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

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.
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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
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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.
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[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
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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
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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.
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[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
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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
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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.
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