Brian L. Gardner v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any Feb 04 2020, 9:06 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke Curtis T. Hill, Jr.
Wieneke Law Office, LLC Attorney General of Indiana
Brooklyn, Indiana
Courtney L. Staton
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Brian L. Gardner, February 4, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-1914
v. Appeal from the Vanderburgh
Circuit Court
State of Indiana, The Honorable Kelli E. Fink,
Appellee-Plaintiff. Magistrate
Trial Court Cause No.
82C01-1804-F5-2751
Mathias, Judge.
[1] Brian L. Gardner (“Gardner”) appeals from the Vanderburgh Circuit Court’s
revocation of his home detention placement, challenging whether sufficient
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evidence supports the finding that he violated the terms and conditions of the
community corrections program. Finding the evidence sufficient, we affirm.
Facts and Procedural History
[2] On January 20, 2019, Gardner pleaded guilty to Level 5 felony carrying a
handgun without a license and was sentenced to two years to be served as a
direct commitment on home detention. A company called ABK Tracking
monitors participants in the home detention program; Gardner was familiar
with ABK Tracking, apparently having submitted to numerous drug screens
while serving a suspended sentence in 2016 and 2017. Appellant’s Conf. App.
p. 31; Tr. p. 32.
[3] Gardner’s home detention began on April 9, 2019. On May 1, he submitted to a
“rapid instant drug test” that returned a positive result for the presence of
methamphetamine. ABK Tracking followed its standard policy when an
individual has a positive drug test: the individual can admit the positive result in
an admission form or deny the positive result in a denial form. If the test result
is denied, the test is sent to a laboratory for confirmation. If the test result is
admitted, no further confirmation is sought. Gardner denied using
methamphetamine and asked to be retested; however, he said that earlier the
same day he had ingested unknown pills that he thought included a laxative.
After being read the admission form from “top to bottom,” Gardner provided
his electronic signature, admitting to using or testing positively for
methamphetamine. Tr. p. 6.
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[4] ABK Tracking submitted a home detention violation report and the State filed a
petition to revoke Gardner’s placement on May 2. The trial court held a hearing
on the matter on June 20. Gardner explained that when he gave his electronic
signature, he believed it was for his drug test to be sent to a laboratory for
further testing and did not know that he was signing the admission form. The
trial court determined that Gardner was in violation of the terms and conditions
of his home detention placement, and on July 18, revoked twenty months of
Gardner’s twenty-four-month sentence to the Department of Correction. This
appeal followed.
Discussion and Decision
[5] We note initially that, for probation to be a workable option for Indiana judges,
judges “must have the ability to move with alacrity to protect public safety
when adjudicated offenders violate the conditions of their sentences.” Stephens
v. State, 818 N.E.2d 936, 941–42 (Ind. 2004). And our standard of review for an
appeal from the revocation of a community corrections placement is the same
as that for an appeal from the revocation of probation. Cox v. State, 706 N.E.2d
547, 551 (Ind. 1999). A probation revocation hearing is civil in nature, and the
State need only prove the alleged violation by a preponderance of the evidence.
Monroe v. State, 899 N.E.2d 688, 691 (Ind. Ct. App. 2009). We consider all the
evidence most favorable to the judgment of the trial court and do not reweigh
that evidence or judge the credibility of the witnesses. Id. If there is substantial
evidence of probative value to support the trial court’s conclusion that a
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probationer has violated any term or condition of the community corrections
placement, we will affirm its decision to revoke the placement. Id.
[6] Gardner challenges the revocation of his home detention placement by arguing
that there is insufficient evidence to support the trial court’s determination that
he violated the terms of his home detention by testing positive for an illicit drug,
methamphetamine. Here, the evidence presented was that Gardner submitted
to a random drug test and the result was positive for methamphetamine. When
confronted with this result of this test, Gardner signed an admittance form in
which he admitted to using or testing positively for methamphetamine. His
request that we credit his testimony that he mistakenly signed the admission
form, meaning instead to have his positive drug test retested, is simply a request
to reweigh evidence and judge witness credibility, which we decline to do. See
Holmes v. State, 923 N.E.2d 479 (Ind. Ct. App. 2010) (holding urinalysis report
was sufficient evidence to support trial court’s determination that probationer
violated terms of home detention by consuming alcohol).
[7] The trial court found the result of the test and Gardner’s signed admission form
reliable to prove by a preponderance of the evidence that Gardner consumed
methamphetamine. We conclude that the positive result and Gardner’s signed
admission provided substantial evidence of probative value in support of the
trial court’s determination and thus decline to disturb the revocation of
Gardner’s home detention placement on appeal.
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Conclusion
[8] Sufficient evidence supports the trial court’s determination that Gardner
violated the terms and conditions of his community corrections placement.
[9] Affirmed.
Kirsch, J., and Bailey, J., concur.
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