MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                    FILED
regarded as precedent or cited before any                           Jul 22 2020, 10:42 am
court except for the purpose of establishing                             CLERK
the defense of res judicata, collateral                              Indiana Supreme Court
                                                                        Court of Appeals
estoppel, or the law of the case.                                         and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
R. Patrick Magrath                                       Curtis T. Hill, Jr.
Alcorn Sage Schwartz & Magrath                           Attorney General
Madison, Indiana                                         Megan M. Smith
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Terrance M. Combs,                                       July 22, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A-CR-213
        v.                                               Appeal from the Scott Circuit
                                                         Court
State of Indiana,                                        The Honorable Jason M. Mount,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         72C01-1708-F5-64



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A-CR-213| July 22, 2020                  Page 1 of 9
                                             Case Summary
[1]   Terrance M. Combs appeals the trial court’s revocation of his probation.

      Combs claims the State presented insufficient evidence to support the trial

      court’s determination that he violated his probation. Finding the evidence

      sufficient, we affirm.


                                 Facts and Procedural History
[2]   In August 2017, the State charged Combs with level 6 felony failure to register

      as a sex offender and level 6 felony escape. The State also requested a sentence

      enhancement on the failure to register charge based upon allegations that

      Combs had prior convictions for the same offense. The State filed an amended

      information adding a habitual offender charge. The parties subsequently

      entered into a plea agreement wherein Combs pled guilty to level 6 felony

      escape and to being a habitual offender. Pursuant to the terms of the

      agreement, the trial court sentenced Combs to 730 days for escape, enhanced by

      1095 days for being a habitual offender, with 1095 days executed and 730 days

      suspended to probation.


[3]   Combs began serving his probationary term in March 2018. The terms and

      conditions of his probation required, among other things, that he maintain good

      behavior, not use alcohol, not commit another criminal offense, and report to

      the probation department as directed. Appellant’s App. Vol. 2 at 64.


[4]   On August 3, 2019, an officer with the Scottsburg City Police Department was

      dispatched to a local business to respond to a report of an intoxicated person on

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-213| July 22, 2020   Page 2 of 9
      the premises. When the officer arrived, Combs was passed out and seemingly

      unconscious on the front porch of the business. A knife was lying next to

      Combs, and he had an empty whiskey bottle in his back pocket. The officer

      gave Combs “a sternum rub” to awaken him. Tr. Vol. 2 at 8. After Combs

      awakened and refused emergency medical assistance, the officer transported

      him to a friend’s nearby apartment. Shortly thereafter, officers were called back

      to the apartment complex on a report that Combs was “threatening children

      and causing a disturbance.” Id. at 9. When officers arrived, an unidentified

      woman approached them and corroborated the report regarding why the

      officers were dispatched to the complex. Officers observed a “highly

      intoxicated” Combs in the common area of the complex where children and

      other people were present. Id. at 10. Combs’s breath smelled strongly of

      alcohol, and he was exhibiting other signs of intoxication including staggering

      while he walked and slurred speech. Officers placed Combs under arrest.


[5]   On August 14, 2019, Austin City Police Department officers responded to a

      report of vandalism. After the officers arrived on the scene, Jolene Robinson

      reported that Combs had “busted a whiskey bottle off of the door of [the] house,

      right inside the walkway as well” because she refused to let him inside. Id. at

      17. Combs also “threatened to kill” Robinson’s friend, Linda Wilkinson. Id. at

      18. Wilkinson spoke to the officers and confirmed that Combs had threatened

      her. Officers eventually located Combs riding a bicycle down a nearby street.

      He smelled of alcohol, was slurring his speech, and had difficulty maintaining

      his balance. Officers administered three field sobriety tests, each of which


      Court of Appeals of Indiana | Memorandum Decision 20A-CR-213| July 22, 2020   Page 3 of 9
      Combs failed. Officers informed Combs that he was being arrested for public

      intoxication and instructed him to place his hands behind his back. After one

      of the officers was able to cuff Combs’s right wrist, Combs struck the officer in

      the jaw with his left arm and tried to flee. Combs slipped and fell on gravel.

      This caused the officer to fall with him, and the officer suffered a cut to his arm.

      Combs then began kicking the officer, so the officer placed him in a “standing

      side-hold.” Id. at 20. The officer observed that Combs was holding a folding

      pocketknife. The officer ordered Combs to “drop it,” but Combs refused and

      said to the officer, “I’m going to f**king kill you.” Id. at 21. The officer

      released his hold on Combs and began striking him until he dropped the knife.

      Combs continued to resist the officer, so the officer deployed his taser twice.

      Combs was eventually subdued and arrested.


[6]   On August 16, 2019, the State filed a petition to revoke Combs’s probation.

      The petition alleged that Combs had failed to report to probation monthly as

      ordered, failed to pay probation fees, and had committed multiple new criminal

      offenses. Following a revocation hearing, the trial court found that Combs

      violated the terms of his probation by failing to report to probation as

      instructed, 1 and by committing the new criminal offenses of public intoxication,

      resisting law enforcement, battery against a public safety official, and

      intimidation. The trial court ordered Combs to serve the remainder of his




      1
       The record demonstrates that, between July 2018 and August 2019, Combs failed to report for ten probation
      appointments. Tr. Vol. 2 at 44-45.

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-213| July 22, 2020                    Page 4 of 9
      previously suspended sentence in the Department of Correction. This appeal

      ensued.


                                     Discussion and Decision
[7]   “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). We review probation violation determinations for an abuse of

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

      discretion occurs where the trial court’s decision is clearly against the logic and

      effect of the facts and circumstances, or when the trial court misinterprets the

      law. Id.


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

      factual determination that a violation of a condition of probation occurred.

      Woods v. State, 892 N.E.2d 637, 640 (Ind. 2008). Second, the court must

      determine if the violation warrants revocation of probation. Id. “A revocation

      hearing is in the nature of a civil proceeding, and the alleged violation only

      needs to be established by a preponderance of the evidence.” Smith v. State, 727

      N.E.2d 763, 765 (Ind. Ct. App. 2000).


              In reviewing the sufficiency of the evidence, we use the same
              standard as in any other sufficiency question. When the
              appellant challenges the sufficiency of the factual basis for
              revocation, we neither reweigh the evidence nor judge the
              credibility of the witnesses. If substantial evidence of probative
              value supports the trial court’s decision that the appellant has
              committed a violation of a condition of his probation, then
              revocation of probation was proper.
      Court of Appeals of Indiana | Memorandum Decision 20A-CR-213| July 22, 2020   Page 5 of 9
       Id. In short, “[i]f 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, 892

       N.E.2d at 639-40.


[9]    Here, among the multiple alleged probation violations, Combs challenges the

       State’s proof and the trial court’s finding that he violated his probation by twice

       committing the new crime of class B misdemeanor public intoxication. 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. Heaton, 984 N.E.2d at

       617.


[10]   Indiana Code Section 7.1-5-1-3 provides that


               it is a Class B misdemeanor for a person to be in a public place or
               a place of public resort in a state of intoxication caused by the
               person’s use of alcohol or a controlled substance (as defined in IC
               35-48-1-9), if the person:


               (1) endangers the person’s life;
               (2) endangers the life of another person;
               (3) breaches the peace or is in imminent danger of breaching the
               peace; or
               (4) harasses, annoys, or alarms another person.


       Thus, to prove that Combs violated the terms of his probation by committing

       two new crimes of public intoxication, the State was required to prove the

       elements of those offenses by a preponderance of the evidence. In challenging

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-213| July 22, 2020   Page 6 of 9
       the sufficiency of the evidence, Combs concedes that the State provided

       sufficient evidence to prove that he was twice in a public place or place of

       public resort in a state of intoxication caused by his use of alcohol. However,

       he argues that because law enforcement “did not observe [him] yelling or

       harassing anyone,” the State failed to prove by a preponderance of the evidence

       that he “endangered himself or any other person, or breached the peace, or

       harassed any other person.” Appellant’s Br. at 11. We disagree.


[11]   Here, the State presented evidence that after an officer found Combs

       intoxicated and passed out on the steps of a business, the officer transported

       Combs to an apartment complex, only to be summoned back shortly thereafter

       based upon a 911 call reporting that Combs was “threatening children and

       causing a disturbance.” Tr. Vol. 2 at 10. When officers arrived, a “highly

       intoxicated” Combs was staggering around in a common area of the complex

       while other people and children were nearby. Id. We agree with the State that

       the officers’ observations, coupled with the information supplied in the 911 call,

       is sufficient to prove by a preponderance of the evidence that Combs, while in

       an intoxicated state, endangered himself or another person, breached the peace,

       or harassed, annoyed, or alarmed another person. 2


[12]   The State also presented evidence that, on a second occasion, Combs “busted a

       whiskey bottle” against the door of a house because the resident would not let




       2
        The trial court specifically stated that it relied upon the officers’ “first-hand observations” and not upon
       hearsay statements made by an unidentified female witness at the scene. Appealed Order at 1.

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-213| July 22, 2020                           Page 7 of 9
       him in, and he threatened to kill the resident’s friend. Id. at 17. After speaking

       to the victims, the officers responding to the call were able to locate Combs

       operating a bicycle on a nearby street. Due to obvious signs of his intoxication,

       officers administered three field sobriety tests, which Combs failed. Again, we

       agree with the State that it was reasonable for the trial court to conclude by a

       preponderance of the evidence that Combs, while in an intoxicated state,

       endangered himself or another person, breached the peace, or harassed,

       annoyed, or alarmed another person. As the State presented sufficient evidence

       to prove that Combs committed the new crimes of public intoxication,

       substantial evidence of probative value supports the trial court’s conclusion that

       Combs violated a condition of his probation.


[13]   Even were we to agree with Combs and conclude that the State presented

       insufficient evidence to prove by a preponderance of the evidence that he

       committed two new criminal offenses of public intoxication, any error would be

       harmless because the trial court’s revocation of Combs’s probation is supported

       by multiple other probation violations that Combs does not contest.

       Specifically, the trial court also found by a preponderance of the evidence that

       Combs failed to report to probation as required, and that he committed

       additional new offenses including battery against a public safety official and

       intimidation. Combs does not challenge the State’s proof, or the trial court’s




       Court of Appeals of Indiana | Memorandum Decision 20A-CR-213| July 22, 2020   Page 8 of 9
       findings, on these violations. 3 It is well settled that proof of any one violation is

       sufficient to revoke a defendant’s probation.” Figures v. State, 920 N.E.2d 267,

       273 (Ind. Ct. App. 2010). The trial court did not abuse its discretion in

       revoking Combs’s probation. 4


[14]   Affirmed


       Bailey, J., and Altice, J., concur.




       3
         The trial court also found by a preponderance of the evidence that Combs committed the new crime of
       resisting law enforcement. Although Combs very briefly challenges the State’s proof regarding this violation
       on appeal, we decline to address it in light of the multiple other violations he does not challenge.
       4
        Combs challenges only the trial court’s revocation of his probation. As he does not challenge the
       appropriateness of the sanction imposed by the trial court, we do not address it.

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-213| July 22, 2020                       Page 9 of 9
