MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                          Aug 21 2015, 8:49 am
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Gregory L. Fumarolo                                      Gregory F. Zoeller
Fort Wayne, Indiana                                      Attorney General of Indiana
                                                         Cynthia L. Ploughe
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Antwon Davis,                                            August 21, 2015
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         02A04-1501-CR-6
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Wendy W. Davis,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause Nos.
                                                         02D04-0604-FD-339
                                                         02D04-0605-FD-445
                                                         02D04-0902-FD-134



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A04-1501-CR-6 | August 21, 2015    Page 1 of 6
[1]   Antwon Davis appeals the trial court’s revocation of his probation in three

      causes. He argues that his due process rights were violated and that there is

      insufficient evidence supporting the revocation. Finding no due process

      violation and sufficient evidence, we affirm.


                                                        Facts      1




[2]   In November 2013, Davis was serving probation terms in cause numbers

      02D04-0604-FD-339 (339), 02D04-0605-FD-445 (445), and 02D04-0902-FD-

      134 (134). On November 26, 2013, the State filed charges of class D felony

      domestic battery and class D felony strangulation against Davis in cause

      number 02D04-1311-FD-1302 (1302). On that date, the State also filed

      petitions to revoke Davis’s probation in causes 339, 445, and 134, based on the

      new offenses alleged in cause 1302.


[3]   On December 4, 2014, a jury found Davis not guilty in cause 1302. After the

      trial was concluded, the trial court held a hearing on the petitions to revoke

      probation in the other three causes. Without objection or comment by the

      defense, the trial court granted the State’s motions to incorporate the trial

      proceedings that had just concluded from cause 1302 into the revocation

      hearing. At the close of the revocation hearing, the trial court found that the




      1
        There are multiple errors in the State’s brief. Among other things, the county of the trial court in which the
      trial and revocation hearings were held, the date on which the petitions to revoke probation were filed, and
      the date on which Davis committed the alleged crimes charged in cause 1302 are all incorrect. We hope that
      counsel will be more mindful of these important details in the future.

      Court of Appeals of Indiana | Memorandum Decision 02A04-1501-CR-6 | August 21, 2015                  Page 2 of 6
      State had established by a preponderance of the evidence that Davis had

      violated the terms of his probation by committing the new offenses. It revoked

      his probation in causes 339, 445, and 134, and ordered him to serve his

      previously suspended sentences consecutively. Davis now appeals.


                                   Discussion and Decision
[4]   As we consider Davis’s arguments that the trial court erroneously revoked his

      probation, we note that probation is a matter of grace left to trial court

      discretion rather than a right to which a defendant is entitled. Prewitt v. State,

      878 N.E.2d 184, 188 (Ind. 2007). We review a trial court’s probation

      determinations and sanctions for an abuse of discretion. Id. The revocation of

      probation is in the nature of a civil action rather than a criminal one; thus, the

      alleged violation need be proved only by a preponderance of the evidence. Cain

      v. State, 30 N.E.3d 728, 732 (Ind. Ct. App. 2015), trans. denied. Violation of a

      single term or condition of probation is sufficient to revoke probation. Id.


                                            I. Due Process
[5]   Davis first argues that his due process rights were violated when the trial court

      incorporated the trial proceedings from cause 1302 into the revocation hearings

      on the other three causes. Probationers are not entitled to the full panoply of

      constitutional rights that defendants are afforded during criminal trials.

      Lightcap v. State, 863 N.E.2d 907, 910 (Ind. Ct. App. 2007). Our Supreme

      Court has stated that a probationer’s due process rights “include written notice

      of the claimed violations, disclosure of the evidence against him, an opportunity

      Court of Appeals of Indiana | Memorandum Decision 02A04-1501-CR-6 | August 21, 2015   Page 3 of 6
      to be heard and present evidence, the right to confront and cross-examine

      adverse witnesses, [] a neutral and detached hearing body[,] . . . [and] the right

      to confrontation, cross-examination, and representation by counsel.” Isaac v.

      State, 605 N.E.2d 144, 148 (Ind. 1992).


[6]   It is well established that all of the due process rights to which probationers are

      entitled are protected when full trial proceedings are incorporated into the

      revocation proceedings. Lightcap, 863 N.E.2d at 911 (Ind. Ct. App. 2007);

      Stromatt v. State, 686 N.E.2d 154, 159 (Ind. Ct. App. 1997). During the criminal

      trial, the defendant had greater protection of more rights than he enjoys as a

      probationer. Therefore, it must be the case that incorporating the proceedings

      of the criminal trial protects the lesser rights afforded to probationers. We see

      no reason to depart from this well-established principle, and decline to reverse

      on this basis.2


                               II. Sufficiency of the Evidence
[7]   Next, Davis argues that there is insufficient evidence supporting the revocation

      of his probation. In considering the evidence supporting revocation of

      probation, we will neither reweigh evidence nor judge witness credibility, and




      2
       We also note that at the probation revocation hearing, defense counsel neither objected nor even
      commented on the incorporation of the trial proceedings. In any event, therefore, this argument has been
      waived.

      Court of Appeals of Indiana | Memorandum Decision 02A04-1501-CR-6 | August 21, 2015              Page 4 of 6
       consider all conflicting evidence in the light most favorable to the trial court’s

       ruling. Ripps v. State, 968 N.E.2d 323, 326 (Ind. Ct. App. 2012).


[8]    Davis argues that the record does not establish that he was the same person

       who was on probation in causes 339, 445, or 134. Davis did not raise this

       argument during the probation revocation hearing. Therefore, he has waived it.

       Dokes v. State, 971 N.E.2d 178, 180 (Ind. Ct. App. 2012) (holding that where

       defendant did not argue that he was not on probation at the revocation hearing,

       he could not raise the claim on appeal).


[9]    Davis also argues that the State did not prove that he was advised of his

       probation terms. He did not raise this argument during the revocation hearing,

       so he has waived it. Ware v. State, 816 N.E.2d 1167, 1179 (Ind. Ct. App. 2004).

       Waiver notwithstanding, we note that at the revocation hearing, the State

       moved to incorporate the rules of probation for each of the three cause

       numbers, and the trial court granted the motion.3 As our Supreme Court has

       noted, “it is always a condition of probation that a probationer not commit an

       additional crime.” Braxton v. State, 651 N.E.2d 268, 270 (Ind. 1995) (emphasis

       added). We therefore decline to reverse on this basis.


[10]   Finally, Davis claims that because a jury found him not guilty beyond a

       reasonable doubt, that the evidence is not sufficient to find that he violated

       probation. He essentially questions the character and believability of the



       3
           Davis did not include the rules of probation in causes 339, 445, or 134 in the record on appeal.


       Court of Appeals of Indiana | Memorandum Decision 02A04-1501-CR-6 | August 21, 2015                    Page 5 of 6
       alleged victim of the crimes charged in cause 1302. Initially, we note that this is

       a request that we assess witness credibility, which we may not do.

       Furthermore, we note that “[b]ecause of the difference between the burden of

       proof required to convict someone of a crime and the burden of proof required

       to revoke probation, the court could revoke probation after finding [a

       defendant] not guilty based on the same evidence.” Dokes, 971 N.E.2d at 180.

       At the criminal trial, which was incorporated into the revocation proceeding,

       the alleged victim testified that Davis had, in fact, committed the charged

       crimes. This evidence is sufficient to support the trial court’s conclusion that

       the State proved the probation violations by a preponderance of the evidence.


[11]   The judgment of the trial court is affirmed.


       Bailey, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 02A04-1501-CR-6 | August 21, 2015   Page 6 of 6
