Scott Klemme v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: March 10, 2016
• Docket: 49A04-1507-CR-869
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), Mar 10 2016, 9:15 am 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.

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Ruth Johnson Gregory F. Zoeller Marion County Public Defender Agency Attorney General of Indiana Appellate Division Tyler G. Banks Indianapolis, Indiana Deputy Attorney General Timothy J. Burns Indianapolis, Indiana Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Scott Klemme, March 10, 2016 Appellant-Defendant, Court of Appeals Case No. 49A04-1507-CR-869 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Appellee-Plaintiff. Amy M. Jones, Judge The Honorable Shannon L. Logsdon, Commissioner Trial Court Cause No. 49G08-1506-CM-20792

Kirsch, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A04-1507-CR-869 | March 10, 2016 Page 1 of 9 [1] Scott Klemme (“Klemme”) appeals the trial court’s decision to revoke his

probation, raising the followed restated issue: whether the trial court abused its

discretion when it found that Klemme violated his probation by failing to report

to the probation department and by repeatedly entering a prohibited geographic

zone.

[2] We affirm.

Facts and Procedural History [3] On the evening of June 13, 2015, Indianapolis Metropolitan Police Officer

Andrew Girt was dispatched to a disturbance at a home on Kessler Lane East

Drive in Marion County, Indiana. Officer Girt encountered two individuals at

the residence, Klemme and his mother (“Mother”). Klemme told Officer Girt

that he and his mother had had a “disagreement,” but Mother reported that

Klemme had hit her. Appellant’s App. at 14. The State charged Klemme with

one count of Class A misdemeanor battery resulting in bodily injury and one

count of Class B misdemeanor battery.

[4] On June 17, 2015, Klemme pleaded guilty to the Class A misdemeanor battery

charge, and, as part of the plea agreement, the State dismissed the Class B

misdemeanor battery charge. That same day, immediately following the guilty

plea hearing, the trial court conducted the sentencing hearing. Pursuant to the

plea agreement, the trial court sentenced Klemme to 365 days in the Marion

County Jail with credit for four days for time served, and it suspended the

remaining 361 days, entered a No Contact order with Mother, and placed

Court of Appeals of Indiana | Memorandum Decision 49A04-1507-CR-869 | March 10, 2016 Page 2 of 9 Klemme on probation. Klemme agreed to “All Standard Conditions and Fees

of Probation,” which included reporting to the probation department. Id. at 23-

24. Also, as a condition of his probation, Klemme was required to wear a GPS

monitoring device on his ankle (“the GPS device”), which would be monitored

by Marion County Community Corrections (“MCCC”). Id. at 24-25.

[5] After leaving the sentencing hearing on June 17, Klemme called his girlfriend to

pick him up, and he went to her home. He did not report to the probation

department. The next afternoon, June 18, Klemme went to the MCCC office at

around 4:30 p.m. to receive his GPS device. Tr. at 15. MCCC explained to

Klemme that the GPS device would alert Klemme, by vibrating, if he entered

what had been designated as an exclusionary zone, which was an area that he

was not allowed to enter. If he received the vibration, it was to serve as a

warning to him, and he was instructed to turn around and head the other

direction.

[6] On the night of June 18 and into the early morning hours of June 19, MCCC

received email alerts that Klemme entered the exclusionary zone at least three

to four times. On June 19, 2015, MCCC filed a notice of community

corrections violations, alleging that Klemme had entered the exclusionary zone,

failed to comply with MCCC rules and regulations, and failed to maintain

communication with MCCC. On June 23, the State filed a separate notice of

probation violation, alleging that Klemme failed to report to probation intake

and failed to comply with MCCC. On June 30, the trial court held a hearing on

the charged probation violations.

Court of Appeals of Indiana | Memorandum Decision 49A04-1507-CR-869 | March 10, 2016 Page 3 of 9 [7] At the hearing, William Beck (“Beck”), a MCCC employee and liaison to the

courts, testified. He explained that Klemme was wearing a type of GPS device

that was equipped to alert the defendant if he or she entered an exclusionary

zone, also known as a “victim zone,” which is a one-mile radius around a

specific point and is intended to protect the victim in the case. Id. at 6-7, 9.

Generally, defendants are told that there are such restricted areas, but they are

not advised of the precise location, in order to protect the victim. However,

Beck noted that “[i]n this case [the victim] was his mother so of course he

would have known where his mother resided.” Id. at 8. In addition to

notifying the defendant in a case, the GPS device generates an email to the on-

call MCCC officer to notify him or her that the defendant has entered the

prohibited exclusionary zone. Beck explained that “there is . . . a buffer zone”

surrounding the exclusionary zone, which gives the defendant “a warning to let

[him or her] know that you need to go another direction; you’re going towards

the victim zone.” Id. at 7-8. Beck testified that Klemme entered the

exclusionary zone at least three to four times and that he went “either in or

right next to” Mother’s home. Id. at 11. The State also presented computer-

generated maps, which reflected the GPS coordinates of Klemme’s various

locations inside the prohibited area.

[8] Klemme also testified at the hearing. He stated that on June 18, he went to

MCCC, but “never did report” to probation. Id. at 19. As to the GPS device,

Klemme testified to having gone to various locations on the night of June 18

and early morning hours of June 19, looking for a place to spend the night,

Court of Appeals of Indiana | Memorandum Decision 49A04-1507-CR-869 | March 10, 2016 Page 4 of 9 because his girlfriend would not let him stay with her. Klemme stated that

during the night he went to the home of several friends who either were not

awake, did not answer the door, or refused his request to stay the night.

Klemme acknowledged that one of the friends lived “cattycorner,” from

Mother. Id. at 20. Klemme stated that in the morning of June 19, he returned

to his girlfriend’s home and learned that MCCC was looking for him, so he

went to MCCC and turned himself in. Klemme conceded at the hearing that he

had received the vibration alerts on his GPS device, but he believed that it was

malfunctioning, given that he had walked through some puddles, and it was

raining that night.

[9] The State recalled Beck, who testified that MCCC’s GPS devices are

waterproof and that they would not malfunction because someone stepped in a

puddle of water. He said a person can shower in the device, but cannot

submerge it “for a long period of time.” Id. at 23. He further observed that “if

the equipment were to malfunction,” MCCC would not receive the defendant’s

location and GPS coordinates. Id. at 22. In this case, Beck observed that

Klemme’s report “shows him moving around in the area zones[,]” and thus, it

was not malfunctioning. Id.

[10] At the conclusion of the hearing, the trial court found that Klemme (1) “failed

to report to the probation department for intake” and (2) entered the

exclusionary zone multiple times on the night in question and thereby “failed to

comply with the rules and regulations of [MCCC].” Id. at 26. The trial court

also noted that Klemme did not contact MCCC until “a whole day later . . .

Court of Appeals of Indiana | Memorandum Decision 49A04-1507-CR-869 | March 10, 2016 Page 5 of 9 that next day when your girlfriend told you that you needed to call [MCCC]”

and thus failed to maintain communication with MCCC. Id. at 27-28. The trial

court also expressed concern that Klemme did not go to MCCC and obtain his

GPS device until 4:30 p.m. on June 18, “when you should have been there first

thing in the morning”; the trial court observed, “[Y]ou spent the whole entire

day not being monitored.” Id. at 27. The trial court found Klemme “in

violation of both [MCCC] and [his] probation placement,” and it ordered him

to serve 180 days of his previously-suspended sentence. Id. at 30. Klemme now

appeals.

Discussion and Decision [11] Klemme asserts that it was an abuse of the trial court’s discretion to revoke his

probation “in light of [] Klemme’s difficult personal circumstances after being

released from the jail[.]” Appellant’s Br. at 8. Klemme essentially claims that

the evidence did not support the revocation. More specifically, his claim is that

the trial court did not consider certain “extenuating circumstances,” such as his

difficulty in finding a place to stay the night, causing him to roam to multiple

friends’ homes some of which were located in the exclusionary zone, and the

fact that he stepped in puddles and the GPS device may have malfunctioned.

Appellant’s Br. at 4, 8, 10.

[12] A probation revocation proceeding is in the nature of a civil proceeding, and,

therefore, the alleged violation need be proved only by a preponderance of the

evidence. T.W. v. State, 864 N.E.2d 361, 364 (Ind. Ct. App. 2007), trans. denied.

Court of Appeals of Indiana | Memorandum Decision 49A04-1507-CR-869 | March 10, 2016 Page 6 of 9 Violation of a single condition of probation is sufficient to revoke probation. Id.

As with other sufficiency issues, we do not reweigh the evidence or judge the

credibility of witnesses. Id. We look only to the evidence that supports the

judgment and any reasonable inferences flowing therefrom. Id. If there is

substantial evidence of probative value to support the trial court’s decision that

the probationer committed any violation, revocation of probation is

appropriate. Id.

[13] Here, on June 19, 2015, MCCC filed a notice of MCCC violation, alleging that

Klemme entered an exclusionary zone multiple times, failed to comply with the

rules and regulations of MCCC, and failed to maintain communication with

MCCC. On June 23, 2015, the State filed a separate notice of probation

violation, which alleged that Klemme failed to report to the probation

department for intake and failed to comply with MCCC. Appellant’s App. at 30-

31, 33. In accordance with Indiana Code section 35-38-2-3, a trial court has

three options if a defendant violates probation. It may: (1) continue the

defendant’s probation; (2) extend the probationary period for not more than one

year beyond the original probationary period; or (3) order execution of all or

part of the suspended sentence. Ind. Code § 35-38-2-3(h); Williams v. State, 883

N.E.2d 192, 195 (Ind. Ct. App. 2008). In revocation cases, the probationer is

entitled to present mitigating evidence to demonstrate that the violation does

not warrant revocation. Sparks v. State, 983 N.E.2d 221, 225 (Ind. Ct. App.

2013).

Court of Appeals of Indiana | Memorandum Decision 49A04-1507-CR-869 | March 10, 2016 Page 7 of 9 [14] Here, at the probation revocation hearing, Klemme conceded that he did not

report to the probation department at any time. Tr. at 19. He offered no

argument or explanation to the trial court for his admitted failure to report, nor

does he provide any justification on appeal. Klemme’s failure to report to

probation was a violation of the conditions of his probation and provided

sufficient grounds for the trial court to revoke his probation. T.W., 864 N.E.2d

at 364 (violation of single condition of probation is sufficient to revoke

probation).

[15] Even excluding the failure-to-report violation, the State presented sufficient

evidence that Klemme violated his probation by failing to comply with

MCCC’s rules and regulations. Beck testified as to the MCCC maps which

showed the exclusionary zone, the buffer zone, and pinpointed Klemme’s

locations, according to the information generated by and sent from the GPS

device. The maps reflected the locations where Klemme had been present and

illustrated that, throughout the night, Klemme repeatedly passed the buffer

zone and entered the restricted zone at least several times. Beck testified that

the GPS device would have vibrated to warn Klemme and that Klemme had

been instructed to turn the other direction upon receiving such a warning. The

reports illustrated that Klemme did not do so, and Klemme admitted that he

went to his friend’s home that is located essentially across the street from

Mother’s home.

[16] Klemme acknowledged that he repeatedly received the vibration warnings, but

maintained that he believed the GPS device was malfunctioning since it was

Court of Appeals of Indiana | Memorandum Decision 49A04-1507-CR-869 | March 10, 2016 Page 8 of 9 raining, and he had stepped in puddles that night. Beck testified that the GPS

device is waterproof and stepping in puddles would not affect it, unless the

person submerged the device for an extended period of time. Beck further

testified that Klemme’s GPS device was correctly operating, because it would

not have sent the signals and locations if it was not operating properly.

[17] The trial court rejected Klemme’s claims that the GPS device was not working

properly and found that his explanations of where he went, as well as when and

why, were not consistent or believable. Klemme’s arguments on appeal,

claiming “extenuating circumstances,” are requests to reweigh the evidence.

Appellant’s Br. at 4, 10. However, it is for the trial court to assess witness

credibility, and we do not reweigh evidence on appeal. Whatley v. State, 847

N.E.2d 1007, 1010 (Ind. Ct. App. 2006).

[18] The evidence is undisputed that Klemme did not report to probation, and the

evidence most favorable to the probation court’s judgment is that Klemme

repeatedly entered the exclusionary zone, despite receiving warnings to turn

and leave the area. Thus, the State presented sufficient evidence to support the

revocation, and the trial court did not abuse its discretion when it revoked his

probation and ordered Klemme to serve 180 days of his originally-suspended

sentence.

[19] Affirmed.

[20] Mathias, J., and Brown, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A04-1507-CR-869 | March 10, 2016 Page 9 of 9