Court of Appeals of Indiana | Memorandum Decision 84A04-1408-CR-396 | April 10, 2015 Page 1 of 9

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), this 

Memorandum Decision shall not be regarded as 

precedent or cited before any court except for the 

purpose of establishing the defense of res judicata, 

collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Cara Schaefer Wieneke

Wieneke Law Office, LLC

Plainfield, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Christina D. Pace

Deputy Attorney General

Indianapolis, Indiana 

I N T H E

COURT OF APPEALS OF INDIANA

Malcolm M. Pettis,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

April 10, 2015

Court of Appeals Case No.

84A04-1408-CR-396

Appeal from the 

Vigo Superior Court

The Honorable David R. Bolk, 

Judge

Cause Nos. 84D03-1104-FB-1220 

and 84D03-0910-FB-3227

Kirsch, Judge.

[1] Malcom M. Pettis appeals the trial court’s determination that he violated the 

terms of his probation and its imposition of a nine-year sentence. He raises the 

following restated issues: 
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I. Whether the State presented sufficient evidence that Pettis violated 

a term of his probation; and

II. Whether the trial court abused its discretion when it ordered Pettis 

to serve nine years of a previously-suspended ten-year sentence.

[2] We affirm.

Facts and Procedural History

[3] In March 2012, Pettis pleaded guilty to: (1) Class D felony assisting a criminal

and Class B felony dealing in cocaine pursuant to charges filed in 2009 and 

2011. The trial court imposed a three-year executed sentence in the 

Department of Correction (“DOC”) on the Class D felony assisting a criminal 

conviction. On the Class B felony dealing in cocaine conviction, the trial court 

imposed a thirteen-year sentence, with three years executed at DOC and ten 

years suspended to probation. The trial court ordered the two sentences to run 

consecutive to each other, resulting in a sixteen-year aggregate sentence, with 

six years executed and ten suspended to probation. 

[4] In April 2013, Pettis was released from DOC to probation and executed a 

written probation agreement. As a term of his probation, Pettis agreed to “not 

violate any laws or city ordinances.” Appellant’s App. at 69. He also 

acknowledged that “[i]f it shall appear that I have violated the terms of my

probation or have been charged with having committed another offense, the 

Court may revoke the suspension of sentence and may impose the sentence 

which had been originally imposed.” Id. at 71. 
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[5] In February and March 2014, then-Detective Denzil Lewis of the Vigo County 

Task Force was involved in an investigation of Pettis. On February 27, 2014, a 

confidential informant, who was working with Detective Lewis, drove to 

Pettis’s residence. When the informant arrived, Pettis exited the residence and 

entered a parked vehicle, obtained marijuana from it, and, while Pettis was 

seated in the parked car, sold it to the informant. A second controlled drug buy 

occurred on March 4, 2014. During this transaction, Pettis was driving when 

he sold cocaine to a confidential informant, who was a passenger. Both of 

those transactions were videotaped by the confidential informant. On April 30, 

2014, now-Sergeant Lewis, who was at that time employed with the Terre 

Haute Police Department, observed Pettis driving a vehicle. Pettis failed to 

signal a turn, and Sergeant Lewis initiated a traffic stop. Sergeant Lewis 

determined that Pettis’s license status reflected that he was a habitual traffic 

violator. Pettis was arrested and transported to jail.

[6] Several weeks prior to the April 30 traffic stop, on March 20, 2014, Pettis had 

been charged with Class D felony operating a vehicle as a habitual traffic 

violator. As a result of that criminal charge, the State filed a notice of probation 

violation on March 21, 2014. Appellant’s App. at 72. On May 8, 2014, the State 

filed an amended notice of probation violation, alleging that, in addition to the 

March 20, 2014 habitual traffic violator charge, Pettis had violated the terms of 

his probation due to having been charged on May 5, 2014, with numerous 

additional criminal offenses, including: three counts of Class A felony dealing 

in cocaine; three counts of Class C felony possession of cocaine; one count of 
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Class C felony dealing in marijuana; three counts of Class D felony maintaining 

a common nuisance; and two counts of Class D felony being a habitual traffic 

violator. Id. at 76.

[7] In July 2014, the trial court held an evidentiary hearing. Sergeant Lewis 

testified to the two controlled drug buys in which he was involved when he was 

on the Vigo County Drug Task Force, namely the buy on February 27, 2014 

and the other on March 4, 2014. Photographs of each transaction, including 

the substance sold, were admitted into evidence. Sergeant Lewis stated that he 

field-tested the substance Pettis sold on March 4, 2014, and it tested positive for 

cocaine. Upon cross-examination, Pettis’s counsel inquired whether Sergeant 

Lewis sent the substances, identified during the hearing as marijuana and 

cocaine, to the Indiana State Police laboratory for testing. Sergeant Lewis 

replied, “[T]hat’s gonna be up to the [] case detective now. The case detective 

will [] send that off to be tested[.]” Tr. at 17. Pettis’s counsel then asked if he 

knew whether that had been done, to which Sergeant Lewis responded, “I do 

not know whether or not that’s been done, I can only assume[,]” and “I cannot 

give you anything definitive [], if it’s been sent off or not.” Id. at 17-18. 

Sergeant Lewis also testified that there had been additional controlled buys 

involving Pettis, but he was not the lead detective in charge of those 

transactions, and thus, he did not testify to the specific circumstances 

surrounding them. 
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[8] At the conclusion of the hearing, the trial court determined that Pettis had 

violated the terms of his probation, revoked it, and sentenced him to serve nine

years of his previously-suspended sentence. Pettis now appeals.

Discussion and Decision

I. Sufficiency of the Evidence

[9] “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) (citing Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007)). The trial court 

determines the conditions of probation and may revoke probation if the 

conditions are violated. Ind. Code § 35-38-2-3(a). Pettis contends that the 

evidence was insufficient to establish that he violated his probation. When the 

sufficiency of evidence is challenged, we will neither “reweigh the evidence nor 

reassess witness credibility.” Whatley v. State, 847 N.E.2d 1007, 1010 (Ind. Ct.

App. 2006). Rather, we look to the evidence most favorable to the State and 

affirm the judgment if there is substantial evidence of probative value 

supporting revocation. Id. The State’s burden of proof regarding alleged 

probation violations is proof by a preponderance of the evidence. Id. When the 

alleged violation is the commission of a new crime, the State need not show 

that the probationer has been convicted of the crime. Id. (citing Richeson v. 

State, 648 N.E.2d 384, 389 (Ind. Ct. App. 1995), trans. denied). The trial court 

only needs to find that there was probable cause to believe that the defendant 

violated a criminal law. Id.
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[10] In this appeal, Pettis claims that the State “failed to carry its burden that Pettis 

violated his probation by dealing or possessing cocaine, dealing marijuana, and 

maintaining a common nuisance.” Appellant’s Br. at 2-3. Specifically, he argues 

that the substances he sold to a confidential informant during videotaped drug 

buys were not sent to the police laboratory for testing and were thus never 

conclusively established as marijuana and cocaine. He maintains, “Field tests 

are only able to determine whether a substance is ‘presumptive’ for a certain 

drug; further testing at a lab must be done to confirm whether the substance is 

in fact an illegal drug.” Id. at 4. Therefore, he claims, the State failed to show 

that the substances that he sold were controlled substances and that reversal of 

his probation revocation is warranted. We disagree. 

[11] First, Pettis cites to no authority for the proposition that lab testing must occur 

“to confirm whether the substance is in fact an illegal drug”; thus, he has 

waived the issue for consideration. Ind. Appellate Rule 46(A)(8)(a); McMahon 

v. State, 856 N.E.2d 743, 751 (Ind. Ct. App. 2006). Second, contrary to Pettis’s 

assertion that the substances had only been subject to field-testing, Sergeant 

Lewis did not testify that the substances were not sent to ISP lab; he testified 

that he did not know whether the substances had been sent to the ISP lab. 

Third, even assuming that, as claimed, the substances were only field-tested by 

then-Detective Lewis, Indiana case law has established that the identity of a 

controlled substance may be established through witness testimony and 

circumstantial evidence. Cherry v. State, 971 N.E.2d 726, 732 (Ind. Ct. App. 

2012) (quoting Helton v. State, 907 N.E.2d 1020, 1024 (Ind. 2009)), trans. denied. 
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The opinion of someone sufficiently experienced with the drug may establish its 

identity. Vasquez v. State, 741 N.E.2d 1214, 1216 (Ind. 2001) (officer’s lay 

testimony supported finding that substance was toluene); Boggs v. State, 928 

N.E.2d 855, 860 (Ind. Ct. App. 2010) (evidence held sufficient to identify 

substances where police officers testified that green leafy substance was 

marijuana and substance on plate was methamphetamine), trans. denied.

[12] Regardless, even if, as Pettis claims, the State failed to prove that the substances 

Pettis sold to the confidential informant were illegal substances, Pettis concedes 

that the State carried its burden of proving that he drove on three occasions as a 

habitual traffic violator. Appellant’s Br. 3, 5. Each of those was a felony offense. 

It is well settled that violation of a single condition of probation is sufficient to 

revoke probation. Jenkins v. State, 956 N.E.2d 146, 149 (Ind. Ct. App. 2011), 

trans. denied. Considering the record before us, we conclude the evidence was 

sufficient to show that Pettis violated the terms of his probation.

II. Sentence Imposed

[13] Pettis claims that the trial court abused its discretion when it ordered Pettis to 

serve nine years of a previously-suspended ten-year sentence. Where a trial 

court has exercised its grace by granting a defendant probation in lieu of 

incarceration, it has considerable leeway in deciding how to proceed where the 

defendant then violates the conditions of his probation. Prewitt, 878 N.E.2d at 

188. Once a trial court finds that a person has violated a term of his or her 

probation, the court may impose one or more of the following sanctions: (1) 
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continue the person on probation, with or without modifying or enlarging the 

conditions; (2) extend the person’s probationary period for not more than one 

year beyond the original probationary period; or (3) order execution of all or 

part of the sentence that was suspended at the time of initial sentencing. Ind. 

Code § 35-38-2-3.

[14] The sanction imposed by the trial court upon a finding of a probation violation 

is reviewed on appeal for an abuse of discretion. Brandenburg v. State, 992 

N.E.2d 951, 953 (Ind. Ct. App. 2013), trans. denied; Sanders v. State, 825 N.E.2d 

952, 956 (Ind. Ct. App. 2005), trans. denied. An abuse of discretion occurs 

where the trial court’s decision is clearly against the logic and effect of the facts 

and circumstances before the court. Brandenburg, 992 N.E.2d at 953. 

[15] Pettis argues that the trial court’s decision to order him to serve nine years was 

an abuse of discretion because the State only met its burden of proving that he 

drove on three occasions as a habitual traffic violator, and each offense was 

“minor in nature.” Appellant’s Br. at 5. Therefore, he contends, “Imposing a 9-

year sentence for a minor violation constituted an abuse of discretion.” Id. We 

reject this claim.

[16] Here, Pettis was placed on probation in April 2013. In less than one year, he 

was videotaped selling marijuana and cocaine in at least two controlled drug 

buys. In May 2014, he was charged with committing twelve felonies, including 

three counts of Class A felony dealing in cocaine, three counts of Class C felony 

possession of cocaine, three counts of Class D felony maintaining a common 
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nuisance, one count Class C felony dealing in marijuana, and two counts of 

Class D felony operating a vehicle as a habitual traffic violator. The trial court 

found:

I have evidence of two separate narcotic dealing transactions [], and 

then I have two separate driving offenses, H.T.V. offenses, and I think 

the State’s met its burden to prove by a preponderance of the evidence 

that Mr. Pettis violated the law with respect to those occasions. So I’m 

finding that Mr. Pettis has violated the terms of his probation.

Tr. at 29. Although a trial court has several alternative sanctions it may impose 

where it has found that a defendant has violated his probation, one of those 

sanctions is to order execution of the sentence that was previously suspended. 

See Ind. Code § 35-38-2-3(h). Noting that Pettis “hasn’t modified his lifestyle” 

while out on probation for a year, the trial court terminated his probation and 

ordered him to serve nine years. Tr. at 30. This was less than the balance of his 

remaining sentence. We find that the trial court’s imposition of the nine-year 

sentence was not an abuse of discretion.

[17] Affirmed.

Friedlander, J., and Crone, J., concur.