FOR PUBLICATION                                  Dec 06 2013, 6:10 am




ATTORNEY FOR APPELLANT:                      ATTORNEYS FOR APPELLEE:

CARA SCHAEFER WIENEKE                        GREGORY F. ZOELLER
Plainfield, Indiana                          Attorney General of Indiana

                                             LARRY D. ALLEN
                                             Deputy Attorney General
                                             Indianapolis, Indiana




                            IN THE
                  COURT OF APPEALS OF INDIANA

MICHELLE ORR CARPENTER,                      )
                                             )
     Appellant-Defendant,                    )
                                             )
            vs.                              )        No. 77A01-1306-CR-293
                                             )
STATE OF INDIANA,                            )
                                             )
     Appellee-Plaintiff.                     )


                  APPEAL FROM THE SULLIVAN CIRCUIT COURT
                         The Honorable P.J. Pierson, Judge
                          Cause No. 77C01-1209-CM-542



                                  December 6, 2013


                            OPINION - FOR PUBLICATION


NAJAM, Judge
                            STATEMENT OF THE CASE

      Michelle Orr Carpenter appeals the trial court’s revocation of her probation.

Carpenter raises a single issue for our review, namely, whether the State presented

sufficient evidence to demonstrate that she committed the alleged probation violation

during the term of her probation. We reverse.

                      FACTS AND PROCEDURAL HISTORY

      On September 28, 2012, the State arrested Carpenter for Class A misdemeanor

resisting law enforcement and Class B misdemeanor battery. Less than one week later,

on October 4, Carpenter pleaded guilty to the resisting law enforcement charge, the State

dismissed the battery allegation, and the trial court sentenced her to 351 days suspended

to probation. Among other things, the terms of her probation prohibited her from using

any controlled substance without a prescription. The court also ordered Carpenter to

provide a list of her prescription medications to her probation officer. According to

Carpenter’s list of prescriptions, she was taking Suboxone, a pain medication.         On

October 9, five days after having been placed on probation, Carpenter failed a drug test.

According to the drug test results, Carpenter had ingested phenobarbital, a barbiturate for

which she did not have a prescription.

      The State filed a notice of probation violation on October 17, and the trial court

held a fact-finding hearing on April 30, 2013. At that hearing, the State called Ed

Walker, a pharmacist, to testify.    According to Walker, Suboxone might produce a

positive drug test for an opiate but not for a barbiturate. Walker further testified that

phenobarbital is known to have a potential for abuse and that the half-life of


                                            2
phenobarbital in the human body is three days. However, Walker further explained that,

depending on the sensitivity of the drug test, one might test positive for phenobarbital up

to three weeks after having ingested it. The State did not present any evidence regarding

the sensitivity of the drug test it administered to Carpenter or the concentration levels of

phenobarbital in her system as revealed by that test.

       Carpenter also testified at the fact-finding hearing. According to her testimony, at

the “end of May” she was an inpatient at the Fairbanks Recovery Center (“Fairbanks”),

and she had been prescribed phenobarbital to aid in her recovery from drug addiction.

Transcript at 17. She left Fairbanks after eight days, about four months before her

October 4 drug test. Outside of her time at Fairbanks, she testified that she had never

ingested phenobarbital.

       The trial court found that Carpenter had violated the terms of her probation. As

such, the court revoked her probation and ordered her to serve fourteen days of her

originally suspended sentence. This appeal ensued.

                            DISCUSSION AND DECISION

       Carpenter appeals the trial court’s revocation of her probation. As our supreme

court has explained:

       Probation is a matter of grace left to trial court discretion, not a right to
       which a criminal defendant is entitled. The trial court determines the
       conditions of probation and may revoke probation if the conditions are
       violated. 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. Accordingly, a trial
       court’s sentencing decisions for probation violations are reviewable using
       the abuse of discretion standard. An abuse of discretion occurs where the
                                             3
       decision is clearly against the logic and effect of the facts and
       circumstances.

Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007) (citations omitted).

       On appeal, Carpenter contends that there is no evidence that she used

phenobarbital during the five days between her placement on probation and her drug test.

“It is axiomatic that[,] to violate one’s probation, one must perform some prohibited act,

or fail to perform some required action, during the period of probation.” C.S. v. State,

817 N.E.2d 1279, 1281 (Ind. Ct. App. 2004). In considering this issue, we note that “[a]

probation hearing is civil in nature and the State need only prove the alleged violations by

a preponderance of the evidence.” Cox v. State, 706 N.E.2d 547, 551 (Ind. 1999). “We

will consider all the evidence most favorable to supporting the judgment of the trial court

without reweighing that evidence or judging the credibility of witnesses.” Id. “If there is

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

defendant has violated any terms of probation, we will affirm its decision to revoke

probation.” Id.

       Carpenter relies on C.S. in her appeal. In C.S., we held that the State had failed to

show that the probationer had violated the terms of his probation by using cocaine during

his probationary period. 817 N.E.2d at 1282. As we explained:

       Here the urine test was taken only five days after C.S. was placed on
       probation. We know that cocaine metabolites appear in the urine for some
       time period after cocaine has been ingested.

              The [S]tate produced no evidence whatever of what that time period
       might be. There was no prior screen establishing that C.S. was free of
       drugs, so that subsequent use might be inferred. There was not even any
       evidence of the amount, or concentration, of the metabolite in the urine.


                                             4
              Because the sample was taken only five days after C.S. was placed
       on probation, we are left to merely speculate whether he used cocaine
       before or after probation was imposed. We are unable to say that the
       evidence favorable to the decision, and the reasonable inferences therefrom,
       are sufficient to establish by a preponderance of the evidence that C.S. used
       cocaine at some time after he was placed on probation.

              It follows that the decision revoking probation must be reversed . . . .

Id. at 1281-82.

       Likewise here, the State presented no evidence of the time period in which

Carpenter ingested phenobarbital. For example, Carpenter’s probation officer did not

give Carpenter a drug screen upon the commencement of her probation to establish what

drugs, if any, Carpenter may have had in her system upon entering the probationary

period. Had the probation officer done so, the trial court would have been able to infer

subsequent use from the later drug screen. Alternatively, Walker, the State’s witness and

a pharmacist, testified that phenobarbital has a half-life of three days in the human body,

and that it may be detected in a drug screen up to three weeks after it has been ingested.

But the State did not present any evidence of the amount or concentration of the

controlled substance it detected, which would have allowed the trial court to infer time of

use.   Rather, the State left the trial court to speculate that Carpenter had used

phenobarbital during her probationary period, even though the State’s own evidence

demonstrated that Carpenter could have ingested the phenobarbital as early as three

weeks before the test, which would have been as much as ten days before she had even

been arrested. While these examples are not intended to be exhaustive of how the State

may have met its burden of proof, they demonstrate that the State’s evidence was not

sufficient to support the revocation of Carpenter’s probation.
                                             5
        The State asserts that C.S. is inapposite because, unlike C.S., here the probationer

testified in her own defense. The State continues by alleging that Carpenter’s failure to

adequately explain the presence of phenobarbital in her system allowed the trial court to

reasonably infer that she must have used the phenobarbital during the probationary

period.1

        The State asks too much from discrediting Carpenter’s testimony. We agree that

Carpenter’s apparent lack of credibility allowed the trial court to infer that she illegally

ingested phenobarbital and even that she ingested the phenobarbital more recently than

“the end of May,” as she had testified. See Transcript at 17. But that is not enough. The

question here is whether Carpenter ingested phenobarbital between the start of her

probation on October 4, 2012, and her drug test five days later on October 9. Even

entirely discounting Carpenter’s testimony, there is still no evidence from which one may

infer when she ingested the phenobarbital. As such, we cannot agree with the State’s

attempt to distinguish C.S. from the instant appeal.

        The State failed to present any evidence to demonstrate that Carpenter violated the

terms of her probation by using phenobarbital during her probationary period. Even

when viewed most favorably to the State, the evidence here was in equipoise, and it was

no more likely that Carpenter ingested phenobarbital during her probationary period than




        1
           In her reply brief, Carpenter asserts that the State’s argument improperly shifts the burden of
proof to her. This is incorrect. Carpenter did not move for involuntary dismissal, pursuant to Trial Rule
41(B), following the completion of the State’s case-in-chief in the trial court. As such, the trial court was
not obligated to look only to the State’s evidence in determining the merits of the State’s allegation, and
on appeal we will “address whether the totality of the evidence presented” supports the trial court’s
judgment. Williams v. State, 892 N.E.2d 666, 670-72 (Ind. Ct. App. 2008), trans. denied.
                                                     6
it was that she ingested it before her probationary period. Accordingly, we must reverse

the trial court’s decision to revoke Carpenter’s probation.

       Reversed.

BAKER, J., and CRONE, J., concur.




                                             7
