      MEMORANDUM DECISION
                                                                          Aug 20 2015, 10:18 am
      Pursuant to Ind. Appellate Rule 65(D), 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.



      ATTORNEY FOR APPELLANT                                       ATTORNEYS FOR APPELLEE
      Clifford M. Davenport                                        Gregory F. Zoeller
      Davenport Law Offices                                        Attorney General of Indiana
      Anderson, Indiana
                                                                   Christina D. Pace
                                                                   Deputy Attorney General
                                                                   Indianapolis, Indiana


                                                   IN THE
           COURT OF APPEALS OF INDIANA

      Emery D. Scruggs,                                            August 20, 2015

      Appellant-Defendant,                                         Court of Appeals Case No.
                                                                   48A04-1412-CR-562
               v.                                                  Appeal from the Madison Circuit
                                                                   Court.
                                                                   The Honorable Christopher A.
      State of Indiana,                                            Cage, Judge Pro Tempore.
      Appellee-Plaintiff.                                          Cause No. 48D03-1102-FA-147




      Garrard, Senior Judge

                               1
[1]   Emery D. Scruggs appeals from the revocation of his probation. We affirm.




      1
       Scruggs spells his first name as “Emergy” on the cover of his Appellant’s Brief and Appendix. During trial
      court hearings, he spelled his name as “Emery.” We will use the spelling he provided during court hearings.
      Court of Appeals of Indiana | Memorandum Decision 48A04-1412-CR-562 | August 20, 2015             Page 1 of 6
[2]   The State charged Scruggs with robbery as a Class A felony. The parties

      executed a plea agreement. Pursuant to the agreement, Scruggs pleaded guilty

      to robbery resulting in bodily injury, a Class B felony. The trial court accepted

      the plea agreement and sentenced Scruggs to serve fifteen years in the

      Department of Correction, with six years executed and nine years suspended to

      probation. The court ordered Scruggs to comply with “the usual and ordinary

      conditions of probation.” Appellant’s App. p. 38.


[3]   Scruggs completed the executed portion of his sentence and was released to

      probation. On March 28, 2014, the State filed a Notice of Violation of

      Probation, alleging that Scruggs violated the terms of his probation by failing to

      pay probation fees, failing to pay administrative fees, failing to report timely to

      the probation department, and failing to either maintain employment or verify

      employment with the probation department. Later, the State amended its

      Notice to further assert that Scruggs violated his curfew and failed to behave

      well in society because he was charged with a new criminal offense, resisting

      law enforcement.


[4]   The trial court held a hearing, and Scruggs admitted to committing all of the

      violations alleged by the State except the curfew violation. The court ordered

      Scruggs to be placed at a work release facility. Later, the court released Scruggs

      from work release and returned him to probation.


[5]   Scruggs had been in a relationship with Leslie Chiccine, but it ended and he

      married someone else. On July 11, 2014, Chiccine obtained a protective order


      Court of Appeals of Indiana | Memorandum Decision 48A04-1412-CR-562 | August 20, 2015   Page 2 of 6
      against Scruggs, barring him from contacting her. On September 20, 2014,

      Scruggs called Chiccine three times in a row. She recognized his voice.

      Scruggs told Chiccine that he wanted her to come pick him up. She did not

      respond to him and hung up each time.


[6]   On September 22, Chiccine printed off a log showing recent calls to her cell

      phone. She reported the calls to the police and gave them the log. An officer

      called the phone number that Chiccine indicated was the source of Scruggs’

      calls and learned that the number was assigned to Scruggs’ home.

[7]   On October 10, 2014, the State filed a second Notice of Violation of Probation,

      which it later amended. The State alleged that Scruggs had violated the laws of

      Indiana and had failed to behave well in society because he committed a new

      criminal offense, specifically invasion of privacy, a Class A misdemeanor.


[8]   The trial court held an evidentiary hearing and determined by a preponderance

      of the evidence that Scruggs had violated the terms of his probation, specifically

      the requirement to “behave well in society,” because he committed the offense

      of invasion of privacy. Tr. p. 102. The court ordered Scruggs to serve the

      balance of his sentence at the Department of Correction. He now appeals.


[9]   Scruggs raises two issues, which we restate as:

              I.       Whether there is sufficient evidence to support the
                       revocation of his probation.
              II.      Whether the trial court abused its discretion in sentencing
                       Scruggs to the Department of Correction.


      Court of Appeals of Indiana | Memorandum Decision 48A04-1412-CR-562 | August 20, 2015   Page 3 of 6
                                I. Sufficiency of the Evidence
[10]   Scruggs argues that the State failed to prove that he violated the terms of his

       probation because Chiccine had a grudge against him, and his mother was the

       person who called Chiccine.

[11]   A court may revoke a person’s probation if the person has violated a condition

       of probation during the probationary period. Ind. Code § 35-38-2-3(a) (2012).

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

       State does not need to prove that the probationer was convicted of the crime.

       Whatley v. State, 847 N.E.2d 1007, 1010 (Ind. Ct. App. 2006). Instead, the trial

       court only needs to find by a preponderance of the evidence that the defendant

       committed the offense. Heaton v. State, 984 N.E.2d 614, 617 (Ind. 2013).


[12]   On appeal, we look to the evidence most favorable to the State and neither

       reweigh the evidence nor judge the credibility of witnesses. Dokes v. State, 971

       N.E.2d 178, 179 (Ind. Ct. App. 2012). If substantial evidence of probative

       value exists to support the trial court’s finding that a violation occurred, we will

       affirm the trial court’s judgment. Id.


[13]   A person commits the offense of invasion of privacy by knowingly or

       intentionally violating a protective order. Ind. Code § 35-46-1-15.1 (2014).

       Chiccine testified that Scruggs called her three times on September 20, 2014. She

       recognized his voice and denied that Scruggs’ mother was the caller. In

       addition, Chiccine provided a cell phone call log to the police, and an officer

       determined that the number from which the calls came was assigned to Scruggs’

       Court of Appeals of Indiana | Memorandum Decision 48A04-1412-CR-562 | August 20, 2015   Page 4 of 6
       residence. Testimony from Scruggs’ wife demonstrated that she and Scruggs

       were aware that Chiccine had obtained a protective order.


[14]   This is sufficient evidence from which the trial court could have reasonably

       determined by a preponderance of the evidence that Scruggs knowingly or

       intentionally contacted Chiccine in violation of a protective order, thereby

       committing the offense of invasion of privacy. See Dokes, 971 N.E.2d at 180

       (evidence sufficient to support trial court’s determination that defendant had

       violated probation by committing a new criminal offense).


                                              II. Sentencing
[15]   Scruggs argues that the trial court should have placed him on work release or

       community corrections instead of sending him back to the Department of

       Correction.


[16]   If a court finds that a probationer has violated a condition of probation, the

       court may 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). When the trial court

       revokes probation and imposes a sentence, we review the sentencing decision

       for an abuse of discretion. Brandenburg v. State, 992 N.E.2d 951, 953 (Ind. Ct.

       App. 2013), trans. denied. An abuse of discretion occurs where the decision is

       clearly against the logic and effect of the facts and circumstances. Id.

[17]   Scruggs, who was twenty-seven at the probation revocation hearing, has a

       lengthy criminal history. As a juvenile, he was adjudicated a delinquent for

       committing acts that, if committed by an adult, would have been considered

       Court of Appeals of Indiana | Memorandum Decision 48A04-1412-CR-562 | August 20, 2015   Page 5 of 6
       three counts of battery and two counts of disorderly conduct. As an adult, he

       has been convicted of two counts of possession of marijuana, four counts of

       battery resulting in bodily injury, domestic battery, and criminal mischief. In

       addition, Scruggs has been placed on probation in seven previous cases and

       violated probation five times. Scruggs violated the terms of probation earlier in

       this case, but after a term on work release the trial court returned him to

       probation.


[18]   Scruggs’ history of misconduct, including his repeated probation violations,

       demonstrates that he is unlikely to respond positively to alternatives to

       incarceration, such as work release. The trial court did not abuse its discretion

       by ordering Scruggs to serve the balance of his previously suspended sentence.

       See Alford v. State, 965 N.E.2d 133, 135 (Ind. Ct. App. 2012) (no abuse of

       discretion in imposing balance of suspended sentence for probation violation

       where defendant contacted a person in violation of a no-contact order), trans.

       denied.


[19]   For the reasons stated above, we affirm the judgment of the trial court.

[20]   Affirmed.

[21]   Riley, J., and Bradford, J., concur.




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