Kathy Jo Hill v. State of Indiana

Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be Mar 21 2014, 10:26 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:
ZACHARY A. WITTE GREGORY F. ZOELLER
Locke & Witte Attorney General of Indiana
Fort Wayne, Indiana
ANGELA N. SANCHEZ
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
KATHY JO HILL, )
)
Appellant-Defendant, )
)
vs. ) No. 92A05-1308-CR-430
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE WHITLEY SUPERIOR COURT
The Honorable James R. Heuer, Special Judge
Cause No. 92D01-1101-FC-22
March 21, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
KIRSCH, Judge
Kathy Jo Hill appeals the trial court’s order revoking her probation, contending that
it was not supported by sufficient evidence.
We affirm.
FACTS AND PROCEDURAL HISTORY
On March 21, 2011, Hill pleaded guilty to one count of operating a vehicle following
a lifetime suspension as an habitual traffic violator as a Class C felony, and one count of
operating a vehicle while intoxicated as a Class A misdemeanor. The trial court sentenced
Hill to an aggregate term of six years, with one year of incarceration, two years to be served
on home detention, and the balance of the sentence to be suspended to probation. One of
the terms of Hill’s probation was that she not consume or possess alcohol. On September
17, 2012, Hill admitted to violating the terms of her home detention by consuming alcohol
and executed the balance of her home detention term in the county jail.
In February and May of 2013, Hill tested positive for metabolites of alcohol. When
confronted with the results of her first test, Hill denied consuming alcohol, but told her
probation officer that her son and his girlfriend may have spiked her tea. On May 14, 2013,
the probation department conducted a home visit and discovered a partially full bottle of
whiskey on the floor of Hill’s kitchen. They also discovered “empty beer cans set up in a
beer pong type thing in one of the out-buildings.” Tr. at 11. Hill’s probation officer, Jessica
Sims, collected a second urine sample from Hill that day. This sample also tested positive
for alcohol metabolites ethyl glucuronide and ethyl sulfate. Once again, Hill denied
consuming alcohol and claimed the bottle of whiskey belonged to a friend who was staying
with her.
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Sims testified that the testing laboratory informed her that the incidental use of
products containing ethanol, such as mouth wash or cough medicine, may cause ethyl
glucuronide levels of up to 500 ng/mL. The probation department, therefore, did not file
petitions alleging the violation of probation based on results below that threshold. Both of
Hill’s tests revealed ethyl glucuronide levels of over 10,000 ng/mL.
At the conclusion of the hearing on the petitions alleging probation violations, the
trial court found that Hill had violated her probation by consuming alcohol and revoked
Hill’s probation. The trial court entered an order that Hill serve the balance of her
originally suspended sentence, or 1,095 days, on home detention. Hill now appeals.
DISCUSSION AND DECISION
Hill claims that the trial court abused its discretion by finding that Hill violated the
conditions of her probation because there was insufficient evidence to support the trial
court’s conclusion. We begin with the premise that “[p]robation is a matter of grace left to
trial court discretion, not a right to which a criminal defendant is entitled.” Prewitt v. State,
878 N.E.2d 184, 188 (Ind. 2007). “[C]ourts in probation revocation hearings may consider
any relevant evidence bearing some substantial indicia of reliability.” Cox v. State, 706
N.E.2d 547, 551 (Ind. 1999). It is within the discretion of the trial court to determine the
conditions of a defendant’s probation and to revoke probation if the conditions are violated.
Prewitt, 878 N.E.2d at 188. In a sense, all probation requires “strict compliance” because
probation is a matter of grace, and once the trial court extends this grace and sets its terms
and conditions, the probationer is expected to comply with them strictly. Woods v. State,
892 N.E.2d 637, 641 (Ind. 2008). If the probationer fails to do so, then a violation has
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occurred. Id. But even in the face of a probation violation, the trial court may nonetheless
exercise its discretion in deciding whether to revoke probation. Id. (citing Clark Cnty.
Council v. Donahue, 873 N.E.2d 1038, 1039 (Ind. 2007) (“The probationary scheme is
deliberately designed to give trial judges the flexibility to make quick, case-by-case
determinations.”)).
Violation determinations and sanctions are reviewed for abuse of discretion.
Woods, 892 N.E.2d at 639. An abuse of discretion occurs where the decision is clearly
against the logic and effect of the facts and circumstances, or when the trial court
misinterprets the law. Prewitt, 878 N.E.2d at 188. We consider only the evidence most
favorable to the judgment without reweighing that evidence or judging the credibility of
the witnesses. Woods, 892 N.E.2d at 639 (citing Braxton v. State, 651 N.E.2d 268, 270
(Ind. 1995)). If there is substantial evidence of probative value to support the trial court’s
decision that a defendant has violated any terms of probation, the reviewing court will
affirm its decision to revoke probation. Id. at 639-40.
Probation revocation is a two-step process. First, the trial court must make a factual
determination that a violation of a condition of probation actually occurred. Beeler v. State,
959 N.E.2d 828, 829-30 (Ind. Ct. App. 2011). Second, if a violation is found, then the trial
court must determine the appropriate sanctions for the violation. Id. A probation
revocation hearing is civil in nature, and the State’s burden is to prove the alleged violations
only by a preponderance of the evidence. Figures v. State, 920 N.E.2d 267, 272 (Ind. Ct.
App. 2010). Violation of a single term or condition of probation is sufficient to revoke
probation. Washington v. State, 758 N.E.2d 1014, 1017 (Ind. Ct. App. 2001). When
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reviewing an appeal from the revocation of probation, the reviewing court considers only
the evidence most favorable to the judgment, and does so without reweighing the evidence
or reassessing the credibility of the witnesses. Piper v. State, 770 N.E.2d 880, 882 (Ind.
Ct. App. 2002).
In this case, the evidence shows that Hill twice tested positive for high
concentrations of two alcohol metabolites while she was on probation. Hill does not
dispute that evidence, but claims that the results may have been the result of incidental
contact with products containing alcohol. Hill contends that because the tests did not reveal
the presence of alcohol (ethanol), there is insufficient evidence to support the revocation
of her probation.
The evidence supporting the trial court’s conclusion, however, reflects that
accidental exposure to alcohol produces test results showing levels of ethyl glucuronide up
to 500 ng/mL. Consequently, the probation department does not file petitions alleging
probation violations for results below that threshold. There was no challenge at the
hearing, nor is there one on appeal to the competency of the witness providing that
evidence. Furthermore, both of Hill’s tests revealed levels of ethyl glucuronide in excess
of 10,000 ng/mL, levels that are twenty times the threshold for excluding accidental
exposure to alcohol. That evidence was sufficient to permit the trial court to conclude that
Hill’s consumption of alcohol, and not some accidental exposure to alcohol, produced
Hill’s test results.
Hill asserts that the test results would more strongly support alcohol consumption
had they also revealed the presence of ethanol. While this is true, that does not necessarily
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lead to the conclusion that the presence of the metabolites alone is without probative value.
Sims testified that alcohol metabolites may remain in the urine for up to 72 hours after
consumption. Accordingly, it is reasonable to conclude that the metabolites may remain
detectable after consumption even when the alcohol itself is not.
The two test results revealing the high concentrations of alcohol metabolites were
sufficient to sustain the trial court’s conclusion that Hill consumed alcohol in violation of
the terms and conditions of her probation. That conclusion is also supported by evidence
of the discovery of a partially consumed bottle of whiskey and empty beer containers in
and around Hill’s home on the date of the home visit. Although Hill and her friend claimed
that the whiskey belonged to the friend, the trial court was not obligated to credit those
claims, especially since the friend claimed ownership on the day of the home visit, but did
not testify at the hearing. Hill denied consuming alcohol when confronted with the first
positive test result and attempted to explain the results by speculating that her son may
have spiked her drink. Hill’s attempt to fabricate an explanation for her consumption of
alcohol suggests a consciousness of guilt and an attempt to conceal the prohibited behavior.
The totality of the evidence was sufficient for the trial court to conclude by a preponderance
of the evidence that Hill consumed alcohol in violation of the terms of her probation.
Affirmed.
FRIEDLANDER, J., and BAILEY, J., concur.
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