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: ATTORNEYS FOR APPELLEE:

PAUL J. PODLEJSKI GREGORY F. ZOELLER

Anderson, Indiana Attorney General of Indiana

KATHERINE MODESITT COOPER

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

DEBORAH BIRGE, )

)

Appellant-Defendant, )

)

vs. ) No. 48A05-1405-CR-230

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE MADISON CIRCUIT COURT

The Honorable David A. Happe, Judge

Cause No. 48C04-1203-FB-590

December 17, 2014

MEMORANDUM DECISION - NOT FOR PUBLICATION

BRADFORD, Judge 
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CASE SUMMARY

In January of 2013, Appellant-Defendant Deborah Birge pled guilty to Class C felony 

attempted trafficking with an inmate. On February 4, 2013, the trial court accepted Birge’s 

guilty plea and sentenced her to a term of four years, with two years to be served on home 

detention and two years suspended to probation. On February 3, 2014, Appellee-Plaintiff 

the State of Indiana (the “State”) filed an allegation that Birge had violated the terms of her 

probation by committing new criminal offenses and by being in arrears of her home detention 

fees. 

Following an evidentiary hearing, the trial court determined that Birge had violated 

the terms of her probation. In light of Birge’s probation violation, the trial court ordered that 

Birge serve one year of her previously-suspended sentence in the Department of Correction 

(“DOC”). On appeal, Birge challenges the trial court’s determination that she had violated 

the terms of her probation. Concluding that the trial court did not err in determining that 

Birge had violated the terms of her probation, we affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

The facts most favorable to the judgment of the trial court are as follows: On January 

9, 2013, Birge pled guilty to Class C felony attempted trafficking with an inmate. On 

February 4, 2013, the trial court accepted Birge’s guilty plea and sentenced Birge to four 

years, with two years executed on home detention and two years suspended to probation. On 

February 3, 2014, the State filed an allegation that Birge had violated the terms of her 

probation. Specifically, the State alleged that Birge had violated the terms of her probation in 
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the following ways:

a. Failure to obey all Municipal, State, and Federal Laws and Failure to 

behave well in society to wit: On or about 1/28/14 charges were filed and 

[Birge] is alleged to have committed the following new criminal offenses: 

Count I-III: Forgery, Class C Felonies, and Counts IV-VI: Obtaining a 

Controlled Substances by Fraud or Deceit, Class D Felonies....

b. As of 2/3/14 [Birge] is in arrears to the Office of Home Detention in the 

amount of $75.00....

Appellant’s App. p. 1. 

The trial court conducted an evidentiary hearing on the matter on April 21, 2014. 

Birge stipulated to the factual accuracy of the allegation that she was in arrears of her home 

detention fees but denied the allegation “for the purposes of appeal.” Tr. p. 42. Birge also 

denied that she had violated the terms of her probation by committing new criminal offenses. 

With respect to the alleged new criminal offenses, Detective Bret Busby of the 

Madison County Drug Task Force testified that “shortly before Thanksgiving of 2013,” he 

received notification from a CVS Pharmacy in Lapel that Doctor Neva Lynch-Jackson (“Dr. 

Lynch-Jackson”) had alerted the pharmacy that one of her former patients, Charles Tippet, 

had been receiving duplicate medications prescribed by another physician in northern 

Indiana, where Tippet resided in an assisted-living facility. Tr. p. 43. After speaking to both 

Dr. Lynch-Jackson and the doctor treating Tippet at the assisted-living facility, Detective 

Busby went to the CVS “to find out who was picking up the medications that had been 

prescribed by [Dr. Lynch-Jackson.]” Tr. p. 44. Detective Busby identified the individual as 

Birge after the pharmacists described her appearance and allowed Detective Busby to review 

the pharmacy’s surveillance video. Detective Busby also reviewed the records relating to the 
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pharmacy’s policy for dispensing a controlled substance, including Birge’s driver’s license 

information and an electronic capture of the signature of the person picking up the 

prescription. The records indicated that while Birge provided her driver’s license 

information, she signed the name “Charles Tippet” in the signature box for the medications in

question. Tr. p. 52. Detective Busby indicated that based on his training and experience, it 

was his “understanding that [it] is the general practice that when a customer comes in and 

signs for a prescription that they are to sign their name and not someone else’s [name].” Tr. 

p. 57.

Detective Busby further testified that during the course of his investigation, he 

discovered that Tippet did not currently reside in Madison County at the time the signatures 

were provided. Detective Busby further discovered that Birge was Tippet’s niece. Detective 

Busby also testified that he discovered that the attending physician at the assisted-living 

facility where Tippet resided had “limited the medications [Tippet] was to be receiving to the 

medications that [the] attending physician was prescribing.” Tr. p. 62.

At the conclusion of the evidentiary hearing, the trial court found that Birge had 

violated the terms of her probation “as alleged.” Appellant’s App. p. 2. Specifically, the trial 

court found that the State had proved the allegations by a preponderance of the evidence, 

stating as follows:

Well we have a situation here, um, aggravated by both the physician’s office 

and the pharmacy’s procedures. But at the end I do find that Ms. Birge did 

violate as alleged in 3A and 3B. Had Ms. Birge showed up and signed her 

own name here we might have a different case, but she didn’t, she signed 

someone else’s name and this signature has legal consequences. This is a 

signature that authorizes you to get the drugs from the pharmacy, and Ms. 
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Birge didn’t go in and say, I’m Ms. Birge and I’m here signing as Ms. Birge 

for someone else’s prescription, she signed the patient’s name representing that 

she was someone else, and you can’t do that. Apparently it worked for a 

period of time and maybe she thought that by providing this, if it was ever 

reviewed, they’d see the patient’s name and not look farther. But that didn’t 

happen. And it’s particularly aggravated here because what Ms. Birge is here 

for in the first place was a conspiracy to smuggle drugs into a [DOC] facility. 

So, um, it’s a little bit mind boggling to me that Ms. Birge, having gotten in

trouble for that already, would somehow think it was okay to do what she was 

doing with Mr. Trippet. (sic) So she’s found in violation. 

Tr. pp. 73-74 (brackets added, parentheses in original). As a result of the violation, the trial 

court revoked Birge’s probation and order that she serve one year of her previouslysuspended sentence in the DOC. The trial court further ordered that “[u]pon completion of 

the executed sentence [Birge] shall run to probation for the balance of the suspended 

sentence under all original terms and conditions.” Appellant’s App. p. 2. This appeal 

follows. 

DISCUSSION AND DECISION

Birge appeals the trial court’s determination that she violated the terms of her 

probation. 

Probation is a matter of grace left to trial court discretion, not a right to 

which a criminal defendant is entitled. The trial court determines the 

conditions of probation and may revoke probation if the conditions are 

violated. 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. Accordingly, a trial court’s sentencing 

decisions for probation violations are reviewable using the abuse of discretion 

standard. An abuse of discretion occurs where the decision is clearly against 

the logic and effect of the facts and circumstances.
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Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007) (citations and quotation marks omitted).

A probation revocation hearing is in the nature of a civil proceeding. 

Therefore, an alleged violation of probation only has to be proven by a 

preponderance of the evidence. When we review the determination that a 

probation violation has occurred, we neither reweigh the evidence nor reassess 

witness credibility. Instead, we look at the evidence most favorable to the 

[trial] court’s judgment and determine whether there is substantial evidence of 

probative value supporting revocation. If so we will affirm. 

Whatley v. State, 847 N.E.2d 1007, 1010 (Ind. Ct. App. 2006) (citations and quotations 

omitted). 

Indiana Code section 35-38-2-3 provides, in relevant part, as follows:

(a) The court may revoke a person’s probation if:

(1) the person has violated a condition of probation during the 

probationary period; 

****

(h) If the court finds that the person has violated a condition at any time before 

termination of the period, and the petition to revoke is filed within the 

probationary period, the court may impose one (1) or more of the following 

sanctions:

(1) 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 (1) 

year beyond the original probationary period.

(3) Order execution of all or part of the sentence that was suspended

at the time of initial sentencing.

The violation of a single condition of probation is sufficient to revoke probation. Wilson v. 

State, 708 N.E.2d 32, 34 (Ind. Ct. App. 1999). 

Again, the trial court found that Birge violated the terms of her probation by 

committing new criminal offenses and in being in arrears of her home detention fees. With 

respect to the new criminal offenses, the trial court found that the State proved by a 
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preponderance of the evidence that Birge had committed at least one new criminal offense by 

forging Tippet’s name in order to receive a controlled substance that was prescribed to 

Tippet. The version of Indiana Code section 35-43-5-2(b) that was in effect at the time Birge 

is alleged to have committed the new criminal offenses1reads as follows: 

A person who, with intent to defraud, makes, utters, or possesses a written 

instrument in such a manner that it purports to have been made: 

(1) by another person; 

(2) at another time; 

(3) with different provisions; or 

(4) by authority of one who did not give authority; 

commits forgery, a Class C felony.

As used in Indiana Code section 35-43-2-5(b), the term “make” is defined as “to draw, 

prepare, complete, counterfeit, copy or otherwise reproduce, or alter any written instrument 

in whole or in part.” Ind. Code § 35-43-5-1(m). Indiana Code section 35-43-5-1(t) defines a 

“written instrument” as 

a paper, a document, or other instrument containing written matter and 

includes money, coins, tokens, stamps, seals, credit cards, badges, trademarks, 

medals, retail sales receipts, labels or markings (including a universal product 

code (UPC) or another product identification code), or other objects or 

symbols of value, right, privilege, or identification.

Further, in Indiana, electronic signatures have the same legal effect as written signatures. 

Green v. State, 945 N.E.2d 205, 208 (Ind. Ct. App. 2011) (citing Ind. Code § 26-2-8-106). 

In revoking Birge’s probation, the trial court noted that “[t]o forge someone else’s 

name to get drugs after you were on felony probation for trying to get drugs to other people. 

That’s really shocking.” Tr. p. 80. The State’s evidence demonstrates that Birge forged 

 

1

 This statute has since been amended to reflect the changes to Indiana’s criminal code that went into 
8

Tippet’s signature when picking up the prescriptions at issue. This evidence was sufficient to 

prove, again by a preponderance of the evidence, that Birge committed a new criminal 

offense. Birge’s challenge to the trial court’s determination that she violated the terms of her 

probation effectively amounts to a request for this court to reweigh the evidence, which we 

will not do. See Whatley, 847 N.E.2d at 1010.

In addition, Birge does not challenge the trial court’s determination that she was 

$75.00 in arrears of her home detention fees on appeal. Again, the violation of a single 

condition of probation is sufficient to revoke probation. Wilson, 708 N.E.2d at 34. As such, 

even if the trial court had erroneously determined that Birge violated the terms of her 

probation by committing new criminal offenses, the trial court could properly determine that 

Birge had violated the terms of her probation by being in arrears of her home detention fees. 

Furthermore, to the extent that Birge argues that the trial court abused its discretion in 

ordering her to serve one year of her previously-suspended sentence, we conclude otherwise.

Indiana Code section 35-38-2-3(h) provides that if the trial court determines that a person has 

violated the terms of their probation, the trial court may “[o]rder execution of all or part of 

the sentence that was suspended at the time of initial sentencing.” (Emphasis added). Thus, 

pursuant to the clear language of Indiana Code section 35-38-2-3(h), the trial court acted 

within its discretion in ordering execution of one year of Birge’s two-year suspended

sentence. Concluding that the trial court did not err in finding that Birge violated the terms 

of her probation or abuse its discretion in ordering Birge to serve one year of her two-year 

 

effect July 1, 2014. 
9

suspended sentence following her violation of the terms of her probation, we affirm the 

judgment of the trial court.

The judgment of the trial court is affirmed.

NAJAM, J., and MATHIAS, J., concur.