MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                                FILED
this Memorandum Decision shall not be                                       Nov 20 2018, 7:37 am

regarded as precedent or cited before any                                       CLERK
                                                                            Indiana Supreme Court
court except for the purpose of establishing                                   Court of Appeals
                                                                                 and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Ryan M. Gardner                                         Curtis T. Hill, Jr.
Deputy Public Defender                                  Attorney General
Fort Wayne, Indiana
                                                        Evan Matthew Comer
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Tyreoun D. Guy,                                         November 20, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-1338
        v.                                              Appeal from the Allen Superior
                                                        Court
State of Indiana,                                       The Honorable Samuel R. Keirns,
Appellee-Plaintiff                                      Magistrate
                                                        Trial Court Cause No.
                                                        02D06-1509-F3-53



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1338 | November 20, 2018                   Page 1 of 9
                                             Case Summary
[1]   Tyreoun D. Guy appeals his probation revocation, challenging the sufficiency

      of the evidence to support the trial court’s finding of a probation violation as

      well as the court’s choice of sanction. Finding the evidence sufficient and

      concluding that the court acted within its discretion in executing a portion of

      Guy’s previously suspended sentence, we affirm.


                                 Facts and Procedural History
[2]   The evidence most favorable to the judgment is as follows. In 2016, Guy pled

      guilty by open plea agreement to level 3 felony armed robbery and level 5

      felony corrupt business influence. The trial court sentenced him to seven years

      suspended, with three years’ probation, plus a consecutive one and a half-year

      executed term for corrupt business influence. One of the conditions of Guy’s

      probation was that he maintain good behavior.


[3]   On March 13, 2018, Guy attended the court hearing of a fellow inmate. As a

      member of the gallery, he was warned that there could be no communication

      between the gallery and the inmates. Notwithstanding, he stood up and started

      gesticulating and talking in a loud voice to one of the inmates. As a result,

      bailiff Robert Rinearson ordered him to leave the courtroom. On his way out,

      Guy slammed his hands against the two sets of doors, causing them to crash

      back against the wall. Rinearson followed, ordering him to stay out of the

      courtroom and to leave the building. Guy argued with Rinearson and then

      turned and attempted to walk around him. Guy took steps toward the


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1338 | November 20, 2018   Page 2 of 9
      courtroom and said that he was not leaving. Rinearson told him that he was

      under arrest and attempted to handcuff him. Guy disregarded the order to put

      his hands behind his back and instead kept his hands in front of his body. An

      officer on duty in the lobby assisted, and the two were unsuccessful in gaining

      Guy’s compliance. Another bailiff on duty in the courtroom came to the lobby

      to assist, and Guy eventually was handcuffed and placed under arrest. The

      State charged him with class A misdemeanor resisting law enforcement, class A

      misdemeanor criminal trespass, and class B misdemeanor disorderly conduct.


[4]   The following day, the State filed a verified petition to revoke Guy’s probation,

      citing as a violation his failure to maintain good behavior, namely, by

      committing resisting law enforcement, criminal trespass, and disorderly

      conduct. The court found probable cause and ordered Guy detained without

      bond. The court conducted a contested hearing and found that Guy had

      violated the conditions of his probation. The court revoked Guy’s probation

      and committed him to the Department of Correction (“DOC”) for four years of

      his previously suspended seven-year term. Guy now appeals.


                                     Discussion and Decision
[5]   Guy contends that the trial court erred in revoking his probation. Probation is a

      matter of grace left to the trial court’s sound discretion, not a right to which a

      criminal defendant is entitled. Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007).

      The trial court determines the conditions of probation and may revoke

      probation if the probationer violates those conditions. Id. Probation revocation

      is a two-step process, wherein the trial court first makes a factual determination
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1338 | November 20, 2018   Page 3 of 9
      as to whether the probationer violated the terms of his probation. Woods v.

      State, 892 N.E.2d 637, 640 (Ind. 2008). Then, if a violation is found, the court

      determines whether the violation warrants revocation. Id.


      Section 1 – The evidence is sufficient to support a finding that
                       Guy violated his probation.
[6]   Guy first submits that the evidence is insufficient to support the trial court’s

      determination that he violated his probation. Because a probation revocation

      proceeding is civil in nature, the State need only prove the alleged probation

      violation by a preponderance of the evidence. Holmes v. State, 923 N.E.2d 479,

      485 (Ind. Ct. App. 2010). On review, we neither reweigh evidence nor reassess

      witness credibility; rather, we consider the evidence and reasonable inferences

      most favorable to the judgment. Pierce v. State, 44 N.E.3d 752, 755 (Ind. Ct.

      App. 2017). Proof of a single violation is sufficient to permit a trial court to

      revoke probation. Beeler v. State, 959 N.E.2d 828, 830 (Ind. Ct. App. 2011),

      trans. denied.


[7]   Here, the State alleged that Guy violated the good behavior condition of his

      probation by committing new criminal offenses, i.e., class A misdemeanor

      resisting law enforcement, class A misdemeanor criminal trespass, and class B

      misdemeanor disorderly conduct. Indiana Code Section 35-44.1-3-1(a)(1)

      defines resisting law enforcement to include circumstances in which “[a] person

      … knowingly or intentionally … forcibly resists, obstructs, or interferes with a

      law enforcement officer or a person assisting the officer while the officer is

      lawfully engaged in the execution of the officer’s duties[.]” Indiana Code
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1338 | November 20, 2018   Page 4 of 9
      Section 35-43-2-2(b)(2) defines criminal trespass to include circumstances in

      which “[a] person … not having a contractual interest in the property,

      knowingly or intentionally refuses to leave the real property of another person

      after having been asked to leave by the other person or that person’s agent[.]”

      Indiana Code Section 35-45-1-3(a) defines disorderly conduct to include

      circumstances in which a person “recklessly, knowingly, or intentionally … (2)

      makes unreasonable noise and continues to do so after being asked to stop; or

      (3) disrupts a lawful assembly of persons[.]”


[8]   In claiming that the State failed to present sufficient evidence that he committed

      new offenses, Guy cites his subsequent acquittal on the charges of resisting law

      enforcement and disorderly conduct.1 However, even a prior acquittal of a

      criminal offense that formed the basis for a probation revocation petition does

      not preclude a subsequent finding of a probation violation for that same offense.

      Knecht v. State, 85 N.E.3d 829, 836 (Ind. Ct. App. 2017). In other words, in the

      context of probation revocation, the State need not establish that the defendant

      was actually convicted of the new offense. Lightcap v. State, 863 N.E.2d 907, 911

      (Ind. Ct. App. 2007). However,


               [w]hen a probationer is accused of committing a criminal offense,
               an arrest alone does not warrant the revocation of probation.
               Likewise, the mere filing of a criminal charge against a defendant



      1
        Guy also points to the fact that he has appealed his conviction for criminal trespass and that this appeal is
      currently pending in this Court. However, we remind him that due to the differing burdens of proof in
      criminal versus probation revocation cases, the outcome of his direct appeal in that cause has no bearing on
      our decision.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1338 | November 20, 2018                    Page 5 of 9
              does not warrant the revocation of probation. Instead, when the
              State alleges that the defendant violated probation by committing
              a new criminal offense, the State is required to prove—by a
              preponderance of the evidence—that the defendant committed
              the offense.


      Jackson, 6 N.E.3d at 1042 (citations and quotation marks omitted).


[9]   In its revocation petition, the State alleged that Guy had violated the good

      behavior condition of his probation by committing resisting law enforcement,

      criminal trespass, and disorderly conduct based on the March 13, 2018 incident

      at the courthouse. At the outset of the hearing on the State’s petition, the trial

      court took judicial notice of the pending criminal charges filed against Guy for

      these offenses. Tr. Vol. 1 at 7. The signed and notarized probable cause

      affidavit, introduced as Defendant’s Exhibit A, formed a sufficient basis for

      finding probable cause that Guy committed criminal offenses. See Whatley v.

      State, 847 N.E.2d 1007, 1010 (Ind. Ct. App. 2006) (finding that signed and

      notarized probable cause affidavit alone was sufficient to permit court to find

      that probationer “violated a criminal law.”). The probable cause affidavit reads

      in relevant part,


              The affiant [Rinearson] told the defendant to leave the court
              room, due to communicating with inmates. The affiant followed
              the defendant out of the court room, and the defendant slammed
              the doors while exiting the court room, interrupting court
              proceedings. The affiant told the defendant to leave the court
              house and the defendant refused to leave the building. He was
              informed he was under arrest and resisted being taken into
              custody by pulling away and not allowing officers to place him in
              handcuffs.
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1338 | November 20, 2018   Page 6 of 9
       Defendant’s Ex. A.


[10]   Notwithstanding the fact that probable cause affidavits have been held sufficient

       to support a probation revocation court’s finding of probable cause, the trial

       court heard testimony from the officers and bailiffs involved in the March 13,

       2018 incident, as well as testimony from Guy. In finding by a preponderance of

       evidence that Guy had violated the terms of his probation, the trial court

       emphasized Guy’s admission that he heard the warning not to communicate

       with the inmates and the bailiffs’ testimony that he nevertheless disregarded the

       warning and disrupted court proceedings both by standing up and speaking to

       an inmate and by slamming the doors as he exited, all of which amounted to

       disorderly conduct. Guy’s claim that he merely gesticulated and never stood up

       and yelled at the inmate is an invitation to reassess witness credibility, which

       we may not do. With respect to criminal trespass, the court emphasized Guy’s

       noncompliance with Rinearson’s orders to stay away from the courtroom and

       to leave the building, as evidenced by the officers’ testimony that Guy

       attempted to get around Rinearson and walk back toward the courtroom. The

       court explicitly rejected Guy’s claim that as a member of the public, he had a

       right to be in the courthouse and therefore could not have committed trespass.

       See Tr. Vol. 1 at 58 (“yes, it’s a public building, but there are restrictions on

       what you can and cannot do in that building”). As for resisting arrest, the court

       emphasized Guy’s noncompliance with Rinearson’s orders to put his hands

       behind his back and the fact that it took assistance from additional officers to

       finally gain Guy’s compliance. Id. The court was unpersuaded by Guy’s


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1338 | November 20, 2018   Page 7 of 9
       argument that the bailiffs lacked the authority/credentials to act as law

       enforcement officers. See id. at 57 (“I assure you that those bailiffs have every

       right to ask the individuals to leave the courtroom as well as leave that

       courthouse.”). Based on the foregoing, we conclude that the evidence and

       inferences are sufficient to support the trial court’s finding that Guy violated the

       good behavior condition of his probation.


             Section 2 – The trial court acted within its discretion in
                executing a portion of Guy’s remaining sentence.
[11]   Guy also cites as error the trial court’s decision to remand him to the DOC for a

       portion of his previously suspended sentence. The trial court’s sentencing

       decisions for probation violations are reviewable for an abuse of discretion.

       Prewitt, 878 N.E.2d at 188. An abuse of discretion occurs where the trial court’s

       decision is clearly against the logic and effect of the facts and circumstances

       before it or where the trial court misinterprets the law. Jackson v. State, 6 N.E.3d

       1040, 1042 (Ind. Ct. App. 2014). In determining whether a trial court has

       abused its discretion, we neither reweigh evidence nor judge witness credibility.

       Ripps v. State, 968 N.E.2d 323, 326 (Ind. Ct. App. 2014). Instead, we consider

       conflicting evidence in the light most favorable to the trial court’s ruling. Id.


[12]   Having concluded that Guy committed a probation violation, the trial court

       could impose one or more of the following sanctions: (1) continue Guy’s

       probation, with or without modifying or enlarging the conditions; (2) extend his

       probationary period for not more than one year beyond the original



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1338 | November 20, 2018   Page 8 of 9
       probationary period; or (3) order execution of all or part of the sentence that

       was suspended at the time of initial sentencing. Ind. Code § 35-38-2-3(h).


[13]   Here, the trial court chose option three and ordered the execution of four years

       of Guy’s previously suspended seven-year sentence. Guy asserts, without

       citation to authority, that the court should have meted out punishment that was

       “measured,” “proportional,” and “more appropriate in light of his successful

       time on probation … and the lack of seriousness of the alleged bad behavior.”

       Appellant’s Br. at 14. Thus, he suggests that one year executed is more

       commensurate with the alleged misdemeanor behavior that formed the basis of

       his probation violation. To the extent that he frames this argument in terms of

       appropriateness based on the seriousness of the offenses, we remind him that an

       Indiana Appellate Rule 7(B) analysis is not the correct standard to apply when

       reviewing a sentence imposed for defendants who violate probation. Prewitt,

       878 N.E.2d at 187-88. We also remind him that his having received probation

       instead of incarceration for a level 3 felony armed robbery conviction was a

       demonstration of grace and not a matter of right. We find no abuse of

       discretion in the trial court’s execution of four years of Guy’s sentence.

       Accordingly, we affirm.


[14]   Affirmed.


       Najam, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1338 | November 20, 2018   Page 9 of 9
