Daniel Boyd v. State of Indiana (mem. dec.) ( 2017 )


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  • MEMORANDUM DECISION
    Pursuant to Ind. Appellate Rule 65(D),
    this Memorandum Decision shall not be
    regarded as precedent or cited before any
    FILED
    court except for the purpose of establishing                            Jul 28 2017, 9:52 am
    the defense of res judicata, collateral                                     CLERK
    Indiana Supreme Court
    estoppel, or the law of the case.                                          Court of Appeals
    and Tax Court
    ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
    Michael R. Fisher                                        Curtis T. Hill, Jr.
    Indianapolis, Indiana                                    Attorney General of Indiana
    Christina D. Pace
    Deputy Attorney General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    Daniel Boyd,                                             July 28, 2017
    Appellant-Defendant,                                     Court of Appeals Case No.
    49A05-1701-CR-192
    v.                                               Appeal from the Marion Superior
    Court
    State of Indiana,                                        The Honorable Shatrese Flowers,
    Judge
    Appellee-Plaintiff.
    The Honorable James Snyder,
    Commissioner
    Trial Court Cause No.
    49G20-1408-FB-38247
    Barnes, Judge.
    Court of Appeals of Indiana | Memorandum Decision 49A05-1701-CR-192 | July 28, 2017             Page 1 of 9
    Case Summary
    [1]   Daniel Boyd appeals the trial court’s decision to revoke his placement at
    Marion County Community Corrections (“MCCC”). We affirm.
    Issues
    [2]   Boyd raises two issues on appeal, which we restate as:
    I.     whether the trial court abused its discretion in admitting
    evidence regarding a urine sample taken from Boyd; and
    II.     whether there was sufficient evidence to show that Boyd
    violated the terms of his placement at MCCC.
    Facts
    [3]   On August 5, 2014, Boyd was charged with two counts of Class B felony
    dealing in cocaine and two counts of Class D felony possession of cocaine. On
    December 30, 2014, Boyd pled guilty to Class B felony dealing in cocaine and
    Class D felony possession of cocaine; the other charges were dismissed. The
    trial court sentenced Boyd to six years with three years executed in the
    Department of Correction (“DOC”) and three years executed in MCCC. Once
    Boyd was released from the DOC, he was placed in Duvall Residential Center
    (“DRC”).
    [4]   On September 8, 2016, MCCC filed a notice of community corrections
    violation, which alleged that Boyd: (1) violated DRC rules regarding
    conspiracy/attempting/aiding or abetting; (2) violated DRC rules regarding
    trafficking; (3) violated DRC rules regarding the possession or use of a
    Court of Appeals of Indiana | Memorandum Decision 49A05-1701-CR-192 | July 28, 2017   Page 2 of 9
    controlled substance; and (4) failed to comply with the DRC payment policy.
    All of these alleged violations occurred on September 7, 2016.
    [5]   A hearing was held on December 29, 2016. During the hearing, an employee
    of DRC, Officer Andrew Carlson, testified that on September 7, 2016, he was
    responsible for conducting searches of residents coming back to the facility after
    leave on day passes. Officer Carlson testified that he encountered Boyd and,
    pursuant to DRC rules, conducted a search of Boyd and his belongings. While
    conducting the search, Officer Carlson noticed Boyd was mumbling when he
    spoke, which was something Boyd had not done during previous encounters.
    Officer Carlson then asked Boyd to open his mouth and remove whatever was
    in his mouth. Boyd complied, and Officer Carlson testified that Boyd “spit …
    two baggies of K2 onto the floor.” Tr. Vol. II p. 8. Boyd objected to this
    statement on hearsay grounds. The trial court overruled the objection.
    [6]   Officer Carlson then testified that he received training on how to identify
    synthetic marijuana, or K2, but he could not recall any specifics about the
    training. He also testified that he had encountered what he believed was K2
    multiple times. On cross-examination, Officer Carlson testified that he was not
    sure if the substance was K2, marijuana, or something else. He later clarified
    that it is hard to visually discern the differences between K2 and marijuana.
    Officer Carlson also testified that residents of DRC are required to sign a
    contract, which includes the proper procedure for bringing items into the facility
    and an agreement to abstain from using or possessing drugs.
    Court of Appeals of Indiana | Memorandum Decision 49A05-1701-CR-192 | July 28, 2017   Page 3 of 9
    [7]   DRC Sergeant Danny Williams testified that residents are not allowed to bring
    tobacco or other substances into the facility, unless they are prescribed by a
    physician. He stated that, if residents have a prescription, they must follow
    specific procedures that include first checking them into the front desk upon
    arrival. Sergeant Williams testified that on the day of the incident, he was
    called into Boyd’s holding cell by Officer Carlson, and he was shown the two
    bags recovered from Boyd’s mouth. Sergeant Williams then decided to conduct
    a “drop” on Boyd. Id. at 19. He explained that a “drop” is a urine drug screen
    in which he collects a urine sample and then dips a K2 tester and five point
    tester in the resident’s urine in order to get a positive or negative result for
    illegal substances. Sergeant Williams testified that it is standard procedure for
    the officer to open the packages in front of the resident, watch the resident use
    the bathroom, and dip the testers in the cup. Sergeant Williams testified that he
    had conducted the test on several occasions and followed standard procedure
    when he conducted the test on Boyd. Sergeant Williams then testified that
    Boyd tested positive for K2, based on the results of the dip stick test. Boyd
    again objected on hearsay grounds. The objection was overruled. Sergeant
    Williams also testified that he showed Boyd the positive result, and he stated
    that a positive result violated DRC rules.
    [8]   Boyd testified that, when he returned to DRC, he did not have anything in his
    mouth. He testified that, when he entered the search room, Officer Carlson
    conducted a search and, when the search was complete, Officer Carlson left the
    room. Boyd then claimed that, as he began putting his clothes back on, Officer
    Court of Appeals of Indiana | Memorandum Decision 49A05-1701-CR-192 | July 28, 2017   Page 4 of 9
    Carlson returned and spotted the bags on the floor. Boyd testified that he never
    saw the bags on the floor and did not have the bags in his mouth or in his
    possession at any point. He also testified that he had not used K2, was
    unfamiliar with K2, and had never tested positive for any other substances prior
    to this incident.
    [9]    At the conclusion of the hearing, the trial court determined that the State had
    not presented sufficient evidence to sustain the allegations concerning
    conspiracy or failure to pay DRC funds but had presented sufficient evidence
    that Boyd violated DRC rules against trafficking and possession or use of a
    controlled substance. As such, the trial court revoked Boyd’s community
    corrections placement and ordered him to serve the remainder of his sentence in
    the DOC. Boyd now appeals.
    Analysis
    I.    Admission of Evidence
    [10]   Boyd argues that the trial court abused its discretion by allowing hearsay
    evidence and revoking his placement in community corrections. Probationers
    during a revocation hearing are not entitled to the full array of constitutional
    rights afforded a defendant at trial. Reyes v. State, 
    868 N.E.2d 438
    , 440 (Ind.
    2007). They are entitled to certain due process rights, which include “written
    notice of the claimed violations, disclosure of the evidence against him, an
    opportunity to be heard and present evidence, the right to confront and cross-
    examine witnesses, and a neutral and detached hearing body.” Cox v. State, 
    706 N.E.2d 547
    , 549 (Ind. 1999). The procedures at such hearings are to be flexible
    Court of Appeals of Indiana | Memorandum Decision 49A05-1701-CR-192 | July 28, 2017   Page 5 of 9
    and as such the strict rules of evidence do not apply in revocation hearings. Id.;
    see also Holmes v. State, 
    923 N.E.2d 479
    , 482 (Ind. Ct. App. 2010) (holding the
    Indiana Rules of Evidence in general and the rules against hearsay in particular
    do not apply in community corrections placement revocation hearings).
    Instead, courts may consider any relevant evidence bearing some substantial
    indicia of reliability, including hearsay evidence. Cox, 706 N.E.2d at 551.
    During a revocation hearing, a trial court may admit hearsay evidence without
    violating a probationer’s right to confrontation if the trial court finds the
    hearsay evidence to be “substantially trustworthy.” Reyes, 868 N.E.2d at 442.
    “[T]he absence of strict evidentiary rules places particular importance on the
    fact-finding role of judges in assessing the weight, sufficiency, and reliability or
    proffered evidence.” Cox, 706 N.E.2d at 551. “This assessment, then, carries
    with it a special level of judicial responsibility and is subject to appellate
    review.” Id.
    [11]   Boyd argues that the trial court abused its discretion by allowing Sergeant
    Williams to testify about the results of Boyd’s urine sample. Boyd contends
    that this testimony was unreliable hearsay and, as such violated his due process
    right to cross-examine witnesses. As discussed, the hearsay exclusion rule is
    not applicable to these proceedings. Id. at 552. The trial court may consider all
    relevant evidence, including reliable hearsay. Consequently, we need not
    address whether the officer’s testimony was hearsay. Rather, we will consider
    only whether the evidence was substantially trustworthy and has a substantial
    indicia of reliability.
    Court of Appeals of Indiana | Memorandum Decision 49A05-1701-CR-192 | July 28, 2017   Page 6 of 9
    [12]   Boyd contends that Sergeant Williams’s testimony was not substantially
    trustworthy because Sergeant Williams had “absolutely no scientific expertise
    about a scientific test he conducted.” Appellant’s Br. p. 10. Sergeant Williams
    testified that he had conducted the dip stick test on several occasions and
    explained in detail how the urinalysis test is performed. He also testified that he
    followed standard procedure when he conducted the test on Boyd, including
    watching Boyd urinate, opening the test strips in front of him, and allowing him
    to review the results. In addition, Boyd was given the opportunity to cross-
    examine Sergeant Williams during the hearing. Given the evidentiary
    standards applicable to revocation proceedings, we find that the trial court did
    not abuse its discretion by admitting the testimony of Sergeant Williams. We
    also note the trial court had the opportunity to assess and assign the weight to
    be given to this evidence.
    II.    Sufficiency of Evidence
    [13]   Boyd contends that the evidence was insufficient to show that he violated the
    terms of his community corrections placement. We review a decision to revoke
    placement in a community corrections program in the same manner as a
    decision to revoke probation. Cox, 706 N.E.2d at 549. “A probation hearing is
    civil in nature and the State need only prove the alleged violations by a
    preponderance of the evidence.” Id. at 551. We will not reweigh the evidence
    or judge the credibility of witnesses and will consider all the evidence most
    favorable to the judgment of the trial court. Id. “If there is substantial evidence
    of probative value to support the trial court’s conclusion that a defendant has
    Court of Appeals of Indiana | Memorandum Decision 49A05-1701-CR-192 | July 28, 2017   Page 7 of 9
    violated any terms of probation, we will affirm its decision to revoke
    probation.” Id. The violation of a single condition of probation is enough to
    support revocation. Pierce v. State, 
    44 N.E.3d 752
    , 755 (Ind. Ct. App. 2015).
    [14]   Boyd contends that “the testimony of [Officer Carlson] is not sufficient to show
    by a preponderance of the evidence that [he] possessed K2.” Appellant’s Br. p.
    17. Specifically he argues that Officer Carlson’s testimony that “the matter in
    question was similar to or consistent with the substances the witness was shown
    during his training is not really probative of the conclusion that it was actually
    one of these substances.” 
    Id.
     Our supreme court, however, has established
    that, “The State is not required to introduce the subject contraband to obtain a
    conviction for dealing or possession.” Helton v. State, 
    907 N.E.2d 1020
    , 1024
    (Ind. 2009) (holding the identity and quantity of a controlled substance and the
    defendant’s possession of or dealing in narcotics may all be established through
    witness testimony and circumstantial evidence). In order to sustain a
    conviction for possession, the opinion of someone sufficiently experienced with
    the drug as well as other circumstantial evidence is sufficient. Clifton v. State,
    
    499 N.E.2d 256
    , 258 (Ind. 1986). The burden of proof in a revocation
    proceeding is even less than for obtaining a criminal conviction.
    [15]   Officer Carlson testified that he observed Boyd spit out two bags containing
    substances similar in appearance to K2 or marijuana. Officer Carlson also
    testified that he had been trained on how to identify K2 and marijuana.
    Although he stated that the differences between the two are hard to visually
    discern, Sergeant Williams established that both substances are visually
    Court of Appeals of Indiana | Memorandum Decision 49A05-1701-CR-192 | July 28, 2017   Page 8 of 9
    distinctive from other substances, such as tobacco. Officer Carlson also testified
    that he had encountered K2 and marijuana on several occasions during his
    employment. In addition, the State presented testimony that Boyd tested
    positive for K2 and that Boyd would have violated placement rules by either
    possessing or testing positive for any controlled substance. 1 Because only a
    single violation of a condition of community corrections is sufficient to support
    revocation, we find that the evidence was sufficient to revoke Boyd’s placement
    in MCCC.
    Conclusion
    [16]   The trial court did not abuse its discretion by admitting the testimony of
    Sergeant Williams, and there was sufficient evidence to support the trial court’s
    decision to revoke Boyd’s placement in community corrections. We affirm.
    [17]   Affirmed.
    Baker, J., and Crone, J., concur.
    1
    This also includes possession or use of tobacco.
    Court of Appeals of Indiana | Memorandum Decision 49A05-1701-CR-192 | July 28, 2017   Page 9 of 9
    

Document Info

Docket Number: 49A05-1701-CR-192

Filed Date: 7/28/2017

Precedential Status: Precedential

Modified Date: 7/28/2017