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Date: 08-25-2020

Case Style:

Donald Swain v. State of Indiana

Case Number: 20A-CR-286

Judge: Edward W. Najam, Jr.

Court: COURT OF APPEALS OF INDIANA

Plaintiff's Attorney: Curtis T. Hill, Jr.
Attorney General of Indiana
Catherine Brizzi
Deputy Attorney General

Defendant's Attorney:

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In 2013, Swain pleaded guilty to operating a vehicle after lifetime forfeiture of
license, a Class C felony; resisting law enforcement, as a Class D felony; and
auto theft, as a Class D felony, in Cause No. 48C04-1012-FC-794 (“FC-794”).
The trial court sentenced Swain to six years, with two years suspended to
probation. Also in 2013, Swain pleaded guilty to four counts of nonsupport of
a dependent child, one as a Class C felony and three as Class D felonies, in
Cause No. 48C04-1012-FC-872 (“FC-872”). The trial court sentenced him to
three years, with one year suspended to probation.
[3] On January 9, 2019, Swain began serving probation in both FC-794 and FC872. In November, the State filed notices of probation violations alleging that:
(1) on March 25, 2019, Swain committed invasion of privacy; (2) on April 2,
2019, Swain committed operating a vehicle after forfeiture of license for life;
and (3) on November 21, 2019, Swain committed possession of cocaine,
possession of marijuana, and possession of paraphernalia. At the evidentiary
hearing, the State dismissed the invasion of privacy allegation. Following the
hearing, the trial court found in its amended order that Swain had violated his
probation when he operated a vehicle after forfeiture of his license for life and
Court of Appeals of Indiana | Memorandum Decision 20A-CR-286 | August 25, 2020 Page 3 of 5
when he possessed marijuana. The court did not find that Swain had possessed
either cocaine or paraphernalia. The court then revoked Swain’s probation and
ordered him to serve 1,858 days of his previously suspended sentence in FC-794
and 763 days of his previously suspended sentence in FC-872. This appeal
ensued.
Discussion and Decision
[4] Swain appeals the trial court’s revocation of his probation. As our Supreme
Court has made clear:
“Probation is a matter of grace left to trial court discretion, not a
right to which a criminal defendant is entitled.” Prewitt v. State,
878 N.E.2d 184, 188 (Ind. 2007) (explaining that: “Once a trial
court has exercised its grace by ordering probation rather than
incarceration, the judge should have considerable leeway in
deciding how to proceed. If this discretion were not afforded to
trial courts and sentences were scrutinized too severely on
appeal, trial judges might be less inclined to order probation to
future defendants.”). A probation hearing is civil in nature, and
the State must prove an alleged probation violation by a
preponderance of the evidence. Braxton v. State, 651 N.E.2d 268,
270 (Ind. 1995); see Ind. Code § 35-38-2-3(f) (2012). 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,
651 N.E.2d at 270.
Murdock v. State, 10 N.E.3d 1265, 1267 (Ind. 2014).
Court of Appeals of Indiana | Memorandum Decision 20A-CR-286 | August 25, 2020 Page 4 of 5
[5] Swain contends that the State presented insufficient evidence to support either
of the probation violations found by the trial court. However, because a single
violation of a condition of probation is sufficient to permit the trial court to
revoke probation, we need only address the sufficiency of the evidence with
respect to one of the alleged violations, namely, his possession of marijuana.
See Treece v. State, 10 N.E.3d 52, 59 (Ind. Ct. App. 2014), trans. denied.
[6] Swain contends that the State did not prove by a preponderance of the evidence
that he had possessed marijuana. But Swain’s argument in support of that
contention relies on case law regarding the sufficiency of the evidence to
support a conviction for possession of marijuana, including an unpublished
memorandum decision of this Court. See Appellant’s Br. at 19 (citing Moody v.
State, No. 49A05-1611-CR-2487, 2017 WL 2350940 (Ind. Ct. App. May 31,
2017)). Swain ignores the lower bar here—the State need only have proved his
possession by a preponderance of the evidence.
[7] At the evidentiary hearing, the State presented evidence that, on November 21,
2019, officers confronted Swain while he was sitting in a car, alone. Officers
smelled the odor of marijuana coming from the car, and they found a green
leafy substance inside the car that, based on their experience, they identified as
marijuana. Swain’s argument on appeal is merely a request for this court to
reweigh the evidence, which we cannot do. We hold that the State presented
sufficient evidence to prove that Swain possessed marijuana. See Braxton v.
State, 651 N.E.2d 268, 270-71 (Ind. 1995) (holding evidence that officers found
marijuana in defendant’s purse sufficient to prove by a preponderance of the
Court of Appeals of Indiana | Memorandum Decision 20A-CR-286 | August 25, 2020 Page 5 of 5
evidence that she possessed marijuana). The trial court did not abuse its
discretion when it revoked Swain’s probation.

Outcome: Affirmed

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