Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be                                           Mar 21 2014, 10:26 am
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:

ZACHARY A. WITTE                                   GREGORY F. ZOELLER
Locke & Witte                                      Attorney General of Indiana
Fort Wayne, Indiana
                                                   ANGELA N. SANCHEZ
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

KATHY JO HILL,                                     )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )      No. 92A05-1308-CR-430
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                     APPEAL FROM THE WHITLEY SUPERIOR COURT
                        The Honorable James R. Heuer, Special Judge
                              Cause No. 92D01-1101-FC-22



                                         March 21, 2014


                MEMORANDUM DECISION - NOT FOR PUBLICATION


KIRSCH, Judge
       Kathy Jo Hill appeals the trial court’s order revoking her probation, contending that

it was not supported by sufficient evidence.

       We affirm.

                       FACTS AND PROCEDURAL HISTORY

       On March 21, 2011, Hill pleaded guilty to one count of operating a vehicle following

a lifetime suspension as an habitual traffic violator as a Class C felony, and one count of

operating a vehicle while intoxicated as a Class A misdemeanor. The trial court sentenced

Hill to an aggregate term of six years, with one year of incarceration, two years to be served

on home detention, and the balance of the sentence to be suspended to probation. One of

the terms of Hill’s probation was that she not consume or possess alcohol. On September

17, 2012, Hill admitted to violating the terms of her home detention by consuming alcohol

and executed the balance of her home detention term in the county jail.

       In February and May of 2013, Hill tested positive for metabolites of alcohol. When

confronted with the results of her first test, Hill denied consuming alcohol, but told her

probation officer that her son and his girlfriend may have spiked her tea. On May 14, 2013,

the probation department conducted a home visit and discovered a partially full bottle of

whiskey on the floor of Hill’s kitchen. They also discovered “empty beer cans set up in a

beer pong type thing in one of the out-buildings.” Tr. at 11. Hill’s probation officer, Jessica

Sims, collected a second urine sample from Hill that day. This sample also tested positive

for alcohol metabolites ethyl glucuronide and ethyl sulfate. Once again, Hill denied

consuming alcohol and claimed the bottle of whiskey belonged to a friend who was staying

with her.

                                               2
       Sims testified that the testing laboratory informed her that the incidental use of

products containing ethanol, such as mouth wash or cough medicine, may cause ethyl

glucuronide levels of up to 500 ng/mL. The probation department, therefore, did not file

petitions alleging the violation of probation based on results below that threshold. Both of

Hill’s tests revealed ethyl glucuronide levels of over 10,000 ng/mL.

       At the conclusion of the hearing on the petitions alleging probation violations, the

trial court found that Hill had violated her probation by consuming alcohol and revoked

Hill’s probation. The trial court entered an order that Hill serve the balance of her

originally suspended sentence, or 1,095 days, on home detention. Hill now appeals.

                              DISCUSSION AND DECISION

       Hill claims that the trial court abused its discretion by finding that Hill violated the

conditions of her probation because there was insufficient evidence to support the trial

court’s conclusion. We begin with the premise that “[p]robation 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). “[C]ourts in probation revocation hearings may consider

any relevant evidence bearing some substantial indicia of reliability.” Cox v. State, 706

N.E.2d 547, 551 (Ind. 1999). It is within the discretion of the trial court to determine the

conditions of a defendant’s probation and to revoke probation if the conditions are violated.

Prewitt, 878 N.E.2d at 188. In a sense, all probation requires “strict compliance” because

probation is a matter of grace, and once the trial court extends this grace and sets its terms

and conditions, the probationer is expected to comply with them strictly. Woods v. State,

892 N.E.2d 637, 641 (Ind. 2008). If the probationer fails to do so, then a violation has

                                               3
occurred. Id. But even in the face of a probation violation, the trial court may nonetheless

exercise its discretion in deciding whether to revoke probation. Id. (citing Clark Cnty.

Council v. Donahue, 873 N.E.2d 1038, 1039 (Ind. 2007) (“The probationary scheme is

deliberately designed to give trial judges the flexibility to make quick, case-by-case

determinations.”)).

       Violation determinations and sanctions are reviewed for abuse of discretion.

Woods, 892 N.E.2d at 639. An abuse of discretion occurs where the decision is clearly

against the logic and effect of the facts and circumstances, or when the trial court

misinterprets the law. Prewitt, 878 N.E.2d at 188. We consider only the evidence most

favorable to the judgment without reweighing that evidence or judging the credibility of

the witnesses. Woods, 892 N.E.2d at 639 (citing Braxton v. State, 651 N.E.2d 268, 270

(Ind. 1995)). If there is substantial evidence of probative value to support the trial court’s

decision that a defendant has violated any terms of probation, the reviewing court will

affirm its decision to revoke probation. Id. at 639-40.

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

determination that a violation of a condition of probation actually occurred. Beeler v. State,

959 N.E.2d 828, 829-30 (Ind. Ct. App. 2011). Second, if a violation is found, then the trial

court must determine the appropriate sanctions for the violation.           Id.   A probation

revocation hearing is civil in nature, and the State’s burden is to prove the alleged violations

only by a preponderance of the evidence. Figures v. State, 920 N.E.2d 267, 272 (Ind. Ct.

App. 2010). Violation of a single term or condition of probation is sufficient to revoke

probation. Washington v. State, 758 N.E.2d 1014, 1017 (Ind. Ct. App. 2001). When

                                               4
reviewing an appeal from the revocation of probation, the reviewing court considers only

the evidence most favorable to the judgment, and does so without reweighing the evidence

or reassessing the credibility of the witnesses. Piper v. State, 770 N.E.2d 880, 882 (Ind.

Ct. App. 2002).

       In this case, the evidence shows that Hill twice tested positive for high

concentrations of two alcohol metabolites while she was on probation. Hill does not

dispute that evidence, but claims that the results may have been the result of incidental

contact with products containing alcohol. Hill contends that because the tests did not reveal

the presence of alcohol (ethanol), there is insufficient evidence to support the revocation

of her probation.

       The evidence supporting the trial court’s conclusion, however, reflects that

accidental exposure to alcohol produces test results showing levels of ethyl glucuronide up

to 500 ng/mL. Consequently, the probation department does not file petitions alleging

probation violations for results below that threshold. There was no challenge at the

hearing, nor is there one on appeal to the competency of the witness providing that

evidence. Furthermore, both of Hill’s tests revealed levels of ethyl glucuronide in excess

of 10,000 ng/mL, levels that are twenty times the threshold for excluding accidental

exposure to alcohol. That evidence was sufficient to permit the trial court to conclude that

Hill’s consumption of alcohol, and not some accidental exposure to alcohol, produced

Hill’s test results.

       Hill asserts that the test results would more strongly support alcohol consumption

had they also revealed the presence of ethanol. While this is true, that does not necessarily

                                             5
lead to the conclusion that the presence of the metabolites alone is without probative value.

Sims testified that alcohol metabolites may remain in the urine for up to 72 hours after

consumption. Accordingly, it is reasonable to conclude that the metabolites may remain

detectable after consumption even when the alcohol itself is not.

       The two test results revealing the high concentrations of alcohol metabolites were

sufficient to sustain the trial court’s conclusion that Hill consumed alcohol in violation of

the terms and conditions of her probation. That conclusion is also supported by evidence

of the discovery of a partially consumed bottle of whiskey and empty beer containers in

and around Hill’s home on the date of the home visit. Although Hill and her friend claimed

that the whiskey belonged to the friend, the trial court was not obligated to credit those

claims, especially since the friend claimed ownership on the day of the home visit, but did

not testify at the hearing. Hill denied consuming alcohol when confronted with the first

positive test result and attempted to explain the results by speculating that her son may

have spiked her drink. Hill’s attempt to fabricate an explanation for her consumption of

alcohol suggests a consciousness of guilt and an attempt to conceal the prohibited behavior.

The totality of the evidence was sufficient for the trial court to conclude by a preponderance

of the evidence that Hill consumed alcohol in violation of the terms of her probation.

       Affirmed.

FRIEDLANDER, J., and BAILEY, J., concur.




                                              6
