Kevin Lee Troxtle v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Sep 28 2016, 7:58 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE William Byer, Jr. Gregory F. Zoeller Byer & Byer Attorney General of Indiana Anderson, Indiana Jodi Kathryn Stein Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Kevin Lee Troxtle, September 28, 2016 Appellant-Defendant, Court of Appeals Case No. 48A02-1602-CR-325 v. Appeal from the Madison Circuit Court State of Indiana, The Honorable Mark Dudley, Appellee-Plaintiff. Judge Trial Court Cause No. 48C06-1302-FC-456

May, Judge. Court of Appeals of Indiana | Memorandum Decision 48A02-1602-CR-325 | September 28, 2016 Page 1 of 5 [1] Kevin Lee Troxtle appeals the revocation of his probation. As a police officer’s

testimony about Troxtle’s escape and resisting law enforcement is sufficient to

revoke his probation, we affirm.

Facts and Procedural History [2] On November 18, 2013, Troxtle pled guilty to Class D felony theft. 1 The trial

court sentenced him to thirty months, ordered ten days executed with time

served, and suspended the balance to probation. [3] On August 24, 2015, the State filed a petition for probation revocation alleging

Troxtle committed Class A misdemeanor domestic battery. 2 The trial court

issued a warrant for his arrest. After an evidentiary hearing on September 15,

2015, the trial court found Troxtle violated his probation and placed him in a

work release facility. [4] On October 18, 2015, Officer Ohlheiser received a dispatch about a car

containing two people, a male and female, with the male possibly wanted on a

warrant. Troxtle was the male in the car. Officer Ohlheiser told Troxtle to get

out of the car, told him he was under arrest, and started to handcuff him.

Troxtle spun away and ran. Another officer grabbed Troxtle and a tussle

ensued with Troxtle ultimately escaping.

1 Ind. Code § 35-43-4-2 (2009). 2 Ind. Code § 35-42-2-1.3 (2014).

Court of Appeals of Indiana | Memorandum Decision 48A02-1602-CR-325 | September 28, 2016 Page 2 of 5 [5] The State filed a new petition to revoke probation alleging Troxtle committed

Level 5 felony escape 3 and Class A misdemeanor resisting law enforcement. 4

Troxtle had an initial hearing on November 30, 2015. The trial court held an

evidentiary hearing on January 1, 2016, and Office Ohlheiser testified about the

events of October 18, 2015. The trial court found Troxtle violated his probation

and ordered Troxtle serve the rest of his sentence in the Indiana Department of

Correction.

Discussion and Decision [6] The evidence was sufficient to revoke Troxtle’s probation. A trial court may

revoke probation if a person commits another crime. Ind. Code § 35-38-2-

1(b)(2) (2012). A criminal conviction is not necessary to revoke probation.

Dokes v. State, 971 N.E.2d 178, 180 (Ind. Ct. App. 2012). The State must prove

a violation of probation by a preponderance of the evidence. Ind. Code § 35-38-

2-3(f) (2015). [7] When reviewing a trial court’s finding of a probation violation, we may not

reweigh the evidence or reevaluate the credibility of witnesses. Woods v. State,

892 N.E.2d 637, 639 (Ind. 2008). We instead look at the evidence most

3 Ind. Code § 35-44.1-3-4 (2014). 4 Ind. Code § 35-44.1-3-1 (2014).

Court of Appeals of Indiana | Memorandum Decision 48A02-1602-CR-325 | September 28, 2016 Page 3 of 5

favorable to the trial court’s decision and affirm if there is substantial evidence

of probative value supporting the judgment. Id. at 639-40. [8] There was substantial evidence supporting the trial court’s ruling. The State

alleged Troxtle violated probation by committing escape and resisting law

enforcement. Escape occurs when a person intentionally flees from lawful

detention. Ind. Code § 35-44.1-3-4(a). Resisting law enforcement occurs when

a person intentionally or knowingly “forcibly resists, obstructs, or interferes

with a law enforcement officer or a person assisting the officer while the officer

is lawfully engaged in the execution of the officer’s duties.” Ind. Code § 35-

44.1-3-1(a)(1). Resisting law enforcement can also occur when a person

intentionally or knowingly “flees from a law enforcement officer after the

officer has, by visible or audible means, including operation of the law

enforcement officer’s siren or emergency lights, identified himself or herself and

ordered the person to stop.” Ind. Code § 35-44.1-3-1(a)(3). [9] Officer Ohlheiser told Troxtle he was under arrest and attempted to handcuff

him. Troxtle spun away and ran, which prevented Ohlheiser from handcuffing

him. Troxtle then tussled with another officer and continued to run. Troxtle

argues this evidence was insufficient to find he violated his probation, but our

Indiana Supreme Court has upheld a probation revocation when a police officer

testified to facts demonstrating a probationer violated the law. Murdock v. State,

10 N.E.3d 1265, 1268 (Ind. 2014). Based on Officer Ohlheiser’s testimony,

Troxtle resisted law enforcement and escaped, and thus the evidence was

sufficient to revoke his probation. See Thornton v. State, 792 N.E.2d 94, 99 (Ind.

Court of Appeals of Indiana | Memorandum Decision 48A02-1602-CR-325 | September 28, 2016 Page 4 of 5

Ct. App. 2003) (revoking probation based on commission of a subsequent crime

even though a jury acquitted him of that crime).

Conclusion [10] Sufficient evidence supported the revocation of Troxtle’s probation, and we

accordingly affirm. [11] Affirmed.

Kirsch, J., and Crone, J., concur.

Court of Appeals of Indiana | Memorandum Decision 48A02-1602-CR-325 | September 28, 2016 Page 5 of 5