      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                          FILED
      regarded as precedent or cited before any                               Mar 06 2020, 10:28 am
      court except for the purpose of establishing
                                                                                     CLERK
      the defense of res judicata, collateral                                  Indiana Supreme Court
                                                                                  Court of Appeals
      estoppel, or the law of the case.                                             and Tax Court




      ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
      Valerie K. Boots                                         Curtis T. Hill, Jr.
      Daniel Hagemen                                           Attorney General of Indiana
      Marion County Public Defender Agency
                                                               Samantha M. Sumcad
      Appellate Division                                       Deputy Attorney General
      Indianapolis, Indiana                                    Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Curtis Lowder,                                           March 6, 2020
      Appellant-Respondent,                                    Court of Appeals Case No.
                                                               19A-CR-964
              v.                                               Appeal from the
                                                               Marion Superior Court
      State of Indiana,                                        The Honorable
      Appellee-Petitioner.                                     Jeffrey L. Marchal, Magistrate
                                                               Trial Court Cause No.
                                                               49G06-1803-F5-7976



      Kirsch, Judge.


[1]   Curtis Lowder (“Lowder”) appeals from the trial court’s revocation of his

      probation, raising three issues on appeal, which we restate as:


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-964 | March 6, 2020                     Page 1 of 13
              I.      Whether the State presented sufficient evidence to rebut
                      Lowder’s claim of self-defense;


              II.     Whether Lowder’s right to due process was violated
                      because the offense alleged in the notice of probation
                      violation was not the same offense upon which the trial
                      court revoked Lowder’s probation; and


              III.    Whether the trial court abused its discretion in ordering
                      Lowder to serve the remainder of his three-year sentence
                      in the Indiana Department of Correction (“the DOC”).


[2]   We affirm.


                                 Facts and Procedural History
[3]   On July 23, 2018, Lowder pleaded guilty to battery resulting in serious bodily

      injury as a Level 5 felony. Appellant’s App. Vol. II at 12, 52-54. The trial court

      imposed a three-year sentence, to be served in the Duvall Residential Center

      (“the DRC”), a Marion County Community Corrections facility. Id. at 12, 16-

      19, 75.


[4]   On February 19, 2019, around 5:15 p.m., Lowder was asleep in his top bunk in

      the DRC. State’s Ex. 1; Tr. Vol. II at 7-8. Ernest Allen (“Allen”) was lying in

      the bunk immediately below. State’s Ex. 1; Tr. Vol. II at 8. Community

      Corrections Officer Teanna White (“White”) was conducting a head count and

      saw a black hoodie hanging from Allen’s bunkbed; White took it down and

      handed it to Allen. Appellant’s App. Vol. II at 102. She asked Allen if it was his

      and told Allen that the hoodie should not be hanging from the bunkbed. Id.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-964 | March 6, 2020   Page 2 of 13
      Allen threw the hoodie onto the top bunk where Lowder was sleeping. Id.

      Lowder sat up and flipped his blanket, so it was hanging partially off his bunk

      and into the space above Allen’s bunk. Id. Allen and Lowder argued about

      Lowder’s blanket hanging off the edge of his bed, so Lowder grabbed the

      blanket and pulled it back on himself. Tr. Vol. II at 23-24. Lowder was sitting

      partially upright. State’s Ex. 1. Moments later, Allen got out of his bunkbed,

      stood up, and slapped Lowder’s face. State’s Ex. 1; Tr. Vol. II at 24. Lowder did

      not lie down to protect himself or call for help. State’s Ex. 1; Tr. Vol. II at 14.

      Instead, Lowder immediately sat fully upright, swung his fist at Allen, and then

      jumped out of his top bunk and landed right in front of Allen, who was still

      standing next to the bunkbed. State’s Ex. 1; Tr. Vol. II at 14, 25-26. Both men

      began throwing punches at each other; they grappled for a few seconds, and

      then Allen threw Lowder to the floor. State’s Ex. 1; Tr. Vol. II at 9, 17, 24.

      While Lowder was lying on his back, Allen tried to attack him, and Lowder

      kicked at Allen to fend him off. State’s Ex. 1; Tr. Vol. II at 24-25. Two

      correctional officers broke up the fight. State’s Ex. 1; Tr. Vol. II at 9-10. The

      surveillance camera in the DRC dorm captured the fight on video. State’s Ex. 1.


[5]   Relying on these facts, the State filed a notice of violation of probation against

      Lowder, alleging that he had “failed to comply with the rules and regulations of

      DRC regarding battery.” Appellant’s App. Vol. II at 8, 102 (emphasis added). At

      the revocation hearing, the State entered the DRC Resident Handbook (“the

      Handbook”) into evidence. State’s Ex. 2; Tr. Vol. II at 4. At that time, the

      Handbook prohibited battery under Rule 212, and it prohibited disorderly

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-964 | March 6, 2020   Page 3 of 13
      conduct under Rule 236. Tr. Vol. II at 15. The Handbook defined battery as

      follows: “212. Assault/Battery – Committing a battery/assault upon another

      person without a weapon or inflicting bodily injury.” State’s Ex. 2. The

      Handbook defined disorderly conduct as follows: “236. Disorderly Conduct

      (Class B) – Disorderly conduct: exhibiting disruptive and/or violent conduct

      which disrupts the security of the facility or other area in which the offender is

      located.” Id.


[6]   Both White and Corrections Officer Roney Brown (“Brown”) testified that they

      did not see the fight between Lowder and Allen commence but that they did see

      the two men fighting, with White testifying that she saw Lowder and Allen

      “already in full action . . . just fighting[,]” and Brown testifying that he saw

      “fists flying” moments before he separated Lowder and Allen. Tr. Vol. II at 9-

      12, 17-18. Lowder testified that a) he jumped off his top bunk after Allen

      slapped him to better protect himself against Allen and other potential

      attackers; and b) he neither swung at, nor struck, Allen, though he did admit to

      grabbing Allen. Id. at 25-27. During the hearing, the trial court reviewed the

      video of the incident. Id. at 6.


[7]   At the conclusion of the hearing, the trial court revoked Lowder’s probation,

      concluding that Lowder committed disorderly conduct, not battery, the offense

      the State had alleged in the notice of probation violation.1 Id. at 29. In deciding




      1
        We acknowledge that the following language from the trial court’s ruling could be construed as a finding
      that Lowder committed battery: “If I’m looking at it on strength of evidence, I think offense 212, assault and

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-964 | March 6, 2020                      Page 4 of 13
      what sanction to impose, the trial court stated that since Lowder had once

      before violated the terms of this probation, he was on “strict compliance.” Id.

      at 30-31. The trial court also observed that “[Lowder] has been a problem on

      [the DRC] since the day he got there,” so it ordered Lowder to serve the

      remainder of his sentence – 766 days – in the DOC. Id. Lowder now appeals.

      Additional facts will be provided as necessary.


                                        Discussion and Decision

                                       I. Sufficiency of Evidence
[8]   Lowder argues there was insufficient evidence to support the revocation of his

      probation because the evidence showed that he acted in self-defense. A

      revocation hearing is in the nature of a civil proceeding, and the alleged

      violation only needs to be proven by a preponderance of the evidence. Smith v.

      State, 727 N.E.2d 763, 765 (Ind. Ct. App. 2000). When reviewing the

      sufficiency of the evidence at a revocation hearing, we neither reweigh the

      evidence nor judge the credibility of witnesses. Id. We will affirm the

      revocation if, considering only the probative evidence and reasonable inferences

      therefrom, there is sufficient evidence supporting the conclusion that the




      battery, is weaker by virtue of the fact that it’s clear that Mr. Allen is the instigator of the battery, but from
      what I saw it looked like then it becomes mutual combat at some point, and if that’s not battery, it’s certainly
      disorderly conduct . . . .” Tr. Vol. II at 29. However, because we find that there was no violation of due
      process in the finding of disorderly conduct, we do not reach whether such language was sufficient.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-964 | March 6, 2020                         Page 5 of 13
       probationer has violated a condition of his probation. Hubbard v. State, 683

       N.E.2d 618, 620 (Ind. Ct. App. 1997).


[9]    The standard for reviewing the sufficiency of evidence to rebut a claim of self-

       defense claim is the same standard used for any claim of insufficient evidence.

       Quinn v. State, 126 N.E.3d 924, 927 (Ind. Ct. App. 2019). We neither reweigh

       the evidence nor judge the credibility of witnesses. Id. We will reverse a

       conviction only if no reasonable person could say the State negated the

       defendant’s self-defense claim beyond a reasonable doubt. Id. The evidence is

       sufficient if an inference may be reasonably drawn from it to support the

       verdict. Id. A valid claim of self-defense is legal justification for an otherwise

       criminal act. Id. To prevail on this claim, Lowder was required to show that

       he: 1) was in a place where he had a right to be; (2) did not provoke, instigate,

       or participate willingly in the violence; and (3) had a reasonable fear of death or

       great bodily harm. Id. The State carries the burden of negating at least one of

       the necessary elements of a self-defense claim. Id. The State may meet its

       burden by rebutting the defense directly, by affirmatively showing the defendant

       did not act in self-defense, or by relying on the sufficiency of the case-in chief.

       Id.


[10]   In support of his self-defense claim, Lowder correctly observes that Allen

       instigated the confrontation by slapping Lowder in the face. Lowder claims this

       placed him in a situation where he had to defend himself against more attacks

       from Allen and other persons who might join Allen’s attack against Lowder.



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-964 | March 6, 2020   Page 6 of 13
       Lowder says this explains why, after Allen slapped him, he immediately leapt

       from his bed to face Allen.


[11]   In reviewing Lowder’s claim, we have examined not only the testimony from

       the hearing but also the video of the incident. See State’s Ex. 1. By merely

       reviewing video evidence, we are not impermissibly reweighing the evidence.

       Robinson v. State, 5 N.E.3d 362, 366 (Ind. 2014). “Rather, we consider video

       evidence admitted in the trial court to be a necessary part of the record on

       appeal, just like any other type of evidence.” Id.


[12]   Here, we find that the State presented sufficient evidence to negate at least one

       element of Lowder’s self-defense claim, that is, his claim that he did not

       participate willingly in the fight with Allen. Quinn, 126 N.E.3d at 927. Lowder

       is correct that the undisputed evidence shows that Allen was the instigator,

       slapping Lowder in the face while Lowder was sitting in the top bunk of the

       bunkbed. However, Lowder did not lie down to protect himself or call for help.

       Tr. Vol. II at 14; State’s Ex. 1. Instead, after Allen slapped him, Lowder

       immediately sat upright, swung his fist at Allen, and jumped out of his top bunk

       to face Allen. Tr. Vol. II at 14, 26; State’s Ex. 1. Even if Allen had the upper

       hand during most of the fight, the trial court could have concluded that when

       Lowder sat upright in his bunk, swung at Allen, and jumped off his bed,

       Lowder participated willingly in the fight with Allen and was not acting in self-

       defense. See Quinn, 126 N.E.3d at 927. Thus, the evidence negates at least one

       element of Lowder’s self-defense claim, and the evidence was sufficient to

       support the revocation of his probation. See id.; Smith, 727 N.E.2d at 765.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-964 | March 6, 2020   Page 7 of 13
                                             II. Due Process
[13]   Lowder argues that the trial court denied his right to due process by revoking

       his probation based on a finding that Lowder committed disorderly conduct

       when the notice of probation violation alleged a different offense, battery. The

       State responds by asserting that because the notice of violation and the trial

       court’s revocation decision were based on the same conduct – Lowder’s fight

       with Allen -- Lowder received adequate notice of his violation, so the

       revocation of his probation did not violate Lowder’s right to due process.


[14]   The notice of violation alleged that Lowder failed to comply with the DRC

       rules and regulations regarding battery. Appellant’s App. Vol. II at 102. The

       notice provided the following description of the alleged incident:


               On 2/19/2019, at approximately 5:17 PM, while conducting
               count at DRC, . . . White saw a black hoodie hanging and took it
               down and handed it to [Allen] . . . and asked [him] if it was [his]
               and stated that it shouldn’t be hanging from bunks. As . . . White
               continued with count [Allen] threw the black hoodie that . . .
               White had handed [him] onto the top bunk where [Lowder] was
               sleeping. [Lowder] sat up and flipped [the] blanket back. At that
               time, [Allen] stood up and proceeded to slap [Lowder] in the
               face. [Lowder] jumped off the bunk with a punch directed at
               [Allen]. [Brown] walked in the dorm and saw that [Allen] was
               standing up punching at [Lowder], and [Lowder] was on the
               ground kicking at [Allen]. [Brown] then stepped in between both
               [Allen] and [Lowder] to stop them from fighting. CCOs
               Nicholas Weitzel and Harold Colebert responded and assisted in
               placing [Lowder] and [Allen] in mechanical restraints. Both
               [Lowder] and [Allen] were then escorted to the holding cell.



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-964 | March 6, 2020   Page 8 of 13
       Id. It is undisputed that the State presented evidence at the hearing that

       established all the facts alleged in the notice of violation. Tr. Vol. II at 4-27.

       The trial court revoked Lowder’s probation, finding that he had committed

       disorderly conduct. Id. at 29.


[15]   Probation revocation implicates a defendant’s liberty interests, which entitles

       him to some procedural due process, but a defendant is not entitled to full due

       process rights, as probation revocation does not deprive defendant of an

       absolute liberty but only a conditional liberty. Parker v. State, 676 N.E.2d 1083,

       1085 (Ind. Ct. App. 1997). A defendant in community corrections is entitled to

       written notice of the claimed violation of the terms of his placement, disclosure

       of the evidence against him, the opportunity to be heard and present evidence,

       and the right to confront and cross-examine adverse witnesses in a neutral

       hearing before the trial court. Davis v. State, 669 N.E.2d 1005, 1008 (Ind. Ct.

       App. 1996), trans. denied. The written notice of the claimed probation violation

       must be sufficiently detailed to permit the probationer to prepare an adequate

       defense to that charge. Long v. State, 717 N.E.2d 1238, 1240 (Ind. Ct. App.

       1999). “Basing a probation revocation upon claimed violations for which the

       defendant had received no notice is error because it violates due process.”

       Bussberg v. State, 827 N.E.2d 37, 44 (Ind. Ct. App. 2005), trans. denied.


[16]   A defendant’s probation may not be revoked based upon proof of an act that is

       merely similar in nature to the violation charged in the written notice; here, the

       offenses of battery and disorderly conduct could be considered similar. See

       Long, 717 N.E.2d at 1239-41. In Long, the State alleged that Long violated a

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-964 | March 6, 2020   Page 9 of 13
       condition of probation because he “tampered” with his home detention

       electronic transmitter (“transmitter”), violating a term of probation that did not

       allow a probationer to either tamper with or fix a transmitter. 717 N.E.2d at

       1239. At the revocation hearing, Long admitted that he had taped and glued

       the transmitter but only because the transmitter was damaged. Id. at 1240.

       Thus, Long argued that taping and gluing the transmitter did not constitute

       tampering. Id. The trial court found no evidence of tampering but nonetheless

       revoked Long’s probation because he had “fixed” the transmitter. Id. We

       reversed, finding that inadequate notice hindered Long’s defense because if the

       notice had alleged that Long had “fixed” the transmitter, he would not have

       admitted at the revocation hearing that he had taped and glued the transmitter.

       Id. at 1241.


[17]   In Harder v. State, we also found that it was improper to revoke probation based

       upon proof of an act that is merely similar in nature to the violation charged in

       the written notice. 501 N.E.2d 1117, 1121 (Ind. Ct. App. 1986). In that case,

       the State alleged that Harder violated the terms of his probation by committing

       the offense of operating while intoxicated per se (.10% BAC). Id. However, the

       State only presented evidence that Harder was driving while impaired, and the

       trial court revoked Harder’s probation based on Harder’s impairment. Id. We

       reversed the revocation of probation, finding that the revocation could not rest

       on his commission of driving while impaired even though that offense was

       similar to the offense for which he was charged. Id. While Harder did not

       discuss whether the variance between the notice of violation and the basis of

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-964 | March 6, 2020   Page 10 of 13
       revocation undermined Harder’s ability to prepare his defense, the variance

       clearly hurt his ability to prepare a defense because the driving while impaired

       and operating while intoxicated per se relied on proof of different facts.


[18]   After reviewing the facts alleged in the notice of probation violation and the

       facts established at the revocation hearing in the present case, we conclude that

       under these circumstances, battery and disorderly conduct were more than

       “similar” offenses; instead, the offenses are based on the exact same conduct,

       Lowder’s fight with Allen. Therefore, unlike the defendants in Long and Harder,

       the variance between the offense named in the notice and the offense upon

       which Lowder’s probation was revoked did not prejudice the preparation of

       Lowder’s defense. Further, even if the notice had alleged that Lowder

       committed disorderly conduct instead of battery, Lowder’s defense would have

       remained the same - self-defense. The evidence is undisputed that Lowder was

       involved in a fight with Allen; Lowder admits this. Tr. Vol. II at 25-27. Thus,

       Lowder’s only viable defense, whether charged with battery or disorderly

       conduct, was self-defense. Therefore, the variance between the offense charged

       and the offense upon which the trial court revoked Lowder’s probation did not

       undermine either Lowder’s right to adequate notice or his ability to prepare a

       defense. Thus, the revocation of Lowder’s probation did not violate his right to

       due process.


                                                III. Sanction
[19]   Lowder argues that the trial court abused its discretion in ordering him to serve

       the remainder of his three-year sentence in the DOC. Lowder contends this
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-964 | March 6, 2020   Page 11 of 13
       sanction is too harsh because Allen instigated the fight and because Lowder’s

       actions were necessary to defend himself.


[20]   We review sanctions imposed for a revocation of probation for an abuse of

       discretion. Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013). If the trial court

       finds that the person has violated a condition of probation, it may “[o]rder

       execution of all or part of the sentence that was suspended at the time of initial

       sentencing.” Ind. Code § 35-38-2-3(h)(3).


[21]   Here, the trial court did not abuse its discretion in ordering Lowder to serve the

       remainder of his three-year sentence in the DOC because, among other reasons,

       Lowder’s criminal history, including multiple probation violations, shows that

       he cannot or will not take advantage of the opportunities afforded by probation.

       Lowder has had six convictions since 2014. Appellant’s Conf. App. Vol. II at 62-

       65. In that same period, Lowder received seven notices of probation violations,

       and his probation was revoked three times. Id. at 63-65. In this case, the notice

       of violation was the second such notice filed against Lowder with this term of

       probation. Tr. Vol. II at 30. The earlier notice resulted in the trial court placing

       Lowder on “strict compliance.” Id. Considering this criminal history, we agree

       with the State that Lowder’s behavior indicates that he is not interested in

       reforming his behavior.


[22]   We also reject Lowder’s argument that his sanction is too harsh because his

       actions were necessary to defend himself. We acknowledge that Allen

       instigated the fight, but we earlier rejected Lowder’s claim of self-defense and


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-964 | March 6, 2020   Page 12 of 13
       with good reason. While our standard of review does not allow us to view the

       evidence as if we were the trier of fact, it is hard to conclude that any trier of

       fact would conclude that Lowder acted in self-defense, especially considering

       the evidence provided by the video recording of the fight. Thus, the trial court

       did not abuse its discretion in ordering Lowder to serve the remainder of his

       sentence in the DOC.


[23]   Affirmed.


       Bailey, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-964 | March 6, 2020   Page 13 of 13
