Kyree Guajardo v. State of Indiana (mem. dec.) ( 2016 )

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.
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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
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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
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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)).
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[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
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violation of his probation. Therefore, the trial court’s revocation of Guajardo’s
probation is affirmed.
[10] Affirmed.
Robb, J., and Crone, J., concur.
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