The Indiana Court of Appeals upheld a trial court’s decision to grant a sheriff deputy’s petition for expungement of his arrest record dealing with four counts of Class D felony theft. His employer argued that he received pay from the police force while working at other jobs.
Marion County Sheriff’s Deputy Donald A. Prout worked full time with the sheriff’s office and also worked security part time at a Kroger store and a bus station. A Marion County Sheriff’s Office 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 – Oct. 27, 2011, and Feb. 6, 7 and 27, 2012. 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 then petitioned to have his arrest record expunged, which the trial court granted. The judge found no offense was actually committed and there was an absence of probable cause to support the filing of the theft charges. The Indianapolis Metropolitan Police Department, which pays Prout for his work as a sheriff’s deputy, appealed.
Prout had explained at the expungement hearing that his bus station job would allow him to leave his shift early in order to work his normal 3 p.m. to 11 p.m. shift. One of the days in question, his time card shows he worked his normal shift in question, but he was actually at a police training session from 8 a.m. to 4 p.m. Prout admitted that his time card indicated he worked his normal shift time, which resulted in a shift differential pay of $0.70 an hour, so he was overpaid that day by $5.60.
In Indianapolis Metropolitan Police Department v. Donald A. Prout, 49A04-1305-CR-236, the IMPD argued that Prout failed to carry his burden that no offense was committed, pointing to Prout’s acknowledgment that he was overpaid on that one day. But the theft charges were based on not working at all on that day, not that he was overpaid, the appeals court pointed out.
The judges also declined to reweigh the evidence.