MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                                FILED
this Memorandum Decision shall not be                                      Jan 24 2018, 7:08 am

regarded as precedent or cited before any                                       CLERK
                                                                            Indiana Supreme Court
court except for the purpose of establishing                                   Court of Appeals
                                                                                 and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Donald E.C. Leicht                                       Curtis T. Hill, Jr.
Kokomo, Indiana                                          Attorney General of Indiana
                                                         Matthew B. MacKenzie
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Ronald Lidy,                                             January 24, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         34A05-1709-CR-2195
        v.                                               Appeal from the Howard Superior
                                                         Court
State of Indiana,                                        The Honorable William C.
Appellee-Plaintiff.                                      Menges, Jr., Judge
                                                         Trial Court Cause No.
                                                         34D01-1609-F6-958



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 34A05-1709-CR-2195 | January 24, 2018             Page 1 of 6
                                          Case Summary
[1]   Ronald Lidy (“Lidy”) challenges the revocation of his probation imposed upon

      his plea of guilty to Unlawful Possession of a Syringe, as a Level 6 felony. 1 He

      presents the sole issue of whether sufficient evidence supports the revocation

      decision. We affirm.



                               Facts and Procedural History
[2]   On March 7, 2017, Lidy pled guilty to Unlawful Possession of a Syringe. He

      was sentenced to 548 days imprisonment, with six days to be executed and the

      remainder suspended to probation. Among other probationary conditions,

      Lidy agreed to refrain from illegal drug use.


[3]   On April 13, 2017, and on April 21, 2017, Lidy tested positive for cocaine and

      opiates; the State alleged that Lidy had violated his probation. On May 11,

      2017, and on June 22, 2017, Lidy admitted to the probation violation

      allegations. Lidy served four weekends in jail for the May violation and 60

      days in jail for the June violation.


[4]   On August 4, 2017, the State filed a Petition to Revoke Suspended Sentence.

      The petition alleged that Lidy had, on July 27, 2017, “tested positive for




      1
          Ind. Code § 16-42-19-18.


      Court of Appeals of Indiana | Memorandum Decision 34A05-1709-CR-2195 | January 24, 2018   Page 2 of 6
      cocaine and opiates at Avertest” in violation of the following term of his

      probation:


              You may not consume or possess on your person or in your
              residence any controlled substance (illegal drug) except as
              prescribed to you by a licensed physician. You must submit to
              alcohol and drug testing when ordered by the Probation
              Department, or any police officer. An attempt to dilute or alter a
              urine sample to mask (cover up) the test results is a violation of
              this order. You are responsible for the payment of the drug
              testing. A refusal to submit to a urine screen will be considered
              the same as a positive screen.


      (App. Vol. II, pg. 30.)


[5]   A hearing was conducted on September 12, 2017, at which Lidy’s probation

      officer, Laura Rood (“Rood”), testified. The trial court revoked Lidy’s

      probation and ordered that he serve the remaining 466 days of his suspended

      sentence. Lidy now appeals.



                                 Discussion and Decision
[6]   Probation is a matter of grace and not a right to which a criminal defendant is

      entitled. Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). The decision to

      revoke probation is within the discretion of the trial court, and its decision is

      reviewed on appeal only for an abuse of that discretion. Woods v. State, 892

      N.E.2d 637, 639 (Ind. 2008). We will consider only the evidence most

      favorable to the judgment without reweighing the evidence or judging the

      credibility of witnesses. Id. If there is substantial evidence of probative value to

      Court of Appeals of Indiana | Memorandum Decision 34A05-1709-CR-2195 | January 24, 2018   Page 3 of 6
      support the trial court’s decision that a defendant has violated any terms of

      probation, this Court will affirm the revocation decision. Id. at 639-40.


[7]   Probation revocation is a two-step process. First, the court must make a factual

      determination that a violation of a condition of probation occurred. Id. at 640.

      Next, if a probation violation has been proven, the trial court must determine if

      the violation warrants revocation of the probation. Id.


[8]   At the probation revocation hearing, Rood testified that, on July 27, 2017, Lidy

      had tested positive for cocaine and opiates “at Avertest.” (Tr. at 20.) Lidy does

      not deny the presentation of evidence that he tested positive for cocaine and

      opiates; rather, he argues that this evidence is insufficient to support revocation

      because Rood did not specifically testify that the Probation Department had

      ordered the test by Avertest and the State did not present evidence that Lidy

      lacked a valid prescription for opiates.


[9]   Paragraph 5 of Lidy’s Conditions of Supervised Probation, quoted in the

      Petition to Revoke Suspended Sentence, requires that Lidy refrain from illegal

      drug use, submit to testing ordered by the Probation Department, not alter a

      sample, and pay for drug testing. The language is broader than the focus of the

      State’s evidence at the revocation hearing. Had the State relied upon an

      allegation that Lidy refused to “submit to alcohol and drug testing when

      ordered by the Probation Department, or any police officer,” (App. Vol. II, pg.

      30.), the State would have been required to establish that its agent ordered the

      refused test. Here, however, the proscribed conduct at issue in the revocation


      Court of Appeals of Indiana | Memorandum Decision 34A05-1709-CR-2195 | January 24, 2018   Page 4 of 6
       hearing was Lidy’s use of illegal drugs. The State did not rely upon an

       allegation that Lidy failed to submit, altered a sample, or failed to pay for

       testing. The State offered evidence upon a single violation, that is, use of illegal

       drugs. Only a single violation need be established. Woods, 892 N.E.2d at 639.


[10]   Nonetheless, the State presented evidence of the relationship between Avertest

       and the Probation Department. Rood testified that Avertest was “the company

       we use for drug screens” and that she had received results from that company.

       (Tr. at 17.) She further testified that, after two failed drug screens, Lidy had

       “continued with [the] Avertest program.” (Tr. at 20.) From this evidence, the

       fact-finder could infer that the Avertest drug screen at issue had been ordered by

       the Probation Department.


[11]   Lidy has also claimed that the State bore the burden to prove that Lidy did not

       possess a valid prescription for cocaine or opiates. The State alleged, in

       essence, that Lidy violated his probation by committing a new drug-related

       criminal offense. “The existence of a valid prescription for a controlled

       substance is a defense to the crime of possession” and “[t]he defendant bears the

       burden of proving this defense by a preponderance of the evidence.” Lundy v.

       State, 26 N.E.3d 656, 658 (Ind. Ct. App. 2015). Lidy does not persuade us that

       a different burden of proof would apply in a probation revocation proceeding,

       where the probationary term recognizes an “exception” to the prohibited use.

       We reject Lidy’s claim that the State failed to offer evidence on an issue upon

       which it bore the burden of proof.



       Court of Appeals of Indiana | Memorandum Decision 34A05-1709-CR-2195 | January 24, 2018   Page 5 of 6
                                               Conclusion
[12]   The State presented sufficient evidence to support the revocation decision.


[13]   Affirmed.


       Kirsch, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 34A05-1709-CR-2195 | January 24, 2018   Page 6 of 6
