Kyree Guajardo v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: May 24, 2016
• Docket: 48A02-1510-CR-1702
• Status: Published

Opinion

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