Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
Jan 22 2014, 9:38 am
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:
PAUL J. PODLEJSKI GREGORY F. ZOELLER
Anderson, Indiana Attorney General of Indiana
JAMES B. MARTIN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
ANTONIO D. JOHNSON, )
)
Appellant-Defendant, )
)
vs. ) No. 48A04-1305-CR-241
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MADISON SUPERIOR COURT
The Honorable Angela Warner Sims, Judge
Cause No. 48C01-9902-CF-40
January 22, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
ROBB, Judge
Case Summary and Issues
Antonio D. Johnson appeals the trial court’s revocation of his probation. Johnson
raises two issues on appeal: 1) whether there was sufficient evidence to support a finding
of a probation violation; and 2) whether the trial court abused its discretion in revoking
five years of Johnson’s sentence that had been suspended to probation. Concluding that
there was sufficient evidence to support the revocation and the trial court did not abuse its
discretion, we affirm.
Facts and Procedural History
In 1999 Johnson pleaded guilty to criminal confinement, attempted robbery, and
pointing a firearm, under the current cause number, and was sentenced to ten years. At
the same time, he also pleaded guilty to crimes under two or three other cause numbers
and was sentenced for those crimes as well. He was incarcerated from that time until
September 2012, at which point he was placed on a five-year period of probation.
In March 2013 the State filed a Notice of Violation of Probation alleging that
Johnson had committed criminal confinement as a Class C felony and battery resulting in
bodily injury as a Class A misdemeanor. The notice alleged that he was in violation of a
condition of his probation requiring him not to violate the laws of Indiana or the United
States or to fail to behave well in society.
These allegations stemmed from an incident at the beginning of March 2013 in
which Johnson and his sister, Tenicia Johnson (“Tenicia”), apparently confronted their
father, Charles Johnson (“Charles”), about an affair that Charles was having. The
confrontation ended with Johnson and Tenicia beating Charles. Anderson Police
Department Officer Brian Gehrke responded to the incident, and testified that when he
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arrived, Charles was covered in blood, still bleeding, and had a badly swollen eye.
Charles told Officer Gehrke that Johnson and Tenicia had inflicted the injuries and
prevented him from leaving the house while they were doing so. Inspection of the house
where the incident occurred revealed blood on the arm of a couch and on the floor.
In April 2013 a hearing was held on the probation revocation, and both Officer
Gehrke and Charles testified. At the end of the hearing, the court found that the evidence
satisfied a preponderance of the evidence standard and that Johnson had violated his
probation by failing to behave well in society—specifically, by committing the new
criminal offenses of confinement and battery resulting in bodily injury. The court
sanctioned Johnson by revoking five years of his previously suspended sentence, with
four years to be served with the Department of Correction and one year to be served at a
work release facility. This appeal followed.
Discussion and Decision
I. Sufficiency of the Evidence
A Standard of Review
A probation revocation hearing is in the nature of a civil proceeding, and an
alleged violation of probation needs only to be proven by a preponderance of the
evidence. Whatley v. State, 847 N.E.2d 1007, 1010 (Ind. Ct. App. 2006). In reviewing a
determination that a violation has occurred, we do not reweigh the evidence or reassess
witness credibility. Id. We look to the evidence most favorable to the trial court’s
determination, and decide whether there is substantial evidence of probative value
supporting revocation. Id. If so, we will affirm. Id. Where the alleged violation is the
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commission of a new crime, the trial court needs only to find that there was probable
cause to believe that the defendant violated criminal law. Id.
B. Evidence Supporting Johnson’s Revocation
Johnson argues that there was insufficient evidence to meet the preponderance of
the evidence standard because “[t]he only evidence presented at the evidentiary hearing
to support a finding of a violation of probation was Officer Gehrke’s and the victim’s
testimony.” Appellant’s Br. at 9. The State correctly notes that Johnson seems to only
contest the evidence supporting the crime of confinement but not the crime of battery,
and that the battery alone would be enough to support a finding of violation of probation.
Moreover, we disagree that there was insufficient evidence to support the confinement
allegation—or, for that matter, the battery.
Officer Gehrke testified that when he arrived on the scene, Charles was covered in
blood and his eye was almost swollen shut, there was blood at the residence, and Charles
indicated that Johnson and Tenicia had kept him from leaving the house as they were
attacking him. Charles also testified as to the injuries he sustained, that Johnson and
Tenicia “beat[] the crap out of [him],” and “they held [him] in confinement and wouldn’t
let [him] leave.” Tr. at 17-18. Charles testified that there are three exit doors at the
house where the incident occurred, but that Johnson and Tenicia blocked two of them,
and he could not use the third door because he “was threatened if [he] went outside that
there would be more repercussions.” Id. at 22.
We conclude that the testimony of both the investigating officer and the victim
was more than sufficient to meet the preponderance standard and that there was therefore
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sufficient evidence to support the revocation of Johnson’s probation for committing an
offense.
II. Revocation of Probation
A. Standard of Review
“Probation is a matter of grace left to trial court discretion, not a right to which a
criminal defendant is entitled.” Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). The
trial court determines probation, and may revoke probation if the conditions of probation
are violated. Id.; see Ind. Code § 35-38-2-3. Proof of a single violation of the conditions
of probation is enough for the trial court to revoke probation. Bussberg v. State, 827
N.E.2d 37, 44 (Ind. Ct. App.2005), trans. denied. A trial court’s sentencing decisions for
probation violations are reviewed for an abuse of discretion. Prewitt, 878 N.E.2d at 188.
An abuse of discretion occurs where the decision is clearly against the logic and effect of
the facts and circumstances. Id.
B. Johnson’s Revocation
Johnson argues that because he had successfully completed parole in the
underlying case, and this was his first probation violation, the trial court abused its
discretion in revoking his probation. There is nothing, however, that prevents the trial
court from revoking probation on the first violation. See Ind. Code § 35-38-2-3(a) (“The
court may revoke a person’s probation if: (1) the person has violated a condition of
probation during the probationary period; and (2) [timing requirements are met for the
filing of the petition to revoke].”). We also note that Johnson has a long history of
criminal convictions as well as probation violations in other causes, and the court was
concerned about the timing and nature of this offense, saying that one of the worst
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violations is to “be accused or arrested for a new criminal offense . . . [and] the Court [is]
concern[ed] that you’ve really been out for a relatively short period of time and we’ve got
. . . some really serious matters again that you’re dealing with.” Transcript at 28. Our
standard of review here is not whether we would have done things differently, but
whether the trial court abused its discretion, which here we conclude it did not.
Johnson argues that revoking five years of his suspended sentence was unduly
harsh. However, Indiana Code section 35-38-2-3(h)(3) allows that, if the court finds that
a person has violated a condition of probation, the court may “[o]rder execution of all or
part of the sentence that was suspended at the time of initial sentencing.” The court was
well within bounds when it revoked five years of Johnson’s previously suspended
sentence.
Johnson also argues that the trial court abused its discretion by “not giv[ing] any
weight to the fact that this was a family affair.” Appellant’s Brief at 8. However, we do
not see how the fact that the victim was his father would go against revocation. The trial
court stated at the hearing that, “given the safety concerns of the community and given
what you’re on probation for and the seriousness of the underlying offense, those are just
factors the Court just cannot simply ignore at this point and not take into consideration in
determining the appropriate sanctions for you today.” Tr. at 29.
We conclude that the trial court did not abuse its discretion in revoking Johnson’s
probation or in sanctioning him by revocation of five years of his previously suspended
sentence.
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Conclusion
Concluding that there was sufficient evidence to support the revocation, and that
the trial court did not abuse its discretion in revocation of five years of his previously
suspended sentence, we affirm.
Affirmed.
BARNES, J., and BROWN, J., concur.
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