MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                               Feb 16 2016, 8:30 am

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
Michael Frischkorn                                       Gregory Zoeller
Frischkorn Law LLC                                       Attorney General of Indiana
Fortville, Indiana
                                                         Larry D. Allen
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Kevin Graham,                                            February 16, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         48A02-1505-CR-414
        v.                                               Appeal from the Madison Circuit
                                                         Court
State of Indiana,                                        The Honorable Dennis D. Carroll,
                                                         Judge
Appellee-Plaintiff
                                                         Trial Court Cause No.
                                                         48C06-1202-FC-304



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 48A02-1505-CR-414 | February 16, 2016    Page 1 of 6
                                             Case Summary
[1]   Kevin Graham appeals the trial court’s revocation of his probation and the

      imposition of the previously suspended portion of his sentence. Graham

      contends that there was insufficient evidence to support the trial court’s finding

      that he violated his probation and that the trial court abused its discretion in

      revoking his probation and imposing his previously suspended sentence.

      Finding the evidence sufficient and no abuse of discretion, we affirm.


                                 Facts and Procedural History
[2]   In May 2012, Graham pled guilty to two counts of class C felony forgery and

      one count of class D felony receiving stolen property. The trial court sentenced

      Graham to concurrent seven-year sentences for the class C felonies and a

      consecutive term of two years for the class D felony. Graham was sentenced to

      nine years in the Department of Correction, with four years suspended to

      probation. As a condition of probation, Graham was ordered to pay $909.24 in

      restitution at a rate of no less than $50 per month, submit to random urine

      screens, to refrain from committing any new crimes, and to report any arrest to

      his probation officer within forty-eight hours.


[3]   In October 2014, Cindy Overmyer attended a Zionsville Community High

      School football game. The next morning her credit card companies called

      about suspicious credit card activity occurring at gas stations along Interstate

      65. Overmyer checked her purse and wallet and discovered that her credit

      cards and checks were missing.


      Court of Appeals of Indiana | Memorandum Decision 48A02-1505-CR-414 | February 16, 2016   Page 2 of 6
[4]   Zionsville Police Department Detective Joshua Samuelson began to investigate

      the theft and unauthorized use of Overmyer’s credit cards. He watched

      surveillance video footage from the gas stations along Interstate 65 between

      Lebanon and Lafayette and saw a man using Overmyer’s credit cards.

      Detective Samuelson sent still photos from the surveillance footage to several

      area investigators. Detective Dan Boutwell from the Whitestown Police

      Department, who had previous dealings with Graham, saw the photos and

      identified Graham as the man using Overmyer’s credit cards.


[5]   Detective Samuelson obtained Graham’s driver’s license photo and compared it

      to the man in the video footage. He determined that Graham was the person in

      the videos. Next, Detective Samuelson obtained Graham’s cell phone number,

      dialed it, and spoke with a man who identified himself as Graham. Detective

      Samuelson was able to acquire location information regarding Graham’s phone

      from his cellular carrier company. This information placed Graham in the

      general location of the Zionsville High School football game where the initial

      theft took place and at the gas stations when and where the unauthorized credit

      card use occurred. Graham was subsequently arrested and charged with two

      counts of level 6 felony fraud and one count of class A misdemeanor theft.


[6]   In January 2015, the probation department alleged that Graham violated his

      probation by committing new criminal offenses, failing to report his arrest,

      failing to pay restitution, and failing to submit to urine screens. At an

      evidentiary hearing, Graham admitted that he had failed to report his arrest and

      pay restitution. The trial court found that Graham violated his probation by

      Court of Appeals of Indiana | Memorandum Decision 48A02-1505-CR-414 | February 16, 2016   Page 3 of 6
      committing new criminal offenses, failing to report his arrest within forty-eight

      hours, and failing to pay restitution. The trial court revoked Graham’s

      probation and imposed the balance of his previously suspended sentence. This

      appeal ensued.


                                     Discussion and Decision

      Section 1- Sufficient evidence supports the trial court’s finding
                   that Graham violated his probation.
[7]   Graham contends that the evidence is insufficient to support the trial court’s

      finding that he violated his probation. A probation revocation proceeding is in

      the nature of a civil proceeding, and therefore the alleged violation need be

      established only by a preponderance of the evidence. Jenkins v. State, 956

      N.E.2d 146, 148 (Ind. Ct. App. 2011), trans. denied (2012). Violation of a single

      condition is sufficient to revoke probation. Id. We consider only the evidence

      most favorable to the trial court’s judgment and do not reweigh the evidence or

      judge the credibility of the witnesses. Woods v. State, 892 N.E.2d 637, 639 (Ind.

      2008).


[8]   Graham argues that Detective Samuelson did not investigate the possibility that

      it was his identical twin brother on the surveillance video footage, and therefore

      the State did not prove by a preponderance of the evidence that he committed

      level 6 felony fraud and class A misdemeanor of theft. We disagree. Moreover,

      we reiterate that Graham admitted to violating two other conditions of his

      probation, either one of which would have been sufficient to support the


      Court of Appeals of Indiana | Memorandum Decision 48A02-1505-CR-414 | February 16, 2016   Page 4 of 6
      revocation of his probation. The evidence most favorable to the trial court’s

      decision indicates that Graham stole Cindy’s credit cards and used them to

      obtain almost $2000 worth of property from various gas stations. Not only was

      his use of the credit cards caught on tape and identified by detectives, but his

      cell phone location coincided with when and where the cards were taken and

      the unauthorized transactions took place. All of this evidence implicates

      Graham; he requests us to reweigh evidence, which we will not do. Woods, 892

      N.E.2d at 639. We conclude that the State established by a preponderance of

      the evidence that Graham violated his probation by committing fraud and theft.


           Section 2 - The trial court did not abuse its discretion in
         revoking Graham’s probation and imposing the previously
                      suspended portion of his sentence.
[9]   Probation revocation is a two-step process. “First, the court must make a

      factual determination that a violation of a condition of probation actually

      occurred. If a violation is proven, then the trial court must determine if the

      violation warrants revocation of the probation.” Vernon v. State, 903 N.E.2d

      533, 537 (Ind. Ct. App. 2009), trans. denied. “Probation 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). It is within the trial court’s

      discretion to determine the conditions of probation and to revoke probation if

      those conditions are violated. Heaton v. State 984 N.E.2d 614, 616 (Ind. 2013).

      Where there is substantial evidence of probative value that a defendant has




      Court of Appeals of Indiana | Memorandum Decision 48A02-1505-CR-414 | February 16, 2016   Page 5 of 6
       violated any of the terms of his probation, we will uphold the trial court’s

       revocation decision. Woods, 892 N.E.2d at 639.


[10]   A trial court’s sentencing decision for probation violations is reviewable for

       abuse of discretion. Heaton, 984 N.E.2d at 616. An abuse of discretion occurs

       only where the trial court’s decision is clearly against the logic and effect of the

       facts and circumstances before the court. State v. Hunter, 898 N.E.2d 455, 458

       (Ind. Ct. App. 2008). A trial court may “order execution of all or part of the

       sentence that was suspended at the time of initial sentencing” as long as the

       proper procedures for probation revocation have been followed. Ind. Code §

       35-38-2-3(h)(3); Wilkerson v. State, 918 N.E.2d 458, 464 (Ind. Ct. App. 2009).


[11]   Graham’s argument that the trial court abused its discretion in revoking his

       probation is premised upon his claim of insufficient evidence, which we have

       already decided against him. Therefore, we find no abuse of discretion and

       affirm the trial court’s revocation of his probation.


[12]   Affirmed.


       Vaidik, C.J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 48A02-1505-CR-414 | February 16, 2016   Page 6 of 6
