      MEMORANDUM DECISION                                                       FILED
      Pursuant to Ind. Appellate Rule 65(D), this                          Jun 01 2016, 8:32 am

      Memorandum Decision shall not be regarded as                              CLERK
      precedent or cited before any court except for the                    Indiana Supreme Court
                                                                               Court of Appeals
      purpose of establishing the defense of res judicata,                       and Tax Court

      collateral estoppel, or the law of the case.



      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Anthony C. Lawrence                                       Gregory F. Zoeller
      Anderson, Indiana                                         Attorney General of Indiana
                                                                Chandra K. Hein
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana


                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Marvin Hester,                                           June 1, 2016

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               48A02-1509-CR-1384
              v.                                               Appeal from the Madison Circuit
                                                               Court.
                                                               The Honorable Angela Warner
      State of Indiana,                                        Sims, Judge.
      Appellee-Plaintiff.                                      Cause No. 48C01-1309-FD-1712




      Darden, Senior Judge


                                       Statement of the Case
[1]   Marvin Hester appeals from the trial court’s order revoking his probation and

      imposing 525 days of his previously-suspended sentence to be served in the

      Indiana Department of Correction. We affirm.

      Court of Appeals of Indiana | Memorandum Decision 48A01-1509-CR-1384 | June 1, 2016           Page 1 of 9
                                   Facts and Procedural History
[2]   On September 19, 2014, Hester was convicted after a bench trial of pointing a
                   1
      firearm, a Class D felony, at his mother, Deborah Hester. Hester failed to

      appear for his original October 7, 2014, sentencing date. However, after a

      warrant was issued for his arrest, he appeared for his re-scheduled January 5,

      2015 sentencing date. At that time he received a three-year sentence, 180 days

      of which were ordered to be served executed in the Department of Correction.

      Hester received 120 days of jail time credit, plus good time credit. The

      remaining 855 days were suspended to probation to be served in the Adult

      Daily Probation Program. Hester signed the intake form which outlined the

      terms and conditions of his probation.


[3]   On February 3, 2015, a notice of adult day reporting termination was filed

      along with a request for a warrant for Hester’s arrest. The trial court granted

      the warrant request the next day and ordered Hester arrested and held without

      bond. Hester proceeded pro se at his March 12, 2015 probation evidentiary

      hearing, at the conclusion of which the trial court found Hester had violated the

      terms and conditions of his probation by failing to behave well in society by

      committing the new offense of invasion of privacy. Hester was sanctioned by

      the trial court by being ordered to serve seventy-four days in the Madison




      1
          Ind. Code § 35-47-4-3 (1995).


      Court of Appeals of Indiana | Memorandum Decision 48A01-1509-CR-1384 | June 1, 2016   Page 2 of 9
      County Detention center. Hester received credit for thirty-seven jail time days,

      plus good time credit, and was returned to adult day reporting.


[4]   Although Hester was ordered to refrain from using or consuming alcohol or

      illegal drugs, and was given random drug and alcohol screens, he failed

      multiple times. The most recent failed urine screen occurred on April 29, 2015,

      when he tested positive for marijuana. He admitted that he consumed alcohol a

      few days prior to that failed screen.


[5]   On May 15, 2015, Officer Shad Grile, a patrolman with the Anderson Police

      Department, was dispatched to 702 Heritage Lane. The dispatcher stated that

      the call involved trouble with a man by the name of Hester. The dispatcher also

      mentioned that someone had a knife.


[6]   As Officer Grile pulled up to the residence in his patrol car, a female, later

      identified as Cindy Potter, Deborah Hester’s landlord, flagged down the officer.

      Potter told the officer that he, meaning Hester, or they, meaning Deborah

      Hester and Gean, her brother, had a knife. Officer Grile went into the house

      through the garage door entrance where he observed a female subject and a

      male subject lying on top of a naked male subject. He observed a very large

      knife, which was neither a switch blade nor a steak knife, in the air. The officer

      moved closer to the individuals and observed that the male and female on top

      were trying to keep the naked male from gaining control of the knife. The

      naked male was later identified as Hester; the female was later identified as




      Court of Appeals of Indiana | Memorandum Decision 48A01-1509-CR-1384 | June 1, 2016   Page 3 of 9
       Deborah Hester; and the other male was later identified as Gean Hester,

       Hester’s uncle and Deborah’s brother.


[7]    Officer Grile told Hester to let go of the knife, but he refused. Officer Grile then

       instructed Deborah and Gean not to let go of the knife. The officer slowly and

       deliberately approached the three, grabbed Hester’s wrist and began prying

       Hester’s fingers one at a time off the knife. Once Hester’s fingers were no

       longer on the knife, Officer Grile instructed Deborah and Gean to let go of the

       knife as well. After they complied, the officer grabbed the knife and placed it

       on a nearby table.


[8]    The officer, Deborah, and Gean restrained Hester until another officer could

       arrive to help. Hester was yelling, and Officer Grile explained why they were

       continuing to restrain him. Hester, whose face was “nose to nose” with

       Deborah’s, spat in her face several times.


[9]    Officer Brad McClain of the Anderson Police Department arrived at the house

       to assist Officer Grile. Officer McClain secured the knife as Officer Grile

       arrested Hester for spitting in Deborah’s face. Hester fought with Officer Grile

       and refused to put clothes on. Subsequently, he was transported to jail.


[10]   Officer McClain interviewed Deborah, Gean, and Potter after Hester was taken

       away. In their statements to him, Deborah and Gean stated that the previous

       evening Deborah had called police officers and asked them to make Hester

       leave in an attempt to evict him. However, because Hester had lived there for a



       Court of Appeals of Indiana | Memorandum Decision 48A01-1509-CR-1384 | June 1, 2016   Page 4 of 9
       while, the police officers were unable to make Hester leave. Deborah began

       carrying a knife on her person because she was afraid of her son.


[11]   On the day of the incident, Hester started speaking in an aggressive tone toward

       Deborah before he went to shower. After he had finished showering, Hester

       entered the living room and confronted Deborah with a metal pipe in his hand.

       Deborah had the knife in her hand. Hester began waving the metal pipe as if to

       strike Deborah and lunged at her. Gean intervened and the three began to

       wrestle, and apparently Potter called the police.


[12]   Hester gained control of the knife as Deborah and Gean attempted to safely

       wrestle it away from him before police officers arrived. According to Deborah,

       Hester spat on her a total of four times, two times before the police arrived, and

       he bit her on the wrist twice. In Hester’s videotaped statement, he admitted

       that he spat on Hester.


[13]   On May 19, 2015, the State filed a petition to revoke Hester’s probation. The

       trial court held an evidentiary hearing and took the matter under advisement.

       On July 31, 2015, the trial court found that Hester had violated his probation by

       testing positive for marijuana, consuming alcohol, and committing the new

       criminal offense, battery by bodily waste, but made no finding as to the

       allegation of resisting law enforcement. The trial court gave Hester jail credit

       time of seventy-five days, plus good time credit. The court then revoked 525

       days of Hester’s previously suspended sentence. Hester now appeals.




       Court of Appeals of Indiana | Memorandum Decision 48A01-1509-CR-1384 | June 1, 2016   Page 5 of 9
                                    Discussion and Decision
[14]   Hester argues that the trial court abused its discretion by ordering him to serve

       525 days of his previously suspended sentence. First, Hester claims there is

       insufficient evidence to support the finding that he violated the terms of his

       probation by committing battery by bodily waste, given his claim of self-

       defense. Next, he contends that the trial court abused its discretion by failing to

       acknowledge the progress he was making while on probation when imposing

       sanction for his probation violation.


[15]   We begin with the premise that “[p]robation is a matter of grace left to trial

       court discretion, not a right to which a criminal defendant is entitled.” Prewitt v.

       State, 878 N.E.2d 184, 188 (Ind. 2007). Courts in probation revocation hearings

       “may consider any relevant evidence bearing some substantial indicia of

       reliability.” Cox v. State, 706 N.E.2d 547, 551 (Ind. 1999). It is within the

       discretion of the trial court to determine the conditions of a defendant’s

       probation and to revoke probation if the conditions are violated. Prewitt, 878

       N.E.2d at 188. In essence, all probation requires “strict compliance” because

       probation is a matter of grace, and once the trial court extends this grace and

       sets its terms and conditions, the probationer is expected to strictly comply with

       them. Woods v. State, 892 N.E.2d 637, 641 (Ind. 2008). “If the probationer fails

       to do so, then a violation has occurred.” Id. “But even in the face of a

       probation violation the trial court may nonetheless exercise its discretion in

       deciding whether to revoke probation.” Id. (citing Clark Cnty. Council v.

       Donahue, 873 N.E.2d 1038, 1039 (Ind. 2007) (“The probationary scheme is

       Court of Appeals of Indiana | Memorandum Decision 48A01-1509-CR-1384 | June 1, 2016   Page 6 of 9
       deliberately designed to give trial judges the flexibility to make quick, case-by-

       case determinations.”)).


[16]   Violation determinations and sanctions are reviewed for abuse of discretion.

       Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013). “An abuse of discretion

       occurs where the decision is clearly against the logic and effect of the facts and

       circumstances.” Prewitt, 878 N.E.2d at 188. We consider only the evidence

       most favorable to the judgment without reweighing that evidence or judging the

       credibility of the witnesses. Woods, 892 N.E.2d at 639 (citing Braxton v. State,

       651 N.E.2d 268, 270 (Ind. 1995)). “If there is substantial evidence of probative

       value to support the trial court’s decision that a defendant has violated any

       terms of probation, the reviewing court will affirm its decision to revoke

       probation.” Woods, at 639-40.


[17]   “Probation revocation is a two-step process. First, the trial court must make a

       factual determination that a violation of a condition of probation actually

       occurred.” Id. at 640. Second, if a violation is found, then the trial court must

       determine the appropriate sanction for the violation. Id. A probation

       revocation hearing is civil in nature, and the State’s burden is to prove the

       alleged violations only by a preponderance of the evidence. Cox, 706 N.E.2d at

       551. Violation of a single term or condition of probation is sufficient to revoke

       probation. Ind. Code § 35-38-2-3(a)(1) (2012). When reviewing an appeal from

       the revocation of probation, the reviewing court considers only the evidence

       most favorable to the judgment, and does so without reweighing the evidence

       or reassessing the credibility of the witnesses. Cox, 706 N.E.2d at 551.

       Court of Appeals of Indiana | Memorandum Decision 48A01-1509-CR-1384 | June 1, 2016   Page 7 of 9
[18]   Before the incident leading to Hester’s arrest for battery by bodily waste, it is

       undisputed that Hester had failed several drug screens despite being informed

       that a term of his probation was to refrain from the use of illegal drugs and the

       consumption of alcohol. His most recent failed urine screen occurred on April

       29, 2015 when he tested positive for marijuana. Hester admitted that he had

       consumed alcohol a couple of days prior to failing that most recent screen.

       Either one of those violations standing alone would support the trial court’s

       decision to find a violation and revoke Hester’s probation.


[19]   Further, the trial court was presented with overwhelming evidence that Hester

       angrily spat in his mother’s face in the presence of Officer Grile. Deborah,

       Hester’s mother, gave a statement to police indicating that Hester spat on her

       four times during that incident, two times before police officers arrived, and bit

       her on the wrist twice. Hester presented testimony that he spat in his mother’s

       face, but that it was done in self-defense. However, the trial court was in the

       best position to weigh the evidence and assess the credibility of the witnesses.

       We find there is sufficient evidence to support the trial court’s finding. The trial

       court did not abuse its discretion by relying on this additional ground for

       revoking Hester’s probation.


[20]   Additionally, the record reveals that the trial court showed great patience with

       Hester’s behavior and progress while on probation. Hester is to be commended

       for gaining employment at two places of business and meeting some of the

       goals set for him in the rehabilitative process. However, Hester’s continued



       Court of Appeals of Indiana | Memorandum Decision 48A01-1509-CR-1384 | June 1, 2016   Page 8 of 9
       disrespect for his mother and for the law, warrants the sanction selected by the

       trial court, which previously had shown leniency with Hester.


                                                Conclusion
[21]   In light of the foregoing, we affirm the trial court’s decision.


       Riley, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 48A01-1509-CR-1384 | June 1, 2016   Page 9 of 9
