Pursuant to Ind. Appellate Rule 65(D),

                                                               FILED
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the                              Jan 04 2013, 8:24 am
purpose of establishing the defense of
res judicata, collateral estoppel, or the
                                                                    CLERK
law of the case.                                                  of the supreme court,
                                                                  court of appeals and
                                                                         tax court




ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

RICHARD WALKER                                   GREGORY F. ZOELLER
Anderson, Indiana                                Attorney General of Indiana

                                                 AARON J. SPOLARICH
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

RICKY J. GELLINGER,                              )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )      No. 48A04-1204-CR-200
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                     APPEAL FROM THE MADISON CIRCUIT COURT
                         The Honorable Dennis D. Carroll, Judge
                            Cause No. 48D01-0811-FC-00310




                                      January 4, 2013



               MEMORANDUM DECISION - NOT FOR PUBLICATION



ROBB, Chief Judge
                                 Case Summary and Issue

       Ricky Gellinger appeals the revocation of his probation, raising the sole issue of

whether the evidence was sufficient to support the revocation. Concluding that the

evidence is sufficient, we affirm.

                               Facts and Procedural History

       In 2009, Gellinger pleaded guilty to battery resulting in serious bodily injury, a

Class C felony; domestic battery, a Class A misdemeanor; and possession of marijuana,

a Class A misdemeanor. The charges stemmed from an incident between Gellinger and

his girlfriend, Shelly Shryock in November 2008. Gellinger was sentenced to seven

years with four years suspended to probation. In addition to the standard terms and

conditions of probation, one of the special conditions of Gellinger’s probation was that

he have no contact with Shryock unless authorized by the probation department.

       On January 10-11, 2012, Gellinger spent the night with Shryock at her house and

an altercation ensued during which Shryock’s contact was knocked out of her eye. She

went to the hospital the next day and was diagnosed with broken ribs. On February 8,

2012, the State filed a Notice of Violation of Probation against Gellinger, alleging that

he had violated the following conditions of his probation:

       a) Not to violate the laws of Indiana or the U.S. and failure to behave well
          in society: On/about 01/11/12 you are alleged to have committed the
          following new criminal offense(s): Ct I, Battery Resulting in Serious
          Bodily Injury, Class C felony as filed in Circuit Court Division VI,
          under cause number(s): 48C06-1202-FC-000174;
       b) Failure to obtain substance abuse evaluation at treatment facility
          approved by Probation Department within 30 days sentencing/release,
          comply with treatment recommendations, and provide written
          verification of successful completion of said program to the Probation
          Department;
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       c)    Failure to pay court cost in the amount of $164.00;
       d)    Failure to pay probation fees, defendant owes $435.00;
       e)    Failure to pay Domestic Violence Fee, defendant owes $50.00;
       f)    Failure to [pay] Administrative Fee of $100.00, defendant owes $75.00;
       g)    Defendant had contact with Shelly Shyrock [sic], where a no contact
             order is in place.

Appellant’s Appendix at 49.

       Gellinger initially denied the allegations and an evidentiary hearing was set. At

the start of the evidentiary hearing, Gellinger admitted allegations c, d, e, and f regarding

the financial obligations of his probation and evidence was heard as to the remaining

allegations. Shyrock testified that she and Gellinger were together at her home the

evening of January 10, 2012 and into the next morning. Shryock did not testify to

specifics, claiming that Gellinger “didn’t like punch me or anything. It was just kinda, I

mean it wasn’t like a punch or, I don’t know . . . I’m not real sure of what happened,”

transcript at 24, but she did testify that they argued, that her contact was knocked out of

her eye, and that she went to the hospital and found out she had broken ribs. She also

acknowledged she told the police that Gellinger had punched her in the face and struck

her in the ribs, but refused to say whether that was true or not: “I wasn’t lying. I think I

just jumped the gun after going to the hospital and I wish I never even went up there.”

Id. at 26.

       Gay Doss, a victim assistant coordinator from the sheriff’s department, also

testified about a telephone conversation she had with Shryock on January 11, 2012, in

which a “crying, very upset, very emotional” Shryock told her that Gellinger had kicked

her in the head and ribs. Id. at 30. Doss followed up with Shryock after her hospital

visit and met her at the police department where she gave a statement. The trial court

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found no evidence had been introduced about allegation b regarding substance abuse

treatment, but that it was proven by a preponderance of the evidence that Gellinger had

violated the no contact order and committed a battery upon Shryock causing some

injury. The trial court revoked Gellinger’s probation and ordered that he serve the four

years of his previously-suspended sentence at the Department of Correction.

                                  Discussion and Decision

                                   I. Standard of Review

       When reviewing the sufficiency of the evidence supporting a probation

revocation, we consider only the evidence most favorable to the judgment and we do not

reweigh the evidence or judge the credibility of the witnesses. Figures v. State, 920

N.E.2d 267, 272 (Ind. Ct. App. 2010). A probation revocation is civil in nature and the

State is required to prove the allegations by a preponderance of the evidence. Id. If

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

probation, we will affirm. Id.

                                 II. Sufficiency of Evidence

       Gellinger contends the evidence was insufficient to support the trial court’s

determination that he had committed the criminal act of battery causing injury given

Shryock’s reluctance to testify regarding the events of January 10-11, 2012. Even

assuming for the sake of argument that we agree with this specific argument, Gellinger

admitted he had violated several conditions of probation and there was clearly sufficient

evidence to support the contested allegation that he had contact with Shryock in violation

of a no contact order. Proof of a single violation of the conditions of probation is


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sufficient. Beeler v. State, 959 N.E.2d 828, 830 (Ind. Ct. App. 2011), trans. denied.

Thus, even without evidence of a battery, there was sufficient evidence to support

revoking Gellinger’s probation.

      However, we believe the evidence was sufficient to support a finding by a

preponderance of the evidence that Gellinger committed an additional crime by battering

Shryock. Though Shryock never testified that Gellinger hit her, she did testify that they

were together on the evening in question, that no one else was there, that they argued,

and that although “I’m not real sure of what happened,” tr. at 24, her contact was

knocked out of her eye and the next day she was diagnosed with broken ribs. The notice

of probation violation alleges Gellinger was arrested and charged with battery causing

serious bodily injury. A finding of guilt is not a necessary precursor for a finding of a

violation based on a new criminal offense, Dokes v. State, 971 N.E.2d 178, 180-81 (Ind.

Ct. App. 2012), but an arrest standing alone does not support revocation of probation,

Cooper v. State, 917 N.E.2d 667, 674 (Ind. 2009). The trial court must hear evidence

from which it can ascertain that the arrest was reasonable and determine by a

preponderance of the evidence that the defendant committed a crime. That standard was

met here. As the trial court stated, “it’s clear that there was an offense of touching, a

battery. Whether or not it rises to the level of serious bodily injury or simply bodily

injury is a different question for a different day. But certainly there was a battery with

some injury.” Tr. at 34-35.

      Although Gellinger does not make a specific argument regarding the sentence

imposed by the trial court, he does cite case law regarding sanctions when probation is

revoked. We therefore note that upon revoking probation, the trial court may impose
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one of several sanctions provided by statute, including ordering execution of all or part

of the sentence that was suspended at the time of the initial sentencing. See Ind. Code §

35-38-2-3(h). We review a trial court’s sentencing decisions for probation violations for

an abuse of discretion. Alford v. State, 965 N.E.2d 133, 134 (Ind. Ct. App. 2012), trans.

denied. Here, Gellinger was found to have violated his probation at least in part for

committing a battery upon the very person he was on probation for battering previously.

Under these circumstances, we cannot say the trial court abused its discretion in ordering

Gellinger to serve the entirety of his previously-suspended four-year sentence.

                                       Conclusion

      Sufficient evidence supports the trial court’s revocation of Gellinger’s probation

and the order that he serve his previously-suspended sentence is not an abuse of the trial

court’s discretion. The judgment is affirmed.

      Affirmed.

BAILEY, J., and MAY, J., concur.




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