Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
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:

JILL M. ACKLIN                                       GREGORY F. ZOELLER
Acklin Law Office, LLC                               Attorney General of Indiana
Westfield, Indiana
                                                     ANDREW R. FALK
                                                     Deputy Attorney General
                                                     Indianapolis, Indiana

                                                                               FILED
                                                                           Apr 04 2012, 9:22 am


                               IN THE                                                CLERK
                                                                                   of the supreme court,
                                                                                   court of appeals and
                                                                                          tax court
                     COURT OF APPEALS OF INDIANA

JAMES ALVARADO,                                      )
                                                     )
       Appellant-Defendant,                          )
                                                     )
               vs.                                   )      No. 52A02-1110-CR-984
                                                     )
STATE OF INDIANA,                                    )
                                                     )
       Appellee-Plaintiff.                           )


                      APPEAL FROM THE MIAMI SUPERIOR COURT
                       The Honorable Daniel C. Banina, Special Judge
                              Cause No. 52D01-0605-FD-51



                                           April 4, 2012


                MEMORANDUM DECISION - NOT FOR PUBLICATION


CRONE, Judge
                                       Case Summary

       James Alvarado appeals the trial court’s revocation of his probation, arguing that there

is insufficient evidence to support the trial court’s finding that he violated his probation. We

agree that the evidence is insufficient and therefore reverse.

                               Facts and Procedural History

       Alvarado was convicted in Miami County of class D felony possession of

methamphetamine and received a two-year sentence with one year executed and one year

suspended to probation. Paragraph 15 of Alvarado’s probation order required Alvarado to

“[f]ollow current [substance abuse] treatment recommendations in Howard Co.

satisfactorily.” Appellant’s App. at 50 (emphasis added). The following words immediately

preceding the aforementioned sentence were lined out: “You shall participate in a substance

abuse evaluation and.” Id.

       The State filed a notice of probation violation and a motion to revoke probation

alleging that Alvarado failed to complete substance abuse treatment as required by paragraph

15. Id. at 6. The State added other allegations of probation violations by amendment. At the

factfinding hearing, Alvarado’s Miami County probation officer, Troy Proffitt, testified for

the State as follows:

       [Prosecutor]: [C]an you tell the Court why you filed that probation violation?

       [Proffitt]:   [Alvarado] was ordered to complete, uh, the Court was aware of
       his causes in Howard County and ordered him to complete, uh, his substance
       abuse, abuse treatment through Howard County and that would satisfy Miami
       County’s, uh, probation as well. He failed to complete, I don’t even know if
       the evaluation was even completed there, but, uh, it wasn’t completed and so


                                               2
       no treatment was completed. He did [] complete a little bit of treatment in
       DOC but nothing outside DOC.

       [Prosecutor]: But he did not complete the treatment he was ordered to
       complete as a result of probation?

       [Proffitt]:   Correct.

Tr. at 7 (emphasis added).

       Then on cross-examination, the following colloquy occurred between Alvarado’s

defense counsel and Proffitt:

       [Defense counsel]: [T]ell the Court about your efforts to obtain [] the records
       in regards to, uh, Mr. Alvarado’s treatment.

       [Proffitt]:    I was, uh, sent by the DOC his record and I’ve got a list of what
       he did in the DOC, so I do have that. After that though he was to complete his
       treatment, uh, through Howard County and that would satisfy Miami County’s
       probation. I, on a number of attempts, phone calls and faxes to, uh, the
       Probation Officer in Howard County and could not get anything, could not
       even get the evaluation.

       [Defense counsel]: Okay so you, you were made aware that an evaluation of
       some sort was performed, correct?

       [Proffitt]:   I thought there was but I, talking to [Alvarado] I believe he says
       he didn’t even do an evaluation. That’s what he’s told me so…

Id. at 10-11 (emphases added).

       After the completion of the State’s case-in-chief, Alvarado moved for judgment on the

evidence on all the alleged probation violations. The following colloquy occurred:

       [Court]: I don’t know what happened in your preparation but this is all
       screwed up. Uh, the only certified thing I have is a copy of the information
       from Hamilton County. I have an uncertified docket, CCS from Monroe
       Circuit Court II which would appear to show he’s had [sic] plead guilty to
       Public Intoxication but that’s not certified. Uh…


                                              3
       [Prosecutor]: No but you have testimony that [Alvarado] failed to complete his
       drug treatment Judge.

       [Court]: Well, as [defense counsel] indicated [Proffitt] couldn’t get the full
       information on the [sic] whether [Alvarado] completed it or not.

       [Proffitt]: [Alvarado] has admitted to me that he completed none. He’s not
       even sure he completed the evaluation. That’s his admission.

       [Court]: I think this is really weak.

       [Prosecutor]: It’s weak but it’s only required to be by the preponderance of the
       evidence and I think pretty clearly a preponderance of the evidence right now
       is that he did not complete his drug treatment.

Id. at 16-17.

       The trial court granted Alvarado’s motion for judgment on the evidence on all alleged

probation violations except the allegation that Alvarado failed to complete substance abuse

treatment in Howard County. The trial court found that “[Alvarado] did violate probation for

failing to complete treatment,” revoked his probation, and sentenced Alvarado to one year

executed. Id. at 17. Alvarado appeals.

                                   Discussion and Decision

       Alvarado appeals the revocation of his probation, arguing that the evidence is

insufficient to prove that he committed a probation violation. We observe that probation is a

matter of grace left to the trial court’s discretion, not a right to which a criminal defendant is

entitled. Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). The trial court determines the

conditions of probation and may revoke probation if the conditions are violated. Id. A

probation revocation hearing is civil in nature, and therefore an alleged violation need only



                                                4
be proven by a preponderance of the evidence. Whatley v. State, 847 N.E.2d 1007, 1010

(Ind. Ct. App. 2006).

        In reviewing whether the trial court abused its discretion in revoking probation, we

consider only the evidence most favorable to the judgment and will not reweigh the evidence

or judge the credibility of the witnesses. Podlusky v. State, 839 N.E.2d 198, 200 (Ind. Ct.

App. 2005). So long as substantial evidence of probative value exists to support the trial

court’s finding that a violation occurred, we will affirm the judgment. Wilkerson v. State,

918 N.E.2d 458, 461 (Ind. Ct. App. 2009). Violation of a single condition of probation is

sufficient to revoke probation. T.W. v. State, 864 N.E.2d 361, 364 (Ind. Ct. App. 2007),

trans. denied.

        The State alleged that Alvarado violated his probation by allegedly failing to complete

his current substance abuse treatment program in Howard County. Alvarado argues on

appeal that because Proffitt failed to obtain his substance abuse treatment records from

Howard County, the only evidence regarding his drug treatment is Proffitt’s testimony.

Alvarado argues that Proffitt testified only that Alvarado admitted that he did not get a

substance abuse evaluation. Alvarado argues that this testimony is irrelevant because under

the terms of his probation, he was not required to get an evaluation in Howard County. The

State concedes that “the evaluation was not necessary.”1 Appellee’s Br. at 5. Nevertheless,


        1
          There was no evidence that a substance abuse evaluation in Howard County was a condition of
Alvarado’s probation. Alvarado’s probation order required him to “[f]ollow current treatment
recommendations in Howard Co.” Appellant’s App. at 50 (emphasis added). We emphasize that it is not the
defendant’s obligation to prove that he complied with the conditions of probation; it is the State’s obligation to
prove the conditions of probation and that a violation occurred. We cannot infer noncompliance from an
absence of evidence.

                                                        5
the State asserts that “Proffitt specifically testified at the hearing that [Alvarado] himself had

admitted to Proffitt that he had failed to complete his drug treatment.” Id. (citing Tr. at 11,

16).

        The State mischaracterizes Proffitt’s testimony. Our review of the record shows that

Proffitt did not testify that Alvarado admitted that he failed to complete his drug treatment.

Rather, Proffitt testified only that Alvarado admitted that he did not do a substance abuse

evaluation. See Tr. at 11 (“I thought there was [an evaluation] but I, talking to [Alvarado] I

believe he says he didn’t even do an evaluation.”).2 After the State presented its case-in-

chief, during argument on Alvarado’s motion for judgment on the evidence, Proffitt

interjected, “[Alvarado] has admitted to me that he completed none.” Id. at 16. The State

could have elicited this statement as evidence during its case-in-chief, but it did not.

        We conclude that the record does not contain substantial evidence of probative value

to support the trial court’s finding that Alvarado violated his probation by failing to complete

his substance abuse treatment. We therefore reverse the revocation of Alvarado’s probation.

        Reversed.

BRADFORD, J., concurs.

VAIDIK, J., dissents with separate opinion.




        2
           This is in contrast to Proffitt’s earlier testimony, in which he stated, “I don’t even know if the
evaluation was even completed there, but, uh, it wasn’t completed and so no treatment was completed.” Tr. at
7.

                                                     6
                             IN THE
                   COURT OF APPEALS OF INDIANA

JAMES ALVARADO,                                  )
                                                 )
      Appellant-Plaintiff,                       )
                                                 )
             vs.                                 )    No. 52A02-1110-CR-984
                                                 )
STATE OF INDIANA,                                )
                                                 )
      Appellee-Defendant.                        )



VAIDIK, Judge, dissenting


      I respectfully disagree with the majority that the trial court abused its discretion in

revoking Alvarado’s probation.

      Alvarado was convicted in Miami County of Class D felony possession of

methamphetamine and sentenced to two years, with one year suspended to probation.

Alvarado’s Miami County sentence was to be served consecutive to his two sentences in

Howard County. As part of his probation in Miami County, the trial court ordered Alvarado

to complete substance-abuse treatment through Howard County because “his treatment . . .

through Howard County . . . would satisfy Miami County’s probation.” Tr. p. 10. The

Miami County probation department later filed a petition to revoke Alvarado’s probation in

                                             7
which it alleged that he failed to complete the substance-abuse treatment as previously

ordered.

       At the probation-revocation hearing, Alvarado’s probation officer, Troy Proffitt,

testified that Alvarado signed a release so that he could obtain Alvarado’s Howard County

treatment records; however, he was not able to obtain any of Alvarado’s records. According

to Proffitt, Alvarado told him that “he didn’t even do an evaluation” in Howard County. Id.

at 11. If Alvarado did not “even” complete a substance-abuse evaluation in Howard County,

then it logically follows that he did not complete substance-abuse treatment there either. This

was a clear condition of Alvardo’s Miami County probation. Because I believe that the State

proved by a preponderance of the evidence that Alvarado violated his probation in Miami

County by failing to complete treatment in Howard County, I would affirm the trial court’s

revocation of Alvarado’s probation and one-year sentence.




                                              8
