MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                 FILED
regarded as precedent or cited before any                        May 24 2019, 8:44 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




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Clifford M. Davenport                                   Curtis T. Hill, Jr.
Anderson, Indiana                                       Attorney General of Indiana
                                                        Tyler G. Banks
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Anthony Brockington,                                    May 24, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-2422
        v.                                              Appeal from the Madison Circuit
                                                        Court
State of Indiana,                                       The Honorable Thomas Newman,
Appellee-Plaintiff.                                     Jr., Judge
                                                        Trial Court Cause No.
                                                        48C04-1801-F5-81



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2422 | May 24, 2019              Page 1 of 11
                               Case Summary and Issues
[1]   In June 2018, Anthony Brockington pleaded guilty but mentally ill to seven

      charges, the most severe of which was terroristic mischief, a Level 5 felony. He

      was sentenced to six years with three years executed in community corrections

      and three years suspended. In September of 2018, the trial court revoked

      Brockington’s placement for having contraband and possession of a lookalike

      substance and ordered him to serve his six-year sentence at the Indiana

      Department of Correction (“DOC”). Brockington appeals the revocation,

      raising two issues for our review: 1) whether the evidence was sufficient to

      support the trial court’s finding that he violated terms of his community

      corrections program and 2) whether the trial court abused its discretion in

      revoking his community corrections placement as a sanction for the violations.

      Concluding the State proved the violations by a preponderance of the evidence

      and the trial court did not abuse its discretion in imposing a sanction, we affirm.



                            Facts and Procedural History
[2]   On January 4, 2018, four Anderson Police Department officers responded to a

      call about a man at an apartment building “going crazy.” Appellant’s

      Appendix, Volume II at 13. They found Brockington on the third-floor landing

      outside his girlfriend’s apartment. He threatened to shoot the officers and told

      them he had filled the apartment with gas and was going to blow the building

      up. Officers could smell the gas and began evacuating the building.

      Brockington challenged one of the officers to a fist fight and assumed a fighting

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2422 | May 24, 2019   Page 2 of 11
      stance as an officer made his way up the stairs. When the officer reached the

      landing, Brockington turned and put his hands behind his back and was

      handcuffed and taken into custody.


[3]   The State charged Brockington with one count of terroristic mischief, a Level 5

      felony, for disseminating the gas; four counts of intimidation as Level 5 felonies

      for the threats to the officers; and one count of disorderly conduct and one

      count of criminal mischief, both Class B misdemeanors. Brockington filed a

      notice of his intent to assert the insanity defense, as he claimed to remember

      nothing of the incident. The parties eventually entered into a plea agreement

      whereby Brockington agreed to plead guilty but mentally ill to all charges and

      the State agreed to recommend that all sentences run concurrently and that the

      executed portion of the sentence be capped at three years. The trial court

      accepted Brockington’s plea of guilty and on July 13, sentenced him to six years

      for terroristic mischief, one year for each count of intimidation, and 180 days

      each for disorderly conduct and criminal mischief. Pursuant to the plea

      agreement, the sentences were ordered to be served concurrently, with three

      years executed in the Madison County Continuum of Sanctions program and

      three years suspended to probation. The Continuum of Sanctions program was

      to decide where Brockington would serve those three years and ultimately

      placed him in work release.


[4]   On September 24, 2018, the Continuum of Sanctions program coordinator filed

      a Notice of Adult Day Reporting/Continuum of Sanctions Termination request

      alleging Brockington violated the following program rules:

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2422 | May 24, 2019   Page 3 of 11
              a) On 9/21/18, Mr. Brockington committed a Work Release
              violation of having contraband (tobacco-related) inside the
              facility.


              b) On 9/21/18, Mr. Brockington committed the new criminal
              offense of Possession of a look-alike substance, an A
              misdemeanor.


              c) As of 9/21/18, Mr. Brockington currently owes $57.62 in
              arrears to the Madison County Work Release Facility.


      Id. at 76.


[5]   The trial court held an evidentiary hearing on September 28, at which

      correctional officers Austin Russell and Jacob Roads testified. Russell had been

      a correctional officer for “[o]h about 3 weeks” when he was showing Roads, a

      new officer on his first day, around the facility dorms on September 21.

      Transcript, Volume I at 41. As they were approaching the dorm where

      Brockington was housed, they smelled smoke and then Russell noticed

      “another participate [sic] [who] was sitting on the wrong bunk with Mr.

      Brockington” cough and exhale smoke. Id. at 42. They then saw Brockington

      throw something into his locker and shut the door. They asked both

      participants what they had and they both responded, “[N]othing.” Id. at 43.

      When the officers searched Brockington’s locker, they found two bags

      containing a green leafy substance—one bag tied and one bag open—and also

      found “a rolled up substance.” Id. Although Russell indicated he was familiar

      with spice and the green leafy substance looked like spice, he conceded the


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2422 | May 24, 2019   Page 4 of 11
      substance was not tested and positively identified. Russell specifically denied

      seeing Brockington exhale any smoke but reiterated that he saw Brockington

      throw something into his locker and that participants “are not allowed to be

      smoking in the dorms period.” Id. at 48. The State also admitted into evidence

      an affidavit of probable cause in which Officer Keith Gaskill averred that he

      took possession of the two bindles of green leafy substance found in

      Brockington’s locker and “recognized the substance within to be synthetic

      cannabinoid, commonly referred to in street jargon as ‘Spice, K2 or Katy’.”

      Appellant’s App., Vol. II at 81.


[6]   At the conclusion of the hearing, the trial court stated:


              The Court finds that the defendant violated the rules of in home
              um Work Release[.] . . . The Court sentences the Defendant to
              the Department of Corrections [sic] for 6 years.


      Tr., Vol. I at 54. In its written order, the trial court elaborated:


              The court finds by preponderance of the evidence that the
              defendant has violated the conditions of Adult Day
              Reporting/Continuum of Sanctions; to wit, Defendant brought
              contraband and possessed a look-a-like substance.


              The Court makes recommendations to [DOC] that the defendant
              participate in Recovery While Incarcerated. Upon successful
              completion of the clinically appropriate substance abuse
              treatment program as determined by [DOC], the court will
              consider a modification to this sentence.


      Appellant’s App., Vol. II at 12. Brockington now appeals.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2422 | May 24, 2019   Page 5 of 11
                                Discussion and Decision
                                 I. Sufficiency of Evidence
[7]   Brockington first argues the evidence is insufficient to show he violated the

      terms of his placement in the Continuum of Sanctions program. We review a

      decision to revoke placement in a community corrections program in the same

      way we review a decision to revoke probation. Cox v. State, 706 N.E.2d 547,

      549 (Ind. 1999). “A probation hearing is civil in nature and the State need only

      prove the alleged violations by a preponderance of the evidence.” Id. at 551.

      We will not reweigh the evidence or judge the credibility of the witnesses and

      will consider the evidence most favorable to the trial court’s decision. Id. “If

      there is substantial evidence of probative value to support the trial court’s

      conclusion that a defendant has violated any terms of [his placement], we will

      affirm its decision to revoke[.]” Id. The violation of a single condition of

      probation is enough to support revocation. Pierce v. State, 44 N.E.3d 752, 755

      (Ind. Ct. App. 2015).


[8]   Brockington argues that the State failed to prove he had violated the conditions

      of his placement. He focuses on the fact that he was not seen smoking and that

      the substance found in his locker was never tested or positively identified. We

      agree the State’s evidence could have been presented more artfully and in more

      detail. However, the State only had to prove a violation by a preponderance of

      the evidence. See Ind. Code § 35-38-2-3(f). “Preponderance of the evidence”

      “simply means the greater weight of the evidence.” Kishpaugh v. Odegard, 17


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2422 | May 24, 2019   Page 6 of 11
       N.E.3d 363, 373 (Ind. Ct. App. 2014) (quotation omitted). And the State’s

       evidence meets that standard.


[9]    Brockington was alleged to have possessed tobacco-related contraband in the

       work release facility. Although tobacco is not illegal and therefore not

       inherently “contraband,” in the context of the Continuum of Sanctions

       program, tobacco or tobacco-related products would be considered contraband

       as they are not allowed to be used in the facility. Brockington was not alleged

       to have been smoking but only to have the means to do so, and both the green

       leafy substance and the rolled object were found in his locker. Moreover,

       officers saw Brockington throw something into his locker as they approached,

       and one of the bags of the green leafy substance was found “right inside the

       locker where . . . it looked like he would have thrown in there as soon as

       [officers] walked up.” Tr., Vol. I at 43. And although the substance inside the

       rolled object was not identified, the object was rolled up like a joint – in other

       words, in a manner to facilitate smoking.


[10]   As for the allegation that Brockington committed a new criminal offense by

       possessing a lookalike substance, it is a Class A misdemeanor to knowingly or

       intentionally possess a synthetic drug lookalike substance. Ind. Code § 35-48-4-

       11.5(c). A synthetic drug lookalike substance is defined as a “substance, other

       than a synthetic drug, which any of the factors listed in subsection (c) would

       lead a reasonable person to believe to be a synthetic drug.” Ind. Code § 35-

       31.5-2-321.5(a)(1). The factors listed in section 35-31.5-2-321.5(c) include the

       “overall appearance of a dosage unit of the substance, including its shape, color,

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2422 | May 24, 2019   Page 7 of 11
size, markings or lack of markings, taste, consistency, and any other identifying

physical characteristics.” Ind. Code § 35-31.5-2-321.5(c)(1). The testimony at

the hearing was that there was a rolled object and two bags of the green leafy

substance in Brockington’s locker. It is true the green leafy substance was never

definitively identified, but there was evidence in the form of Russell’s testimony

and Gaskill’s affidavit1 that they recognized the green leafy substance to be

consistent with the appearance of spice. “Although chemical analysis is one

way, and perhaps the best way, to establish the identity of a compound,” “[t]he

opinion of someone sufficiently experienced with the drug may establish its

identity, as may other circumstantial evidence.” Vasquez v. State, 741 N.E.2d

1214, 1216 (Ind. 2001). As for Brockington’s possession of the substance,

officers did not find it in his actual possession, but they saw him throw

something into his locker and later found two bags of the substance in his

locker. Constructive possession can be proved by evidence that the person has

both the capability and the intent to maintain dominion and control of the

contraband. Sargent v. State, 27 N.E.3d 729, 733 (Ind. 2015). The locker was

apparently in close enough proximity to Brockington that he was able to easily

throw into it whatever was in his hand. Moreover, the green leafy substance




1
  Brockington did not object to the admission of this probable cause affidavit “without making any admission
as to the allegation that may[]be derived” from it. Tr., Vol. I at 52. On appeal, Brockington argues the
affidavit should not have been admitted, acknowledges counsel’s statement was “perhaps ambiguous,” and
contends that even if error in its admission is deemed waived, it constituted fundamental error. Appellant’s
Brief at 17. As any error was invited, it cannot be fundamental. See Brewington v. State, 7 N.E.3d 946, 975
(Ind. 2014). Regardless, the hearsay rule is not applicable in revocation proceedings and the trial court may
consider all relevant evidence, including reliable hearsay. Cox, 706 N.E.2d at 552.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2422 | May 24, 2019                     Page 8 of 11
       was found in Brockington’s locker among his other things and his throwing the

       item was an attempt to hide it. See Negash v. State, 113 N.E.3d 1281, 1291 (Ind.

       Ct. App. 2018) (pointing out that some of the circumstances indicating a

       defendant knew of the contraband and was capable of controlling it are furtive

       gestures, proximity to the contraband, and the contraband being in close

       proximity to items owned by the defendant). Recognizing that the standard of

       proving Brockington violated his placement by committing a new criminal

       offense is a preponderance of the evidence, not beyond a reasonable doubt, we

       conclude the State met its burden of proving Brockington possessed a synthetic

       lookalike substance.


[11]   In sum, the allegations in the notice were proved by a preponderance of the

       evidence and the trial court did not err in determining Brockington had

       committed a violation of the terms of his placement as alleged by the program

       coordinator.


                                               II. Sanction
[12]   Brockington’s argument regarding the sanction imposed by the trial court is

       primarily grounded in seeking a revision of the sanction pursuant to Appellate

       Rule 7(B) because the trial court’s initial sentence gave “great consideration” to

       his mental health and the sanction “wholly fails to address Brockington’s

       mental health and the need for him to continue treatment[.]” Appellant’s Brief

       at 8, 23. However, Appellate Rule 7(B) does not apply to sanctions imposed in




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2422 | May 24, 2019   Page 9 of 11
       a probation revocation proceeding. Prewitt v. State, 878 N.E.2d 184, 188 (Ind.

       2007).


[13]   Instead, we review the sanction the trial court imposes in a revocation

       proceeding for an abuse of discretion. Puckett v. State, 956 N.E.2d 1182, 1186

       (Ind. Ct. App. 2011). An abuse of discretion will only be found if the trial

       court’s decision is against the logic and effect of the facts and circumstances

       before it. Id. Both community corrections programs and probation serve as

       alternatives to commitment to the DOC and are ordered at the sole discretion of

       the trial court. Cox, 706 N.E.2d at 549. Placement in either program is a matter

       of grace and a conditional liberty that is a favor, not a right. Id. “Once a trial

       court has exercised its grace by ordering probation rather than incarceration,

       the judge should have considerable leeway in deciding how to proceed.”

       Prewitt, 878 N.E.2d at 188. When reviewing revocation of probation, we look

       only at the sentence imposed after revocation and not the terms of the initial

       sentence. Johnson v. State, 62 N.E.3d 1224, 1230 (Ind. Ct. App. 2016). After a

       hearing and upon finding that a violation occurred, the trial court may revoke

       the defendant’s placement in community corrections and order all or part of the

       previously suspended sentence to be executed. Ind. Code § 35-38-2-3(h)(3).


[14]   Here, within two months of being given the grace of serving his sentence in the

       Continuum of Sanctions program, Brockington violated the terms of that

       program. The trial court initially showed Brockington leniency but

       Brockington did not rise to the opportunity, instead violating the terms of his

       placement almost immediately. The trial court did not ignore Brockington’s

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2422 | May 24, 2019   Page 10 of 11
       issues in committing him to the DOC, but rather, recommended to the DOC

       that he participate in Recovery While Incarcerated and indicated its willingness

       to consider a modification to his sentence in the future. Under these

       circumstances, we cannot say the trial court abused its discretion in imposing a

       sanction.



                                              Conclusion
[15]   The State met its burden of proving by a preponderance of the evidence that

       Brockington had violated the terms of his community corrections placement

       and the trial court did not abuse its discretion in imposing a sanction for the

       violations. Accordingly, the judgment of the trial court is affirmed.


[16]   Affirmed.


       Baker, J., and Najam, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2422 | May 24, 2019   Page 11 of 11
