Brian L. Gardner v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: February 4, 2020
• Docket: 19A-CR-1914
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Feb 04 2020, 9:06 am

court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Cara Schaefer Wieneke Curtis T. Hill, Jr. Wieneke Law Office, LLC Attorney General of Indiana Brooklyn, Indiana Courtney L. Staton Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Brian L. Gardner, February 4, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-1914 v. Appeal from the Vanderburgh Circuit Court State of Indiana, The Honorable Kelli E. Fink, Appellee-Plaintiff. Magistrate Trial Court Cause No. 82C01-1804-F5-2751

Mathias, Judge.

[1] Brian L. Gardner (“Gardner”) appeals from the Vanderburgh Circuit Court’s

revocation of his home detention placement, challenging whether sufficient

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1914 | February 4, 2020 Page 1 of 5 evidence supports the finding that he violated the terms and conditions of the

community corrections program. Finding the evidence sufficient, we affirm.

Facts and Procedural History [2] On January 20, 2019, Gardner pleaded guilty to Level 5 felony carrying a

handgun without a license and was sentenced to two years to be served as a

direct commitment on home detention. A company called ABK Tracking

monitors participants in the home detention program; Gardner was familiar

with ABK Tracking, apparently having submitted to numerous drug screens

while serving a suspended sentence in 2016 and 2017. Appellant’s Conf. App.

p. 31; Tr. p. 32.

[3] Gardner’s home detention began on April 9, 2019. On May 1, he submitted to a

“rapid instant drug test” that returned a positive result for the presence of

methamphetamine. ABK Tracking followed its standard policy when an

individual has a positive drug test: the individual can admit the positive result in

an admission form or deny the positive result in a denial form. If the test result

is denied, the test is sent to a laboratory for confirmation. If the test result is

admitted, no further confirmation is sought. Gardner denied using

methamphetamine and asked to be retested; however, he said that earlier the

same day he had ingested unknown pills that he thought included a laxative.

After being read the admission form from “top to bottom,” Gardner provided

his electronic signature, admitting to using or testing positively for

methamphetamine. Tr. p. 6.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1914 | February 4, 2020 Page 2 of 5 [4] ABK Tracking submitted a home detention violation report and the State filed a

petition to revoke Gardner’s placement on May 2. The trial court held a hearing

on the matter on June 20. Gardner explained that when he gave his electronic

signature, he believed it was for his drug test to be sent to a laboratory for

further testing and did not know that he was signing the admission form. The

trial court determined that Gardner was in violation of the terms and conditions

of his home detention placement, and on July 18, revoked twenty months of

Gardner’s twenty-four-month sentence to the Department of Correction. This

appeal followed.

Discussion and Decision [5] We note initially that, for probation to be a workable option for Indiana judges,

judges “must have the ability to move with alacrity to protect public safety

when adjudicated offenders violate the conditions of their sentences.” Stephens

v. State, 818 N.E.2d 936, 941–42 (Ind. 2004). And our standard of review for an

appeal from the revocation of a community corrections placement is the same

as that for an appeal from the revocation of probation. Cox v. State, 706 N.E.2d

547, 551 (Ind. 1999). A probation revocation hearing is civil in nature, and the

State need only prove the alleged violation by a preponderance of the evidence.

Monroe v. State, 899 N.E.2d 688, 691 (Ind. Ct. App. 2009). We consider all the

evidence most favorable to the judgment of the trial court and do not reweigh

that evidence or judge the credibility of the witnesses. Id. If there is substantial

evidence of probative value to support the trial court’s conclusion that a

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1914 | February 4, 2020 Page 3 of 5 probationer has violated any term or condition of the community corrections

placement, we will affirm its decision to revoke the placement. Id.

[6] Gardner challenges the revocation of his home detention placement by arguing

that there is insufficient evidence to support the trial court’s determination that

he violated the terms of his home detention by testing positive for an illicit drug,

methamphetamine. Here, the evidence presented was that Gardner submitted

to a random drug test and the result was positive for methamphetamine. When

confronted with this result of this test, Gardner signed an admittance form in

which he admitted to using or testing positively for methamphetamine. His

request that we credit his testimony that he mistakenly signed the admission

form, meaning instead to have his positive drug test retested, is simply a request

to reweigh evidence and judge witness credibility, which we decline to do. See

Holmes v. State, 923 N.E.2d 479 (Ind. Ct. App. 2010) (holding urinalysis report

was sufficient evidence to support trial court’s determination that probationer

violated terms of home detention by consuming alcohol).

[7] The trial court found the result of the test and Gardner’s signed admission form

reliable to prove by a preponderance of the evidence that Gardner consumed

methamphetamine. We conclude that the positive result and Gardner’s signed

admission provided substantial evidence of probative value in support of the

trial court’s determination and thus decline to disturb the revocation of

Gardner’s home detention placement on appeal.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1914 | February 4, 2020 Page 4 of 5 Conclusion [8] Sufficient evidence supports the trial court’s determination that Gardner

violated the terms and conditions of his community corrections placement.

[9] Affirmed.

Kirsch, J., and Bailey, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1914 | February 4, 2020 Page 5 of 5