MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                              FILED
regarded as precedent or cited before any                                    Jan 31 2019, 6:58 am

court except for the purpose of establishing                                       CLERK
                                                                             Indiana Supreme Court
the defense of res judicata, collateral                                         Court of Appeals
                                                                                  and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Stanley L. Campbell                                      Curtis T. Hill, Jr.
Fort Wayne Indiana                                       Attorney General of Indiana
                                                         Caryn N. Szyper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Nyelah M. Hayes,                                         January 31, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1799
        v.                                               Appeal from the
                                                         Allen Superior Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff.                                      Wendy W. Davis, Judge
                                                         The Honorable
                                                         Samuel R. Keirns, Magistrate
                                                         Trial Court Cause No.
                                                         02D04-1704-F6-395



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1799 | January 31, 2019                     Page 1 of 8
[1]   Nyelah M. Hayes (“Hayes”) appeals the trial court’s revocation of her

      probation, contending that there was insufficient evidence to support the

      revocation.


[2]   We affirm.


                                    Facts and Procedural History
[3]   In June 2017, Hayes pleaded guilty pursuant to a plea agreement to resisting

      law enforcement as a Level 6 felony. The trial court sentenced Hayes to two

      years suspended to probation. Hayes’s probation officer, Ashley Feller

      (“Feller”), informed Hayes about the terms of her probation, and Hayes

      acknowledged that she had read and understood the terms. Appellant’s App. Vol.

      II at 21. As a condition of probation, Hayes was required to “behave well and

      report for supervision as instructed.” Id. Additionally, she was required to

      complete counseling and treatment through the Bowen Center. Tr. at 21-22;1

      Appellant’s App. Vol. II at 21.


[4]   In March 2018, the State filed a Verified Petition for Revocation of Probation,

      alleging that Hayes had committed new criminal offenses.2 The trial court held

      a fact-finding hearing on June 29, 2018 which established the following: In

      December 2017, Hayes was placed at the Harmony House, a temporary




      1
        The transcript and its table of contents are each labeled as volume 1. Because we cite only to the transcript,
      for ease of reference, we refer to it as “Tr.”
      2
       In April 2018, the State filed an Amended Verified Petition for Revocation, alleging essentially the same
      violation. Appellant’s App. Vol. II at 15-16.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1799 | January 31, 2019                    Page 2 of 8
      emergency housing facility managed by the Bowen Center.3 Deon Dittmar

      (“Dittmar”), the Bowen Center support housing manager, testified that, while

      at Harmony House, Hayes had “[l]ots of difficulties due to mental health

      issues.” Tr. at 14. Dittmar highlighted two incidents from March 22, 2018.

      First, Dittmar received a call from Harmony House resident Jennifer

      Lauderdale (“Lauderdale”) requesting to be moved to another location because

      she was concerned about Hayes’s behavior. Dittmar testified that the police

      were called, but no action was taken. Instead, police instructed Harmony

      House employees to separate Hayes and Lauderdale and to call if there was

      another incident. Id. at 15. The second and more significant incident occurred

      later that night when Dittmar received a call from Officer Daniel Rosenberg

      (“Officer Rosenberg”) of the Warsaw Police Department, informing him that

      the police were at Harmony House, arresting Hayes for battery. Id. at 15-16.


[5]   Lauderdale testified that she had been sitting in the Harmony House living

      room, watching television, when Hayes approached and punched Lauderdale

      repeatedly in the head. Id. at 8-9. During the attack, Lauderdale tried to call

      911, but Hayes “yanked” the cell phone from her hand. Id. at 9. Lauderdale

      eventually recovered her phone from Hayes and contacted the police. Id. at 9-

      10. First responders transported Lauderdale to the hospital, where she was




      3
        Hayes took herself to St. Joe Hospital in a psychotic state and was, thereafter, committed to the in-patient
      unit of the Bowen Center. Tr. at 21. The Bowen Center support housing manager, Deon Dittmar, testified
      at Hayes’s probation revocation fact-finding hearing that Bowen “didn’t have a place and [Hayes] was
      homeless at the time. Harmony House is a temporary emergency shelter for clients of ours. So we staffed it,
      and they thought that would be an appropriate place for [Hayes].” Id. at 14.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1799 | January 31, 2019                   Page 3 of 8
      diagnosed with a sprained shoulder, a deep cut across her right arm, and a

      headache. Id. at 10-12. Because the commission of these acts was a violation

      of house rules, Hayes’s placement at the Harmony House was terminated

      immediately. Id. at 16-17. That same evening, Officer Rosenberg filed an

      affidavit setting forth his belief that there was probable cause to believe that

      Hayes had committed the charged offenses. Appellant’s App. Vol. II at 22-27.


[6]   Hayes was arrested and charged in Kosciusko County with Class B

      misdemeanor battery and Class C misdemeanor interference with the reporting

      of a crime. Shortly thereafter, Feller filed a petition for probation revocation,

      alleging that by committing the new criminal offenses Hayes had failed to

      “maintain good behavior” as required by the terms and conditions of her

      supervised probation. Id. at 22. During the probation revocation hearing,

      witnesses testified about the incidents of that evening, and the State introduced

      the charging information and Officer Rosenberg’s probable cause affidavit.


[7]   At the close of the fact-finding hearing, the trial court found “by a

      preponderance of the evidence [that] the defendant violated terms and

      conditions of probation as contained in the petition.” Tr. at 32. After revoking

      Hayes’s probation, the trial court ordered Hayes committed to the Indiana

      Department of Correction for a period of two years with one hundred eighty-

      one days “jail credit.” Appellant’s App. Vol. II at 28. Hayes now appeals.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1799 | January 31, 2019   Page 4 of 8
                                     Discussion and Decision
[8]   “‘Probation is a matter of grace left to trial court discretion, not a right to which

      a criminal defendant is entitled.’” Cain v. State, 30 N.E.3d 728, 731 (Ind. Ct.

      App. 2015) (quoting Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007)), trans.

      denied. “Courts in probation revocation hearings ‘may consider any relevant

      evidence bearing some substantial indicia of reliability.’” Id. (quoting Cox v.

      State, 706 N.E.2d 547, 551 (Ind. 1999)). “It is within the discretion of the trial

      court to determine the conditions of a defendant’s probation and to revoke

      probation if the conditions are violated.” Id. Our court has said that “all

      probation requires ‘strict compliance’” because once the trial court extends this

      grace and sets its terms and conditions, the probationer is expected to comply

      with them strictly.” Id. at 731-32 (quoting Woods v. State, 892 N.E.2d 637, 641

      (Ind. 2008)). “If the probationer fails to do so, then a violation has occurred.”

      Id. We review a sanction imposed following revocation of probation for an

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

      abuse of discretion occurs where the decision is clearly against the logic and

      effect of the facts and circumstances.’” Hutchison v. State, 82 N.E.3d 305, 310

      (Ind. Ct. App. 2017) (quoting Prewitt, 878 N.E.2d at 188).


[9]   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.

      Heaton, 984 N.E.2d at 616. Second, if a violation is found, then the trial court

      must determine the appropriate sanctions for the violation. Id. Hayes does not

      appeal the sanction imposed; instead, she claims “that the uncorroborated

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1799 | January 31, 2019   Page 5 of 8
       testimony of Lauderdale is insufficient to sustain the [trial c]ourt’s

       determination that she violated the terms and conditions of her probation.”

       Appellant’s Br. at 10. We disagree.


[10]   “When reviewing the sufficiency of the evidence to support a probation

       revocation, we consider only the evidence most favorable to the judgment

       without reweighing the evidence or judging witnesses’ credibility. Figures v.

       State, 920 N.E.2d 267, 272 (Ind. Ct. App. 2010) (citing Woods, 892 N.E.2d at

       639). “A probation revocation hearing is civil in nature, and the State’s burden

       is to prove the alleged violations by a preponderance of the evidence.” Id.

       “One violation of a condition of probation is enough to support a probation

       revocation.” Pierce v. State, 44 N.E.3d 752, 755 (Ind. Ct. App. 2015). “If the

       trial court’s finding of a violation is supported by substantial evidence of

       probative value, then we will affirm the revocation of probation.” Id. When

       the alleged probation violation is the commission of a new crime, conviction of

       the new crime is not required. Id. The State only needs to establish by a

       preponderance of the evidence that the person has committed the crime.

       Heaton, 984 N.E.2d at 618.


[11]   Here, Hayes was on probation in March 2018. A condition of her probation

       was that she “behave well.” Appellant’s App. Vol. II at 21. The State alleged that

       Hayes committed battery against Lauderdale by intentionally touching her “in a

       rude, insolent or angry manner, resulting in bodily injury,” and that she

       intentionally interfered with Lauderdale’s ability to call 911. Id. at 17, 18.

       During the fact-finding hearing, Dittmar testified that Lauderdale called him on

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1799 | January 31, 2019   Page 6 of 8
       the morning of March 22, 2018, saying that she was concerned about Hayes’s

       behavior and wanted to be separated from her. Police were called, and the two

       were separated. Later that day, the police called Dittmar to say they were

       arresting Hayes for the battery of Lauderdale. Lauderdale testified that Hayes

       approached her and without provocation, hit her repeatedly. Tr. at 9.

       Lauderdale also testified that Hayes took her cell phone during the attack so

       that she could not call 911. Id.


[12]   When Lauderdale was able to retrieve the phone, she called the police. First

       responders took Lauderdale to the hospital, where she was found to have a

       sprained shoulder, a deep cut across her right arm, and other injuries. The State

       also introduced into evidence Officer Rosenberg’s probable cause affidavit.

       State’s Ex. 2. Lauderdale’s testimony and Officer Rosenberg’s statements in the

       probable cause affidavit established that Hayes committed the charged offenses

       and violated the condition of her probation that she behave well. Heaton, 984

       N.E.2d at 618.


[13]   Hayes’s contention that Lauderdale’s uncorroborated testimony is insufficient

       to sustain the trial court’s finding that she violated her probation ignores the

       standard of review on appeal and Indiana Supreme Court precedent. It is well-

       settled that a conviction or probation violation “can be sustained on only the

       uncorroborated testimony of a single witness, even when that witness is the

       victim.” Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012). We conclude that the

       State presented sufficient evidence of probative value to establish by a

       preponderance of the evidence that Hayes violated the terms of her probation

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1799 | January 31, 2019   Page 7 of 8
       by committing a new crime. Accordingly, we affirm the trial court’s revocation

       of Hayes’s probation.


[14]   Affirmed.


       Riley, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1799 | January 31, 2019   Page 8 of 8
