MEMORANDUM DECISION
                                                                                  FILED
Pursuant to Ind. Appellate Rule 65(D),                                       May 24 2016, 8:23 am

this Memorandum Decision shall not be                                             CLERK
regarded as precedent or cited before any                                     Indiana Supreme Court
                                                                                 Court of Appeals
                                                                                   and Tax Court
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
David W. Stone IV                                       Gregory F. Zoeller
Anderson, Indiana                                       Attorney General of Indiana

                                                        Karl M. Scharnberg
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Kyree Guajardo,                                         May 24, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        48A02-1510-CR-1702
        v.                                              Appeal from the Madison Circuit
                                                        Court
State of Indiana,                                       The Honorable Angela Warner
Appellee-Plaintiff.                                     Sims, Judge
                                                        Trial Court Cause No.
                                                        48C01-1102-FB-207



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 48A02-1510-CR-1702| May 24, 2016               Page 1 of 6
                                       Statement of the Case
[1]   Kyree Guajardo appeals the revocation of his probation. He raises one issue on

      appeal, namely, whether the State presented sufficient evidence to support the

      probation revocation. We affirm.


                                 Facts and Procedural History
[2]   On February 11, 2011, the State charged Guajardo with dealing in cocaine, as a

      Class B felony, and possession of marijuana, as a Class A misdemeanor. On

      December 27, 2011, the parties filed a plea agreement in which Guajardo

      pleaded guilty to dealing in cocaine as charged in exchange for a sentencing cap

      of thirteen years on any executed sentence. On March 29, 2012, the trial court

      sentenced Guajardo to fifteen years imprisonment with ten years executed and

      five years suspended to probation.


[3]   On May 28, 2015, Guajardo began serving his five-year probationary period.

      On August 12, 2015, Madison County Probation Officers Colton Beardsley and

      Devin Burris, along with Anderson Police Officers Joshua Bowling and Phil

      Richardson, went to Guajardo’s residence to conduct a probation search. After

      obtaining the consent of both Guajardo and his mother, who owned the

      residence, Probation Officer Burris conducted a search of the house and

      discovered a baggie with a substance resembling crack cocaine in Guajardo’s

      bedroom closet. The baggie was taken to the police station where Officer

      Richardson conducted a field test of the substance. The substance tested




      Court of Appeals of Indiana | Memorandum Decision 48A02-1510-CR-1702| May 24, 2016   Page 2 of 6
      positive for the presence of cocaine. The State sent the cocaine to the lab to be

      analyzed further.


[4]   On August 21, 2015, the State filed a notice of violation of probation alleging,

      in relevant part, that Guajardo had failed to maintain good behavior by

      committing a new criminal offense, namely, possession of cocaine, as a Level 6

      felony. A bifurcated evidentiary hearing occurred on August 31 and October 5.

      On the first day of the hearing, the State presented into evidence the results of

      the field test and the witness testimony of Officers Beardsley, Burris, and

      Bowling. Officer Bowling testified that the field test of the substance was

      positive for cocaine, that he observed the field test being performed by Officer

      Richardson, and that Officer Richardson performed the field test in accordance

      with the field testing training both he and Officer Richardson had received at

      the Indiana Law Enforcement Academy. Officer Bowling also testified that,

      based on his law enforcement training and law enforcement experience in

      recognizing cocaine, including crack cocaine, the substance found in the baggie

      in Guajardo’s bedroom closet appeared to be crack cocaine.


[5]   On the second day of the hearing, the State received the results of the lab

      analysis of the substance found in Guajardo’s bedroom closet and provided

      those results to defense counsel. However, because the State had not had time

      to subpoena the lab technician who conducted the lab analysis, the State did not

      admit the lab results into evidence. Nevertheless, the trial court found that

      Guajardo had violated his probation by possessing cocaine, and it revoked four



      Court of Appeals of Indiana | Memorandum Decision 48A02-1510-CR-1702| May 24, 2016   Page 3 of 6
      of the five years of probation that had previously been suspended. This appeal

      ensued.


                                    Discussion and Decision
[6]   Guajardo contends that the State failed to provide sufficient evidence to support

      the revocation of his probation. We review insufficiency of evidence claims in a

      probation proceeding as we do any other sufficiency of the evidence question.

      Pierce v. State, 44 N.E.3d 752, 755 (Ind. Ct. App. 2015). That is, we will not

      reweigh evidence or judge credibility of witnesses. Id. We look only at the

      evidence favorable to the State and all reasonable inferences therefrom. Id.


[7]   “Probation is a matter of grace left to trial court discretion, not a right to which

      a criminal defendant is entitled.” Heaton v. State, 984 N.E.2d 614, 616 (Ind.

      2013) (quotation and citation omitted). It is within the discretion of the trial

      court to determine probation conditions and to revoke probation if the

      conditions are violated. Id. When the alleged probation violation is the

      commission of a new crime, conviction of the new crime is not required in

      order to revoke probation. Pierce, 44 N.E.2d at 755. Rather, because

      revocation proceedings are civil in nature, the State need only prove the

      commission of a new crime by a preponderance of the evidence. Heaton, 984

      N.E.2d at 616; Ind. Code § 35-38-2-3(f) (2015). “Preponderance of the evidence

      simply means the greater weight of the evidence.” Kishpaugh v. Odegard, 17

      N.E.3d 363, 373 (Ind. Ct. App. 2014) (internal quotation marks omitted) (citing

      Travelers Indem. Co. v. Armstrong, 442 N.E.2d 349, 361 (Ind. 1982)).


      Court of Appeals of Indiana | Memorandum Decision 48A02-1510-CR-1702| May 24, 2016   Page 4 of 6
[8]   Guajardo asserts that the State provided insufficient evidence that the substance

      the police found in his bedroom was cocaine. However, “the identity of a drug

      can be proven by circumstantial evidence.” Clifton v. State, 499 N.E.2d 256, 258

      (Ind. 1986). And “[t]he opinion of someone sufficiently experienced with the

      drug may establish its identity, as may other circumstantial evidence.” Vasquez

      v. State, 741 N.E.2d 1214, 1216-17 (Ind. 2001). Here, the State provided

      evidence that the substance the officers found in Guajardo’s bedroom field-

      tested positive as crack cocaine, and Officer Bowling visually identified the

      substance as cocaine, based on his experience and training related to that drug.

      Our supreme court and this court have found similar evidence sufficient to

      prove the identity of drugs in appeals of drug possession convictions. See, e.g.,

      Halsema v. State, 823 N.E.2d 668, 673 n.1 (Ind. 2005) (holding that the

      testimony of an officer trained to identify methamphetamine was, alone,

      sufficient evidence that the substance at issue was methamphetamine); Boggs v.

      State, 928 N.E.2d 855, 865 (Ind. Ct. App. 2010) (holding that the testimony of

      officers trained and experienced in identifying a drug was, alone, sufficient

      evidence of the identity of the drug), trans. denied. If such evidence is sufficient

      to prove the identity of a drug beyond a reasonable doubt in a drug possession

      conviction, it is certainly sufficient to prove drug identity by a preponderance of

      the evidence in an action to revoke probation due to drug possession.


[9]   The State provided sufficient evidence to prove by a preponderance of the

      evidence that Guajardo committed the new crime of possession of cocaine, in




      Court of Appeals of Indiana | Memorandum Decision 48A02-1510-CR-1702| May 24, 2016   Page 5 of 6
       violation of his probation. Therefore, the trial court’s revocation of Guajardo’s

       probation is affirmed.


[10]   Affirmed.


       Robb, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 48A02-1510-CR-1702| May 24, 2016   Page 6 of 6
