Amber Krieg v. State of Indiana (mem. dec.)

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Aug 29 2018, 8:52 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 Yvette M. LaPlante Curtis T. Hill, Jr. Keating & LaPlante, LLP Attorney General Evansville, Indiana Caroline G. Templeton Deputy Attorney General Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Amber Krieg, August 29, 2018 Appellant-Defendant, Court of Appeals Case No.

18A-CR-1230

v. Appeal from the Vanderburgh Superior Court

State of Indiana, The Honorable Robert J. Pigman, Appellee-Plaintiff Judge Trial Court Cause No. 82D03-1511-F4-7265

Vaidik, Chief Judge.

[1] Amber Krieg appeals the revocation of her placement in the Vanderburgh

County Community Corrections work-release program. We reverse. Krieg was

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1230 | August 29, 2018 Page 1 of 2 accused of violating Condition 14 of the work-release program, which provides,

“I will not use or consume any illegal drugs, or controlled substances without a

valid current prescription.” Ex. 1.1 The only evidence the State presented to

show that Krieg violated this condition was the testimony of two residential

officers who believed that Krieg was “intoxicated” and “under the influence of

an unknown substance” one day at the work-release facility. Tr. pp. 6, 10, 14,

15. The problem with this evidence is that even prescribed drugs can cause a

person to be intoxicated. See, e.g., Alfrey v. State, 960 N.E.2d 229, 234 (Ind. Ct.

App. 2012), trans. denied. As such, the mere fact that Krieg appeared

intoxicated does not, standing alone, support the conclusion that she used or

consumed an illegal or unprescribed drug. Notably, Krieg testified at the

revocation hearing that she had been prescribed Seroquel (which can cause

drowsiness, according to the FDA), that she had taken a dose the night before

she was observed to be intoxicated, and that she felt “a little drowsy” and “[a]

little groggy” when she woke up the next day. Tr. pp. 17-18. The State failed

to prove that Krieg had taken anything other than that dose of Seroquel.

[2] Reversed.

Riley, J., and Kirsch, J., concur.

1 The petition to revoke that was filed alleged that Krieg had violated “section IV of the VCWR Handbook,” which apparently provides that “any use or possession of intoxicants, unauthorized or illegal drug is strictly prohibited.” Appellant’s App. Vol. II p. 57. At the revocation hearing, however, no mention was made of that provision. The hearing focused on Condition 14 of the work-release program. Tr. p. 6. Similarly, the State discusses only Condition 14 of the work-release program in its brief on appeal.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1230 | August 29, 2018 Page 2 of 2