MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                              Feb 26 2016, 9:58 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
Paula M. Sauer                                           Gregory F. Zoeller
Danville, Indiana                                        Attorney General of Indiana

                                                         Jonathan R. Sichtermann
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Joshua D. Darner,                                        February 26, 2016
Appellant-Defendant,                                     Court of Appeals Cause No.
                                                         32A01-1507-CR-887
        v.                                               Appeal from the Hendricks
                                                         Superior Court
State of Indiana,                                        The Honorable Mark A. Smith,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         32D04-1303-FC-34



Barnes, Judge.



Court of Appeals of Indiana | Memorandum Decision 32A01-1507-CR-887 | February 26, 2016   Page 1 of 5
                                             Case Summary
[1]   Joshua Darner appeals the revocation of his probation. We affirm.


                                                     Issue
[2]   The sole restated issue is whether there is sufficient evidence to support the

      revocation of Darner’s probation.


                                                     Facts
[3]   On November 12, 2013, Darner pled guilty to obtaining a controlled substance

      by fraud or deceit, a Class D felony. The trial court sentenced him to 1095 days

      in the Department of Correction, suspended the entirety of the sentence to

      probation, and ordered him to pay fifty-five dollars per month in fees and court

      costs.


[4]   On March 5, 2014, the probation department filed a petition alleging Darner

      violated the conditions of his probation by possessing and consuming

      marijuana and “a controlled substance without a prescription from a licensed

      physician, to wit: Hydrocodone.” App. p. 41. It further alleged he failed “to be

      evaluated by a DMHA certified substance abuse program within forty-five days

      of sentencing” and “to pay $55.00 per month toward [his] fines, costs, and

      fees.” Id. On May 27, 2014, the probation department filed a supplemental

      petition alleging Darner violated the conditions of his probation by possessing

      and consuming marijuana and “a controlled substance without a prescription

      from a licensed physician, to wit: Morphine.” Id. at 50.


      Court of Appeals of Indiana | Memorandum Decision 32A01-1507-CR-887 | February 26, 2016   Page 2 of 5
[5]   On June 16, 2015, the trial court held an evidentiary hearing on both petitions.

      On cross-examination, Darner admitted he tested positive in two separate drug

      screens. He also admitted he did not make any payments toward his fees.

      Andrew Lilpop, Darner’s supervising probation officer, testified that although

      Darner had scheduled evaluations at Life Recovery Center on more than one

      occasion, he did not attend them and did not complete a substance abuse

      program.


[6]   The trial court found Darner violated his probation by “possessing or

      consuming an illegal drug without prescription on two (2) different occasions

      and he failed to pay fees that he was ordered to pay and he failed to complete a

      certified substance abuse program with[in] forty five (45) days of his sentencing

      date.” Tr. pp. 98-99; App. p. 60. It revoked his probation and sentenced him to

      serve 730 days in the Department of Correction. Darner now appeals.


                                                  Analysis
[7]   Darner contends the State failed to prove he recklessly, knowingly, or

      intentionally failed to pay fines, court costs, and fees and that the evidence is,

      therefore, insufficient to support the revocation of his probation.


[8]   The State must prove a violation of probation by a preponderance of the

      evidence. Dokes v. State, 971 N.E.2d 178, 179 (Ind. Ct. App. 2012). The

      decision to revoke probation lies within the sound discretion of the trial court,

      and it may revoke probation if the conditions thereof are violated. Lamply v.

      State, 31 N.E.3d 1034, 1037 (Ind. Ct. App. 2015). We review challenges to the

      Court of Appeals of Indiana | Memorandum Decision 32A01-1507-CR-887 | February 26, 2016   Page 3 of 5
       revocation of probation for an abuse of discretion. Rudisel v. State, 31 N.E.3d

       984, 987 (Ind. Ct. App. 2015). A trial court abuses its discretion when its

       decision is clearly against the logic and effect of the facts and circumstances

       before it. Figures v. State, 920 N.E.2d 267, 271 (Ind. Ct. App. 2010). If there is

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

       that a defendant has violated any term of probation, we will affirm its decision

       to revoke probation. Id. at 272.


[9]    Darner himself admitted he tested positive on two drug screens. See Tr. pp. 92-

       93. That admission itself is sufficient to prove by a preponderance of the

       evidence that Darner violated a term of his probation. The violation of a single

       term of probation is sufficient to support the revocation of probation.

       Consequently, we need not address Darner’s arguments regarding his failure to

       make payments.


[10]   Darner acknowledges he admitted he used illegal drugs and failed to complete a

       drug treatment program. He contends that despite those admissions, the State’s

       failure to meet its burden of proof with regard to his failure to pay is not

       harmless error. He characterizes his failure to complete substance abuse

       treatment as a technical violation and argues, “This Court cannot be sure that

       the trial court would have imposed the same punishment of 730 days executed

       at IDOC for the two remaining violations . . . .” Appellant’s. Br. p. 9. Darner

       cites to Heaton v. State, 984 N.E.2d 614 (Ind. 2013), to support that request. In

       Heaton, our supreme court vacated one of four findings that a probationer

       committed a violation and remanded the matter to the trial court to reconsider

       Court of Appeals of Indiana | Memorandum Decision 32A01-1507-CR-887 | February 26, 2016   Page 4 of 5
       the probationer’s sanction in light of the fact that the three remaining violations

       were technical in nature. Id. at 618. Darner asks this Court to similarly remand

       this matter. Darner tested positive for illegal substances in two separate drug

       screens. Each screen revealed he had consumed marijuana and a prescription

       medication for which he did not have a prescription. Such a violation is not, in

       our view, insignificant or “technical,” especially given that Darner was on

       probation for a drug offense. This matter is readily distinguishable from Heaton.


                                                 Conclusion
[11]   The trial court did not abuse its discretion when it revoked Darner’s probation.

       Affirmed.


       Robb, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 32A01-1507-CR-887 | February 26, 2016   Page 5 of 5
