MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                               Mar 10 2016, 9:15 am
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.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Ruth Johnson                                             Gregory F. Zoeller
Marion County Public Defender Agency                     Attorney General of Indiana
Appellate Division
                                                         Tyler G. Banks
Indianapolis, Indiana                                    Deputy Attorney General
Timothy J. Burns                                         Indianapolis, Indiana
Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Scott Klemme,                                            March 10, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A04-1507-CR-869
        v.                                               Appeal from the
                                                         Marion Superior Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff.                                      Amy M. Jones, Judge
                                                         The Honorable Shannon L.
                                                         Logsdon, Commissioner
                                                         Trial Court Cause No.
                                                         49G08-1506-CM-20792



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1507-CR-869 | March 10, 2016        Page 1 of 9
[1]   Scott Klemme (“Klemme”) appeals the trial court’s decision to revoke his

      probation, raising the followed restated issue: whether the trial court abused its

      discretion when it found that Klemme violated his probation by failing to report

      to the probation department and by repeatedly entering a prohibited geographic

      zone.


[2]   We affirm.


                                 Facts and Procedural History
[3]   On the evening of June 13, 2015, Indianapolis Metropolitan Police Officer

      Andrew Girt was dispatched to a disturbance at a home on Kessler Lane East

      Drive in Marion County, Indiana. Officer Girt encountered two individuals at

      the residence, Klemme and his mother (“Mother”). Klemme told Officer Girt

      that he and his mother had had a “disagreement,” but Mother reported that

      Klemme had hit her. Appellant’s App. at 14. The State charged Klemme with

      one count of Class A misdemeanor battery resulting in bodily injury and one

      count of Class B misdemeanor battery.


[4]   On June 17, 2015, Klemme pleaded guilty to the Class A misdemeanor battery

      charge, and, as part of the plea agreement, the State dismissed the Class B

      misdemeanor battery charge. That same day, immediately following the guilty

      plea hearing, the trial court conducted the sentencing hearing. Pursuant to the

      plea agreement, the trial court sentenced Klemme to 365 days in the Marion

      County Jail with credit for four days for time served, and it suspended the

      remaining 361 days, entered a No Contact order with Mother, and placed

      Court of Appeals of Indiana | Memorandum Decision 49A04-1507-CR-869 | March 10, 2016   Page 2 of 9
      Klemme on probation. Klemme agreed to “All Standard Conditions and Fees

      of Probation,” which included reporting to the probation department. Id. at 23-

      24. Also, as a condition of his probation, Klemme was required to wear a GPS

      monitoring device on his ankle (“the GPS device”), which would be monitored

      by Marion County Community Corrections (“MCCC”). Id. at 24-25.


[5]   After leaving the sentencing hearing on June 17, Klemme called his girlfriend to

      pick him up, and he went to her home. He did not report to the probation

      department. The next afternoon, June 18, Klemme went to the MCCC office at

      around 4:30 p.m. to receive his GPS device. Tr. at 15. MCCC explained to

      Klemme that the GPS device would alert Klemme, by vibrating, if he entered

      what had been designated as an exclusionary zone, which was an area that he

      was not allowed to enter. If he received the vibration, it was to serve as a

      warning to him, and he was instructed to turn around and head the other

      direction.


[6]   On the night of June 18 and into the early morning hours of June 19, MCCC

      received email alerts that Klemme entered the exclusionary zone at least three

      to four times. On June 19, 2015, MCCC filed a notice of community

      corrections violations, alleging that Klemme had entered the exclusionary zone,

      failed to comply with MCCC rules and regulations, and failed to maintain

      communication with MCCC. On June 23, the State filed a separate notice of

      probation violation, alleging that Klemme failed to report to probation intake

      and failed to comply with MCCC. On June 30, the trial court held a hearing on

      the charged probation violations.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1507-CR-869 | March 10, 2016   Page 3 of 9
[7]   At the hearing, William Beck (“Beck”), a MCCC employee and liaison to the

      courts, testified. He explained that Klemme was wearing a type of GPS device

      that was equipped to alert the defendant if he or she entered an exclusionary

      zone, also known as a “victim zone,” which is a one-mile radius around a

      specific point and is intended to protect the victim in the case. Id. at 6-7, 9.

      Generally, defendants are told that there are such restricted areas, but they are

      not advised of the precise location, in order to protect the victim. However,

      Beck noted that “[i]n this case [the victim] was his mother so of course he

      would have known where his mother resided.” Id. at 8. In addition to

      notifying the defendant in a case, the GPS device generates an email to the on-

      call MCCC officer to notify him or her that the defendant has entered the

      prohibited exclusionary zone. Beck explained that “there is . . . a buffer zone”

      surrounding the exclusionary zone, which gives the defendant “a warning to let

      [him or her] know that you need to go another direction; you’re going towards

      the victim zone.” Id. at 7-8. Beck testified that Klemme entered the

      exclusionary zone at least three to four times and that he went “either in or

      right next to” Mother’s home. Id. at 11. The State also presented computer-

      generated maps, which reflected the GPS coordinates of Klemme’s various

      locations inside the prohibited area.


[8]   Klemme also testified at the hearing. He stated that on June 18, he went to

      MCCC, but “never did report” to probation. Id. at 19. As to the GPS device,

      Klemme testified to having gone to various locations on the night of June 18

      and early morning hours of June 19, looking for a place to spend the night,


      Court of Appeals of Indiana | Memorandum Decision 49A04-1507-CR-869 | March 10, 2016   Page 4 of 9
       because his girlfriend would not let him stay with her. Klemme stated that

       during the night he went to the home of several friends who either were not

       awake, did not answer the door, or refused his request to stay the night.

       Klemme acknowledged that one of the friends lived “cattycorner,” from

       Mother. Id. at 20. Klemme stated that in the morning of June 19, he returned

       to his girlfriend’s home and learned that MCCC was looking for him, so he

       went to MCCC and turned himself in. Klemme conceded at the hearing that he

       had received the vibration alerts on his GPS device, but he believed that it was

       malfunctioning, given that he had walked through some puddles, and it was

       raining that night.


[9]    The State recalled Beck, who testified that MCCC’s GPS devices are

       waterproof and that they would not malfunction because someone stepped in a

       puddle of water. He said a person can shower in the device, but cannot

       submerge it “for a long period of time.” Id. at 23. He further observed that “if

       the equipment were to malfunction,” MCCC would not receive the defendant’s

       location and GPS coordinates. Id. at 22. In this case, Beck observed that

       Klemme’s report “shows him moving around in the area zones[,]” and thus, it

       was not malfunctioning. Id.


[10]   At the conclusion of the hearing, the trial court found that Klemme (1) “failed

       to report to the probation department for intake” and (2) entered the

       exclusionary zone multiple times on the night in question and thereby “failed to

       comply with the rules and regulations of [MCCC].” Id. at 26. The trial court

       also noted that Klemme did not contact MCCC until “a whole day later . . .

       Court of Appeals of Indiana | Memorandum Decision 49A04-1507-CR-869 | March 10, 2016   Page 5 of 9
       that next day when your girlfriend told you that you needed to call [MCCC]”

       and thus failed to maintain communication with MCCC. Id. at 27-28. The trial

       court also expressed concern that Klemme did not go to MCCC and obtain his

       GPS device until 4:30 p.m. on June 18, “when you should have been there first

       thing in the morning”; the trial court observed, “[Y]ou spent the whole entire

       day not being monitored.” Id. at 27. The trial court found Klemme “in

       violation of both [MCCC] and [his] probation placement,” and it ordered him

       to serve 180 days of his previously-suspended sentence. Id. at 30. Klemme now

       appeals.


                                      Discussion and Decision
[11]   Klemme asserts that it was an abuse of the trial court’s discretion to revoke his

       probation “in light of [] Klemme’s difficult personal circumstances after being

       released from the jail[.]” Appellant’s Br. at 8. Klemme essentially claims that

       the evidence did not support the revocation. More specifically, his claim is that

       the trial court did not consider certain “extenuating circumstances,” such as his

       difficulty in finding a place to stay the night, causing him to roam to multiple

       friends’ homes some of which were located in the exclusionary zone, and the

       fact that he stepped in puddles and the GPS device may have malfunctioned.

       Appellant’s Br. at 4, 8, 10.


[12]   A probation revocation proceeding is in the nature of a civil proceeding, and,

       therefore, the alleged violation need be proved only by a preponderance of the

       evidence. T.W. v. State, 864 N.E.2d 361, 364 (Ind. Ct. App. 2007), trans. denied.


       Court of Appeals of Indiana | Memorandum Decision 49A04-1507-CR-869 | March 10, 2016   Page 6 of 9
       Violation of a single condition of probation is sufficient to revoke probation. Id.

       As with other sufficiency issues, we do not reweigh the evidence or judge the

       credibility of witnesses. Id. We look only to the evidence that supports the

       judgment and any reasonable inferences flowing therefrom. Id. If there is

       substantial evidence of probative value to support the trial court’s decision that

       the probationer committed any violation, revocation of probation is

       appropriate. Id.


[13]   Here, on June 19, 2015, MCCC filed a notice of MCCC violation, alleging that

       Klemme entered an exclusionary zone multiple times, failed to comply with the

       rules and regulations of MCCC, and failed to maintain communication with

       MCCC. On June 23, 2015, the State filed a separate notice of probation

       violation, which alleged that Klemme failed to report to the probation

       department for intake and failed to comply with MCCC. Appellant’s App. at 30-

       31, 33. In accordance with Indiana Code section 35-38-2-3, a trial court has

       three options if a defendant violates probation. It may: (1) continue the

       defendant’s probation; (2) extend the probationary period for not more than one

       year beyond the original probationary period; or (3) order execution of all or

       part of the suspended sentence. Ind. Code § 35-38-2-3(h); Williams v. State, 883

       N.E.2d 192, 195 (Ind. Ct. App. 2008). In revocation cases, the probationer is

       entitled to present mitigating evidence to demonstrate that the violation does

       not warrant revocation. Sparks v. State, 983 N.E.2d 221, 225 (Ind. Ct. App.

       2013).




       Court of Appeals of Indiana | Memorandum Decision 49A04-1507-CR-869 | March 10, 2016   Page 7 of 9
[14]   Here, at the probation revocation hearing, Klemme conceded that he did not

       report to the probation department at any time. Tr. at 19. He offered no

       argument or explanation to the trial court for his admitted failure to report, nor

       does he provide any justification on appeal. Klemme’s failure to report to

       probation was a violation of the conditions of his probation and provided

       sufficient grounds for the trial court to revoke his probation. T.W., 864 N.E.2d

       at 364 (violation of single condition of probation is sufficient to revoke

       probation).


[15]   Even excluding the failure-to-report violation, the State presented sufficient

       evidence that Klemme violated his probation by failing to comply with

       MCCC’s rules and regulations. Beck testified as to the MCCC maps which

       showed the exclusionary zone, the buffer zone, and pinpointed Klemme’s

       locations, according to the information generated by and sent from the GPS

       device. The maps reflected the locations where Klemme had been present and

       illustrated that, throughout the night, Klemme repeatedly passed the buffer

       zone and entered the restricted zone at least several times. Beck testified that

       the GPS device would have vibrated to warn Klemme and that Klemme had

       been instructed to turn the other direction upon receiving such a warning. The

       reports illustrated that Klemme did not do so, and Klemme admitted that he

       went to his friend’s home that is located essentially across the street from

       Mother’s home.


[16]   Klemme acknowledged that he repeatedly received the vibration warnings, but

       maintained that he believed the GPS device was malfunctioning since it was

       Court of Appeals of Indiana | Memorandum Decision 49A04-1507-CR-869 | March 10, 2016   Page 8 of 9
       raining, and he had stepped in puddles that night. Beck testified that the GPS

       device is waterproof and stepping in puddles would not affect it, unless the

       person submerged the device for an extended period of time. Beck further

       testified that Klemme’s GPS device was correctly operating, because it would

       not have sent the signals and locations if it was not operating properly.


[17]   The trial court rejected Klemme’s claims that the GPS device was not working

       properly and found that his explanations of where he went, as well as when and

       why, were not consistent or believable. Klemme’s arguments on appeal,

       claiming “extenuating circumstances,” are requests to reweigh the evidence.

       Appellant’s Br. at 4, 10. However, it is for the trial court to assess witness

       credibility, and we do not reweigh evidence on appeal. Whatley v. State, 847

       N.E.2d 1007, 1010 (Ind. Ct. App. 2006).


[18]   The evidence is undisputed that Klemme did not report to probation, and the

       evidence most favorable to the probation court’s judgment is that Klemme

       repeatedly entered the exclusionary zone, despite receiving warnings to turn

       and leave the area. Thus, the State presented sufficient evidence to support the

       revocation, and the trial court did not abuse its discretion when it revoked his

       probation and ordered Klemme to serve 180 days of his originally-suspended

       sentence.


[19]   Affirmed.


[20]   Mathias, J., and Brown, J., concur.



       Court of Appeals of Indiana | Memorandum Decision 49A04-1507-CR-869 | March 10, 2016   Page 9 of 9
