Kevin Graham v. State of Indiana

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

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.



Affirmed.