MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                                 FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                                         Aug 25 2020, 8:37 am

court except for the purpose of establishing                                           CLERK
                                                                                   Indiana Supreme Court
the defense of res judicata, collateral                                               Court of Appeals
                                                                                        and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Joe Duepner                                              Curtis T. Hill, Jr.
Duepner Law LLC                                          Attorney General of Indiana
Noblesville, Indiana
                                                         Catherine Brizzi
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Donald Swain,                                            August 25, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A-CR-286
        v.                                               Appeal from the Madison Circuit
                                                         Court
State of Indiana,                                        The Honorable David A. Happe,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause Nos.
                                                         48C04-1012-FC-794
                                                         48C04-1012-FC-872



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A-CR-286 | August 25, 2020           Page 1 of 5
                                       Statement of the Case
[1]   Donald Swain appeals the trial court’s revocation of his probation. Swain

      raises a single issue for our review, namely, whether the trial court abused its

      discretion when it revoked his probation. We affirm.


                                 Facts and Procedural History
[2]   In 2013, Swain pleaded guilty to operating a vehicle after lifetime forfeiture of

      license, a Class C felony; resisting law enforcement, as a Class D felony; and

      auto theft, as a Class D felony, in Cause No. 48C04-1012-FC-794 (“FC-794”).

      The trial court sentenced Swain to six years, with two years suspended to

      probation. Also in 2013, Swain pleaded guilty to four counts of nonsupport of

      a dependent child, one as a Class C felony and three as Class D felonies, in

      Cause No. 48C04-1012-FC-872 (“FC-872”). The trial court sentenced him to

      three years, with one year suspended to probation.


[3]   On January 9, 2019, Swain began serving probation in both FC-794 and FC-

      872. In November, the State filed notices of probation violations alleging that:

      (1) on March 25, 2019, Swain committed invasion of privacy; (2) on April 2,

      2019, Swain committed operating a vehicle after forfeiture of license for life;

      and (3) on November 21, 2019, Swain committed possession of cocaine,

      possession of marijuana, and possession of paraphernalia. At the evidentiary

      hearing, the State dismissed the invasion of privacy allegation. Following the

      hearing, the trial court found in its amended order that Swain had violated his

      probation when he operated a vehicle after forfeiture of his license for life and


      Court of Appeals of Indiana | Memorandum Decision 20A-CR-286 | August 25, 2020   Page 2 of 5
      when he possessed marijuana. The court did not find that Swain had possessed

      either cocaine or paraphernalia. The court then revoked Swain’s probation and

      ordered him to serve 1,858 days of his previously suspended sentence in FC-794

      and 763 days of his previously suspended sentence in FC-872. This appeal

      ensued.


                                     Discussion and Decision
[4]   Swain appeals the trial court’s revocation of his probation. As our Supreme

      Court has made clear:


              “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) (explaining that: “Once a trial
              court has exercised its grace by ordering probation rather than
              incarceration, the judge should have considerable leeway in
              deciding how to proceed. If this discretion were not afforded to
              trial courts and sentences were scrutinized too severely on
              appeal, trial judges might be less inclined to order probation to
              future defendants.”). A probation hearing is civil in nature, and
              the State must prove an alleged probation violation by a
              preponderance of the evidence. Braxton v. State, 651 N.E.2d 268,
              270 (Ind. 1995); see Ind. Code § 35-38-2-3(f) (2012). When the
              sufficiency of evidence is at issue, we consider only the evidence
              most favorable to the judgment—without regard to weight or
              credibility—and will affirm if “there is substantial evidence of
              probative value to support the trial court’s conclusion that a
              probationer has violated any condition of probation.” Braxton,
              651 N.E.2d at 270.


      Murdock v. State, 10 N.E.3d 1265, 1267 (Ind. 2014).



      Court of Appeals of Indiana | Memorandum Decision 20A-CR-286 | August 25, 2020   Page 3 of 5
[5]   Swain contends that the State presented insufficient evidence to support either

      of the probation violations found by the trial court. However, because a single

      violation of a condition of probation is sufficient to permit the trial court to

      revoke probation, we need only address the sufficiency of the evidence with

      respect to one of the alleged violations, namely, his possession of marijuana.

      See Treece v. State, 10 N.E.3d 52, 59 (Ind. Ct. App. 2014), trans. denied.


[6]   Swain contends that the State did not prove by a preponderance of the evidence

      that he had possessed marijuana. But Swain’s argument in support of that

      contention relies on case law regarding the sufficiency of the evidence to

      support a conviction for possession of marijuana, including an unpublished

      memorandum decision of this Court. See Appellant’s Br. at 19 (citing Moody v.

      State, No. 49A05-1611-CR-2487, 2017 WL 2350940 (Ind. Ct. App. May 31,

      2017)). Swain ignores the lower bar here—the State need only have proved his

      possession by a preponderance of the evidence.


[7]   At the evidentiary hearing, the State presented evidence that, on November 21,

      2019, officers confronted Swain while he was sitting in a car, alone. Officers

      smelled the odor of marijuana coming from the car, and they found a green

      leafy substance inside the car that, based on their experience, they identified as

      marijuana. Swain’s argument on appeal is merely a request for this court to

      reweigh the evidence, which we cannot do. We hold that the State presented

      sufficient evidence to prove that Swain possessed marijuana. See Braxton v.

      State, 651 N.E.2d 268, 270-71 (Ind. 1995) (holding evidence that officers found

      marijuana in defendant’s purse sufficient to prove by a preponderance of the

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-286 | August 25, 2020   Page 4 of 5
      evidence that she possessed marijuana). The trial court did not abuse its

      discretion when it revoked Swain’s probation.


[8]   Affirmed.


      Bradford, C.J., and Mathias, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 20A-CR-286 | August 25, 2020   Page 5 of 5
