MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Nov 14 2016, 9:09 am
regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE David W. Stone IV Gregory F. Zoeller Anderson, Indiana Attorney General of Indiana
Jesse R. drum Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Kraig Von Reese Brown, November 14, 2016 Appellant-Defendant, Court of Appeals Case No. 48A02-1604-CR-751 v. Appeal from the Madison Circuit Court State of Indiana, The Honorable Mark Dudley, Jr., Appellee-Plaintiff. Judge Trial Court Cause No. 48D01-1103-FC-389
Altice, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 48A02-1604-CR-751 | November 14, 2016 Page 1 of 8 [1] Kraig Von Reese Brown appeals the revocation of his probation, raising two
issues on appeal:
1. Did the State present sufficient evidence to support the revocation of Brown’s probation?
2. Did the trial court abuse its discretion in ordering Brown to serve the entirety of his previously suspended sentence?
[2] We affirm.
Facts & Procedural History
[3] On November 29, 2011, Brown was sentenced to six years, with two years
executed and four years suspended to probation for Class C misdemeanor
operating a motor vehicle without ever receiving a license, Class A
misdemeanor possession of marijuana, and Class C felony possession of
methamphetamine. Brown was released to probation on October 28, 2014. As
conditions of his probation, Brown was required to report to the probation
department and not commit any new criminal offenses. Brown reported to the
probation department only one time following his release. On December 17,
2014, the State filed a notice of probation violation based on his failure to
report. Brown did not appear at the fact-finding hearing and a warrant was
issued for his arrest.
[4] On September 11, 2015, Brown, who had yet to be arrested pursuant to the
warrant, was involved in an altercation with his girlfriend during which he shot
her in the leg outside a convenience store in Muncie. At the time, Brown’s Court of Appeals of Indiana | Memorandum Decision 48A02-1604-CR-751 | November 14, 2016 Page 2 of 8 girlfriend was twenty-two weeks pregnant with their second child. This
shooting was captured on a surveillance video.
[5] During the evening hours on January 20, 2016, officers from the Anderson
Police Department (APD) helped execute a Delaware County arrest warrant
that was issued following the September 11 incident. Detectives Norman
Rayford and Michael Anderson located Brown and another known felon near
Brown’s mother’s home in Anderson. The detectives were not in uniform, but
were wearing black tactical vests with “police” on the front and back in bright
white letters. Although it was dark, the detectives were standing directly under
a street light when they made eye contact with Brown, who was approximately
twenty feet away. When Detective Rayford verbally identified himself as a
police officer and ordered Brown to stop, Brown and the other felon ran.
[6] The detectives engaged in a foot pursuit, during which Detective Rayford saw
Brown throw an object toward a house. Detective Rayford located the object,
which was a handgun that was later traced to a recent burglary.
[7] Detective Anderson, who was hindered by his rifle and had given up the chase,
returned to his vehicle to secure his weapon. He then followed footprints in the
snow and found Brown attempting to get into a shed. Detective Anderson was
approximately ten feet from Brown when he turned on his flashlight and
identified himself as a police officer and ordered Brown to stop. Brown ran
again. Detective Anderson chased Brown, but lost sight of him when he ran
onto a porch and crouched behind some furniture. Detective Anderson waited
Court of Appeals of Indiana | Memorandum Decision 48A02-1604-CR-751 | November 14, 2016 Page 3 of 8 for backup. When police shined a spotlight on the porch, Brown put his hands
up and was taken into custody.
[8] On February 1, 2016, the State filed an amended notice of probation violation
alleging that Brown (a) failed to timely report to the probation department; (b)
on or about January 21, 2016, committed new criminal offenses of Level 4
felony unlawful possession of a firearm by a serious violent felon and Class A
misdemeanor resisting law enforcement; and (c) on or about September 11,
2015, committed new criminal offenses of Level 3 felony aggravated battery,
Level 5 felony battery resulting in bodily injury to a pregnant woman, and
Level 5 felony battery by means of a deadly weapon. An evidentiary hearing
was held on February 9, 2016.
[9] At the hearing, Brown admitted to the first alleged probation violation,
explaining that he did not report to probation because he knew there were
warrants for his arrest. With regard to the second and third alleged violations,
the State presented the testimony of three APD officers who were involved in
Brown’s arrest on January 21, 2016, and a Muncie police officer who had
viewed the surveillance video of Brown shooting his pregnant girlfriend. The
trial court took judicial notice of its file and Brown’s pre-sentence investigation
report (PSI), which showed that he had a prior juvenile adjudication for robbery
as a Class B felony if committed by an adult. The trial court then found by a
preponderance of the evidence that Brown violated his probation by committing
criminal offenses as alleged in (b) and (c). The trial court ordered Brown to
serve the entirety of his previously suspended sentence in the Department of
Court of Appeals of Indiana | Memorandum Decision 48A02-1604-CR-751 | November 14, 2016 Page 4 of 8 Correction. Brown now appeals. Additional facts will be provided as
necessary.
Discussion & Decision
1. Sufficiency
[10] Brown first argues that the State presented insufficient evidence to support the
revocation of his probation. We begin by noting that Brown admitted that he
violated his probation by failing to report to the probation department. Based
on this alone, the trial court had discretion to revoke his probation and impose
sanctions. See Ind. Code § 35-38-2-3; Gosha v. State, 873 N.E.2d 660, 663 (Ind.
Ct. App. 2007) (noting that a violation of a single condition of probation is
sufficient to support revocation). Nonetheless, Brown argues that the State’s
evidence is insufficient to establish that he committed new crimes.
[11] A probation revocation hearing is civil in nature, and the alleged violation must
be proven by the State by a preponderance of the evidence. Mateyko v. State,
901 N.E.2d 554, 558 (Ind. Ct. App. 2009), trans. denied. When reviewing a
claim of insufficient evidence to support a trial court’s decision to revoke
probation, we consider only the evidence most favorable to the judgment, and
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MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Nov 14 2016, 9:09 am
regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE David W. Stone IV Gregory F. Zoeller Anderson, Indiana Attorney General of Indiana
Jesse R. drum Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Kraig Von Reese Brown, November 14, 2016 Appellant-Defendant, Court of Appeals Case No. 48A02-1604-CR-751 v. Appeal from the Madison Circuit Court State of Indiana, The Honorable Mark Dudley, Jr., Appellee-Plaintiff. Judge Trial Court Cause No. 48D01-1103-FC-389
Altice, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 48A02-1604-CR-751 | November 14, 2016 Page 1 of 8 [1] Kraig Von Reese Brown appeals the revocation of his probation, raising two
issues on appeal:
1. Did the State present sufficient evidence to support the revocation of Brown’s probation?
2. Did the trial court abuse its discretion in ordering Brown to serve the entirety of his previously suspended sentence?
[2] We affirm.
Facts & Procedural History
[3] On November 29, 2011, Brown was sentenced to six years, with two years
executed and four years suspended to probation for Class C misdemeanor
operating a motor vehicle without ever receiving a license, Class A
misdemeanor possession of marijuana, and Class C felony possession of
methamphetamine. Brown was released to probation on October 28, 2014. As
conditions of his probation, Brown was required to report to the probation
department and not commit any new criminal offenses. Brown reported to the
probation department only one time following his release. On December 17,
2014, the State filed a notice of probation violation based on his failure to
report. Brown did not appear at the fact-finding hearing and a warrant was
issued for his arrest.
[4] On September 11, 2015, Brown, who had yet to be arrested pursuant to the
warrant, was involved in an altercation with his girlfriend during which he shot
her in the leg outside a convenience store in Muncie. At the time, Brown’s Court of Appeals of Indiana | Memorandum Decision 48A02-1604-CR-751 | November 14, 2016 Page 2 of 8 girlfriend was twenty-two weeks pregnant with their second child. This
shooting was captured on a surveillance video.
[5] During the evening hours on January 20, 2016, officers from the Anderson
Police Department (APD) helped execute a Delaware County arrest warrant
that was issued following the September 11 incident. Detectives Norman
Rayford and Michael Anderson located Brown and another known felon near
Brown’s mother’s home in Anderson. The detectives were not in uniform, but
were wearing black tactical vests with “police” on the front and back in bright
white letters. Although it was dark, the detectives were standing directly under
a street light when they made eye contact with Brown, who was approximately
twenty feet away. When Detective Rayford verbally identified himself as a
police officer and ordered Brown to stop, Brown and the other felon ran.
[6] The detectives engaged in a foot pursuit, during which Detective Rayford saw
Brown throw an object toward a house. Detective Rayford located the object,
which was a handgun that was later traced to a recent burglary.
[7] Detective Anderson, who was hindered by his rifle and had given up the chase,
returned to his vehicle to secure his weapon. He then followed footprints in the
snow and found Brown attempting to get into a shed. Detective Anderson was
approximately ten feet from Brown when he turned on his flashlight and
identified himself as a police officer and ordered Brown to stop. Brown ran
again. Detective Anderson chased Brown, but lost sight of him when he ran
onto a porch and crouched behind some furniture. Detective Anderson waited
Court of Appeals of Indiana | Memorandum Decision 48A02-1604-CR-751 | November 14, 2016 Page 3 of 8 for backup. When police shined a spotlight on the porch, Brown put his hands
up and was taken into custody.
[8] On February 1, 2016, the State filed an amended notice of probation violation
alleging that Brown (a) failed to timely report to the probation department; (b)
on or about January 21, 2016, committed new criminal offenses of Level 4
felony unlawful possession of a firearm by a serious violent felon and Class A
misdemeanor resisting law enforcement; and (c) on or about September 11,
2015, committed new criminal offenses of Level 3 felony aggravated battery,
Level 5 felony battery resulting in bodily injury to a pregnant woman, and
Level 5 felony battery by means of a deadly weapon. An evidentiary hearing
was held on February 9, 2016.
[9] At the hearing, Brown admitted to the first alleged probation violation,
explaining that he did not report to probation because he knew there were
warrants for his arrest. With regard to the second and third alleged violations,
the State presented the testimony of three APD officers who were involved in
Brown’s arrest on January 21, 2016, and a Muncie police officer who had
viewed the surveillance video of Brown shooting his pregnant girlfriend. The
trial court took judicial notice of its file and Brown’s pre-sentence investigation
report (PSI), which showed that he had a prior juvenile adjudication for robbery
as a Class B felony if committed by an adult. The trial court then found by a
preponderance of the evidence that Brown violated his probation by committing
criminal offenses as alleged in (b) and (c). The trial court ordered Brown to
serve the entirety of his previously suspended sentence in the Department of
Court of Appeals of Indiana | Memorandum Decision 48A02-1604-CR-751 | November 14, 2016 Page 4 of 8 Correction. Brown now appeals. Additional facts will be provided as
necessary.
Discussion & Decision
1. Sufficiency
[10] Brown first argues that the State presented insufficient evidence to support the
revocation of his probation. We begin by noting that Brown admitted that he
violated his probation by failing to report to the probation department. Based
on this alone, the trial court had discretion to revoke his probation and impose
sanctions. See Ind. Code § 35-38-2-3; Gosha v. State, 873 N.E.2d 660, 663 (Ind.
Ct. App. 2007) (noting that a violation of a single condition of probation is
sufficient to support revocation). Nonetheless, Brown argues that the State’s
evidence is insufficient to establish that he committed new crimes.
[11] A probation revocation hearing is civil in nature, and the alleged violation must
be proven by the State by a preponderance of the evidence. Mateyko v. State,
901 N.E.2d 554, 558 (Ind. Ct. App. 2009), trans. denied. When reviewing a
claim of insufficient evidence to support a trial court’s decision to revoke
probation, we consider only the evidence most favorable to the judgment, and
we neither reweigh the evidence nor judge the credibility of witnesses. Id.
Revocation is appropriate if there is substantial evidence of probative value to
support the trial court’s conclusion that the probationer has violated the terms
of probation. Lightcap v. State, 863 N.E.2d 907, 911 (Ind. Ct. App. 2007).
Court of Appeals of Indiana | Memorandum Decision 48A02-1604-CR-751 | November 14, 2016 Page 5 of 8 [12] The State proved by a preponderance of the evidence that Brown committed
resisting law enforcement. See Ind. Code § 35-44.1-3-1. As set forth above, in
two different instances, Detective Rayford or Detective Anderson identified
themselves as police officers and ordered Brown to stop; Brown fled each time.
[13] The State also proved by a preponderance of the evidence that Brown
committed unlawful possession of a firearm by a serious violent felon. See Ind.
Code § 35-47-4-5. Brown’s PSI, of which the trial court took judicial notice,
showed that Brown had a previous adjudication for felony robbery, which is
classified as a serious violent felony. See id. Further, Brown was more likely
than not in possession of a handgun as evidenced by Detective Rayford’s
testimony that during the foot pursuit, he saw Brown throw an object, which
was determined to be a handgun.
[14] The State also established by a preponderance of the evidence that Brown
committed aggravated battery, battery resulting in bodily injury to a pregnant
woman, and/or battery by means of a deadly weapon. A Muncie police officer
who had viewed the convenience store surveillance video testified that the video
showed Brown shooting his pregnant girlfriend.
[15] The State’s evidence clearly established by a preponderance of the evidence that
Brown committed new crimes while on probation. Brown’s arguments to the
contrary are blatant requests to reweigh the evidence, which we will not
indulge. The trial court did not abuse its discretion in revoking Brown’s
probation.
Court of Appeals of Indiana | Memorandum Decision 48A02-1604-CR-751 | November 14, 2016 Page 6 of 8 2. Sanctions
[16] Brown also argues that the trial court abused its discretion in ordering him to
serve the entirety of his previously suspended sentence as a sanction for his
probation violation. We review a trial court’s sentencing decision in a
probation revocation proceeding for an abuse of discretion. Jones v. State, 838
N.E.2d 1146, 1148 (Ind. Ct. App. 2005). An abuse of discretion occurs if the
decision is against the logic and effect of the facts and circumstances before the
court. Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). Moreover, “[o]nce a
trial court has exercised its grace by ordering probation rather than
incarceration, the judge should have considerable leeway in deciding how to
proceed.” Id. “If the court finds the defendant has violated a condition of his
probation at any time before the termination of the probationary period, and the
petition to revoke is filed within the probationary period, then the court may
order execution of the sentence that had been suspended.” Gosha, 873 N.E.2d
at 664; see also Ind. Code § 35-38-2-3(h).
[17] Brown argues that “[a] one strike and you are back in prison philosophy is
overly punitive and does nothing to give the offenders the assistance they need
to reintegrate into society.” Appellant’s Brief at 22. We remind Brown that
“[p]robation is a matter of grace left to trial court discretion, not a right to
which a criminal defendant is entitled.” Heaton v. State, 984 N.E.2d 614, 616
(Ind. 2013).
Court of Appeals of Indiana | Memorandum Decision 48A02-1604-CR-751 | November 14, 2016 Page 7 of 8 [18] Here, it is disingenuous to declare that Brown had only “one strike” against
him. There were three alleged probation violations, including numerous
criminal offenses stemming from separate incidents. Further, committing a
new crime, especially a violent one, is the most serious probation violation.
The trial court carefully considered the nature of the probation violations and
aptly noted that Brown’s “mistakes are worse than a lot of others” and that
“public safety is at risk” from Brown. Transcript at 63. We agree with the trial
court. Brown has shown that he is not suited for probation. Although he was a
juvenile when originally sentenced in this case, he was twenty-two years old
when the trial court sanctioned him. Brown has clearly demonstrated that
adulthood has not improved his decision-making skills. The trial court did not
abuse its discretion in ordering Brown to serve the entirety of his four-year
suspended sentence.
[19] Judgment affirmed.
[20] Bradford, J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 48A02-1604-CR-751 | November 14, 2016 Page 8 of 8