Denny Brock v. State of Indiana (mem. dec.) ( 2015 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Sep 30 2015, 10:20 am
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
R. Patrick Magrath Gregory F. Zoeller
Alcorn Sage Schwartz & Magrath, LLP Attorney General of Indiana
Madison, Indiana
Katherine Modesitt Cooper
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Denny Brock, September 30, 2015
Appellant-Defendant, Court of Appeals Case No.
36A01-1501-CR-32
v. Appeal from the Jackson Circuit
Court
State of Indiana, The Honorable Richard W.
Appellee-Plaintiff. Poynter, Judge
Trial Court Cause No.
36C01-1312-FC-73
Pyle, Judge.
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Statement of the Case
[1] Denny Brock (“Brock”) appeals the trial court’s order revoking his probation.
On appeal, he argues that the trial court abused its discretion by revoking his
probation because the State presented insufficient evidence that he had violated
a term of his probation by committing another offense. Because the State
showed by a preponderance of the evidence that Brock committed Level 6
felony intimidation against his wife, we affirm the trial court’s order revoking
his probation.
[2] Affirmed.
Issue
Whether the trial court abused its discretion by revoking Brock’s
probation.
Facts
[3] In December 2013, the State charged Brock with Count 1, Class C felony
intimidation; Count 2, Class D felony intimidation; and Count 3, Class B
misdemeanor battery. The State alleged that Brock had committed all of these
crimes against his wife, Deborah Brock (“Deborah”).
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[4] On March 18, 2014, Brock pled guilty to the Class D felony intimidation1
charge in exchange for the dismissal of the remaining two charges. Brock’s
written plea agreement called for him to receive a three (3) year sentence, with
one (1) year executed and two (2) years suspended to supervised probation. As
for the executed portion of Brock’s sentence, the plea agreement specified that
Brock would serve 162 days in “the appropriate correctional facility” and then
203 days on “home detention as a direct commitment.” (App. 36).
[5] On April 8, 2014, the trial court held a sentencing hearing. The trial court
sentenced Brock pursuant to the terms contained in the plea agreement; thus, it
imposed a three (3) year sentence, with one (1) year executed and two (2) years
suspended to supervised probation. Brock’s standard conditions of probation
included the requirement that he “must not commit another criminal offense.”
(App. 50). As a special condition of probation, the trial court ordered Brock to
submit to anger management, mental health, and alcohol and drug programs
and participate in any recommended treatment.
[6] On July 3, 2014, Brock completed home detention and started his two-year
probationary term. Three months later, on October 1, 2014, the State filed a
notice of probation violation, alleging that Brock had violated the terms of his
probation by committing a new criminal offense. Specifically, the State alleged
1
IND. CODE § 35-45-2-1. We note that, under the legislature’s comprehensive criminal law reform package,
the intimidation statute was amended with an effective date of July 1, 2014. Under the new version of the
intimidation statute, Class D felony intimidation is now a Level 6 felony.
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that Brock had committed the crime of Level 6 felony intimidation against
Deborah on September 18, 2014.2
[7] The trial court held a probation revocation hearing on December 11, 2014.
During this hearing, the State presented Brock’s probation officer and Deborah
as witnesses and introduced Brock’s terms of probation as an exhibit. Also, the
trial court, pursuant to the State’s request, took judicial notice of the sentencing
order and probable cause affidavit from Brock’s original intimidation case and
the charging information and probable cause affidavit from Brock’s new
intimidation offense.3
[8] Brock’s probation officer testified that he had three monthly meetings with
Brock and that, during each meeting, Brock blamed Deborah for him being
convicted and on probation. The probation officer also testified that Deborah
called him on September 19, 2014, and reported that Brock appeared to be
“somewhat unstable” and that he had made threats against her. (Tr. 9).
[9] When Deborah testified, she discussed multiple occasions when Brock had
threatened her. She testified that, around September 18, 2014, she saw that
Brock could not stand up or keep his eyes open. She saw that he had left open
his safe where he kept his pills, and when she looked at his prescription bottle,
2
Because Brock was alleged to have committed this offense after July 1, 2014, he was charged with
intimidation as a Level 6 felony instead of a Class D felony.
3
These judicially-noticed documents, with exception of the probable cause affidavit from Brock’s original
intimidation case, have not been included in the record on appeal. The underlying probable cause affidavit is
in the record only because the State initially introduced it as an exhibit.
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which was written for 120 pain pills, she saw that he had taken all but three or
four of them within an eight day period. Deborah testified that, when she got
home from work on September 18, 2014, Brock “yell[ed] and scream[ed]” at
her and told her to call the police. (Tr. 17). Brock “dared [her] to call the
police” for what he was “gettin’ read[y] to do.” (Tr. 17). Brock told her that
the police were “not gonna do anything to [him]” and were “not gonna take
him because he’[d] gotten everything legal.” (Tr. 17, 19). Deborah testified
that Brock then stated that he would “just kill” her after the police left. (Tr. 17).
Deborah testified that Brock would frequently threaten her and say “all kinds of
stuff” whenever he ran out of pills. (Tr. 30).
[10] Additionally, Deborah testified that Brock also threatened her so that she would
not call the police on him. She testified that Brock told her that he was going to
“kick [her] f*****g ass” and that she would be a “dead b**** if [she] d[id] it to
[him] again[.]” (Tr. 18). She testified that this threat referred to his original
intimidation case when she “called the police on December the twenty-seventh
[2013] and had him picked up.” (Tr. 19). Deborah testified that she was
“scared” after he had threatened her. (Tr. 19). She also testified that Brock
had, more than once, threatened to slice or cut her face, but she stated that he
did not remember what he said “half the time[.]” (Tr. 20).
[11] At the end of Deborah’s testimony, the trial court questioned Deborah to clarify
her testimony regarding the threats that Brock had made against her. Upon
questioning, Deborah confirmed that Brock’s “specific threats” of “I’m going to
kick your f*****g ass” and “You’re a dead B**** if you do it to me again” were
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in reference to Deborah previously calling the police in the original, underlying
intimidation case, while the threats to cut and slice her face were “general
comments[.]” (Tr. 30).
[12] After the State rested, Brock did not testify, present evidence, or otherwise
challenge the contents of the charging information and probable cause affidavit
that were judicially noticed.
[13] The trial court determined that the State had met its burden of showing that
Brock had committed intimidation as alleged in the probation violation notice.
The trial court revoked Brock’s probation, ordered him to serve his previously
suspended two-year sentence in the Department of Correction (“DOC”), and
recommended he enroll in a DOC drug treatment program. Brock now
appeals.
Decision
[14] Brock challenges the trial court’s determination that he violated probation by
committing the criminal offense of intimidation against Deborah.
[15] “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 the conditions of probation and may revoke
probation if the conditions are violated. Id.; see also IND. CODE § 35-38-2-3(a).
Indeed, violation of a single condition of probation is sufficient to revoke
probation. Gosha v. State, 873 N.E.2d 660, 663 (Ind. Ct. App. 2007). We
review a trial court’s probation violation determination for an abuse of
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discretion. Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013). An abuse of
discretion occurs where the decision is clearly against the logic and effect of the
facts and circumstances or when the trial court misinterprets the law. Id. When
reviewing a trial court’s determination that a probation violation has occurred,
we consider only the evidence most favorable to the judgment, and we will not
reweigh the evidence or judge the credibility of the witnesses. Sanders v. State,
825 N.E.2d 952, 955-56 (Ind. Ct. App. 2005), trans. denied.
[16] “When a probationer is accused of committing a criminal offense, an arrest
alone does not warrant the revocation of probation.” Johnson v. State, 692
N.E.2d 485, 487 (Ind. Ct. App. 1998). Likewise, the mere filing of a criminal
charge against a defendant does not warrant the revocation of probation.
Martin v. State, 813 N.E.2d 388, 391 (Ind. Ct. App. 2004). Instead, when the
State alleges that the defendant violated probation by committing a new
criminal offense, the State is required to prove—by a preponderance of the
evidence—that the defendant committed the offense. Heaton, 984 N.E.2d at
617.
[17] Brock argues that there was not sufficient evidence to support the trial court’s
revocation of his probation. Specifically, he argues that the State failed to prove
that he had committed a new criminal offense because it had not shown that he
had the “requisite intent to commit the crime of intimidation.” (Brock’s Br. 4).
[18] INDIANA CODE § 35-45-2-1(a), provides that a person commits the crime of
intimidation as a Class A misdemeanor when he “communicates a threat to
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another person, with the intent: (1) that the other person engage in conduct
against the other person’s will; [or] (2) that the other person be placed in fear of
retaliation for a prior lawful act[.]” This crime is a Level 6 felony when the
person has previously committed the offense of intimidation against the same
victim. I.C. § 35-45-2-1(b)(1)(C). “[I]ntent is a mental function,” and “it must
be determined from a consideration of the defendant’s conduct and the natural
and usual consequences of such conduct, absent an admission from the
defendant.” Hendrix v. State, 615 N.E.2d 483, 485 (Ind. Ct. App. 1993) (citing
Metzler v. State, 540 N.E.2d 606, 609 (Ind. 1989)). “To determine whether the
defendant intended to commit the conduct, the trier of fact must usually resort
to reasonable inferences based upon an examination of the surrounding
circumstances.” Id.[19] Although the trial court took judicial notice of the charging information for the
new intimidation offense, Brock did not include this, or any other judicially-
noticed, document in the record on appeal. Therefore, it is unclear if the State
charged Brock with intimidation under subsection (a)(1) or (a)(2) or both.
Nevertheless, it clear from the trial court’s determination that it found by a
preponderance of the evidence that Brock had committed intimidation based on
subsection (a)(2). Specifically, the trial court stated:
Well, I believe the allegations have been proven by a
preponderance of the evidence. [Deborah’s] testimony is pretty
clear that . . . this Defendant was pretty angry for whatever
reason. Of course when you’re in a[n] intoxicated high[,] you
don’t have to be rational in your behavior. I mean, the question
isn’t whether or not [Brock] was acting rationally. The question
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is what [Brock], how did he act. You know, in saying that “I’m
going to kick your f*****g ass. You’re a dead B**** if you do it
to me again” referencing . . . the victim having called the police
back in December for making threats, I think it’s pretty clear it is
intimidation under the statute. So, therefore, I am going to find
by a preponderance of the evidence the allegations have been
proven as alleged in the petition to revoke probation.
(Tr. 35-36). Thus, the trial court determined that Brock had communicated a
threat to Deborah with intent to place her in fear for the prior lawful act of
calling the police in December 2013.
[20] Brock’s argument that “the evidence produced by the State tended to prove that
Denny Brock was not capable of forming the requisite intent[,]” (Brock’s Br. 6),
is nothing more than a request to reweigh the evidence, which we will not do.
Because the evidence was sufficient to show that Brock violated the terms of his
probation by committing a new offense, we affirm the trial court’s revocation of
his probation.
[21] Affirmed.
Vaidik, C.J., and Robb, J., concur.
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