Robert Morris III v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Mar 30 2017, 7:42 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jeffery A. Earl Curtis T. Hill, Jr.
Danville, Indiana Attorney General of Indiana
Michael Gene Worden
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Robert Morris III, March 30, 2017
Appellant-Defendant, Court of Appeals Case No.
32A01-1609-CR-2191
v. Appeal from the Hendricks
Superior Court
State of Indiana, The Honorable Karen M. Love,
Appellee-Plaintiff Judge
Trial Court Cause No.
32D03-1405-CM-393
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 32A01-1609-CR-2191 | March 30, 2017 Page 1 of 5
[1] Robert Morris III appeals the trial court’s order revoking his probation, arguing
that there is insufficient evidence supporting the revocation. On July 7, 2014,
Morris pleaded guilty to Class A misdemeanor operating a vehicle while
intoxicated, endangering a person. The trial court sentenced Morris to 365 days
in jail with 233 days suspended to probation. One of the conditions of Morris’s
probation was that he refrain from consuming alcohol. He was released to
probation on February 2, 2016.
[2] On August 4, 2016, the State filed a notice of probation violation, alleging that
a random urine screen revealed that Morris had consumed alcohol. The trial
court held a hearing on the alleged violation on September 13, 2016. Morris’s
probation officer testified that she conducted a random urine screen on Morris
on July 12, 2016. When she received the results of the screen from the
laboratory, she learned that the urine tested positive for Ethyl Glucuronide
(ETG) and Ethyl Sulfate (ETS). The following discussion then occurred:
Question: And in your training and experience as a Probation
Officer what do those refer to?
Answer: ETG is a direct metabolite of alcohol also known as
ethanol used to detect recent alcohol ethanol
ingestion up to 80 hours. Ethyl sulfate or ETS is a
confirmation of that test.
Question: And the numbers on there, does that mean that the
lab has confirmed that that was a positive result?
Answer: Yes, sir.
Court of Appeals of Indiana | Memorandum Decision 32A01-1609-CR-2191 | March 30, 2017 Page 2 of 5
Question: Did Mr. Morris report taking any medications that
might interfere with the result of that test?
Answer: No, sir he did not.
Tr. p. 8.
[3] Morris argues that this evidence is insufficient because the probation officer was
not an expert qualified to explain the results of the toxicology report1 and
because there was insufficient evidence that the probation department followed
proper procedures in obtaining the urine sample. With respect to his first
argument, we note that no objection was lodged regarding the probation
officer’s qualifications to testify regarding the results of the urine screen. The
probation officer testified based on her training and experience, and the trial
court was entitled to rely on her testimony in that regard. Morris’s arguments
to the contrary (including a contention that he had taken Nyquil shortly before
the urine screen) amount to a request that we reweigh the evidence and re-
assess witness credibility. We are not permitted to do so, and find the probation
officer’s testimony sufficient to support the trial court’s order. See Ind. Code §
35-38-2-3(f) (State must prove probation violation by a preponderance of the
evidence); Pierce v. State, 44 N.E.3d 752, 754-55 (Ind. Ct. App. 2015) (noting
1
Morris did not object to the admissibility of the testimony regarding the urine sample or to the laboratory
report itself. He explicitly states on appeal that he is challenging the sufficiency of the evidence rather than its
admissibility. Reply Br. p. 4.
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that when reviewing a probation revocation proceeding, we neither reweigh the
evidence nor judge witness credibility).
[4] As to Morris’s second argument—that the State did not establish that proper
procedures were followed in obtaining the urine sample—the probation officer
testified as follows:
Mr. Morris was asked to sign a sheet stating what prescription
medication he had taken, any over the counter medication, to
either admit or deny any illegal drug use or any alcohol
consumption. He then signs the paper work, a male officer . . .
signed the paperwork and [the male officer] escorted Mr. Morris
into the male testing bathroom where he submitted his urine
sample. It was then sealed and sent to Redwood Toxicology via
FedEx.
Tr. p. 6-7. The probation officer then affirmed that those are the probation
department’s standard procedures for obtaining a urine sample. Id. at 7.
Morris contends that he noticed irregularities in the submission of his sample;
specifically, he claims that the male officer asked Morris to rinse out the sample
cup before he urinated in it. Id. at 14. This amounts to a request that we
reweigh evidence and re-assess witness credibility. We decline to do so. The
probation officer’s testimony, alone, is sufficient to support a conclusion that
proper procedures were followed in obtaining Morris’s urine sample. See Pierce,
44 N.E.3d at 755 (in reviewing probation revocation, we consider only the
evidence favorable to the trial court’s order and all reasonable inferences that
may be drawn therefrom). We find the evidence sufficient.
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[5] The judgment of the trial court is affirmed.
Barnes, J., and Crone, J., concur.
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