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FOR PUBLICATION

FILED
Dec 29 2009, 9:16 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLANT: STACY R. ULIANA Indianapolis, Indiana

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana WADE JAMES HORNBACHER Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
KODY B. HOEPPNER, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 52A04-0908-CR-494

APPEAL FROM THE MIAMI SUPERIOR COURT The Honorable Daniel C. Banina, Judge Cause No. 52D02-0903-FC-59

December 29, 2009 OPINION - FOR PUBLICATION

BAKER, Chief Judge

Appellant-defendant Kody Hoeppner appeals the sentence imposed by the trial court after he pleaded guilty to Auto Theft,1 a class D felony, Institutional Criminal Mischief,2 a class C felony, and Arson,3 a class D felony. Hoeppner argues that the trial court should have considered his youth as a mitigator and that the trial court erred by ordering consecutive sentences without first specifying a valid aggravator. Additionally, Hoeppner argues that a condition of probation requiring admissibility of lie detector results and specifying that a positive result constitutes a probation violation is invalid. Finding no error with respect to sentencing but finding that a part of the condition of probation should be struck and amended, we affirm in part, reverse in part, and remand with instructions. FACTS On March 5, 2009, Hoeppner and Michael Smith were smoking marijuana and taking Klonopin pills at Smith's home in Miami County. Over the course of the evening, Hoeppner took over thirty Klonopin pills. The two men wanted cigarettes but did not have enough money, so they decided to steal change from unlocked cars. One of the vehicles they entered had the keys in it, so Hoeppner and Smith took it off-roading. The vehicle became stuck in the mud, and when the men were unable to free it, they set it on fire "to get rid of evidence, like fingerprints and stuff . . . ." Sent. Tr. p. 26.

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