      MEMORANDUM DECISION
                                                                                     FILED
      Pursuant to Ind. Appellate Rule 65(D), this
                                                                               Apr 23 2018, 8:41 am
      Memorandum Decision shall not be regarded as
      precedent or cited before any court except for the                             CLERK
                                                                                 Indiana Supreme Court
      purpose of establishing the defense of res judicata,                          Court of Appeals
                                                                                      and Tax Court
      collateral estoppel, or the law of the case.



      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Amy D. Griner                                             Curtis T. Hill, Jr.
      Mishawaka, Indiana                                        Attorney General of Indiana

                                                                Christina D. Pace
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Kathy Sue Reed,                                           April 23, 2018

      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                71A03-1710-CR-2448
              v.                                                Appeal from the St. Joseph Superior
                                                                Court.
                                                                The Honorable Jane Woodward
      State of Indiana,                                         Miller, Judge.
      Appellee-Plaintiff.                                       Trial Court Cause No.
                                                                71D01-1512-F6-916




      Sharpnack, Senior Judge


                                       Statement of the Case
[1]   Kathy Sue Reed appeals the trial court’s finding that she violated the terms of

      her probation. We affirm.


      Court of Appeals of Indiana | Memorandum Decision 71A03-1710-CR-2448 | April 23, 2018              Page 1 of 6
                                                     Issue
[2]   Reed presents one issue for our review, which we restate as: whether the trial

      court erred by finding Reed had violated the terms of her probation.


                                   Facts and Procedural History
[3]   In December 2015, Reed was charged with operating a vehicle with an alcohol
                                                                                              1
      concentration equivalent of .08 or more, as a Class C misdemeanor, and

      operating a vehicle with an alcohol concentration equivalent of .08 or more
                                                                         2
      while having a prior conviction, as a Level 6 felony. Pursuant to a plea

      agreement, Reed subsequently pleaded guilty to the Level 6 felony in exchange

      for the State’s dismissal of the Class C misdemeanor. The parties agreed to

      leave sentencing to the discretion of the trial court but capped the executed

      portion of the sentence at twelve months. The court sentenced Reed to a

      suspended term of eighteen months and placed her on probation for eighteen

      months.


[4]   In April 2017, the State filed a petition to revoke Reed’s probation, alleging that

      she had violated her probation by testing positive for both marijuana and

      cocaine, failing to complete counseling as ordered by the court, and failing to

      attend a victim impact panel. Following an evidentiary hearing, the court




      1
          Ind. Code § 9-30-5-1 (2001).
      2
          Ind. Code §§ 9-30-5-1 and 3 (2014).

      Court of Appeals of Indiana | Memorandum Decision 71A03-1710-CR-2448 | April 23, 2018       Page 2 of 6
      found that Reed had violated the terms of her probation and ordered that she

      serve two weeks in the county jail and then be returned to probation. Reed now

      appeals.


                                   Discussion and Decision
[5]   Reed contends that the trial court erred by finding she violated her probation

      because the evidence presented by the State at the violation hearing was not

      substantially trustworthy and should not have been admitted.


[6]   Probation is an alternative to imprisonment and is granted in the sole discretion

      of the trial court. Davis v. State, 743 N.E.2d 793, 794 (Ind. Ct. App. 2001), trans

      denied. A defendant is not entitled to serve a sentence on probation; rather,

      such placement is a matter of grace and a conditional liberty that is a favor, not

      a right. Id.


[7]   A probation revocation hearing is in the nature of a civil proceeding, and the

      State must prove an alleged violation only by a preponderance of the evidence.

      Ind. Code § 35-38-2-3(f) (2015); Kincaid v. State, 736 N.E.2d 1257, 1259 (Ind.

      Ct. App. 2000). A revocation hearing involves a more narrow inquiry than

      other criminal proceedings, and its procedures are to be more flexible. Cox v.

      State, 706 N.E.2d 547, 550 (Ind. 1999). This flexibility is necessary in order to

      permit the court to exercise its inherent power to enforce obedience to its lawful

      orders. Id. Our supreme court has further explained:


              There are also sound policy justifications for such flexibility.
              Alternative sentences such as probation and community

      Court of Appeals of Indiana | Memorandum Decision 71A03-1710-CR-2448 | April 23, 2018   Page 3 of 6
              corrections serve the humane purposes of avoiding incarceration
              and of permitting the offender to meet the offender’s financial
              obligations. But for sentencing alternatives to be viable options
              for Indiana judges, judges must have the ability to move with
              alacrity to protect public safety when adjudicated offenders
              violate the conditions of their sentences. Put differently,
              obstacles to revoking an alternative sentence may diminish the
              likelihood of community corrections placements being made in
              the first place.
      Id.


[8]   The decision to revoke a defendant’s probation is a matter within the sound

      discretion of the trial court. Woods v. State, 892 N.E.2d 637, 639 (Ind. 2008).

      Thus, on appeal, we review the trial court’s decision for an abuse of that

      discretion. Id.


[9]   At Reed’s revocation hearing, Jennifer Weeks, Reed’s probation officer,

      testified that drug testing of Reed had revealed positive results for both

      marijuana and cocaine. Weeks also testified that she had received a report from

      the counseling center indicating that Reed had not attended for several months

      and that, due to her failure to attend, she had been discharged. Finally, Weeks

      testified that, to her knowledge, Reed had not satisfied her probationary

      obligation to attend a victim impact panel. All of this testimony was admitted

      without objection by Reed. In addition to Weeks’ testimony, the State offered

      Exhibits 1, 2, and 3, which were the lab reports from Reed’s drug tests. Reed

      objected to the exhibits, but they were admitted over objection after additional

      foundational evidence.



      Court of Appeals of Indiana | Memorandum Decision 71A03-1710-CR-2448 | April 23, 2018   Page 4 of 6
[10]   Indiana Rule of Evidence 101(d)(2) allows for the admission of evidence during

       probation revocation hearings that would not be permitted in a full-blown

       criminal trial. Yet, “[t]his does not mean that hearsay evidence may be

       admitted willy-nilly in a probation revocation hearing.” Reyes v. State, 868

       N.E.2d 438, 440 (Ind. 2007). In Reyes, our Supreme Court adopted the

       substantial trustworthiness test as the means for determining whether hearsay

       evidence should be admitted at a probation revocation hearing. In this test, the

       trial court must determine whether the evidence reaches a certain level of

       reliability—i.e., whether it has a substantial guarantee of trustworthiness—in

       order to be considered at a probation revocation hearing. 868 N.E.2d at 441.


[11]   Reed cites the substantial trustworthiness test and argues that the trial court

       should not have admitted Weeks’ testimony regarding the drug test results, the

       counseling, and the victim impact panel. She also claims that Exhibits 1, 2, and

       3 should not have been admitted. We observe, however, that Reed did not

       object to any of Weeks’ testimony. Accordingly, she has waived this issue for

       appeal. See Marsh v. State, 818 N.E.2d 143, 145 (Ind. Ct. App. 2004) (noting

       that, at probation revocation hearing, failure to object to admission of hearsay

       evidence waives issue for appeal). Moreover, although Reed objected to the

       three exhibits, Weeks had previously testified to the drug test results without

       objection. Thus, any error in the admission of the exhibits was harmless as the

       information contained in them was the same information contained in Weeks’

       testimony, which had already been admitted into evidence. See In re Adoption of

       M.A.S., 815 N.E.2d 216, 223 (Ind. Ct. App. 2004) (stating that, even assuming


       Court of Appeals of Indiana | Memorandum Decision 71A03-1710-CR-2448 | April 23, 2018   Page 5 of 6
       evidence was improperly admitted, error was harmless because it was merely

       cumulative of other evidence).


                                                Conclusion
[12]   We conclude the trial court did not abuse its discretion by admitting the

       evidence and finding that Reed violated her probation.


[13]   Affirmed.


       Baker, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1710-CR-2448 | April 23, 2018   Page 6 of 6
