MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any                            Mar 06 2019, 10:05 am
court except for the purpose of establishing                              CLERK
the defense of res judicata, collateral                               Indiana Supreme Court
                                                                         Court of Appeals
estoppel, or the law of the case.                                          and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Michael R. Fisher                                        Curtis T. Hill, Jr.
Marion County Public Defender Agency                     Attorney General of Indiana
Indianapolis, Indiana
                                                         Sierra Murray
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Regina L. Williams,                                      March 6, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-2042
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Lisa F. Borges,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         49G04-1702-F5-4629



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2042 | March 6, 2019                 Page 1 of 6
                                       Statement of the Case
[1]   Regina Williams appeals the revocation of her placement on home detention

      with community corrections. Williams raises two issues on appeal, which we

      revise and restate as follows:


                      1. Whether the State presented sufficient evidence to
                         support the revocation of her placement.


                      2. Whether the trial court abused its discretion when it
                         revoked her placement.


[2]   We affirm.


                                 Facts and Procedural History
[3]   On February 6, 2018, Williams pleaded guilty to neglect of a dependent

      resulting in bodily injury, as a Level 5 felony. Thereafter, the trial court

      accepted Williams’ plea agreement and, pursuant to that agreement, sentenced

      Williams to a four-year sentence, with three years of home detention and one

      year suspended to probation. As a condition of her placement on home

      detention, Williams agreed not to use products that contain alcohol, including

      alcoholic beverages, mouthwash, and disinfectants. Williams also agreed to

      submit to self-administered alcohol monitoring (“breathalyzer”) tests in

      accordance with a specified schedule.


[4]   On May 22, the State filed an amended notice of violation, in which the State

      alleged that Williams had violated the terms of her probation. Specifically, the


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2042 | March 6, 2019   Page 2 of 6
      State alleged that, on thirty-four occasions, Williams either had tested positive

      for alcohol or had failed to submit to one or more tests.


[5]   On July 27, the trial court held a hearing on the State’s notice of violation.

      Williams testified in her own defense and stated that she was “just putting

      [Listerine] in [a] hole in [her] tooth” and that she had missed tests due to a

      malfunction of her breathalyzer. Tr. at 19. However, an officer for the State

      testified that the breathalyzer was operating correctly. The trial court then

      revoked Williams’ placement and ordered her to serve the remainder of her

      three-year sentence in the Department of Correction. This appeal ensued.


                                     Discussion and Decision
                                Issue One: Sufficiency of the Evidence

[6]   Williams first contends that the State failed to present sufficient evidence to

      support the revocation of her placement on home detention. 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

      v. State, 651 N.E.2d 268, 270 (Ind. 1995). The State needed only to prove the

      alleged violations by a preponderance of the evidence. Id. The conditions of a

      defendant’s probation are determined at the discretion of the trial court, and if

      the probationer fails to comply, “a violation has occurred.” Woods v. State, 892

      N.E.2d 637, 641 (Ind. 2008).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2042 | March 6, 2019   Page 3 of 6
[7]   The evidence most favorable to the trial court’s judgment demonstrates that

      Williams tested positive for alcohol or failed to submit to a breathalyzer test on

      numerous occasions. Specifically, Williams’ case manager, Paige Myers,

      testified that Williams had violated the conditions of her placement thirty-four

      times when she either failed or missed scheduled tests. Myers also testified that

      Williams did not report any issues with her breathalyzer. Williams asserts that

      portions of Myers testimony is hearsay; however, “the Indiana Rules of

      Evidence in general and the rules against hearsay in particular do not apply in

      community corrections placement revocation hearings.” Cox v. State, 706

      N.E.2d 547, 551 (Ind. 1999). Additionally, Williams neither objected to the

      testimony during the hearing, nor does she now challenge the admissibility of

      the hearsay evidence on appeal. Considering the evidence most favorable to the

      trial court’s judgment, we conclude that the State presented sufficient evidence

      to support the revocation of Williams’ placement.


[8]   On appeal, Williams specifically contends that the State failed to present

      sufficient evidence to support the revocation of her placement because she had

      testified that the positive alcohol tests were due to her use of Listerine and that

      the missed tests were due to a malfunction in the breathalyzer machine. But the

      trial court expressly found that Williams’ testimony was not credible and that

      her assertions were unconvincing. Williams’ argument on appeal is simply a

      request that we reweigh the evidence, which we cannot do.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2042 | March 6, 2019   Page 4 of 6
                                      Issue Two: Abuse of Discretion

[9]    Williams also asserts that, the sufficiency of the evidence notwithstanding, the

       trial court abused its discretion when it revoked her placement on home

       detention. The standard of review of an appeal from the revocation of a

       community corrections placement mirrors that for revocation of probation.

       McQueen v. State, 862 N.E.2d 1237, 1242 (Ind. Ct. App. 2007). Probation

       revocation is a two-step inquiry. First, the trial court must make a factual

       determination that a violation of a condition of probation actually occurred.

       Afterwards, if the violation is proven, the trial court must determine if the

       violation warrants revocation of the probation. Sullivan v. State, 56 N.E.3d

       1157, 1160 (Ind. Ct. App. 2016). “A defendant is not entitled to serve a

       sentence in either probation or a community corrections program.” Cox, 706

       N.E.2d at 549 (Ind. 1999). Placement in either is not a right but a “matter of

       grace” and a “conditional liberty.” Id.


[10]   Williams asserts that the trial court’s revocation of her placement was an abuse

       of discretion because the positive alcohol tests were the result of her use of

       Listerine to treat an infected tooth. But the evidence most favorable to the trial

       court’s judgment shows that Williams violated the terms of her placement on

       thirty-four occasions. Williams’ argument is, again, merely a request for this

       Court to reweigh the evidence, which we will not do. As there is substantial

       evidence of probative value to support the trial court’s conclusion that

       Williams’ violated the terms of her home detention, we cannot say that the trial



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2042 | March 6, 2019   Page 5 of 6
       court abused its discretion when it revoked her placement. We therefore affirm

       the trial court.


[11]   Affirmed.


       Pyle, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2042 | March 6, 2019   Page 6 of 6
