MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Mar 06 2019, 10:05 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Michael R. Fisher Curtis T. Hill, Jr.
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
Sierra Murray
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Regina L. Williams, March 6, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-2042
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Lisa F. Borges,
Appellee-Plaintiff. Judge
Trial Court Cause No.
49G04-1702-F5-4629
Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2042 | March 6, 2019 Page 1 of 6
Statement of the Case
[1] Regina Williams appeals the revocation of her placement on home detention
with community corrections. Williams raises two issues on appeal, which we
revise and restate as follows:
1. Whether the State presented sufficient evidence to
support the revocation of her placement.
2. Whether the trial court abused its discretion when it
revoked her placement.
[2] We affirm.
Facts and Procedural History
[3] On February 6, 2018, Williams pleaded guilty to neglect of a dependent
resulting in bodily injury, as a Level 5 felony. Thereafter, the trial court
accepted Williams’ plea agreement and, pursuant to that agreement, sentenced
Williams to a four-year sentence, with three years of home detention and one
year suspended to probation. As a condition of her placement on home
detention, Williams agreed not to use products that contain alcohol, including
alcoholic beverages, mouthwash, and disinfectants. Williams also agreed to
submit to self-administered alcohol monitoring (“breathalyzer”) tests in
accordance with a specified schedule.
[4] On May 22, the State filed an amended notice of violation, in which the State
alleged that Williams had violated the terms of her probation. Specifically, the
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State alleged that, on thirty-four occasions, Williams either had tested positive
for alcohol or had failed to submit to one or more tests.
[5] On July 27, the trial court held a hearing on the State’s notice of violation.
Williams testified in her own defense and stated that she was “just putting
[Listerine] in [a] hole in [her] tooth” and that she had missed tests due to a
malfunction of her breathalyzer. Tr. at 19. However, an officer for the State
testified that the breathalyzer was operating correctly. The trial court then
revoked Williams’ placement and ordered her to serve the remainder of her
three-year sentence in the Department of Correction. This appeal ensued.
Discussion and Decision
Issue One: Sufficiency of the Evidence
[6] Williams first contends that the State failed to present sufficient evidence to
support the revocation of her placement on home detention. When the
sufficiency of evidence is at issue, we consider only the evidence most favorable
to the judgment—without regard to weight or credibility—and will affirm if
“there is substantial evidence of probative value to support the trial court’s
conclusion that a probationer has violated any condition of probation.” Braxton
v. State, 651 N.E.2d 268, 270 (Ind. 1995). The State needed only to prove the
alleged violations by a preponderance of the evidence. Id. The conditions of a
defendant’s probation are determined at the discretion of the trial court, and if
the probationer fails to comply, “a violation has occurred.” Woods v. State, 892
N.E.2d 637, 641 (Ind. 2008).
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[7] The evidence most favorable to the trial court’s judgment demonstrates that
Williams tested positive for alcohol or failed to submit to a breathalyzer test on
numerous occasions. Specifically, Williams’ case manager, Paige Myers,
testified that Williams had violated the conditions of her placement thirty-four
times when she either failed or missed scheduled tests. Myers also testified that
Williams did not report any issues with her breathalyzer. Williams asserts that
portions of Myers testimony is hearsay; however, “the Indiana Rules of
Evidence in general and the rules against hearsay in particular do not apply in
community corrections placement revocation hearings.” Cox v. State, 706
N.E.2d 547, 551 (Ind. 1999). Additionally, Williams neither objected to the
testimony during the hearing, nor does she now challenge the admissibility of
the hearsay evidence on appeal. Considering the evidence most favorable to the
trial court’s judgment, we conclude that the State presented sufficient evidence
to support the revocation of Williams’ placement.
[8] On appeal, Williams specifically contends that the State failed to present
sufficient evidence to support the revocation of her placement because she had
testified that the positive alcohol tests were due to her use of Listerine and that
the missed tests were due to a malfunction in the breathalyzer machine. But the
trial court expressly found that Williams’ testimony was not credible and that
her assertions were unconvincing. Williams’ argument on appeal is simply a
request that we reweigh the evidence, which we cannot do.
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Issue Two: Abuse of Discretion
[9] Williams also asserts that, the sufficiency of the evidence notwithstanding, the
trial court abused its discretion when it revoked her placement on home
detention. The standard of review of an appeal from the revocation of a
community corrections placement mirrors that for revocation of probation.
McQueen v. State, 862 N.E.2d 1237, 1242 (Ind. Ct. App. 2007). Probation
revocation is a two-step inquiry. First, the trial court must make a factual
determination that a violation of a condition of probation actually occurred.
Afterwards, if the violation is proven, the trial court must determine if the
violation warrants revocation of the probation. Sullivan v. State, 56 N.E.3d
1157, 1160 (Ind. Ct. App. 2016). “A defendant is not entitled to serve a
sentence in either probation or a community corrections program.” Cox, 706
N.E.2d at 549 (Ind. 1999). Placement in either is not a right but a “matter of
grace” and a “conditional liberty.” Id.
[10] Williams asserts that the trial court’s revocation of her placement was an abuse
of discretion because the positive alcohol tests were the result of her use of
Listerine to treat an infected tooth. But the evidence most favorable to the trial
court’s judgment shows that Williams violated the terms of her placement on
thirty-four occasions. Williams’ argument is, again, merely a request for this
Court to reweigh the evidence, which we will not do. As there is substantial
evidence of probative value to support the trial court’s conclusion that
Williams’ violated the terms of her home detention, we cannot say that the trial
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court abused its discretion when it revoked her placement. We therefore affirm
the trial court.
[11] Affirmed.
Pyle, J., and Altice, J., concur.
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