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.
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[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
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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.
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[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,
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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 . . .
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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.
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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).
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[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
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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.
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