MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                FILED
court except for the purpose of establishing                        Mar 30 2020, 11:00 am

the defense of res judicata, collateral                                  CLERK
estoppel, or the law of the case.                                    Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Jennifer G. Shircliff                                    Curtis T. Hill, Jr.
Anderson, Indiana                                        Attorney General of Indiana

                                                         Sierra A. Murray
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Bruce E. Brooks, Jr.,                                    March 30, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-2381
        v.                                               Appeal from the Madison Circuit
                                                         Court
State of Indiana,                                        The Honorable David A. Happe,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         48C04-1601-F6-72



Bradford, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2381 | March 30, 2020               Page 1 of 10
                                          Case Summary
[1]   Bruce E. Brooks, Jr. was sentenced to a fifty-four-month sentence after he pled

      guilty to and was convicted of Level 6 felony possession of cocaine, Class A

      misdemeanor driving while suspended, and Class A misdemeanor resisting law

      enforcement. The trial court ordered that the entire sentence would be

      suspended to probation. While serving his suspended sentence, Brooks was

      alleged to have violated the terms of his probation by committing a new

      criminal offense.

[2]   On September 10, 2019, the trial court found that Brooks had violated the terms

      of his probation and ordered that Brooks serve thirty months of his previously-

      suspended sentence in Community Corrections on work release. Brooks

      challenges the revocation of his probation, arguing that he was denied due

      process by the trial court’s failure to make an adequately specific statement

      setting forth the evidence relied upon in revoking his probation. Alternatively,

      he argues that the evidence is insufficient to sustain the revocation of his

      probation. Concluding that Brooks was not denied due process and that the

      evidence is sufficient to sustain the revocation of Brooks’s probation, we affirm.



                            Facts and Procedural History
[3]   On January 12, 2016, the State charged Brooks with Level 6 felony possession

      of cocaine, Class A misdemeanor driving while suspended, and Class A

      misdemeanor resisting law enforcement. Brooks pled guilty as charged on


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2381 | March 30, 2020   Page 2 of 10
      November 7, 2016. On December 12, 2016, the trial court accepted Brooks’s

      plea agreement and sentenced Brooks in accordance with its terms to an

      aggregate fifty-four-month sentence, all of which was suspended to probation.

      One condition of Brooks’s probation was to “[o]bey all municipal, state, and

      federal laws[.]” Appellant’s App. Vol. II p. 56.


[4]   On October 8, 2018, Brooks was gambling at the Hoosier Park Casino when he

      won a jackpot. Brooks asked Brock Emerton to claim the jackpot for him,

      claiming to have forgotten his identification. Brooks offered to give Emerton a

      portion of the jackpot in exchange for his assistance. Emerton had never met

      Brooks before Brooks requested his assistance.


[5]   Also on that date, State Police Officer David Jenkins was working in his

      capacity as an officer stationed at the casino by the Indiana Gaming

      Commission. Officer Jenkins was notified of a possible crime, i.e., a jackpot

      switch. Surveillance footage showed that after winning a jackpot from a game

      played on a gambling machine, Brooks walked away from the machine and

      around a table where he had a brief conversation with Emerton. Brooks walked

      back around the table and sat down in a seat one seat away from the winning

      position. When “the attendants came out to pay the jackpot,” Brooks pointed

      to Emerton, “sending the attendant over there so that she could process the

      jackpot using his information versus” using Brooks’s information. Tr. p. 16.


[6]   After reviewing surveillance footage, Officer Jenkins approached Brooks and

      asked “why he did not claim the jackpot he had just won.” Tr. p. 15. Brooks


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2381 | March 30, 2020   Page 3 of 10
      denied having won a jackpot. Officer Jenkins advised Brooks that he had “just

      reviewed the surveillance footage” and had “determined that he had indeed

      played the game, which led up to the jackpot, and that he was the person that

      needed to claim that jackpot, and by not doing so he was committing” a felony.

      Tr. p. 15.


[7]   Officer Jenkins informed Brooks that the jackpot needed to be processed “under

      his name because he’d be the one to claim it.” Tr. p. 17. Despite claiming that

      his identification was expired, Brooks eventually provided his identification to

      the casino attendant for processing. Officer Jenkins informed Brooks that if his

      identification was expired, he could simply “bring back” valid identification

      and receive his prize money. Tr. p. 17. Brooks responded “no” when Officer

      Jenkins asked him if there was any other reason why he would not be able to

      claim the money. Tr. p. 18.


[8]   The casino “reclaimed the jackpot” from Emerton and “so that it could be

      processed accordingly using” Brooks’s information. Tr. p. 30. While

      processing the jackpot, a casino manager discovered that “there was back child

      support” and, as a result, the entire jackpot was forfeited. Tr. p. 38. The State

      subsequently charged Brooks with Level 6 felony cheating at gaming.


[9]   On March 5, 2019, the State filed a notice of probation violation. During an

      August 27, 2019 evidentiary hearing, Officer Jenkins and Emerton testified

      about the incident at the casino. The probable cause affidavit created by Officer

      Jenkins and the casino surveillance video were also entered into evidence.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2381 | March 30, 2020   Page 4 of 10
       Brooks also testified, admitting that he owed back child support on the date in

       question. During a September 10, 2019 sanction hearing, the trial court found

       that Brooks had violated the terms of his probation by committing Level 6

       felony cheating at gaming. The trial court revoked thirty months of Brooks’s

       previously-suspended sentence and ordered that time be served in Community

       Corrections on work release.



                                 Discussion and Decision
[10]   Brooks appeals the trial court’s order revoking his probation. “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).


               The trial court determines the conditions of probation and may
               revoke probation if the conditions are violated. Once a trial court
               has exercised its grace by ordering probation rather than
               incarceration, the judge should have considerable leeway in
               deciding how to proceed. If this discretion were not afforded to
               trial courts and sentences were scrutinized too severely on
               appeal, trial judges might be less inclined to order probation to
               future defendants. Accordingly, a trial court’s sentencing
               decisions for probation violations are reviewable using the abuse
               of discretion standard. An abuse of discretion occurs where the
               decision is clearly against the logic and effect of the facts and
               circumstances.


       Id. (internal citations omitted). In challenging the revocation of his probation,

       Brooks contends that he was denied due process. Alternatively, he contends

       that the evidence is insufficient to sustain the revocation of his probation.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2381 | March 30, 2020   Page 5 of 10
                                    I. Denial of Due Process
[11]   Brooks contends that he was denied due process because the trial court failed to

       provide an adequate written statement outlining the evidence relied on by the

       court in revoking his probation. “A defendant facing revocation of probation is

       entitled to certain due process rights, including: … (f) a written statement by the

       factfinder as to the evidence relied on and reasons for revoking probation.”

       Puckett v. State, 956 N.E.2d 1182, 1186 (Ind. Ct. App. 2011). “The written

       statement requirement is a procedural device aimed at promoting accurate fact

       finding and ensuring the accurate review of revocation decisions.” Id. “A

       transcript of the evidentiary hearing, although not the preferred way of fulfilling

       the writing requirement, is sufficient if it contains a clear statement of the trial

       court’s reasons for revoking probation.” Id.


[12]   The transcript of the evidentiary and sanctions hearings provides the written

       statement outlining the evidence relied on by the trial court in revoking

       Brooks’s probation. At the conclusion of the evidentiary hearing, the trial court

       found as follows:

               Based on the evidence the court is gonna find the State met its
               burden to prove by a preponderance standard that the defendant
               did commit this crime on that date. The victim of the fraud
               doesn’t have to be the gambling business where you’re gambling,
               it can be someone else. The statute is open[] ended and the
               charge is open ended. It’s intent to defraud. And the court
               would find that the victim of the fraud here that was intended to
               be defrauded was the recipient of the child support money and
               the Federal and State Governments who have an interest in the
               accurate tax reporting of gambling winnings. And, uh, - So I

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2381 | March 30, 2020   Page 6 of 10
        would find a violation. The defendant has committed the offense
        of which he was accused in the notice of violation.


Tr. pp. 52–53. During the subsequent sanctioning hearing, the trial court

expanded on its statement, stating the following:


        [T]o see you at the casino breaking the law, I know you have a
        hard time accepting that, but I don’t. It’s very clear to me after
        watching those – the [surveillance] video there and hearing the
        description of what happened, you knew exactly what you were
        doing. You knew that if you turned in the claim yourself that
        you were gonna get that money taken away from you for child
        support. So you conspired with somebody else to make that
        claim of winnings so you could get it without losing it to child
        support. That was no accident. And when you’re confronted
        about it, you lie about it. And here in court you’ve not accepted
        responsibility for the choices that you’ve made, and that’s really
        disappointing because it tells me that now … [at] [t]hirty-three
        (33) years old, you’re still thinking like a criminal.… So you’re a
        person who’s here on felony supervision who’s going out and
        committing new crimes trying to cheat your children of child
        support. That’s what it is.… I see a man who has responsibilities
        that he’s not living up to, and he’s breaking the law.


Tr. pp. 85–86. These statements, when read together, clearly set forth the

evidence the court relied on in finding that the State met its burden of proving

that Brooks violated the terms of his probation by committing a new criminal

offense. Specifically, the statements establish that the trial court relied on

evidence indicating that Brooks, knowing that he owed back child support,

attempted to conceal his identity as the winner of the jackpot in order to avoid




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2381 | March 30, 2020   Page 7 of 10
       the confiscation of his winnings. As such, we are unpersuaded by Brooks’s

       contention that he was denied due process.


                               II. Sufficiency of the Evidence
[13]   Alternatively, Brooks contends that the evidence presented during the

       evidentiary hearing is insufficient to support the revocation of his probation.

       “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.


       Id. “If 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 v. State,

       892 N.E.2d 637, 639–40 (Ind. 2008).


[14]   The State alleged that Brooks violated the terms of his probation by committing

       the new criminal offense of Level 6 felony cheating at gaming. “A person who

       knowingly or intentionally does any of the following commits a Level 6 felony

       … (9) Claims, collects, takes, or attempts to claim, collect, or take money or

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2381 | March 30, 2020   Page 8 of 10
       anything of value in or from a gambling game: (A) with the intent to

       defraud[.]” Indiana Code section 4-33-10-2(9)(A). Thus, in order to prove that

       Brooks violated the terms of his probation by committing the new charged

       offense, the State was required to prove, by a preponderance of the evidence,

       that Brooks, with the intent to defraud, knowingly or intentionally claimed,

       collected, took, or attempted to claim, collect or take money or anything of

       value in or from a gambling game.


[15]   In challenging the sufficiency of the evidence to sustain the revocation of his

       probation, Brooks does not dispute that the State provided sufficient evidence to

       prove that he claimed, collected, took, or attempted to claim, collect, or take

       money from a gambling game with the intent to defraud. Rather, he argues

       only that the State failed to prove that he acted knowingly or intentionally. “A

       person engages in conduct ‘knowingly’ if, when he engages in the conduct, he is

       aware of a high probability that he is doing so.” Ind. Code § 35-41-2-2(b). “A

       person engages in conduct ‘intentionally’ if, when he engages in the conduct, it

       is conscious objective to do so.” Ind. Code § 35-41-2-2(a). Intent “may be

       proven by circumstantial evidence alone, and it is well-established that

       knowledge and intent may be inferred from the facts and circumstances of each

       case.” Scott v. State, 867 N.E.2d 690, 695 (Ind. Ct. App. 2007).


[16]   The probable cause affidavit, which was completed by Officer Jenkins in

       connection to the newly-charged offense and admitted into evidence at the

       evidentiary hearing, indicates that Brooks conspired to have Emerton collect

       the jackpot winnings in order to avoid forfeiting the jackpot to his child support

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2381 | March 30, 2020   Page 9 of 10
       arrearage. In asking Emerton for assistance, Brooks lied about why he needed

       Emerton to collect the jackpot, claiming that “he didn’t have his I.D.” Tr. p.

       43. Brooks gave a different explanation to Officer Jenkins, claiming that he did

       not owe any back child support but that his identification was expired. Brooks,

       however, admitted during the evidentiary hearing that he owed back child

       support on the date that he won the jackpot. We agree with the State that the

       evidence supports that reasonable inference that Brooks acted knowingly or

       intentionally when he “attempted to avoid forfeiture of the jackpot winnings by

       conscripting a stranger to process the jackpot under their name instead of his

       own.” Appellee’s Br. p. 17. As such, we conclude that the evidence is

       sufficient to prove beyond a preponderance of the evidence that Brooks violated

       the terms of his probation by committing the crime of Level 6 felony cheating at

       gaming.


[17]   The judgment of the trial court is affirmed.


       Baker, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2381 | March 30, 2020   Page 10 of 10
