Court of Appe als of Indiana | Memorandum Decision 20A

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- 1165 | December 16, 2020 Page 1 of 7 

### MEMORANDUM DECISION 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 de fense of res judicata, collateral estoppel, or the law of the case

. A TTORNEY FOR A PPELLANT R. Patrick Magrath Alcorn Sage Schwartz & Magrath, LLP Madison, Indiana A TTORNEY S FOR A PPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Lydia Golten Deputy Attorney General Indianapolis, Indiana


### IN THE 

# COURT OF APPEALS OF INDIANA
Kari A. Spray , Appellant

- Defendant,

v. 

### State of Indiana , Appellee

- Plaintiff December 16, 2020 Court of Appeals Ca se No. 20A

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- 1165 Appeal from the Jackson Circuit Court The Ho norable Richard Poynter, Judge Trial Court Cause No. 36C01

- 1807

- F6

- 309

Crone , Judge .Court of Appe als of Indiana | Memorandum Decision 20A

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### Case Summary
[1] Kari A. Spray appeals the trial court ’ s rev ocation of her probation . S h e contends that the trial court abuse d its discretion in revo king her probation beca use the State pres ented in sufficien t evidence to support a finding that she violated her probation . Finding the evidence sufficient , we affirm

. 

### Facts and Proce dural Hist ory [2] In July 2018, the S tate charged Spray with two counts of level 6 felony perfor ming sex ual conduct in the presence of a minor

. On June 11, 2019, p ursuant to a plea agreement, she pled guilty to an amended count of level 6 fel ony neglect of a dependent in e xchange for di smissal of the other charges. The trial court im posed a fully suspen ded o ne - year sentence which, after credit for t ime served, result ed in a sentence of 36 1 days of supervised probation.

[3] A few days later, on J u n e 14, 2019, Jackson County law e nforcement officers responded to a call from a home on North Cedar s R oad . The ho me was occupied by Spray ’ s ex - husband Shane and his new girlfriend Amber S chrader

. Schrader owned the home and lived there with Shane. S hane called police stating tha t Spray had come to the door of the home looking for th eir two children

. Spray was also in Schrader ’ s driveway without permission and looked through the windows of th e the ca r parked in the drivewa y. When officers arrived, the y l ocated Spray and spoke with he r in the roadway o utside the home

. Spray admitted th at she had be en on S chrader ’ s property , but she continued to argue with officers and refused to leave the area. S he wanted theCourt of Appe als of Indiana | Memorandum Decision 20A

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- 1165 | December 16, 2020 Page 3 of 7 o fficers to investigate Shane , and to l ook in the car in the driveway where she claimed she ha d seen open containers of alc ohol. Spray is well known by Jackson County law enfo rcement and had been previously warned , after prior ent ries onto Schrader ’ s property without permission, that Schrader d id not want her on the property , and that she would be charged criminally if she entered the property a gain

.
[4] That same d ay, Spray made seven calls to the Jackson C ounty 911 line. I n the f irst call, Spray asked if someone could be sent to the North Cedar s Road ad dress to check on her children , whom she believe d were there. The operat or agreed to send autho rities to that ad dress for a welfare c heck

. Spray proceeded to ma ke six additional 911 calls within less t h an one hour

. D u e to the repeated calls, an officer was sent to Spray ’ s house to s peak with her , but she refused to open the door. In her th ird , fou rth, and fifth ca lls, Spray sa t silen t ly on the open line and said nothing to the 911 operator
. In her sixth call, Spray again asked about her children, and th e operator told her repeatedly that the children had been checked on and that they were fine. S pray called a sev enth time with the exact same inquiry.

[5] Spray was subsequently charged with c lass A misdemeanor criminal trespass and class A misdeme ano r unlawf ul use of 911 service. Therea fter, on J u ne 28, 2019, t he State filed a petition to revoke Sp ray ’ s probation base d upon her commission of two new criminal offenses

. Following a revocation hearing, the trial court found that Spray violated the terms of h er probation as alleged by theCourt of Appe als of Indiana | Memorandum Decision 20A

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- 1165 | December 16, 2020 Page 4 of 7 S tate . The trial cour t ordered Spray to serve 180 d ays of h er previ ously suspended s entence in the appropr iate penal facil ity

. This appeal ensued. 

### Discussion and Decision
[6] “Probation is a matter of grace left to trial court dis cretion, not a right to w hich a criminal defendant is entitl ed.” Prewitt v. State , 878 N.E.2d 1 84, 188 (Ind. 2007)

. We review probation violation d eterminations for an abuse of discretion. Heaton v. State , 984 N.E.2d 614, 616 (Ind. 2013)

. An abuse of discretion occ urs where the tr ial court ’ s decision is cl early aga inst the logic and effect of th e fa cts and circumstances, or when the trial court misinterprets the law. Id

.
[7] P robation revocation is a two

- step process. First, the trial court must make a factual determination that a vio lation of a condition of pr obation o ccurred. 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 he aring is in the nature of a c ivil proceeding, and the a lleged violation only needs to be estab lished by a pre ponderance of the ev idence.” Smith v. S tate , 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 t he appellant challenges the su fficiency of the factual basis fo r revocatio n, we neither rewe igh the evidence nor judge the credibility of the witnesses. If substantial ev idence of probative value supports the trial court ’ s decision that the appellant has committed a violation of a con dition of his probation, then revo cation of probation was prop er.Court of Appe als of Indiana | Memorandum Decision 20A

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- 1165 | December 16, 2020 Page 5 of 7 Id

. (cita tions 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 aff irm its d ecision to revoke probation.” Woods , 892 N.E.2d at 639

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[8] Spray cha llenges the State ’ s proof , and the tr ial court ’ s finding , that s he violated h er probation by co mmitting the new crim inal offenses of criminal trespass and unlawful use of 911 servic e . When the Stat e alleges that the defend ant violated probatio n by committing a new criminal o ffense, the State is required to prove

— by a preponderance of the evidence

— t hat the defendant committed the offense. Heaton , 984 N.E.2d a t 617

.
[9] Indiana Code Se cti on 35

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- 2 provides that a person who , n ot having a contractual interest in the property, “ knowingly or intention ally enters the real property of anot her person a fter having been denied entry by the other person or that person ’ s agent ” commi ts class A mi sdemeanor criminal trespass

. Here, Jackso n County S her iff ’ s Depart ment Deputy Jesse Hu tchinson testified that he

r esponded to the J une 2019 report that Spray had e ntered Schrader ’ s proper ty and knocked on the door of Schr ader ’ s home. Alt hough Spray wa s no longer on the property when officers arr ived , she adm i tted to Deputy Hutchison that she had entered the property and that she had taken a picture while in the dri veway . Deputy Hutchison stated that Sp ray had entered the property without permission on pri or occasions and that Jackson County law enfo rcement officers had specifically warned Spray that Schrader d id not want her on the property , and that she would be c harged criminally if she entered theCourt of Appe als of Indiana | Memorandum Decision 20A

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- 1165 | December 16, 2020 Page 6 of 7 property again

. This evidence is suffi cient to support the trial co urt ’ s conclusion by a pr epond erance of the evidence th at Spray committ ed class A misdeme anor criminal trespass
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[10] Alth ough p roof of a single violation is s ufficient to permit a revocation of probation, Beeler v. State , 959 N.E.2d 828, 830 (Ind. Ct. App. 201 1) , trans. den ied , we further find that the State presented sufficient e vide nce to support the trial court ’ s conclu sion by a preponderance of the evidence that Spray committed a second probatio n violation in committing cl ass A misdeme anor unl awful u se of 911 service s. I nd iana C o de Sec tion 3 6

- 8

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- 46 p rovides that a person who knowingly or intentionally places a 911 call “ for a purpose other than obtaining p ublic safety assistance or emergency services ” or “ to avoid communications service charges or fees ” commi ts a c lass A misdemeanor

. T he record here demons trates that Spray placed seven 911 calls on the same day in the s pan of one hour. Although she reque sted assistance during her first call , during her second call she only inquired about th e officer that was sent to her home. During her thi rd, f ourth, and fif th calls, Spray simpl y sat o n the open line and said nothing

. During her sixth and seventh call s , Spra y continued to q

uestio n the operator about m atters that had already been discuss ed and
res olved. Bas ed upon the foregoing, t he trial court could have reasonably concluded by a pre ponderance o f the evidence that at least one of Spray ’ s repeated 9 11 cal ls w a s made for a purpose other than obtaining p u blic safety assistance or emergency services . I ndeed, t he multiple calls in which she si mply
s at on the open line and said nothing support such a conclusion regarding anCourt of Appe als of Indiana | Memorandum Decision 20A

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- 1165 | December 16, 2020 Page 7 of 7 alternate purpose. Spra y ’ s contrary assertion on appeal regarding her purpose is
mer ely a n invitation for this Court to reweigh the evidence and reassess credibi lity, and we w ill not
.
[11] In sum, sufficient evidence supports the trial co urt ’ s conclus ion by a p reponderance of the evidence that S pray violated her probation by committing two new criminal offen ses . T herefore, t h e trial court did not abuse it s d iscretion in revoking Spray ’ s probation.

[12] Affirmed.
Najam , J., and Riley, J., concur.