MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Aug 21 2015, 8:49 am 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 Gregory L. Fumarolo Gregory F. Zoeller Fort Wayne, Indiana Attorney General of Indiana Cynthia L. Ploughe Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Antwon Davis, August 21, 2015 Appellant-Defendant, Court of Appeals Case No. 02A04-1501-CR-6 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Wendy W. Davis, Appellee-Plaintiff Judge Trial Court Cause Nos. 02D04-0604-FD-339 02D04-0605-FD-445 02D04-0902-FD-134
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 02A04-1501-CR-6 | August 21, 2015 Page 1 of 6 [1] Antwon Davis appeals the trial court’s revocation of his probation in three
causes. He argues that his due process rights were violated and that there is
insufficient evidence supporting the revocation. Finding no due process
violation and sufficient evidence, we affirm.
Facts 1
[2] In November 2013, Davis was serving probation terms in cause numbers
02D04-0604-FD-339 (339), 02D04-0605-FD-445 (445), and 02D04-0902-FD-
134 (134). On November 26, 2013, the State filed charges of class D felony
domestic battery and class D felony strangulation against Davis in cause
number 02D04-1311-FD-1302 (1302). On that date, the State also filed
petitions to revoke Davis’s probation in causes 339, 445, and 134, based on the
new offenses alleged in cause 1302.
[3] On December 4, 2014, a jury found Davis not guilty in cause 1302. After the
trial was concluded, the trial court held a hearing on the petitions to revoke
probation in the other three causes. Without objection or comment by the
defense, the trial court granted the State’s motions to incorporate the trial
proceedings that had just concluded from cause 1302 into the revocation
hearing. At the close of the revocation hearing, the trial court found that the
1 There are multiple errors in the State’s brief. Among other things, the county of the trial court in which the trial and revocation hearings were held, the date on which the petitions to revoke probation were filed, and the date on which Davis committed the alleged crimes charged in cause 1302 are all incorrect. We hope that counsel will be more mindful of these important details in the future.
Court of Appeals of Indiana | Memorandum Decision 02A04-1501-CR-6 | August 21, 2015 Page 2 of 6 State had established by a preponderance of the evidence that Davis had
violated the terms of his probation by committing the new offenses. It revoked
his probation in causes 339, 445, and 134, and ordered him to serve his
previously suspended sentences consecutively. Davis now appeals.
Discussion and Decision [4] As we consider Davis’s arguments that the trial court erroneously revoked his
probation, we note that probation is a matter of grace left to trial court
discretion rather than a right to which a defendant is entitled. Prewitt v. State,
878 N.E.2d 184, 188 (Ind. 2007). We review a trial court’s probation
determinations and sanctions for an abuse of discretion. Id. The revocation of
probation is in the nature of a civil action rather than a criminal one; thus, the
alleged violation need be proved only by a preponderance of the evidence. Cain
v. State, 30 N.E.3d 728, 732 (Ind. Ct. App. 2015), trans. denied. Violation of a
single term or condition of probation is sufficient to revoke probation. Id.
I. Due Process [5] Davis first argues that his due process rights were violated when the trial court
incorporated the trial proceedings from cause 1302 into the revocation hearings
on the other three causes. Probationers are not entitled to the full panoply of
constitutional rights that defendants are afforded during criminal trials.
Lightcap v. State, 863 N.E.2d 907, 910 (Ind. Ct. App. 2007). Our Supreme
Court has stated that a probationer’s due process rights “include written notice
of the claimed violations, disclosure of the evidence against him, an opportunity
Court of Appeals of Indiana | Memorandum Decision 02A04-1501-CR-6 | August 21, 2015 Page 3 of 6 to be heard and present evidence, the right to confront and cross-examine
adverse witnesses, [] a neutral and detached hearing body[,] . . . [and] the right
to confrontation, cross-examination, and representation by counsel.” Isaac v.
State, 605 N.E.2d 144, 148 (Ind. 1992).
[6] It is well established that all of the due process rights to which probationers are
entitled are protected when full trial proceedings are incorporated into the
revocation proceedings. Lightcap, 863 N.E.2d at 911 (Ind. Ct. App. 2007);
Stromatt v. State, 686 N.E.2d 154, 159 (Ind. Ct. App. 1997). During the criminal
trial, the defendant had greater protection of more rights than he enjoys as a
probationer. Therefore, it must be the case that incorporating the proceedings
of the criminal trial protects the lesser rights afforded to probationers. We see
no reason to depart from this well-established principle, and decline to reverse
on this basis.2
II. Sufficiency of the Evidence [7] Next, Davis argues that there is insufficient evidence supporting the revocation
of his probation. In considering the evidence supporting revocation of
probation, we will neither reweigh evidence nor judge witness credibility, and
2 We also note that at the probation revocation hearing, defense counsel neither objected nor even commented on the incorporation of the trial proceedings. In any event, therefore, this argument has been waived.
Court of Appeals of Indiana | Memorandum Decision 02A04-1501-CR-6 | August 21, 2015 Page 4 of 6 consider all conflicting evidence in the light most favorable to the trial court’s
ruling. Ripps v. State, 968 N.E.2d 323, 326 (Ind. Ct. App. 2012).
[8] Davis argues that the record does not establish that he was the same person
who was on probation in causes 339, 445, or 134. Davis did not raise this
argument during the probation revocation hearing. Therefore, he has waived it.
Dokes v. State, 971 N.E.2d 178, 180 (Ind. Ct. App. 2012) (holding that where
defendant did not argue that he was not on probation at the revocation hearing,
he could not raise the claim on appeal).
[9] Davis also argues that the State did not prove that he was advised of his
probation terms. He did not raise this argument during the revocation hearing,
so he has waived it. Ware v. State, 816 N.E.2d 1167, 1179 (Ind. Ct. App. 2004).
Waiver notwithstanding, we note that at the revocation hearing, the State
moved to incorporate the rules of probation for each of the three cause
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Aug 21 2015, 8:49 am 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 Gregory L. Fumarolo Gregory F. Zoeller Fort Wayne, Indiana Attorney General of Indiana Cynthia L. Ploughe Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Antwon Davis, August 21, 2015 Appellant-Defendant, Court of Appeals Case No. 02A04-1501-CR-6 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Wendy W. Davis, Appellee-Plaintiff Judge Trial Court Cause Nos. 02D04-0604-FD-339 02D04-0605-FD-445 02D04-0902-FD-134
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 02A04-1501-CR-6 | August 21, 2015 Page 1 of 6 [1] Antwon Davis appeals the trial court’s revocation of his probation in three
causes. He argues that his due process rights were violated and that there is
insufficient evidence supporting the revocation. Finding no due process
violation and sufficient evidence, we affirm.
Facts 1
[2] In November 2013, Davis was serving probation terms in cause numbers
02D04-0604-FD-339 (339), 02D04-0605-FD-445 (445), and 02D04-0902-FD-
134 (134). On November 26, 2013, the State filed charges of class D felony
domestic battery and class D felony strangulation against Davis in cause
number 02D04-1311-FD-1302 (1302). On that date, the State also filed
petitions to revoke Davis’s probation in causes 339, 445, and 134, based on the
new offenses alleged in cause 1302.
[3] On December 4, 2014, a jury found Davis not guilty in cause 1302. After the
trial was concluded, the trial court held a hearing on the petitions to revoke
probation in the other three causes. Without objection or comment by the
defense, the trial court granted the State’s motions to incorporate the trial
proceedings that had just concluded from cause 1302 into the revocation
hearing. At the close of the revocation hearing, the trial court found that the
1 There are multiple errors in the State’s brief. Among other things, the county of the trial court in which the trial and revocation hearings were held, the date on which the petitions to revoke probation were filed, and the date on which Davis committed the alleged crimes charged in cause 1302 are all incorrect. We hope that counsel will be more mindful of these important details in the future.
Court of Appeals of Indiana | Memorandum Decision 02A04-1501-CR-6 | August 21, 2015 Page 2 of 6 State had established by a preponderance of the evidence that Davis had
violated the terms of his probation by committing the new offenses. It revoked
his probation in causes 339, 445, and 134, and ordered him to serve his
previously suspended sentences consecutively. Davis now appeals.
Discussion and Decision [4] As we consider Davis’s arguments that the trial court erroneously revoked his
probation, we note that probation is a matter of grace left to trial court
discretion rather than a right to which a defendant is entitled. Prewitt v. State,
878 N.E.2d 184, 188 (Ind. 2007). We review a trial court’s probation
determinations and sanctions for an abuse of discretion. Id. The revocation of
probation is in the nature of a civil action rather than a criminal one; thus, the
alleged violation need be proved only by a preponderance of the evidence. Cain
v. State, 30 N.E.3d 728, 732 (Ind. Ct. App. 2015), trans. denied. Violation of a
single term or condition of probation is sufficient to revoke probation. Id.
I. Due Process [5] Davis first argues that his due process rights were violated when the trial court
incorporated the trial proceedings from cause 1302 into the revocation hearings
on the other three causes. Probationers are not entitled to the full panoply of
constitutional rights that defendants are afforded during criminal trials.
Lightcap v. State, 863 N.E.2d 907, 910 (Ind. Ct. App. 2007). Our Supreme
Court has stated that a probationer’s due process rights “include written notice
of the claimed violations, disclosure of the evidence against him, an opportunity
Court of Appeals of Indiana | Memorandum Decision 02A04-1501-CR-6 | August 21, 2015 Page 3 of 6 to be heard and present evidence, the right to confront and cross-examine
adverse witnesses, [] a neutral and detached hearing body[,] . . . [and] the right
to confrontation, cross-examination, and representation by counsel.” Isaac v.
State, 605 N.E.2d 144, 148 (Ind. 1992).
[6] It is well established that all of the due process rights to which probationers are
entitled are protected when full trial proceedings are incorporated into the
revocation proceedings. Lightcap, 863 N.E.2d at 911 (Ind. Ct. App. 2007);
Stromatt v. State, 686 N.E.2d 154, 159 (Ind. Ct. App. 1997). During the criminal
trial, the defendant had greater protection of more rights than he enjoys as a
probationer. Therefore, it must be the case that incorporating the proceedings
of the criminal trial protects the lesser rights afforded to probationers. We see
no reason to depart from this well-established principle, and decline to reverse
on this basis.2
II. Sufficiency of the Evidence [7] Next, Davis argues that there is insufficient evidence supporting the revocation
of his probation. In considering the evidence supporting revocation of
probation, we will neither reweigh evidence nor judge witness credibility, and
2 We also note that at the probation revocation hearing, defense counsel neither objected nor even commented on the incorporation of the trial proceedings. In any event, therefore, this argument has been waived.
Court of Appeals of Indiana | Memorandum Decision 02A04-1501-CR-6 | August 21, 2015 Page 4 of 6 consider all conflicting evidence in the light most favorable to the trial court’s
ruling. Ripps v. State, 968 N.E.2d 323, 326 (Ind. Ct. App. 2012).
[8] Davis argues that the record does not establish that he was the same person
who was on probation in causes 339, 445, or 134. Davis did not raise this
argument during the probation revocation hearing. Therefore, he has waived it.
Dokes v. State, 971 N.E.2d 178, 180 (Ind. Ct. App. 2012) (holding that where
defendant did not argue that he was not on probation at the revocation hearing,
he could not raise the claim on appeal).
[9] Davis also argues that the State did not prove that he was advised of his
probation terms. He did not raise this argument during the revocation hearing,
so he has waived it. Ware v. State, 816 N.E.2d 1167, 1179 (Ind. Ct. App. 2004).
Waiver notwithstanding, we note that at the revocation hearing, the State
moved to incorporate the rules of probation for each of the three cause
numbers, and the trial court granted the motion.3 As our Supreme Court has
noted, “it is always a condition of probation that a probationer not commit an
additional crime.” Braxton v. State, 651 N.E.2d 268, 270 (Ind. 1995) (emphasis
added). We therefore decline to reverse on this basis.
[10] Finally, Davis claims that because a jury found him not guilty beyond a
reasonable doubt, that the evidence is not sufficient to find that he violated
probation. He essentially questions the character and believability of the
3 Davis did not include the rules of probation in causes 339, 445, or 134 in the record on appeal.
Court of Appeals of Indiana | Memorandum Decision 02A04-1501-CR-6 | August 21, 2015 Page 5 of 6 alleged victim of the crimes charged in cause 1302. Initially, we note that this is
a request that we assess witness credibility, which we may not do.
Furthermore, we note that “[b]ecause of the difference between the burden of
proof required to convict someone of a crime and the burden of proof required
to revoke probation, the court could revoke probation after finding [a
defendant] not guilty based on the same evidence.” Dokes, 971 N.E.2d at 180.
At the criminal trial, which was incorporated into the revocation proceeding,
the alleged victim testified that Davis had, in fact, committed the charged
crimes. This evidence is sufficient to support the trial court’s conclusion that
the State proved the probation violations by a preponderance of the evidence.
[11] The judgment of the trial court is affirmed.
Bailey, J., and Mathias, J., concur.
Court of Appeals of Indiana | Memorandum Decision 02A04-1501-CR-6 | August 21, 2015 Page 6 of 6