Emery D. Scruggs v. State of Indiana (mem. dec.) ( 2015 )

MEMORANDUM DECISION
Aug 20 2015, 10:18 am
Pursuant to Ind. Appellate Rule 65(D), 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.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Clifford M. Davenport Gregory F. Zoeller
Davenport Law Offices Attorney General of Indiana
Anderson, Indiana
Christina D. Pace
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Emery D. Scruggs, August 20, 2015
Appellant-Defendant, Court of Appeals Case No.
48A04-1412-CR-562
v. Appeal from the Madison Circuit
Court.
The Honorable Christopher A.
State of Indiana, Cage, Judge Pro Tempore.
Appellee-Plaintiff. Cause No. 48D03-1102-FA-147
Garrard, Senior Judge
1
[1] Emery D. Scruggs appeals from the revocation of his probation. We affirm.
1
Scruggs spells his first name as “Emergy” on the cover of his Appellant’s Brief and Appendix. During trial
court hearings, he spelled his name as “Emery.” We will use the spelling he provided during court hearings.
Court of Appeals of Indiana | Memorandum Decision 48A04-1412-CR-562 | August 20, 2015 Page 1 of 6
[2] The State charged Scruggs with robbery as a Class A felony. The parties
executed a plea agreement. Pursuant to the agreement, Scruggs pleaded guilty
to robbery resulting in bodily injury, a Class B felony. The trial court accepted
the plea agreement and sentenced Scruggs to serve fifteen years in the
Department of Correction, with six years executed and nine years suspended to
probation. The court ordered Scruggs to comply with “the usual and ordinary
conditions of probation.” Appellant’s App. p. 38.
[3] Scruggs completed the executed portion of his sentence and was released to
probation. On March 28, 2014, the State filed a Notice of Violation of
Probation, alleging that Scruggs violated the terms of his probation by failing to
pay probation fees, failing to pay administrative fees, failing to report timely to
the probation department, and failing to either maintain employment or verify
employment with the probation department. Later, the State amended its
Notice to further assert that Scruggs violated his curfew and failed to behave
well in society because he was charged with a new criminal offense, resisting
law enforcement.
[4] The trial court held a hearing, and Scruggs admitted to committing all of the
violations alleged by the State except the curfew violation. The court ordered
Scruggs to be placed at a work release facility. Later, the court released Scruggs
from work release and returned him to probation.
[5] Scruggs had been in a relationship with Leslie Chiccine, but it ended and he
married someone else. On July 11, 2014, Chiccine obtained a protective order
Court of Appeals of Indiana | Memorandum Decision 48A04-1412-CR-562 | August 20, 2015 Page 2 of 6
against Scruggs, barring him from contacting her. On September 20, 2014,
Scruggs called Chiccine three times in a row. She recognized his voice.
Scruggs told Chiccine that he wanted her to come pick him up. She did not
respond to him and hung up each time.
[6] On September 22, Chiccine printed off a log showing recent calls to her cell
phone. She reported the calls to the police and gave them the log. An officer
called the phone number that Chiccine indicated was the source of Scruggs’
calls and learned that the number was assigned to Scruggs’ home.
[7] On October 10, 2014, the State filed a second Notice of Violation of Probation,
which it later amended. The State alleged that Scruggs had violated the laws of
Indiana and had failed to behave well in society because he committed a new
criminal offense, specifically invasion of privacy, a Class A misdemeanor.
[8] The trial court held an evidentiary hearing and determined by a preponderance
of the evidence that Scruggs had violated the terms of his probation, specifically
the requirement to “behave well in society,” because he committed the offense
of invasion of privacy. Tr. p. 102. The court ordered Scruggs to serve the
balance of his sentence at the Department of Correction. He now appeals.
[9] Scruggs raises two issues, which we restate as:
I. Whether there is sufficient evidence to support the
revocation of his probation.
II. Whether the trial court abused its discretion in sentencing
Scruggs to the Department of Correction.
Court of Appeals of Indiana | Memorandum Decision 48A04-1412-CR-562 | August 20, 2015 Page 3 of 6
I. Sufficiency of the Evidence
[10] Scruggs argues that the State failed to prove that he violated the terms of his
probation because Chiccine had a grudge against him, and his mother was the
person who called Chiccine.
[11] A court may revoke a person’s probation if the person has violated a condition
of probation during the probationary period. Ind. Code § 35-38-2-3(a) (2012).
When the alleged probation violation is the commission of a new crime, the
State does not need to prove that the probationer was convicted of the crime.
Whatley v. State, 847 N.E.2d 1007, 1010 (Ind. Ct. App. 2006). Instead, the trial
court only needs to find by a preponderance of the evidence that the defendant
committed the offense. Heaton v. State, 984 N.E.2d 614, 617 (Ind. 2013).
[12] On appeal, we look to the evidence most favorable to the State and neither
reweigh the evidence nor judge the credibility of witnesses. Dokes v. State, 971
N.E.2d 178, 179 (Ind. Ct. App. 2012). If substantial evidence of probative
value exists to support the trial court’s finding that a violation occurred, we will
affirm the trial court’s judgment. Id.
[13] A person commits the offense of invasion of privacy by knowingly or
intentionally violating a protective order. Ind. Code § 35-46-1-15.1 (2014).
Chiccine testified that Scruggs called her three times on September 20, 2014. She
recognized his voice and denied that Scruggs’ mother was the caller. In
addition, Chiccine provided a cell phone call log to the police, and an officer
determined that the number from which the calls came was assigned to Scruggs’
Court of Appeals of Indiana | Memorandum Decision 48A04-1412-CR-562 | August 20, 2015 Page 4 of 6
residence. Testimony from Scruggs’ wife demonstrated that she and Scruggs
were aware that Chiccine had obtained a protective order.
[14] This is sufficient evidence from which the trial court could have reasonably
determined by a preponderance of the evidence that Scruggs knowingly or
intentionally contacted Chiccine in violation of a protective order, thereby
committing the offense of invasion of privacy. See Dokes, 971 N.E.2d at 180
(evidence sufficient to support trial court’s determination that defendant had
violated probation by committing a new criminal offense).
II. Sentencing
[15] Scruggs argues that the trial court should have placed him on work release or
community corrections instead of sending him back to the Department of
Correction.
[16] If a court finds that a probationer has violated a condition of probation, the
court may order execution of all or part of the sentence that was suspended at
the time of initial sentencing. Ind. Code § 35-38-2-3(h). When the trial court
revokes probation and imposes a sentence, we review the sentencing decision
for an abuse of discretion. Brandenburg v. State, 992 N.E.2d 951, 953 (Ind. Ct.
App. 2013), trans. denied. An abuse of discretion occurs where the decision is
clearly against the logic and effect of the facts and circumstances. Id.
[17] Scruggs, who was twenty-seven at the probation revocation hearing, has a
lengthy criminal history. As a juvenile, he was adjudicated a delinquent for
committing acts that, if committed by an adult, would have been considered
Court of Appeals of Indiana | Memorandum Decision 48A04-1412-CR-562 | August 20, 2015 Page 5 of 6
three counts of battery and two counts of disorderly conduct. As an adult, he
has been convicted of two counts of possession of marijuana, four counts of
battery resulting in bodily injury, domestic battery, and criminal mischief. In
addition, Scruggs has been placed on probation in seven previous cases and
violated probation five times. Scruggs violated the terms of probation earlier in
this case, but after a term on work release the trial court returned him to
probation.
[18] Scruggs’ history of misconduct, including his repeated probation violations,
demonstrates that he is unlikely to respond positively to alternatives to
incarceration, such as work release. The trial court did not abuse its discretion
by ordering Scruggs to serve the balance of his previously suspended sentence.
See Alford v. State, 965 N.E.2d 133, 135 (Ind. Ct. App. 2012) (no abuse of
discretion in imposing balance of suspended sentence for probation violation
where defendant contacted a person in violation of a no-contact order), trans.
denied.
[19] For the reasons stated above, we affirm the judgment of the trial court.
[20] Affirmed.
[21] Riley, J., and Bradford, J., concur.
Court of Appeals of Indiana | Memorandum Decision 48A04-1412-CR-562 | August 20, 2015 Page 6 of 6