                                                                              Sep 23 2015, 8:23 am




ATTORNEY FOR APPELLANT                               ATTORNEYS FOR APPELLEE
Mark Small                                           Gregory F. Zoeller
Indianapolis, Indiana                                Attorney General of Indiana

                                                     Christina D. Pace
                                                     Deputy Attorney General
                                                     Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Shaun Pierce,                                             September 23, 2015
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          28A05-1502-CR-57
        v.                                                Appeal from the Greene Superior
                                                          Court;
State of Indiana,                                         The Honorable Dena Martin,
                                                          Judge;
Appellee-Plaintiff.                                       28D01-0901-FB-23




May, Judge.




Court of Appeals of Indiana | Opinion 28A05-1502-CR-57 | September 23, 2015               Page 1 of 6
[1]   Shaun Pierce appeals the revocation of his probation after the trial court found

      he had committed new crimes of Class A misdemeanor trespass 1 and Class A

      misdemeanor theft. 2 As there was sufficient evidence to support the revocation

      of his probation, we affirm.


                                     Facts and Procedural History
[2]   On March 2, 2010, Pierce pleaded guilty to Class B felony dealing in

      methamphetamine pursuant to an agreement that called for dismissal of a

      remaining charge of Class D felony possession of precursors with intent to

      manufacture. The trial court sentenced Pierce to thirteen years at the

      Department of Correction with six years suspended to probation. Pierce started

      probation on October 8, 2013.


[3]   On October 8, 2014, Brent and Kathleen Ferree saw a truck drive onto their

      property. Four people exited the truck and loaded tin that belonged to the

      Ferrees onto the truck. The Ferrees informed police a theft was in progress and

      then used their vehicle to chase the thieves’ truck. During the chase the tin fell

      out of the truck, the truck went into a ditch, and Pierce and the other occupants

      fled into the woods. The police retrieved Pierce and the others from the woods

      and arrested them.




      1
          Ind. Code § 35-43-2-2 (2014).
      2
          Ind. Code § 35-43-4-2 (2014).


      Court of Appeals of Indiana | Opinion 28A05-1502-CR-57 | September 23, 2015   Page 2 of 6
[4]   On October 16, 2014, the State filed a Petition to Revoke Suspended Sentence

      alleging Pierce had violated his probation by committing new criminal offenses

      of theft and trespass. On January 27, 2015, the trial court held an evidentiary

      hearing. The court found the State had proven Pierce committed theft and

      trespass and, based thereon, determined Pierce had violated his probation. The

      court ordered Pierce to serve five years of his previously-suspended sentence.


                                      Discussion and Decision
[5]   “Probation is a matter of grace left to trial court discretion, not a right to which

      a criminal defendant is entitled.” Heaton v. State, 984 N.E.2d 614, 616 (Ind.

      2013) (quoting Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007)). The

      conditions for probation and whether to revoke probation when those

      conditions are violated are left to the discretion of the trial court. Id. We

      review probation violation determinations and sanctions for abuse of discretion.

      Id.


[6]   In deciding whether to revoke probation, a trial court first must make a factual

      determination as to whether there was a violation of a condition of probation.

      Id. If a violation is found, then the trial court must determine the sanctions for

      the violation. Id. A revocation proceeding is civil in nature and the State has to

      prove its allegations by only a preponderance of the evidence. Ind. Code § 35-

      38-2-3; Morgan v. State, 691 N.E.2d 466, 468 (Ind. Ct. App. 1998).


[7]   We review insufficiency of evidence claims in a probation proceeding as we do

      any other sufficiency of the evidence question. Smith v. State, 727 N.E.2d 763,

      Court of Appeals of Indiana | Opinion 28A05-1502-CR-57 | September 23, 2015   Page 3 of 6
      765 (Ind. Ct. App. 2000). We will not reweigh evidence or judge credibility of

      witnesses. Morgan, 691 N.E.2d at 468. We look only at the evidence favorable

      to the State and all reasonable inferences therefrom. Id.


[8]   One violation of a condition of probation is enough to support a probation

      revocation. Hubbard v. State, 683 N.E.2d 618, 622 (Ind. Ct. App. 1997). If the

      trial court’s finding of a violation is supported by substantial evidence of

      probative value, then we will affirm the revocation of probation. Id. When the

      alleged probation violation is the commission of a new crime, conviction of the

      new crime is not required. Richeson v. State, 648 N.E.2d 384, 389 (Ind. Ct App.

      1995), trans. denied.


[9]   Pierce was on probation on October 8, 2014. A condition of his probation was

      that he could not commit any criminal offense. The State alleged he committed

      trespass and theft. Specifically, as to the trespass, the State alleged Pierce “did

      knowingly or intentionally interfere with the possession or use of the property

      of another person without the person’s consent, to-wit: property of Brent Ferree

      located [at specific address deleted],” (App. at 119), in violation of Ind. Code §

      35-43-2-2(b)(4) (2014). The allegation of theft stated Pierce “did knowingly or

      intentionally exert unauthorized control over the property of Brent Ferree with




      Court of Appeals of Indiana | Opinion 28A05-1502-CR-57 | September 23, 2015   Page 4 of 6
       the intent to deprive Brent Ferree of some or all of the value or use thereof,” 3

       (App. at 119), in violation of Indiana Code § 35-43-4-2(a) (2014).


[10]   On October 8, 2014, the Ferrees saw four persons, one of whom was later

       identified as Pierce, load tin from the Ferrees’ property into a pickup truck and

       then attempt to leave the Ferrees’ property with the tin. Police apprehended

       Pierce when he fled from the truck after it went into a ditch. Pierce admitted he

       was on the Ferrees’ property at the time of the alleged trespass. Brandon Jacob

       Starr, a co-defendant to the trespass and theft charges, testified Pierce was

       knowingly and voluntarily involved in the attempted theft of the tin. These

       facts demonstrate Pierce committed trespass by knowingly or intentionally

       interfering with the possession or use of Ferree’s real property without his

       consent, and they also demonstrate Pierce committed theft by knowingly or

       intentionally exerting unauthorized control over the personal property of Brent

       Ferree with the intent to deprive Ferree of some or all of the value or use of that

       property. See Wilson v State, 835 N.E.2d 1044, 1051 (Ind. Ct. App. 2005)

       (defendant guilty of theft where she exerted unauthorized control over diapers



       3
         Pierce asserts this allegation of theft was insufficient because indictments for theft are required to identify
       the allegedly stolen property with specificity. (Appellant’s Br. at 10.) While that may be the case, this
       proceeding was not a criminal trial based on an indictment. Rather, it was a probation revocation, which
       does not endow a citizen with all the due process rights to which he is entitled prior to a conviction. Gleason
       v. State, 634 N.E.2d 67, 68 (Ind. Ct. App. 1994). The due process rights that exist in this context are “written
       notice of the claimed violations, disclosure of the evidence against him, an opportunity to be heard and
       present evidence, the right to confront and cross-examine adverse witnesses, and a neutral and detached
       hearing body.” Id. Pierce did not ask for clarification of the theft allegation prior to or at the hearing on the
       revocation petition. The petition’s allegation of theft indicated the owner of the allegedly stolen property
       and the date on which the theft allegedly occurred, and when read with the trespass allegation, which
       occurred on the same date and at the same victim’s property, the petition indicates the address on which the
       theft allegedly occurred. This was adequate notice of a violation for probation revocation purposes.

       Court of Appeals of Indiana | Opinion 28A05-1502-CR-57 | September 23, 2015                           Page 5 of 6
       and wipes but was prevented from leaving the store with the items), trans.

       denied.


[11]   Pierce argues the evidence was insufficient because the tin was not admitted as

       an exhibit and Starr was not a credible witness. 4 Addressing those arguments

       would require us to reweigh evidence or judge credibility of witnesses – matters

       that we leave to the trial court. See Morgan, 691 N.E.2d at 468 (weighing of

       evidence and assessment of credibility are matters left to the trial court). As the

       State proved by a preponderance of the evidence Pierce committed theft and

       trespass, the trial court did not abuse its discretion by revoking Pierce’s

       probation.


                                                  Conclusion
[12]   As there was sufficient evidence Pierce committed trespass and theft, the trial

       court did not abuse its discretion by revoking Pierce’s probation. Accordingly,

       we affirm.


[13]   Affirmed.


       Crone, J., and Bradford, J., concur.




       4
        Pierce also argues the stolen items were not introduced into evidence. However, evidence that a person
       exerted unauthorized control over property may be proven by witness testimony and circumstantial evidence,
       as occurred in the instant case, without admitting evidence of the property itself. See Helton v State, 907
       N.E.2d 1020, 1024 (Ind. 2009) (State not required to introduce the subject contraband to obtain conviction;
       defendant’s possession can be established by witness testimony and circumstantial evidence).


       Court of Appeals of Indiana | Opinion 28A05-1502-CR-57 | September 23, 2015                     Page 6 of 6
