James L. Harness, IV v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Feb 12 2016, 8:50 am
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
Leanna Weissmann Gregory F. Zoeller
Lawrenceburg, Indiana Attorney General of Indiana
Paula J. Beller
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
James L. Harness, IV February 12, 2016
Appellant-Defendant, Court of Appeals Case No.
15A01-1508-CR-1153
v. Appeal from the Dearborn
Superior Court
State of Indiana, The Honorable Jonathan N.
Appellee-Plaintiff. Cleary, Judge
Trial Court Cause No.
15D01-0804-FB-5
Bradford, Judge.
Case Summary
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[1] In 2008, Appellant-Defendant James Harness pled guilty to Class B felony
operating a vehicle while intoxicated (“OWI”) causing death. Harness was
given a twenty-year sentence with eight years suspended to probation. Harness
was released from incarceration in February 2015. A condition of Harness’s
probation was that he not consume alcohol. In June 2015, Harness took a
routine urine screen which revealed the presence of alcohol metabolites. As a
result, Appellee-Plaintiff the State of Indiana filed a motion to revoke Harness’s
suspended sentence. The trial court found that Harness violated his probation
by consuming alcohol, revoked six years of Harness’s suspended sentence, and
added an additional year of probation. On appeal, Harness claims that there
was insufficient evidence to prove that he consumed alcohol. We affirm.
Facts and Procedural History
[2] On December 21, 2007, Harness was a driving a borrowed Jeep Wrangler when
he lost control of the vehicle and struck a tree. Bryan Morgan, one of the four
passengers, was thrown from the vehicle and died as a result of his injuries.
The remaining three passengers suffered only minor injuries. Harness fled the
scene following the accident.
[3] The remaining passengers informed police that they had been drinking prior to
the accident and that Harness had been driving ninety miles per hour and
ignored their pleas to slow down. Seven hours after the crash, Harness was
submitted to a portable breathalyzer test which indicated that his blood alcohol
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level was 0.088%. Harness did not have a valid license and had been convicted
of an OWI the previous year.
[4] On July 2, 2008, Harness pled guilty to Class B felony OWI resulting in death
with a prior OWI conviction. The trial court sentenced Harness to a twenty-
year term with eight years suspended to probation. Harness was released from
the Department of Correction in February 2015. On June 15, 2015, Harness’s
probation officer performed a urine screen on Harness which revealed the
presence of alcohol. The State subsequently filed a motion to revoke Harness’s
suspended sentence.
[5] At a fact finding hearing, the State presented testimony from Steve Kelly, Chief
Probation Officer of the Dearborn Superior Courts, about the failed screen.
The State also submitted an affidavit from Jeff Retz, the Scientific Director and
Certifying Scientist at Witham Memorial Hospital Toxicology Laboratory, who
tested Harness’s urine sample. Retz opined that, based on the urinalysis,
Harness had consumed alcohol within the five days prior to the screen.
Harness claimed that the test results were a false positive. The trial court found
that Harness had violated his probation by consuming alcohol, revoked six
years of Harness’s suspended sentence, and added one year of probation.
Discussion and Decision
[6] On appeal, Harness claims that the State failed to present sufficient evidence to
prove by a preponderance that he violated his probation by consuming alcohol.
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Specifically, Harness argues that the urine screen was unreliable because (1) the
State failed to present evidence regarding the specific manner in which the
sample was collected and (2) that the procedure used to test Harness’s urine is
not scientifically reliable.
[7] Because a probation hearing is civil in nature, the State must
prove the alleged probation violation by a preponderance of the
evidence. Braxton v. State, 651 N.E.2d 268, 270 (Ind.1995), reh’g
denied; see Ind. Code § 35-38-2-3(e). In reviewing a claim of
insufficient evidence, we neither reweigh the evidence nor judge
the credibility of the witnesses. Braxton, 651 N.E.2d at 270.
Instead, we consider only the evidence most favorable to the trial
court’s decision to revoke probation. Id. We will affirm when
there is substantial evidence of probative value to support the
court’s conclusion that a probationer has violated any condition
of probation. Id.
Johnson v. State, 692 N.E.2d 485, 486 (Ind. Ct. App. 1998).
[8] At the revocation hearing, the State submitted the affidavit of Jeff Retz, who
tested Harness’s urine sample for the presence of ethyl glucuronide (“ETG”), a
metabolite produced as a result of ingesting alcohol. Retz outlined the
procedure which was used to transfer and analyze the sample and avowed that
all proper steps were taken with Harness’s sample. Bases on Harness’s ETG
levels, Retz opined that “Harness [] would have had to use or ingest a substance
containing ethyl alcohol sometime in the five days prior to the urine
collection.” Ex. 1. Retz also indicated that the sample was sent for
confirmation testing to a separate laboratory in Kansas. Retz attached the
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affidavit of Dr. David Kuntz to his own affidavit in which Kuntz, the director
of the Kansas laboratory, confirmed Harness’s positive ETG screen.
[9] Steve Kelly testified that, at the time of the urine screen, Harness had moved to
Switzerland County, was under courtesy supervision in that county, and that
the urine sample was collected by a certified Switzerland County probation
officer. Kelly also testified that, to the best of his knowledge, “all procedures
and processes were followed” in the collection of Harness’s urine sample. Tr.
p. 19.
[10] First, Harness argues that “[t]he record lacks evidence to show that Harness’s
sample had been collected and stored in the proper manner.” Appellant’s Br. p.
11. However, Harness does not describe what proper collection procedure
might be, how the probation officer in this case may have failed to follow such
procedure during the collection process, and how any such failure could lead to
a false positive. We are unpersuaded by Harness’s attempts to generally cast
doubt on the collection procedure without any specific claims of deficiency.
[11] Harness goes on to generally question the reliability of ETG testing, arguing
that the testimony here does not “rest[] upon reliable scientific principles” as is
required by Indiana Evidence Rule 702. Despite Harness’s contentions with the
accuracy of the ETG test, the only scientific evidence presented were the
affidavits of Retz and Kuntz, in which Retz opined that the results of Harness’s
urine indicated that he consumed alcohol in the previous five days. These
expert affidavits stand as an endorsement of the reliability of the ETG test.
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Harness offered no expert testimony that may have given the trial court reason
to question the validity of ETG testing. Absent such evidence, we find that the
results of the ETG testing are sufficient to sustain the trial court’s conclusion
that Harness consumed alcohol in violation of the terms his probation.
[12] The judgment of the trial court is affirmed.
Baker, J., and Pyle, J., concur.
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