Court of Appeals of Indiana | Memorandum Decision 36A04-1507-CR-1045 | February 2, 2016 Page 1 of 4

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

R. Patrick Magrath

Alcorn Sage Schwartz & Magrath, LLP

Madison, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Richard C. Webster

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Kimberly Galbraith,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

February 2, 2016

Court of Appeals Case No.

36A04-1507-CR-1045

Appeal from the Jackson Circuit 

Court

The Honorable Richard W. 

Poynter, Judge

Trial Court Cause Nos.

36C01-1304-FD-139

36C01-1402-FD-82

Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 36A04-1507-CR-1045 | February 2, 2016 Page 2 of 4

[1] Kimberly Galbraith appeals the trial court’s order revoking probation and 

ordering her to execute the remainder of her sentences in two causes. Finding 

no error, we affirm.

Facts

[2] On April 8, 2013, the State charged Galbraith with class D felony theft in Cause 

Number 36C01-1304-FD-139 (Cause 139). On March 5, 2014, the State added 

a count of class A misdemeanor criminal conversion. Galbraith pleaded guilty 

to criminal conversion and the State dismissed the theft charge. On July 17, 

2014, the trial court sentenced Galbraith—pursuant to the terms of her plea 

agreement—to twelve months incarceration, fully suspended to supervised 

probation.

[3] On February 11, 2014, the State charged Galbraith with class D felony theft, 

class D felony possession of methamphetamine, and class A misdemeanor 

possession of paraphernalia in Cause Number 36C01-1402-FD-82 (Cause 82). 

On July 17, 2014, Galbraith pleaded guilty to class A misdemeanor possession 

of paraphernalia in exchange for the dismissal of the other two charges. On 

August 6, 2014, the trial court sentenced Galbraith—pursuant to the terms of 

her plea agreement—to twelve months incarceration, fully suspended to 

supervised probation, to be served consecutively to the sentence in Cause 139.

[4] As a condition of probation, Galbraith was required to refrain from use of 

illegal drugs. On February 2, 2015, the State filed a petition to revoke 

probation in both causes, alleging that Galbraith had violated probation by 
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testing positive for methamphetamine. Galbraith admitted to the allegation at 

an April 6, 2015, factfinding hearing. At that hearing, the trial court ordered 

Galbraith to submit to weekly drug screens. At the June 26, 2015, sanctions 

hearing, Galbraith’s probation officer testified that six drug screens were 

administered to Galbraith between April 6 and June 4, 2015, and that Galbraith 

tested positive for methamphetamine on every single screen. At the conclusion 

of the hearing, the trial court revoked Galbraith’s probation in both cases and 

ordered her to serve the previously-suspended portion of each sentence. The 

trial court ordered the sentences to be served consecutively, as originally 

ordered and as provided for in the plea agreement for Cause 82. Galbraith now 

appeals.

Discussion and Decision

[5] 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. When the procedures for revoking probation 

have been properly followed—and there is no allegation in this case that they 

were not—we will uphold the trial court’s imposition of the entire previously-
Court of Appeals of Indiana | Memorandum Decision 36A04-1507-CR-1045 | February 2, 2016 Page 4 of 4

suspended sentence. Wann v. State, 997 N.E.2d 1103, 1106 (Ind. Ct. App. 

2013).

[6] In this case, Galbraith admitted to violating probation when she tested positive 

for methamphetamine in January 2015. That evidence, alone, is sufficient to 

support the revocation. Then, at the sanctions hearing, evidence was presented 

that she proceeded to test positive for methamphetamine on each of six drug 

screens. Presumably, had she tested clean between the factfinding and 

sanctions hearings, the trial court would have been more amenable to showing 

leniency. Yet she was unable to provide a single clean screen. 

[7] Galbraith argues that there are mitigating circumstances to her case that the 

trial court ignored. But when imposing a sentence in a probation revocation 

proceeding, trial courts are not required to balance aggravating or mitigating 

circumstances. Treece v. State, 10 N.E.3d 52, 59-60 (Ind. Ct. App. 2014), trans. 

denied. Therefore, this argument is unavailing.

[8] Galbraith admitted to methamphetamine use and tested positive on six 

consecutive screens. It should be noted that supervised probation was a term to 

which she agreed as part of her two plea agreements. When offered leniency by 

the State, Galbraith took advantage and used illegal drugs. We find no error in 

the trial court’s decision to withhold its leniency the second time around.

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

Bradford, J., and Pyle, J., concur.