Kevin Graham v. State of Indiana (mem. dec.) ( 2016 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Feb 16 2016, 8:30 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
Michael Frischkorn Gregory Zoeller
Frischkorn Law LLC Attorney General of Indiana
Fortville, Indiana
Larry D. Allen
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Kevin Graham, February 16, 2016
Appellant-Defendant, Court of Appeals Case No.
48A02-1505-CR-414
v. Appeal from the Madison Circuit
Court
State of Indiana, The Honorable Dennis D. Carroll,
Judge
Appellee-Plaintiff
Trial Court Cause No.
48C06-1202-FC-304
Crone, Judge.
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Case Summary
[1] Kevin Graham appeals the trial court’s revocation of his probation and the
imposition of the previously suspended portion of his sentence. Graham
contends that there was insufficient evidence to support the trial court’s finding
that he violated his probation and that the trial court abused its discretion in
revoking his probation and imposing his previously suspended sentence.
Finding the evidence sufficient and no abuse of discretion, we affirm.
Facts and Procedural History
[2] In May 2012, Graham pled guilty to two counts of class C felony forgery and
one count of class D felony receiving stolen property. The trial court sentenced
Graham to concurrent seven-year sentences for the class C felonies and a
consecutive term of two years for the class D felony. Graham was sentenced to
nine years in the Department of Correction, with four years suspended to
probation. As a condition of probation, Graham was ordered to pay $909.24 in
restitution at a rate of no less than $50 per month, submit to random urine
screens, to refrain from committing any new crimes, and to report any arrest to
his probation officer within forty-eight hours.
[3] In October 2014, Cindy Overmyer attended a Zionsville Community High
School football game. The next morning her credit card companies called
about suspicious credit card activity occurring at gas stations along Interstate
65. Overmyer checked her purse and wallet and discovered that her credit
cards and checks were missing.
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[4] Zionsville Police Department Detective Joshua Samuelson began to investigate
the theft and unauthorized use of Overmyer’s credit cards. He watched
surveillance video footage from the gas stations along Interstate 65 between
Lebanon and Lafayette and saw a man using Overmyer’s credit cards.
Detective Samuelson sent still photos from the surveillance footage to several
area investigators. Detective Dan Boutwell from the Whitestown Police
Department, who had previous dealings with Graham, saw the photos and
identified Graham as the man using Overmyer’s credit cards.
[5] Detective Samuelson obtained Graham’s driver’s license photo and compared it
to the man in the video footage. He determined that Graham was the person in
the videos. Next, Detective Samuelson obtained Graham’s cell phone number,
dialed it, and spoke with a man who identified himself as Graham. Detective
Samuelson was able to acquire location information regarding Graham’s phone
from his cellular carrier company. This information placed Graham in the
general location of the Zionsville High School football game where the initial
theft took place and at the gas stations when and where the unauthorized credit
card use occurred. Graham was subsequently arrested and charged with two
counts of level 6 felony fraud and one count of class A misdemeanor theft.
[6] In January 2015, the probation department alleged that Graham violated his
probation by committing new criminal offenses, failing to report his arrest,
failing to pay restitution, and failing to submit to urine screens. At an
evidentiary hearing, Graham admitted that he had failed to report his arrest and
pay restitution. The trial court found that Graham violated his probation by
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committing new criminal offenses, failing to report his arrest within forty-eight
hours, and failing to pay restitution. The trial court revoked Graham’s
probation and imposed the balance of his previously suspended sentence. This
appeal ensued.
Discussion and Decision
Section 1- Sufficient evidence supports the trial court’s finding
that Graham violated his probation.
[7] Graham contends that the evidence is insufficient to support the trial court’s
finding that he violated his probation. A probation revocation proceeding is in
the nature of a civil proceeding, and therefore the alleged violation need be
established only by a preponderance of the evidence. Jenkins v. State, 956
N.E.2d 146, 148 (Ind. Ct. App. 2011), trans. denied (2012). Violation of a single
condition is sufficient to revoke probation. Id. We consider only the evidence
most favorable to the trial court’s judgment and do not reweigh the evidence or
judge the credibility of the witnesses. Woods v. State, 892 N.E.2d 637, 639 (Ind.
2008).
[8] Graham argues that Detective Samuelson did not investigate the possibility that
it was his identical twin brother on the surveillance video footage, and therefore
the State did not prove by a preponderance of the evidence that he committed
level 6 felony fraud and class A misdemeanor of theft. We disagree. Moreover,
we reiterate that Graham admitted to violating two other conditions of his
probation, either one of which would have been sufficient to support the
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revocation of his probation. The evidence most favorable to the trial court’s
decision indicates that Graham stole Cindy’s credit cards and used them to
obtain almost $2000 worth of property from various gas stations. Not only was
his use of the credit cards caught on tape and identified by detectives, but his
cell phone location coincided with when and where the cards were taken and
the unauthorized transactions took place. All of this evidence implicates
Graham; he requests us to reweigh evidence, which we will not do. Woods, 892
N.E.2d at 639. We conclude that the State established by a preponderance of
the evidence that Graham violated his probation by committing fraud and theft.
Section 2 - The trial court did not abuse its discretion in
revoking Graham’s probation and imposing the previously
suspended portion of his sentence.
[9] Probation revocation is a two-step process. “First, the court must make a
factual determination that a violation of a condition of probation actually
occurred. If a violation is proven, then the trial court must determine if the
violation warrants revocation of the probation.” Vernon v. State, 903 N.E.2d
533, 537 (Ind. Ct. App. 2009), trans. denied. “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). It is within the trial court’s
discretion to determine the conditions of probation and to revoke probation if
those conditions are violated. Heaton v. State 984 N.E.2d 614, 616 (Ind. 2013).
Where there is substantial evidence of probative value that a defendant has
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violated any of the terms of his probation, we will uphold the trial court’s
revocation decision. Woods, 892 N.E.2d at 639.
[10] A trial court’s sentencing decision for probation violations is reviewable for
abuse of discretion. Heaton, 984 N.E.2d at 616. An abuse of discretion occurs
only where the trial court’s decision is clearly against the logic and effect of the
facts and circumstances before the court. State v. Hunter, 898 N.E.2d 455, 458
(Ind. Ct. App. 2008). A trial court may “order execution of all or part of the
sentence that was suspended at the time of initial sentencing” as long as the
proper procedures for probation revocation have been followed. Ind. Code §
35-38-2-3(h)(3); Wilkerson v. State, 918 N.E.2d 458, 464 (Ind. Ct. App. 2009).
[11] Graham’s argument that the trial court abused its discretion in revoking his
probation is premised upon his claim of insufficient evidence, which we have
already decided against him. Therefore, we find no abuse of discretion and
affirm the trial court’s revocation of his probation.
[12] Affirmed.
Vaidik, C.J., and Bailey, J., concur.
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