Court of Appeals of Indiana | Memorandum Decision 02A04-1501-CR-6 | August 21, 2015 Page 1 of 6

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

Gregory L. Fumarolo

Fort Wayne, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Cynthia L. Ploughe

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Antwon Davis,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

August 21, 2015

Court of Appeals Case No.

02A04-1501-CR-6

Appeal from the Marion Superior 

Court

The Honorable Wendy W. Davis, 

Judge

Trial Court Cause Nos.

02D04-0604-FD-339

02D04-0605-FD-445

02D04-0902-FD-134

Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 02A04-1501-CR-6 | August 21, 2015 Page 2 of 6

[1] Antwon Davis appeals the trial court’s revocation of his probation in three 

causes. He argues that his due process rights were violated and that there is 

insufficient evidence supporting the revocation. Finding no due process 

violation and sufficient evidence, we affirm.

Facts1

[2] In November 2013, Davis was serving probation terms in cause numbers 

02D04-0604-FD-339 (339), 02D04-0605-FD-445 (445), and 02D04-0902-FD134 (134). On November 26, 2013, the State filed charges of class D felony 

domestic battery and class D felony strangulation against Davis in cause 

number 02D04-1311-FD-1302 (1302). On that date, the State also filed 

petitions to revoke Davis’s probation in causes 339, 445, and 134, based on the 

new offenses alleged in cause 1302.

[3] On December 4, 2014, a jury found Davis not guilty in cause 1302. After the 

trial was concluded, the trial court held a hearing on the petitions to revoke 

probation in the other three causes. Without objection or comment by the 

defense, the trial court granted the State’s motions to incorporate the trial 

proceedings that had just concluded from cause 1302 into the revocation 

hearing. At the close of the revocation hearing, the trial court found that the 

 

1 There are multiple errors in the State’s brief. Among other things, the county of the trial court in which the 

trial and revocation hearings were held, the date on which the petitions to revoke probation were filed, and 

the date on which Davis committed the alleged crimes charged in cause 1302 are all incorrect. We hope that 

counsel will be more mindful of these important details in the future.
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State had established by a preponderance of the evidence that Davis had 

violated the terms of his probation by committing the new offenses. It revoked 

his probation in causes 339, 445, and 134, and ordered him to serve his 

previously suspended sentences consecutively. Davis now appeals.

Discussion and Decision

[4] As we consider Davis’s arguments that the trial court erroneously revoked his 

probation, we note that probation is a matter of grace left to trial court 

discretion rather than a right to which a defendant is entitled. Prewitt v. State, 

878 N.E.2d 184, 188 (Ind. 2007). We review a trial court’s probation 

determinations and sanctions for an abuse of discretion. Id. The revocation of 

probation is in the nature of a civil action rather than a criminal one; thus, the 

alleged violation need be proved only by a preponderance of the evidence. Cain 

v. State, 30 N.E.3d 728, 732 (Ind. Ct. App. 2015), trans. denied. Violation of a 

single term or condition of probation is sufficient to revoke probation. Id.

I. Due Process

[5] Davis first argues that his due process rights were violated when the trial court 

incorporated the trial proceedings from cause 1302 into the revocation hearings 

on the other three causes. Probationers are not entitled to the full panoply of 

constitutional rights that defendants are afforded during criminal trials. 

Lightcap v. State, 863 N.E.2d 907, 910 (Ind. Ct. App. 2007). Our Supreme 

Court has stated that a probationer’s due process rights “include written notice 

of the claimed violations, disclosure of the evidence against him, an opportunity 
Court of Appeals of Indiana | Memorandum Decision 02A04-1501-CR-6 | August 21, 2015 Page 4 of 6

to be heard and present evidence, the right to confront and cross-examine 

adverse witnesses, [] a neutral and detached hearing body[,] . . . [and] the right 

to confrontation, cross-examination, and representation by counsel.” Isaac v. 

State, 605 N.E.2d 144, 148 (Ind. 1992).

[6] It is well established that all of the due process rights to which probationers are 

entitled are protected when full trial proceedings are incorporated into the 

revocation proceedings. Lightcap, 863 N.E.2d at 911 (Ind. Ct. App. 2007); 

Stromatt v. State, 686 N.E.2d 154, 159 (Ind. Ct. App. 1997). During the criminal 

trial, the defendant had greater protection of more rights than he enjoys as a 

probationer. Therefore, it must be the case that incorporating the proceedings 

of the criminal trial protects the lesser rights afforded to probationers. We see 

no reason to depart from this well-established principle, and decline to reverse 

on this basis.2

II. Sufficiency of the Evidence

[7] Next, Davis argues that there is insufficient evidence supporting the revocation 

of his probation. In considering the evidence supporting revocation of 

probation, we will neither reweigh evidence nor judge witness credibility, and 

 

2 We also note that at the probation revocation hearing, defense counsel neither objected nor even 

commented on the incorporation of the trial proceedings. In any event, therefore, this argument has been 

waived.
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consider all conflicting evidence in the light most favorable to the trial court’s 

ruling. Ripps v. State, 968 N.E.2d 323, 326 (Ind. Ct. App. 2012).

[8] Davis argues that the record does not establish that he was the same person 

who was on probation in causes 339, 445, or 134. Davis did not raise this 

argument during the probation revocation hearing. Therefore, he has waived it. 

Dokes v. State, 971 N.E.2d 178, 180 (Ind. Ct. App. 2012) (holding that where 

defendant did not argue that he was not on probation at the revocation hearing, 

he could not raise the claim on appeal).

[9] Davis also argues that the State did not prove that he was advised of his 

probation terms. He did not raise this argument during the revocation hearing, 

so he has waived it. Ware v. State, 816 N.E.2d 1167, 1179 (Ind. Ct. App. 2004). 

Waiver notwithstanding, we note that at the revocation hearing, the State 

moved to incorporate the rules of probation for each of the three cause 

numbers, and the trial court granted the motion.3 As our Supreme Court has 

noted, “it is always a condition of probation that a probationer not commit an 

additional crime.” Braxton v. State, 651 N.E.2d 268, 270 (Ind. 1995) (emphasis 

added). We therefore decline to reverse on this basis.

[10] Finally, Davis claims that because a jury found him not guilty beyond a 

reasonable doubt, that the evidence is not sufficient to find that he violated 

probation. He essentially questions the character and believability of the 

 

3 Davis did not include the rules of probation in causes 339, 445, or 134 in the record on appeal.
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alleged victim of the crimes charged in cause 1302. Initially, we note that this is 

a request that we assess witness credibility, which we may not do. 

Furthermore, we note that “[b]ecause of the difference between the burden of 

proof required to convict someone of a crime and the burden of proof required 

to revoke probation, the court could revoke probation after finding [a 

defendant] not guilty based on the same evidence.” Dokes, 971 N.E.2d at 180. 

At the criminal trial, which was incorporated into the revocation proceeding, 

the alleged victim testified that Davis had, in fact, committed the charged 

crimes. This evidence is sufficient to support the trial court’s conclusion that 

the State proved the probation violations by a preponderance of the evidence.

[11] The judgment of the trial court is affirmed.

Bailey, J., and Mathias, J., concur.