. We agree with Prout that "IMPD's new arguments about shift differential were never charges brought against him and thus are improper grounds for opposing the expungement." Id.

To the extent that IMPD challenges the sufficiency of the evidence supporting the trial court's determination that no offense was committed, we note that we may neither reweigh evidence nor judge witness credibility and may "consider only the evidence most favorable to the judgment. We will not reverse the trial court's decision where there is substantial evidence of probative value supporting the judgment." Sotos, 558 N.E.2d at 912. As indicated by our recitation of the evidence adduced at the expungement hearing, the trial court's judgment is supported by substantial evidence of probative value. Therefore, we affirm.

Affirmed.

MAY, J., and BRADFORD, J., concur.