MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                              Jun 05 2020, 11:26 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                                  ATTORNEY FOR APPELLEE
Andrew B. Arnett                                        Angela N. Sanchez
Indianapolis, Indiana                                   Assistant Section Chief,
                                                        Criminal Appeals
                                                        Office of Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Kari Christina Spray,                                   June 5, 2020
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-2250
        v.                                              Appeal from the Johnson Superior
                                                        Court
State of Indiana,                                       The Honorable Peter D. Nugent,
Appellee-Plaintiff,                                     Judge
                                                        Trial Court Cause No.
                                                        41D02-1805-F6-226



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2250 | June 5, 2020                    Page 1 of 7
                                  Case Summary and Issue
[1]   Kari Spray appeals the trial court’s revocation of her suspended sentence raising

      one issue for our review, namely whether the trial court abused its discretion in

      ordering her to serve her entire previously suspended sentence at the Indiana

      Department of Correction (“DOC”). Concluding the trial court did not abuse

      its discretion in imposing this sanction, we affirm.



                             Facts and Procedural History
[2]   On September 19, 2018, Spray pleaded guilty to theft and resisting law

      enforcement as Class A misdemeanors. The trial court sentenced Spray to

      serve 365 days in the county jail – seventy-seven (thirty-nine actual) days

      executed and 288 days suspended to active probation – and ordered that she

      complete a mental health evaluation and any recommended treatment.1

      Appellant’s Appendix, Volume 2 at 10-11.


[3]   On April 23, 2019, Spray’s probation officer filed a Petition to Revoke

      Probation and Request for Warrant that was amended twice, ultimately alleging

      Spray violated the following terms of her probation:


               1. Refrain from Violation of any Federal, State, and Local Law;
               to wit: On or about April 9, 2019, [Spray] was charged in Scott
               County, Indiana, on cause 72C01-1904-CM-000149 with Ct. I:



      1
       This sentence was ordered to be served consecutively to a sentence in another case that, although it was also
      addressed in these probation revocation proceedings, is not subject to this appeal.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2250 | June 5, 2020                      Page 2 of 7
              Domestic Battery, Class A Misdemeanor and Ct. II: Resisting
              Law Enforcement, Class A Misdemeanor.


              2. Not to Purchase, Consume or Possess any Alcoholic
              Beverage; to wit: On or about April 9, 2019, [Spray] was arrested
              in Scott County, Indiana and charged on cause 72C01-1904-CM-
              000149. The affidavit for probable cause indicates [Spray] was
              intoxicated.


              3. Contact Probation within 72 Hours of Incarceration; . . .
              [Spray] notified this officer of the [April 9] arrest via e-mail on
              April 22, 2019.


              4. Not to Purchase, Consume or Possess Any Alcoholic
              Beverage; to wit: On or about June 14, 2019, [Spray] tested
              positive for alcohol on a urine drug screen conducted at the
              Johnson County Adult Probation Department.


              5. Refrain from Violation of any Federal, State, and Local Law;
              to wit: On or about June 14, 2019, [Spray] was charged in
              Jackson County, Indiana on cause 36D01-1906-CM-000659 with
              Ct. I: Criminal Trespass, Class A Misdemeanor.


              6. Refrain from Violation of any Federal, State, and Local Law;
              to wit: On or about June 14, 2019, [Spray] was charged in
              Jackson County, Indiana, on cause 36D01-1906-CM-000660
              with [seven counts of] Unlawful Use of 911 Service, [all] Class A
              Misdemeanor[s].


      Id. at 36.


[4]   A revocation hearing was held on August 7, 2019, during which Spray testified

      that, aside from her arrests, she was compliant with the terms of her probation:


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2250 | June 5, 2020   Page 3 of 7
        I showed up at every appointment, every random drug screen I
        showed up, I never missed a court hearing, I actually voluntarily
        went to mental health crisis emergency places in Indianapolis. I
        got evaluated, they diagnosed me with multiple disorders, mental
        health issues. And I was going to follow up with them but then I
        got arrested here.


Transcript, Volume 2 at 10. With respect to the Jackson County charges, Spray

testified “[t]here’s an alleged child abuse, and my children are in . . . their

father’s care . . . he’s abused them in the past, he’s been charged with child

abuse in the past. . . . And the charges are related to that.” Id. at 11. The trial

court found that Spray violated the terms of her probation, revoked her

probation, and ordered that she serve her entire previously suspended sentence

(288 days) at the DOC. Spray now appeals.



                          Discussion and Decision
                               I. Standard of Review
        Probation is a matter of grace and a conditional liberty which is a
        favor, not a right. The trial court determines the conditions of
        probation and may revoke probation if those conditions are
        violated. The decision to revoke probation is within the sound
        discretion of the trial court. And its decision is reviewed on
        appeal for abuse of that discretion. An abuse of discretion occurs
        when the decision is clearly against the logic and effect of the
        facts and circumstances before the court. Further, on appeal “we
        consider only the evidence most favorable to the judgment
        without reweighing that evidence or judging the credibility of the
        witnesses. . . .”



Court of Appeals of Indiana | Memorandum Decision 19A-CR-2250 | June 5, 2020   Page 4 of 7
      Ripps v. State, 968 N.E.2d 323, 326 (Ind. Ct. App. 2012) (citations omitted).

      And we also review a trial court’s sentencing decisions for probation violations

      for an abuse of discretion. Knecht v. State, 85 N.E.3d 829, 840 (Ind. Ct. App.

      2017).


                         II. Sanction for Probation Violation
[5]   As our supreme court has explained, the revocation of an individual’s probation

      is a two-step process. Woods v. State, 892 N.E.2d 637, 640 (Ind. 2008). “First,

      the court must make a factual determination that a violation of a condition of

      probation actually occurred. If a violation is proven, then the trial court must

      determine if the violation warrants revocation of the probation.” Id. If the trial

      court finds that a violation of probation has occurred, it may impose one or

      more of the following sanctions:


               (1) Continue the person on probation, with or without modifying
               or enlarging the conditions.


               (2) Extend the person’s probationary period for not more than
               one (1) year beyond the original probationary period.


               (3) Order execution of all or part of the sentence that was
               suspended at the time of initial sentencing.


      Ind. Code § 35-38-2-3(h).


[6]   Spray does not dispute that she violated the terms of her probation. Her sole

      argument is that trial court abused its discretion in imposing the maximum


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2250 | June 5, 2020   Page 5 of 7
      sanction because the trial court “failed to look at her performance on probation

      as a whole.” Brief of Appellant at 9. Specifically, Spray argues that because

      she was compliant with other terms of her probation – mental health treatment,

      drug screens, probation appointments, and probation fees – the trial court

      should have imposed a lesser sanction. We disagree.


[7]   The record reveals that less than seven months into probation, Spray was

      charged with domestic battery and resisting law enforcement in Scott County,

      Indiana. And even after the first petition to revoke Spray’s probation had been

      filed, she continued to commit additional offenses and was charged with

      criminal trespass and seven counts of unlawful use of 911 in Jackson County.

      The probable cause affidavit filed in the Scott County case indicated Spray was

      intoxicated at the time of the offense; Spray also failed a random drug screen

      conducted at the probation department in June 2019. Although Spray may

      have been compliant with the terms of her probation for some time, her

      compliance ceased when she was charged with ten criminal offenses and failed

      to comply with additional conditions of her probation, including refraining

      from alcohol use, timely notifying her probation officer of her arrest, and

      providing documentation of mental health treatment. Although Spray testified

      that the Jackson County charges were in response to her children’s father

      allegedly abusing them, the trial court is the sole judge of credibility; we must

      view the evidence most favorable to the trial court’s judgment and cannot

      reweigh the evidence. Ripps, 968 N.E.2d at 326.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2250 | June 5, 2020   Page 6 of 7
[8]    Given Spray’s multiple probation violations, which were not merely technical

       violations, we conclude the trial court was well within its discretion in ordering

       Spray to serve her entire previously suspended sentence. See Sanders v. State,

       825 N.E.2d 952, 957-58 (Ind. Ct. App. 2005) (holding that the trial court did

       not abuse its discretion in ordering the defendant to serve her previously

       suspended five-year sentence upon revocation of defendant’s probation for, in

       part, committing new crimes while on probation), trans. denied; see also Abernathy

       v. State, 852 N.E.2d 1016, 1020 (Ind. Ct. App. 2006) (noting that the conditions

       of probation “are designed to ensure that the probation serves as a period of

       genuine rehabilitation and that the public is not harmed by a probationer living

       within the community”).



                                               Conclusion
[9]    The trial court did not abuse its discretion in revoking Spray’s probation and

       ordering her to serve her entire previously suspended sentence in the DOC.

       Accordingly, the judgment of the trial court is affirmed.


[10]   Affirmed.


       May, J., and Vaidik, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2250 | June 5, 2020   Page 7 of 7
