Pursuant to Ind.Appellate Rule 65(D),
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:

DAVID W. STONE, IV                               GREGORY F. ZOELLER
Anderson, Indiana                                Attorney General of Indiana

                                                 AARON J. SPOLARICH
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana
                                                                               FILED
                                                                           Jan 22 2013, 9:11 am

                              IN THE
                                                                                   CLERK
                    COURT OF APPEALS OF INDIANA                                  of the supreme court,
                                                                                 court of appeals and
                                                                                        tax court




ANTHONY HENDERSON,                               )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )       No. 48A04-1207-CR-367
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                     APPEAL FROM THE MADISON CIRCUIT COURT
                         The Honorable Rudolph R. Pyle, III, Judge
                              Cause No. 48C01-0804-FC-214



                                      January 22, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


BROWN, Judge
       Anthony Henderson appeals the revocation of his probation and the reinstatement

of his previously suspended sentence. Henderson raises two issues, which we revise and

restate as:

       I.     Whether the evidence is sufficient to support the revocation of
              Henderson’s probation; and

       II.    Whether the trial court abused its discretion in ordering that
              Henderson serve his previously suspended sentence.

We affirm.

       The facts most favorable to the revocation follow.       In April 2008, the State

charged Henderson with stalking as a class C felony, and on December 2, 2008,

Henderson pled guilty pursuant to a plea agreement in which he agreed to plead guilty to

the lesser included offense of invasion of privacy as a class A misdemeanor and to a

charge in a separate cause. The court sentenced Henderson to one year suspended to

probation, to be served consecutive to his sentences in two other causes.

       On April 12, 2012, while Henderson was serving his probationary term,

Henderson and his wife Erika were at their house in Anderson, Indiana, along with

Erika’s sister Kiara and five children under the age of twelve. At some point, Henderson

was yelling and calling for Erika’s ten-year-old daughter. Erika retrieved a computer

from the back of a car, but could not find the cords. She placed the computer on the

ground and “was getting up there to get the cords” when Henderson said “[y]ou want to

start stuff,” and Erika said “I didn’t throw anything.” Transcript at 7. Henderson then

entered the house and grabbed a television from the room of Erika’s daughter, and Erika

stated “[d]on’t do that.” Id. Henderson said “[y]ou better back up” and then threw her

                                            2
on the bed and started hitting her in her mouth. Id. He struck her multiple times with a

closed fist while holding her neck with his other hand.          Kiara attempted to pull

Henderson off of Erika and told Henderson to stop and that the children were present.

       Henderson stopped striking Erika and carried the television to the garage. Erika

went back outside to find the computer cords and showed Henderson that her “mouth was

all bloody” and stated “look what you have done to my mouth.” Id. at 15. Henderson

said “[w]ell [], you shouldn’t have threw [sic] the computer.” Id.

       Henderson followed Erika back inside the house and started going through her

purse. He “got [Erika’s] bank cards out,” Erika “was trying to get [her] wallet from his

hands” and said “[g]ive me my stuff,” and Henderson said “[y]ou better back up.” Id. at

13. Henderson held Erika down on the bed by her throat and struck her in the mouth with

his other hand.

       Kiara attempted to call the police using her cell phone, but Henderson slapped the

phone out of her hand and pushed her over a table. Erika’s ten-year-old daughter called

911. Anderson Police Officer Gabe Bailey responded to the 911 call and observed that

Erika had blood on her teeth and a cut to her mouth. Henderson had a red mark on one

side of his body but otherwise showed no injuries.

       On April 17, 2012, the State filed a notice of violation of probation alleging that

Henderson violated the conditions of his probation by committing the new criminal

offenses of strangulation, domestic battery, and criminal conversion on April 12, 2012.

On May 31, 2012, the court held a revocation hearing, at which Erika and Kiara testified

as to Henderson’s actions assaulting Erika as set forth above and to Erika’s injuries of

                                            3
blood in her mouth and the fact that some of her lower teeth had been loosened. Officer

Bailey also testified regarding his observations of Erika’s injuries. During his testimony,

Henderson stated that Erika had attacked him and in the process caused bleeding to her

mouth. Henderson testified that “[i]f [he] had punched [Erika] in the mouth twelve (12)

times as she stated she wouldn’t have no teeth.” Id. at 46. The court found that

Henderson violated the terms of his probation and ordered that he serve the entirety of his

previously suspended sentence of one year.

                                             I.

       The first issue is whether the evidence is sufficient to support the revocation of

Henderson’s probation. A probation revocation hearing is civil in nature, and the State

need only prove the alleged violations by a preponderance of the evidence. Cox v. State,

706 N.E.2d 547, 551 (Ind. 1999), reh’g denied. We will consider all the evidence most

favorable to supporting the judgment of the trial court without reweighing that evidence

or judging the credibility of witnesses. Id. If there is substantial evidence of probative

value to support the trial court’s conclusion that a defendant has violated any terms of

probation, we will affirm its decision to revoke probation. Id. The violation of a single

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

App. 1999).

       Henderson argues that the trial court’s findings of violations of the terms of his

probation are not supported by the evidence. He argues that, at the revocation hearing, he

asserted that he acted in self-defense to an attack by his wife, that his wife’s claim “that

he instigated the fight and punched her repeatedly is fatally undercut by the lack of

                                             4
injuries that would be present from such a pummeling to the mouth,” and that “[t]he

minor injuries of the wife make her claim of having been punched 12 times in the face

fall under the incredible dubiosity rule.” Appellant’s Brief at 4. He asserts that he

“weighs about 400 pounds and his wife about 220 pounds,” that “[i]t is inherently

improbable that he could hit his wife 12 times with a closed fist with no more damage

than loose teeth and mouth bleeding,” and that “the minor injuries of the wife belie the

administration of the brutal beating that the wife and her sister sought to portray.” Id. at

5.

       The State maintains that the evidence was sufficient to show that Henderson

violated the terms of his probation and that both Erika and Kiara testified that, during two

separate incidents, Henderson choked Erika and struck her in the face. The State further

argues that Erika had injuries consistent with being struck in the mouth, including a cut

lip, loosened teeth, and bleeding around her teeth.      The State’s position is that the

incredible dubiosity rule is inapplicable in this case because the court is not faced with

the testimony of a sole witness and because the testimony of the witnesses was not

inherently contradictory.

       The requirement that a probationer obey federal, state, and local laws is

automatically a condition of probation by operation of law. Williams v. State, 695

N.E.2d 1017, 1019 (Ind. Ct. App. 1998); Ind. Code § 35-38-2-1(b) (“If the person

commits an additional crime, the court may revoke the probation.”).

       When, as here, the alleged probation violation is the commission of a new crime,

the State does not need to show that the probationer was convicted of a new crime.

                                             5
Whatley v. State, 847 N.E.2d 1007, 1010 (Ind. Ct. App. 2006). The allegation that a

probationer has violated probation “only has to be proven by a preponderance of the

evidence.” Id. In other words, the evidence need show only that it is more likely true

than not true that Henderson engaged in criminal activity. See Demmond v. State, 166

Ind. App. 23, 25, 333 N.E.2d 922, 923-924 (1975).

      We also note that, in order to prevail on a self-defense claim, a defendant must

demonstrate that he was in a place he had a right to be; did not provoke, instigate, or

participate willingly in the violence; and had a reasonable fear of death or great bodily

harm. Wilson v. State, 770 N.E.2d 799, 800 (Ind. 2002). The amount of force a person

may use to protect himself depends on the urgency of the situation. Harmon v. State, 849

N.E.2d 726, 730-731 (Ind. Ct. App. 2006). However, if a person uses “more force than is

reasonably necessary under the circumstances,” the person’s self-defense claim will fail.

Id. at 731. A mutual combatant, whether or not the initial aggressor, must declare an

armistice before he or she may claim self-defense. Wilson, 770 N.E.2d at 801.

      To the extent Henderson asserts that the incredible dubiosity rule requires reversal

of his probation revocation, we note that the rule applies only in very narrow

circumstances.   See Love v. State, 761 N.E.2d 806, 810 (Ind. 2002).         The rule is

expressed as follows:

      If a sole witness presents inherently improbable testimony and there is a
      complete lack of circumstantial evidence, a defendant’s conviction may be
      reversed. This is appropriate only where the court has confronted
      inherently improbable testimony or coerced, equivocal, wholly
      uncorroborated testimony of incredible dubiosity. Application of this rule
      is rare and the standard to be applied is whether the testimony is so


                                           6
       incredibly dubious or inherently improbable that no reasonable person
       could believe it.

Id. We observe that more than one witness testified at Henderson’s revocation hearing,

including Erika, Kiara, and Officer Bailey. Moreover, Henderson fails to show that the

testimony of Erika or Kiara was inherently contradictory. To the extent the testimony of

Erika or Kiara conflicted with the testimony of Henderson or Henderson argues that their

testimony was less believable, we note that this is an issue of witness credibility. The

function of weighing witness credibility lies with the trier of fact, not this court. Whited

v. State, 645 N.E.2d 1138, 1141 (Ind. Ct. App. 1995). We cannot reweigh the evidence

and judge the credibility of the witnesses. See Cox, 706 N.E.2d at 551. Further, we

cannot say that the testimony of Erika and Kiara regarding Henderson’s actions,

including the testimony that he struck Erika on her mouth causing her teeth to be

loosened and her mouth to bleed, was so inherently improbable that no reasonable person

could believe it. Henderson does not show how the testimony against him was somehow

internally inconsistent and has not shown the testimony of Erika or Kiara to be incredibly

dubious.

       Further, to the extent Henderson asserted at the revocation hearing that he acted in

self-defense, the testimony of Erika and Kiara indicate that Henderson was the initial and

only aggressor, and we conclude that the State presented evidence of a probative nature

from which a reasonable trier of fact could have found that Henderson did not validly act

in self-defense.




                                             7
       Based upon the record, we conclude that the evidence presented during the

probation revocation hearing was sufficient to prove by a preponderance of the evidence

that Henderson violated his probation by committing an unrelated criminal offense. See

Dokes v. State, 971 N.E.2d 178, 180 (Ind. Ct. App. 2012) (considering Dokes’s argument

that the testimony that he violated the terms of his probation in committing a new

criminal offense by possessing a firearm was incredibly dubious, concluding that the

incredible dubiosity rule did not apply and that, while only one witness testified that

Dokes possessed the gun, there was nothing inherently improbable in that testimony, and

affirming the revocation of Dokes’s probation).

                                            II.

       The next issue is whether the court abused its discretion in ordering that

Henderson serve the entirety of his previously suspended sentence of one year in the

Madison County Jail. Henderson argues that he has been caring for his children, that this

incident was the first violation since his probation began nearly two years earlier, that he

had paid all of his fees and costs, and that there was no claim that he violated the

conditions to abstain from alcohol and illicit drugs. Henderson also argues that he

testified that he had certain medical conditions, namely asthma, sleep apnea, anemia,

obesity, fractures going down his spine, and a slipped disk, that the court did not mention

his health problems in imposing a sanction of full revocation, and that it was

unreasonable for the court to revoke his probation in light of his health needs and the

inability of the local jail to meet those needs. The State argues that the court properly

sanctioned Henderson, that the facts demonstrate that Henderson had the ability to lift a

                                             8
television and that he twice used his size to pin his wife so that he could choke and punch

her in the mouth, and that Henderson’s health conditions did not prevent him from

striking his wife.

       At the time of Henderson’s violations and the probation revocation hearing, Ind.

Code § 35-38-2-3(g) set forth a trial court’s sentencing options if the trial court finds a

probation violation and provided:

       If the court finds that the person has violated a condition at any time before
       termination of the period, the court may impose one (1) or more of the
       following sanctions:

              (1)    Continue the person on probation, with or without
                     modifying or enlarging the conditions.

              (2)    Extend the person’s probationary period for not more
                     than one (1) year beyond the original probationary
                     period.

              (3)    Order execution of all or part of the sentence that was
                     suspended at the time of initial sentencing.

Ind. Code § 35-38-2-3(g) (subsequently amended by Pub. L. No. 147-2012 (eff. Jul. 1,

2012) (amending Ind. Code § 35-38-2-3 and setting forth the contents of subsection (g)

under subsection (h))). This provision permits judges to sentence offenders using any

one or any combination of the enumerated options. Prewitt v. State, 878 N.E.2d 184,

187 (Ind. 2007).

       The Indiana Supreme Court has held that a trial court’s sentencing decisions for

probation violations are reviewable for abuse of discretion. Id. at 188. The Court

explained that “[o]nce a trial court has exercised its grace by ordering probation rather

than incarceration, the judge should have considerable leeway in deciding how to

                                             9
proceed” and that “[i]f 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.” Id. An abuse of discretion occurs where the decision is clearly

against the logic and effect of the facts and circumstances. Id. (citation omitted). As

long as the proper procedures have been followed in conducting a probation revocation

hearing, “the trial court may order execution of a suspended sentence upon a finding of a

violation by a preponderance of the evidence.” Goonen v. State, 705 N.E.2d 209, 212

(Ind. Ct. App. 1999).

       The record reveals that Henderson, by a preponderance of the evidence and for the

purposes of revocation, committed new offenses related to his assault of Erika causing

her lower teeth to loosen and her mouth to bleed. Erika testified that Henderson struck

her multiple times, first in her daughter’s bedroom and later in her bedroom. Officer

Bailey testified that he observed that Erika had blood on her teeth and a cut to her mouth,

that she was upset, and that Henderson’s demeanor “was up and down” and that “[h]e

would calm down for a short period of time and then get angry and then calm and get

angry and back and forth.” Transcript at 29. Henderson testified that he had asthma,

sleep apnea, anemia, obesity, fractures going down his spine, and a slipped disk. In

closing, the prosecutor argued that the State “believe[s] there is more than sufficient

means for [Henderson] to be treated for all of his ailments as he’s testified to today,” that

it “has great concerns for the safety of [Erika], her sister and the children,” and that it did

not feel that Henderson would leave Erika alone. Id. at 57. The court heard testimony

from Erika and Henderson and was able to determine the credibility of the testimony.

                                              10
Henderson did not present evidence establishing that his health issues should be a factor

in determining an appropriate period of incarceration or that any of his specific

conditions would require treatment which would be unavailable while incarcerated at the

Madison County Jail. See Henderson v. State, 848 N.E.2d 341, 344-345 (Ind. Ct. App.

2006) (noting, where the appellant argued that the trial court erred in failing to consider

her poor health to be a mitigating circumstance at sentencing, that there was no evidence

in the record establishing that the appellant’s multiple health problems should be a factor

in determining an appropriate period of incarceration or demonstrating that her medical

conditions would be untreatable during incarceration or would render incarceration a

hardship).

       Given the circumstances as set forth above and in the record, we cannot say that

the court abused its discretion in ordering Henderson to serve his previously suspended

sentence of one year. See Milliner v. State, 890 N.E.2d 789, 793 (Ind. Ct. App. 2008)

(holding that the trial court did not abuse its discretion in reinstating the probationer’s

entire previously suspended sentence of one year), trans. denied.

       For the foregoing reasons, we affirm the trial court’s revocation of Henderson’s

probation and order that Henderson serve his previously suspended sentence.

       Affirmed.

BAILEY, J., and VAIDIK, J., concur.




                                            11
