Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any                   Dec 16 2014, 1:14 pm
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:

W. TRENT VAN HAAFTEN                                GREGORY F. ZOELLER
Van Haaften & Farrar, Attorneys at Law LLC          Attorney General of Indiana
Mount Vernon, Indiana
                                                    RICHARD C. WEBSTER
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

OMOBEA KOTEA MILLER,                                )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )    No. 65A05-1401-CR-32
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                        APPEAL FROM THE POSEY CIRCUIT COURT
                           The Honorable James M. Redwine, Judge
                               Cause No. 65C01-1205-FC-187



                                        December 16, 2014


                MEMORANDUM DECISION - NOT FOR PUBLICATION


CRONE, Judge
                                      Case Summary

       Omobea K. Miller appeals an order revoking his probation. He specifically challenges

the trial court’s determination that he violated his probation by committing a new criminal

offense. We affirm.

                              Facts and Procedural History

       In November 2012, Miller pled guilty via plea agreement to class C felony battery

resulting in bodily injury to a pregnant woman, class D felony strangulation, and class A

misdemeanor resisting law enforcement. The trial court entered judgment and sentenced him

to an aggregate five-year sentence, with two years executed on home detention and the

remainder suspended to probation.

       In June 2013, Miller began his probation, which was subject to a condition that he

“obey all federal, state, and local laws” and “not commit a new criminal offense.” State’s

Ex. 1. The condition further specifies, “If you do commit a new criminal offense, your

probation may be revoked.” Id.

       On the morning of August 24, 2013, Mount Vernon Police Captain Dana Allyn was

dispatched to a domestic disturbance at the apartment that Miller shared with his wife Natalie

Carlino. When Captain Allyn arrived, she saw Miller, Carlino, and Carlino’s sister

screaming at each other in front of the residence. Miller saw Captain Allyn and immediately

walked away. Further inquiry revealed that Carlino was angry with her sister for having

brought alcohol over to the residence when she knew that Miller had a longstanding drinking

problem. No arrests were made.


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       About 3:00 p.m., Mount Vernon Police Officer Glenn Boyster was on his way to his

security job at Miller’s apartment complex and encountered Miller at a nearby convenience

store. Miller told Officer Boyster that “things was crazy down [at the apartment complex],”

and the officer advised Miller to stay away from there. Tr. at 6.

       Shortly thereafter, Officer Boyster pulled into the complex and noticed Miller,

Carlino, Carlino’s sister, and several onlookers gathered on the sidewalk. It appeared to the

officer that Miller and Carlino were arguing. When Miller saw the patrol car, he immediately

left the scene. The agitated Carlino continued yelling until the officer threatened to arrest her

for disorderly conduct, at which point she entered her vehicle and drove away.

       Immediately thereafter, Captain Allyn arrived to provide assistance. She located

Miller sitting outside a nearby apartment and noticed that he smelled like an alcoholic

beverage. Miller admitted that he had been drinking. At this time, both Officer Boyster and

Carlino drove up to the apartment. Carlino’s seven-year-old daughter was with her and was

noticeably upset. Carlino told the officers that during the argument, Miller had choked her.

She had two visible red scrapes on her neck. Her daughter told the officers that “she didn’t

like it when [Miller] hit her mom.” Id. at 24.

       The officers arrested Miller for domestic battery and took him into custody. En route

to the county jail, Miller repeatedly yelled, cursed, and protested his innocence. At the jail,

police administered a portable breathalyzer test, which confirmed the presence of alcohol in

Miller’s system. Shortly thereafter, Carlino phoned police and recanted her statement that

Miller had choked her.


                                               3
       That same day, the State charged Miller with class B misdemeanor public intoxication.

A few days later, the State filed a petition to revoke Miller’s probation. The trial court

conducted a revocation hearing and concluded that Miller had violated the conditions of his

probation by committing public intoxication. The court revoked Miller’s probation and

ordered that he serve the remaining three years of his sentence in the Indiana Department of

Correction. Miller now appeals. Additional facts will be provided as necessary.

                                  Discussion and Decision

       Miller maintains that the trial court abused its discretion in revoking his probation.

Probation is a matter of grace left to the trial court’s sound discretion, not a right to which a

criminal defendant is entitled. Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). The trial

court determines the conditions of probation and may revoke probation if the probationer

violates those conditions. Id. We review a trial court’s probation violation determination

using an abuse of discretion standard. Jackson v. State, 6 N.E.3d 1040, 1042 (Ind. Ct. App.

2014). An abuse of discretion occurs where the trial court’s decision is clearly against the

logic and effect of the facts and circumstances before it or where the trial court misinterprets

the law. Id. In determining whether a trial court has abused its discretion, we neither

reweigh evidence nor judge witness credibility. Mogg v. State, 918 N.E.2d 750, 755 (Ind. Ct.

App. 2009). Instead, we consider conflicting evidence in the light most favorable to the trial

court’s ruling. Id. Because a probation revocation proceeding is civil in nature, the State

need only prove the alleged probation violation by a preponderance of the evidence. Holmes

v. State, 923 N.E.2d 479, 485 (Ind. Ct. App. 2010).


                                               4
        Here, the trial court determined that Miller had violated his probation conditions by

committing a new criminal offense.

        When a probationer is accused of committing a criminal offense, an arrest
        alone does not warrant the revocation of probation. Likewise, the mere filing
        of a criminal charge against a defendant does not warrant the revocation of
        probation. Instead, when the State alleges that the defendant violated
        probation by committing a new criminal offense, the State is required to
        prove—by a preponderance of the evidence—that the defendant committed the
        offense.

Jackson, 6 N.E.3d at 1042 (citations and quotation marks omitted). In the context of

probation revocation, the State need not establish that the defendant was actually convicted of

the new offense. Lightcap v. State, 863 N.E.2d 907, 911 (Ind. Ct. App. 2007).1

        Here, the State charged Miller with being “in a public place or a place of last resort in

a state of intoxication caused by the person’s use of alcohol” and “breach[ing] the peace or

[being] in imminent danger of breaching the peace.” Ind. Code § 7.1-5-1-3(a)(3). First, we

note that Miller concedes that his altercation with Carlino occurred in a public place, that is,

the parking lot outside of their apartment. Nevertheless, he challenges the trial court’s

determinations concerning his intoxication and his breach of the peace.

        Miller first challenges the trial court’s determination that he was intoxicated. Our

legislature has defined “intoxicated” as “under the influence of ... alcohol ... so that there is

an impaired condition of thought and action and the loss of normal control of a person’s

faculties.” Ind. Code § 9-13-2-86. “Impairment” may be established by evidence of “(1) the


        1
          Miller’s public intoxication charge was eventually dismissed, but we note that the dismissal has no
bearing on our analysis.



                                                     5
consumption of a significant amount of alcohol; (2) impaired attention and reflexes; (3)

watery or bloodshot eyes; (4) the odor of alcohol on the breath; (5) unsteady balance; (6)

failure of field sobriety tests; and (7) slurred speech.” Stephens v. State, 992 N.E.2d 935, 938

(Ind. Ct. App. 2013) (citation omitted).

       Within minutes of Miller’s altercation with Carlino, Captain Allyn and Officer

Boyster detected the odor of alcohol on Miller’s breath. Miller admitted to them that he had

been consuming alcohol, and the breathalyzer test results confirmed the presence of alcohol

in his system. Additionally, Miller testified that he had consumed three or four shots and

characterized his condition as “a buzz.” Tr. at 34-35. This evidence is sufficient to support

the trial court’s determination that Miller was intoxicated.

       Miller also submits that the evidence is insufficient to establish by a preponderance

that he breached the peace or was in imminent danger of doing so. Generally speaking, a

breach of the peace is a disturbance of public tranquility and includes all violations of public

peace, order, or decorum. Lemon v. State, 868 N.E.2d 1190, 1194 (Ind. Ct. App. 2007). In

the context of the public intoxication statute, it has been held to require either actual or

threatened violence. Brown v. State, 12 N.E.3d 952, 954 (Ind. Ct. App. 2014).

       The facts most favorable to the judgment show that Miller and Carlino were engaged

in an altercation disturbing enough to have attracted a crowd of observers. If anything

prevented further escalation, it was Officer Boyster’s arrival followed by Miller’s abrupt exit.

Within minutes of the fight, Carlino told police that Miller had choked her. Although she

later phoned police to recant, the red marks on her neck were consistent with her original


                                               6
accusation against Miller. Moreover, shortly after the altercation, Carlino’s visibly-shaken

daughter told police that she did not like it when Miller hit her mother.

       Simply put, our standard of review prohibits us from choosing which version of

Carlino’s story to believe. Likewise, it prevents us from determining whether the child

actually saw Miller strike her mother or was merely used by Carlino to buttress her original

claims. Such determinations are specifically left to the trial court’s discretion. The evidence

most favorable to the judgment supports the trial court’s determination that Miller violated

his probation. Consequently, we affirm.

       Affirmed.

RILEY, J., and MATHIAS, J., concur.




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