Kari A. Spray v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Dec 16 2020, 9:28 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
R. Patrick Magrath Curtis T. Hill, Jr.
Alcorn Sage Schwartz & Magrath, LLP Attorney General of Indiana
Madison, Indiana Lydia Golten
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Kari A. Spray, December 16, 2020
Appellant-Defendant, Court of Appeals Case No.
20A-CR-1165
v. Appeal from the Jackson Circuit
Court
State of Indiana, The Honorable Richard Poynter,
Appellee-Plaintiff Judge
Trial Court Cause No.
36C01-1807-F6-309
Crone, Judge.
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Case Summary
[1] Kari A. Spray appeals the trial court’s revocation of her probation. She
contends that the trial court abused its discretion in revoking her probation
because the State presented insufficient evidence to support a finding that she
violated her probation. Finding the evidence sufficient, we affirm.
Facts and Procedural History
[2] In July 2018, the State charged Spray with two counts of level 6 felony
performing sexual conduct in the presence of a minor. On June 11, 2019,
pursuant to a plea agreement, she pled guilty to an amended count of level 6
felony neglect of a dependent in exchange for dismissal of the other charges.
The trial court imposed a fully suspended one-year sentence which, after credit
for time served, resulted in a sentence of 361 days of supervised probation.
[3] A few days later, on June 14, 2019, Jackson County law enforcement officers
responded to a call from a home on North Cedars Road. The home was
occupied by Spray’s ex-husband Shane and his new girlfriend Amber Schrader.
Schrader owned the home and lived there with Shane. Shane called police
stating that Spray had come to the door of the home looking for their two
children. Spray was also in Schrader’s driveway without permission and
looked through the windows of the the car parked in the driveway. When
officers arrived, they located Spray and spoke with her in the roadway outside
the home. Spray admitted that she had been on Schrader’s property, but she
continued to argue with officers and refused to leave the area. She wanted the
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officers to investigate Shane, and to look in the car in the driveway where she
claimed she had seen open containers of alcohol. Spray is well known by
Jackson County law enforcement and had been previously warned, after prior
entries onto Schrader’s property without permission, that Schrader did not want
her on the property, and that she would be charged criminally if she entered the
property again.
[4] That same day, Spray made seven calls to the Jackson County 911 line. In the
first call, Spray asked if someone could be sent to the North Cedars Road
address to check on her children, whom she believed were there. The operator
agreed to send authorities to that address for a welfare check. Spray proceeded
to make six additional 911 calls within less than one hour. Due to the repeated
calls, an officer was sent to Spray’s house to speak with her, but she refused to
open the door. In her third, fourth, and fifth calls, Spray sat silently on the open
line and said nothing to the 911 operator. In her sixth call, Spray again asked
about her children, and the operator told her repeatedly that the children had
been checked on and that they were fine. Spray called a seventh time with the
exact same inquiry.
[5] Spray was subsequently charged with class A misdemeanor criminal trespass
and class A misdemeanor unlawful use of 911 service. Thereafter, on June 28,
2019, the State filed a petition to revoke Spray’s probation based upon her
commission of two new criminal offenses. Following a revocation hearing, the
trial court found that Spray violated the terms of her probation as alleged by the
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State. The trial court ordered Spray to serve 180 days of her previously
suspended sentence in the appropriate penal facility. This appeal ensued.
Discussion and Decision
[6] “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). We review probation violation determinations for an abuse of
discretion. Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013). An abuse of
discretion occurs where the trial court’s decision is clearly against the logic and
effect of the facts and circumstances, or when the trial court misinterprets the
law. Id.[7] Probation revocation is a two-step process. First, the trial court must make a
factual determination that a violation of a condition of probation occurred.
Woods v. State, 892 N.E.2d 637, 640 (Ind. 2008). Second, the court must
determine if the violation warrants revocation of probation. Id. “A revocation
hearing is in the nature of a civil proceeding, and the alleged violation only
needs to be established by a preponderance of the evidence.” Smith v. State, 727
N.E.2d 763, 765 (Ind. Ct. App. 2000).
In reviewing the sufficiency of the evidence, we use the same
standard as in any other sufficiency question. When the
appellant challenges the sufficiency of the factual basis for
revocation, we neither reweigh the evidence nor judge the
credibility of the witnesses. If substantial evidence of probative
value supports the trial court’s decision that the appellant has
committed a violation of a condition of his probation, then
revocation of probation was proper.
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Id. (citations omitted). In short, “[i]f there is substantial evidence of probative
value to support the trial court’s decision that a defendant has violated any
terms of probation, the reviewing court will affirm its decision to revoke
probation.” Woods, 892 N.E.2d at 639-40.
[8] Spray challenges the State’s proof, and the trial court’s finding, that she violated
her probation by committing the new criminal offenses of criminal trespass and
unlawful use of 911 service. 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.
[9] Indiana Code Section 35-43-2-2 provides that a person who, not having a
contractual interest in the property, “knowingly or intentionally enters the real
property of another person after having been denied entry by the other person
or that person’s agent” commits class A misdemeanor criminal trespass. Here,
Jackson County Sheriff’s Department Deputy Jesse Hutchinson testified that he
responded to the June 2019 report that Spray had entered Schrader’s property
and knocked on the door of Schrader’s home. Although Spray was no longer
on the property when officers arrived, she admitted to Deputy Hutchison that
she had entered the property and that she had taken a picture while in the
driveway. Deputy Hutchison stated that Spray had entered the property
without permission on prior occasions and that Jackson County law
enforcement officers had specifically warned Spray that Schrader did not want
her on the property, and that she would be charged criminally if she entered the
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property again. This evidence is sufficient to support the trial court’s
conclusion by a preponderance of the evidence that Spray committed class A
misdemeanor criminal trespass.
[10] Although proof of a single violation is sufficient to permit a revocation of
probation, Beeler v. State, 959 N.E.2d 828, 830 (Ind. Ct. App. 2011), trans.
denied, we further find that the State presented sufficient evidence to support the
trial court’s conclusion by a preponderance of the evidence that Spray
committed a second probation violation in committing class A misdemeanor
unlawful use of 911 services. Indiana Code Section 36-8-16.7-46 provides that a
person who knowingly or intentionally places a 911 call “for a purpose other
than obtaining public safety assistance or emergency services” or “to avoid
communications service charges or fees” commits a class A misdemeanor. The
record here demonstrates that Spray placed seven 911 calls on the same day in
the span of one hour. Although she requested assistance during her first call,
during her second call she only inquired about the officer that was sent to her
home. During her third, fourth, and fifth calls, Spray simply sat on the open
line and said nothing. During her sixth and seventh calls, Spray continued to
question the operator about matters that had already been discussed and
resolved. Based upon the foregoing, the trial court could have reasonably
concluded by a preponderance of the evidence that at least one of Spray’s
repeated 911 calls was made for a purpose other than obtaining public safety
assistance or emergency services. Indeed, the multiple calls in which she simply
sat on the open line and said nothing support such a conclusion regarding an
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alternate purpose. Spray’s contrary assertion on appeal regarding her purpose is
merely an invitation for this Court to reweigh the evidence and reassess
credibility, and we will not.
[11] In sum, sufficient evidence supports the trial court’s conclusion by a
preponderance of the evidence that Spray violated her probation by committing
two new criminal offenses. Therefore, the trial court did not abuse its discretion
in revoking Spray’s probation.
[12] Affirmed.
Najam, J., and Riley, J., concur.
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