MEMORANDUM DECISION
                                                                       FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                             Nov 14 2016, 9:09 am

regarded as precedent or cited before any                              CLERK
                                                                   Indiana Supreme Court
court except for the purpose of establishing                          Court of Appeals
                                                                        and Tax Court
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

                                                        Jesse R. drum
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Kraig Von Reese Brown,                                  November 14, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        48A02-1604-CR-751
        v.                                              Appeal from the Madison Circuit
                                                        Court
State of Indiana,                                       The Honorable Mark Dudley, Jr.,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        48D01-1103-FC-389



Altice, Judge.


                                         Case Summary




Court of Appeals of Indiana | Memorandum Decision 48A02-1604-CR-751 | November 14, 2016    Page 1 of 8
[1]   Kraig Von Reese Brown appeals the revocation of his probation, raising two

      issues on appeal:


              1. Did the State present sufficient evidence to support the
              revocation of Brown’s probation?


              2. Did the trial court abuse its discretion in ordering Brown to
              serve the entirety of his previously suspended sentence?


[2]   We affirm.


                                       Facts & Procedural History


[3]   On November 29, 2011, Brown was sentenced to six years, with two years

      executed and four years suspended to probation for Class C misdemeanor

      operating a motor vehicle without ever receiving a license, Class A

      misdemeanor possession of marijuana, and Class C felony possession of

      methamphetamine. Brown was released to probation on October 28, 2014. As

      conditions of his probation, Brown was required to report to the probation

      department and not commit any new criminal offenses. Brown reported to the

      probation department only one time following his release. On December 17,

      2014, the State filed a notice of probation violation based on his failure to

      report. Brown did not appear at the fact-finding hearing and a warrant was

      issued for his arrest.


[4]   On September 11, 2015, Brown, who had yet to be arrested pursuant to the

      warrant, was involved in an altercation with his girlfriend during which he shot

      her in the leg outside a convenience store in Muncie. At the time, Brown’s
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      girlfriend was twenty-two weeks pregnant with their second child. This

      shooting was captured on a surveillance video.


[5]   During the evening hours on January 20, 2016, officers from the Anderson

      Police Department (APD) helped execute a Delaware County arrest warrant

      that was issued following the September 11 incident. Detectives Norman

      Rayford and Michael Anderson located Brown and another known felon near

      Brown’s mother’s home in Anderson. The detectives were not in uniform, but

      were wearing black tactical vests with “police” on the front and back in bright

      white letters. Although it was dark, the detectives were standing directly under

      a street light when they made eye contact with Brown, who was approximately

      twenty feet away. When Detective Rayford verbally identified himself as a

      police officer and ordered Brown to stop, Brown and the other felon ran.


[6]   The detectives engaged in a foot pursuit, during which Detective Rayford saw

      Brown throw an object toward a house. Detective Rayford located the object,

      which was a handgun that was later traced to a recent burglary.


[7]   Detective Anderson, who was hindered by his rifle and had given up the chase,

      returned to his vehicle to secure his weapon. He then followed footprints in the

      snow and found Brown attempting to get into a shed. Detective Anderson was

      approximately ten feet from Brown when he turned on his flashlight and

      identified himself as a police officer and ordered Brown to stop. Brown ran

      again. Detective Anderson chased Brown, but lost sight of him when he ran

      onto a porch and crouched behind some furniture. Detective Anderson waited


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      for backup. When police shined a spotlight on the porch, Brown put his hands

      up and was taken into custody.


[8]   On February 1, 2016, the State filed an amended notice of probation violation

      alleging that Brown (a) failed to timely report to the probation department; (b)

      on or about January 21, 2016, committed new criminal offenses of Level 4

      felony unlawful possession of a firearm by a serious violent felon and Class A

      misdemeanor resisting law enforcement; and (c) on or about September 11,

      2015, committed new criminal offenses of Level 3 felony aggravated battery,

      Level 5 felony battery resulting in bodily injury to a pregnant woman, and

      Level 5 felony battery by means of a deadly weapon. An evidentiary hearing

      was held on February 9, 2016.


[9]   At the hearing, Brown admitted to the first alleged probation violation,

      explaining that he did not report to probation because he knew there were

      warrants for his arrest. With regard to the second and third alleged violations,

      the State presented the testimony of three APD officers who were involved in

      Brown’s arrest on January 21, 2016, and a Muncie police officer who had

      viewed the surveillance video of Brown shooting his pregnant girlfriend. The

      trial court took judicial notice of its file and Brown’s pre-sentence investigation

      report (PSI), which showed that he had a prior juvenile adjudication for robbery

      as a Class B felony if committed by an adult. The trial court then found by a

      preponderance of the evidence that Brown violated his probation by committing

      criminal offenses as alleged in (b) and (c). The trial court ordered Brown to

      serve the entirety of his previously suspended sentence in the Department of

      Court of Appeals of Indiana | Memorandum Decision 48A02-1604-CR-751 | November 14, 2016   Page 4 of 8
       Correction. Brown now appeals. Additional facts will be provided as

       necessary.


                                           Discussion & Decision


                                                 1. Sufficiency


[10]   Brown first argues that the State presented insufficient evidence to support the

       revocation of his probation. We begin by noting that Brown admitted that he

       violated his probation by failing to report to the probation department. Based

       on this alone, the trial court had discretion to revoke his probation and impose

       sanctions. See Ind. Code § 35-38-2-3; Gosha v. State, 873 N.E.2d 660, 663 (Ind.

       Ct. App. 2007) (noting that a violation of a single condition of probation is

       sufficient to support revocation). Nonetheless, Brown argues that the State’s

       evidence is insufficient to establish that he committed new crimes.


[11]   A probation revocation hearing is civil in nature, and the alleged violation must

       be proven by the State by a preponderance of the evidence. Mateyko v. State,

       901 N.E.2d 554, 558 (Ind. Ct. App. 2009), trans. denied. When reviewing a

       claim of insufficient evidence to support a trial court’s decision to revoke

       probation, we consider only the evidence most favorable to the judgment, and

       we neither reweigh the evidence nor judge the credibility of witnesses. Id.

       Revocation is appropriate if there is substantial evidence of probative value to

       support the trial court’s conclusion that the probationer has violated the terms

       of probation. Lightcap v. State, 863 N.E.2d 907, 911 (Ind. Ct. App. 2007).



       Court of Appeals of Indiana | Memorandum Decision 48A02-1604-CR-751 | November 14, 2016   Page 5 of 8
[12]   The State proved by a preponderance of the evidence that Brown committed

       resisting law enforcement. See Ind. Code § 35-44.1-3-1. As set forth above, in

       two different instances, Detective Rayford or Detective Anderson identified

       themselves as police officers and ordered Brown to stop; Brown fled each time.


[13]   The State also proved by a preponderance of the evidence that Brown

       committed unlawful possession of a firearm by a serious violent felon. See Ind.

       Code § 35-47-4-5. Brown’s PSI, of which the trial court took judicial notice,

       showed that Brown had a previous adjudication for felony robbery, which is

       classified as a serious violent felony. See id. Further, Brown was more likely

       than not in possession of a handgun as evidenced by Detective Rayford’s

       testimony that during the foot pursuit, he saw Brown throw an object, which

       was determined to be a handgun.


[14]   The State also established by a preponderance of the evidence that Brown

       committed aggravated battery, battery resulting in bodily injury to a pregnant

       woman, and/or battery by means of a deadly weapon. A Muncie police officer

       who had viewed the convenience store surveillance video testified that the video

       showed Brown shooting his pregnant girlfriend.


[15]   The State’s evidence clearly established by a preponderance of the evidence that

       Brown committed new crimes while on probation. Brown’s arguments to the

       contrary are blatant requests to reweigh the evidence, which we will not

       indulge. The trial court did not abuse its discretion in revoking Brown’s

       probation.


       Court of Appeals of Indiana | Memorandum Decision 48A02-1604-CR-751 | November 14, 2016   Page 6 of 8
                                                  2. Sanctions


[16]   Brown also argues that the trial court abused its discretion in ordering him to

       serve the entirety of his previously suspended sentence as a sanction for his

       probation violation. We review a trial court’s sentencing decision in a

       probation revocation proceeding for an abuse of discretion. Jones v. State, 838

       N.E.2d 1146, 1148 (Ind. Ct. App. 2005). An abuse of discretion occurs if the

       decision is against the logic and effect of the facts and circumstances before the

       court. Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). Moreover, “[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

       proceed.” Id. “If the court finds the defendant has violated a condition of his

       probation at any time before the termination of the probationary period, and the

       petition to revoke is filed within the probationary period, then the court may

       order execution of the sentence that had been suspended.” Gosha, 873 N.E.2d

       at 664; see also Ind. Code § 35-38-2-3(h).


[17]   Brown argues that “[a] one strike and you are back in prison philosophy is

       overly punitive and does nothing to give the offenders the assistance they need

       to reintegrate into society.” Appellant’s Brief at 22. We remind Brown that

       “[p]robation is a matter of grace left to trial court discretion, not a right to

       which a criminal defendant is entitled.” Heaton v. State, 984 N.E.2d 614, 616

       (Ind. 2013).




       Court of Appeals of Indiana | Memorandum Decision 48A02-1604-CR-751 | November 14, 2016   Page 7 of 8
[18]   Here, it is disingenuous to declare that Brown had only “one strike” against

       him. There were three alleged probation violations, including numerous

       criminal offenses stemming from separate incidents. Further, committing a

       new crime, especially a violent one, is the most serious probation violation.

       The trial court carefully considered the nature of the probation violations and

       aptly noted that Brown’s “mistakes are worse than a lot of others” and that

       “public safety is at risk” from Brown. Transcript at 63. We agree with the trial

       court. Brown has shown that he is not suited for probation. Although he was a

       juvenile when originally sentenced in this case, he was twenty-two years old

       when the trial court sanctioned him. Brown has clearly demonstrated that

       adulthood has not improved his decision-making skills. The trial court did not

       abuse its discretion in ordering Brown to serve the entirety of his four-year

       suspended sentence.


[19]   Judgment affirmed.


[20]   Bradford, J., and Pyle, J., concur.




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