Regina L. Williams v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: March 6, 2019
• Docket: 18A-CR-2042
• Status: Published

Opinion

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

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2042 | March 6, 2019 Page 2 of 6 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).

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2042 | March 6, 2019 Page 3 of 6 [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.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2042 | March 6, 2019 Page 4 of 6 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

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2042 | March 6, 2019 Page 5 of 6 court abused its discretion when it revoked her placement. We therefore affirm

the trial court.

[11] Affirmed.

Pyle, J., and Altice, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2042 | March 6, 2019 Page 6 of 6