MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                               Jan 28 2016, 8:23 am
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Randy M. Fisher                                          Gregory F. Zoeller
Deputy Public Defender                                   Attorney General of Indiana
Leonard, Hammond, Thoma & Terrill
Fort Wayne, Indiana                                      Paula J. Beller
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Javonieo White,                                          January 28, 2016
Appellant-Respondent,                                    Court of Appeals Case No.
                                                         02A03-1505-CR-365
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable Frances C. Gull,
Appellee-Petitioner.                                     Judge
                                                         Trial Court Cause Nos.
                                                         02D06-1202-FC-43,
                                                         02D06-1203-FC-86



Bradford, Judge.



                                    Case Summary
Court of Appeals of Indiana | Memorandum Decision 02A03-1505-CR-365 | January 28, 2016      Page 1 of 8
[1]   In 2012, Appellant-Respondent Javonieo White pled guilty to two counts of

      Class C felony possession of cocaine or narcotic drug and one count of Class A

      misdemeanor resisting arrest. On November 29, 2014, while on probation for

      his prior convictions, White was found to be sitting on the barrel of a handgun

      in the backseat of a vehicle that was involved in a traffic stop. White was

      subsequently charged with Level 5 felony carrying a handgun without a license

      and Level 6 felony theft.


[2]   On December 5, 2014, Appellee-Petitioner the State of Indiana (the “State”)

      filed a petition seeking to revoke White’s probation. In this petition, the State

      alleged that White had violated the terms of his probation by failing to maintain

      good behavior. Following an evidentiary hearing, the trial court determined

      that that State had proven by a preponderance of the evidence that White had

      indeed violated the terms of his probation. The trial court then revoked White’s

      probation and ordered White to serve an aggregate, executed term of eight

      years.


[3]   On appeal, White contends that the evidence presented by the State is

      insufficient to prove that he violated the terms of his probation. Concluding

      otherwise, we affirm.



                            Facts and Procedural History




      Court of Appeals of Indiana | Memorandum Decision 02A03-1505-CR-365 | January 28, 2016   Page 2 of 8
                Facts Relating to White’s Placement on Probation
[4]   On May 29, 2012, White pled guilty under cause numbers 02D06-1202-FC-43

      (“Cause No. FC-43”) and 02D06-1203-FC-86 (“Cause No. FC-86”) to two

      counts of Class C felony possession of cocaine and one count of Class A

      misdemeanor resisting arrest. Under Cause No. FC-43, the first count of Class

      C felony possession of cocaine, White was sentenced to a term of six years,

      with two years executed and the remaining four years served on probation.

      Under Cause No. FC-86, the second count Class C felony possession of cocaine

      and the Class A misdemeanor resisting arrest count, White was sentenced to an

      aggregate term of five years, with one year executed and four years suspended

      to probation. The sentences in Cause No. FC-43 and Cause No. FC-86 were

      ordered to run consecutively.


[5]   In serving the executed portions of his sentences for Cause Nos. FC-43 and FC-

      86, White was placed on work release. On March 8, 2013, White’s work

      release placement was revoked, and White was ordered to serve the remaining

      executed portion of his sentences in Cause Nos. FC-43 and FC-86 in the

      Department of Correction (“DOC”). White was placed on probation on May

      7, 2014, following his release from the DOC.


                 Facts Relating to the Instant Probation Violation
[6]   On November 29, 2014, Indiana State Trooper John Grant initiated a traffic

      stop after he observed a vehicle “flying by” at a high rate of speed. Tr. p. 72.

      As Trooper Grant approached the vehicle, he observed that his view inside the


      Court of Appeals of Indiana | Memorandum Decision 02A03-1505-CR-365 | January 28, 2016   Page 3 of 8
      vehicle was obstructed by “pretty dark” tinted windows. Tr. p. 75. He then

      requested that the occupants roll down the windows so that he could see how

      many people were in the vehicle. Once the occupants of the vehicle complied

      with Trooper Grant’s request, Trooper Grant could see five individuals in the

      vehicle. He also smelled the odor of marijuana emanating from the vehicle.


[7]   Once other officers, including Fort Wayne Police Detective David Wilkins,

      arrived at the scene, the individuals were ordered to exit the vehicle. When

      White, who was sitting in the back seat behind the driver, exited the vehicle,

      Trooper Grant observed that White was sitting on a handgun. Specifically, the

      part of the handgun consisting of the barrel up to the trigger of the handgun had

      been under White’s right buttock. Ali Sultan, the individual sitting next to

      White in the vehicle, had been sitting on the handle of the handgun with his left

      buttock. After securing the handgun, Trooper Grant observed that the handgun

      was loaded with “[o]ne in the chamber, full capacity, twelve rounds.” Tr. p. 81.

      It was later determined that the handgun in question had been reported stolen

      on November 2, 2014.


[8]   At some point, Detective Wilkins interviewed White. White told Detective

      Wilkins that he “never saw the handgun that was underneath him.” Tr. p. 145.

      White further told Detective Wilkins that there was no handgun on the seat

      when he got into the vehicle, that no one inside the vehicle handed him the

      handgun once he got into the vehicle, and that Sultan did not stick the handgun

      underneath him.



      Court of Appeals of Indiana | Memorandum Decision 02A03-1505-CR-365 | January 28, 2016   Page 4 of 8
[9]    White was subsequently charged under cause number 02D04-1412-F5-128

       (“Cause No. F5-128) with Level 5 felony carrying a handgun without a license

       and Level 6 felony theft. On December 5, 2014, referencing White’s November

       29, 2014 arrest and the charges filed in Cause No. F5-128, the State filed a

       motion to revoke White’s probation, alleging that White had violated the terms

       of his probation by failing to maintain good behavior. Although he was

       eventually acquitted of the criminal charges levied in Cause No. F5-128, on

       April 9, 2015, White was found to have violated the terms of his probation. As

       a result of this finding, the trial court revoked White’s probation and ordered

       him to serve four years executed in the DOC for each Cause No. FC-43 and

       FC-86, run consecutively, for a total of eight years. This appeal follows.



                                  Discussion and Decision
[10]   White contends that the State failed to present sufficient evidence to support the

       revocation of his probation.

               Probation is a matter of grace left to trial court discretion, not a
               right to which a criminal defendant is entitled. The trial court
               determines the conditions of probation and may revoke
               probation if the conditions are violated. 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. If this discretion were not afforded to
               trial courts and sentences were scrutinized too severely on
               appeal, trial judges might be less inclined to order probation to
               future defendants. Accordingly, a trial court’s sentencing
               decisions for probation violations are reviewable using the abuse
               of discretion standard. An abuse of discretion occurs where the

       Court of Appeals of Indiana | Memorandum Decision 02A03-1505-CR-365 | January 28, 2016   Page 5 of 8
                decision is clearly against the logic and effect of the facts and
                circumstances.


       Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007) (internal citations omitted).


                A probation revocation hearing is in the nature of a civil
                proceeding. Therefore, an alleged violation of probation only has
                to be proven by a preponderance of the evidence. When we
                review the determination that a probation violation has occurred,
                we neither reweigh the evidence nor reassess witness credibility.
                Instead, we look at the evidence most favorable to the [trial]
                court’s judgment and determine whether there is substantial
                evidence of probative value supporting revocation. If so we will
                affirm.


       Whatley v. State, 847 N.E.2d 1007, 1010 (Ind. Ct. App. 2006) (internal citations

       and quotation omitted). The violation of a single condition of probation is

       sufficient to revoke probation. Wilson v. State, 708 N.E.2d 32, 34 (Ind. Ct. App.

       1999).


           Sufficiency of the Evidence to Prove Probation Violation
[11]   In filing the petition to revoke White’s probation, the State alleged that White

       violated the terms of his probation by failing to maintain good behavior. In

       support of this allegation, the State asserted that White was charged with new

       criminal behavior, i.e., felony carrying a handgun without a license and felony

       theft. Following an evidentiary hearing, the trial court found that the State had

       proved the allegation by a preponderance of the evidence.

[12]            In proving that a defendant has violated the condition of “good
                behavior,” the State must prove by a preponderance of the
       Court of Appeals of Indiana | Memorandum Decision 02A03-1505-CR-365 | January 28, 2016   Page 6 of 8
               evidence that the defendant has engaged in unlawful activity.
               Certainly proof of a conviction is the best evidence of unlawful
               conduct; for that reason, a conviction is prima facie evidence and
               will alone support the revocation of probation. But a conviction
               is not necessary to support revocation. If the State can prove by a
               preponderance of other evidence that such unlawful conduct has
               occurred, revocation is still proper. Thus, revocation of
               probation may be based upon evidence of the commission of an
               offense, even if the probationer has been acquitted of the crime
               after trial.


       Brown v. State, 458 N.E.2d 245, 249 (Ind. Ct. App. 1983) (internal citations

       omitted).


[13]   In the instant matter, the record demonstrates that at the time police came into

       contact with White, White was sitting on the handgun in question with the

       barrel of the handgun located under his right buttock. White was afforded a full

       and fair opportunity to persuade the trial court that he did not possess the

       handgun in question, and as such, that his probation should not be revoked.

       White failed to do so.


[14]   Again, the record indicates that White told the investigating officer that there

       was no handgun on the seat when he got into the vehicle, that no one inside the

       vehicle handed him the handgun once he got into the vehicle, and that Sultan

       did not stick the handgun underneath him. Given that handguns do not merely

       materialize under people’s buttocks, it was entirely reasonable for the trial court

       to determine that it was more likely than not that White possessed the handgun.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1505-CR-365 | January 28, 2016   Page 7 of 8
       We therefore conclude that the State provided ample evidence to establish that

       White violated the terms of his probation by failing to maintain good behavior.


[15]   The judgment of the trial court is affirmed.


       Baker, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1505-CR-365 | January 28, 2016   Page 8 of 8
