Daniel Boyd v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: July 28, 2017
• Docket: 49A05-1701-CR-192
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any FILED court except for the purpose of establishing Jul 28 2017, 9:52 am

the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Michael R. Fisher Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana

Christina D. Pace Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Daniel Boyd, July 28, 2017 Appellant-Defendant, Court of Appeals Case No. 49A05-1701-CR-192 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Shatrese Flowers, Judge Appellee-Plaintiff. The Honorable James Snyder, Commissioner Trial Court Cause No. 49G20-1408-FB-38247

Barnes, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A05-1701-CR-192 | July 28, 2017 Page 1 of 9 Case Summary

[1] Daniel Boyd appeals the trial court’s decision to revoke his placement at

Marion County Community Corrections (“MCCC”). We affirm.

Issues

[2] Boyd raises two issues on appeal, which we restate as:

I. whether the trial court abused its discretion in admitting evidence regarding a urine sample taken from Boyd; and

II. whether there was sufficient evidence to show that Boyd violated the terms of his placement at MCCC.

Facts

[3] On August 5, 2014, Boyd was charged with two counts of Class B felony

dealing in cocaine and two counts of Class D felony possession of cocaine. On

December 30, 2014, Boyd pled guilty to Class B felony dealing in cocaine and

Class D felony possession of cocaine; the other charges were dismissed. The

trial court sentenced Boyd to six years with three years executed in the

Department of Correction (“DOC”) and three years executed in MCCC. Once

Boyd was released from the DOC, he was placed in Duvall Residential Center

(“DRC”).

[4] On September 8, 2016, MCCC filed a notice of community corrections

violation, which alleged that Boyd: (1) violated DRC rules regarding

conspiracy/attempting/aiding or abetting; (2) violated DRC rules regarding

trafficking; (3) violated DRC rules regarding the possession or use of a

Court of Appeals of Indiana | Memorandum Decision 49A05-1701-CR-192 | July 28, 2017 Page 2 of 9 controlled substance; and (4) failed to comply with the DRC payment policy.

All of these alleged violations occurred on September 7, 2016.

[5] A hearing was held on December 29, 2016. During the hearing, an employee

of DRC, Officer Andrew Carlson, testified that on September 7, 2016, he was

responsible for conducting searches of residents coming back to the facility after

leave on day passes. Officer Carlson testified that he encountered Boyd and,

pursuant to DRC rules, conducted a search of Boyd and his belongings. While

conducting the search, Officer Carlson noticed Boyd was mumbling when he

spoke, which was something Boyd had not done during previous encounters.

Officer Carlson then asked Boyd to open his mouth and remove whatever was

in his mouth. Boyd complied, and Officer Carlson testified that Boyd “spit …

two baggies of K2 onto the floor.” Tr. Vol. II p. 8. Boyd objected to this

statement on hearsay grounds. The trial court overruled the objection.

[6] Officer Carlson then testified that he received training on how to identify

synthetic marijuana, or K2, but he could not recall any specifics about the

training. He also testified that he had encountered what he believed was K2

multiple times. On cross-examination, Officer Carlson testified that he was not

sure if the substance was K2, marijuana, or something else. He later clarified

that it is hard to visually discern the differences between K2 and marijuana.

Officer Carlson also testified that residents of DRC are required to sign a

contract, which includes the proper procedure for bringing items into the facility

and an agreement to abstain from using or possessing drugs.

Court of Appeals of Indiana | Memorandum Decision 49A05-1701-CR-192 | July 28, 2017 Page 3 of 9 [7] DRC Sergeant Danny Williams testified that residents are not allowed to bring

tobacco or other substances into the facility, unless they are prescribed by a

physician. He stated that, if residents have a prescription, they must follow

specific procedures that include first checking them into the front desk upon

arrival. Sergeant Williams testified that on the day of the incident, he was

called into Boyd’s holding cell by Officer Carlson, and he was shown the two

bags recovered from Boyd’s mouth. Sergeant Williams then decided to conduct

a “drop” on Boyd. Id. at 19. He explained that a “drop” is a urine drug screen

in which he collects a urine sample and then dips a K2 tester and five point

tester in the resident’s urine in order to get a positive or negative result for

illegal substances. Sergeant Williams testified that it is standard procedure for

the officer to open the packages in front of the resident, watch the resident use

the bathroom, and dip the testers in the cup. Sergeant Williams testified that he

had conducted the test on several occasions and followed standard procedure

when he conducted the test on Boyd. Sergeant Williams then testified that

Boyd tested positive for K2, based on the results of the dip stick test. Boyd

again objected on hearsay grounds. The objection was overruled. Sergeant

Williams also testified that he showed Boyd the positive result, and he stated

that a positive result violated DRC rules.

[8] Boyd testified that, when he returned to DRC, he did not have anything in his

mouth. He testified that, when he entered the search room, Officer Carlson

conducted a search and, when the search was complete, Officer Carlson left the

room. Boyd then claimed that, as he began putting his clothes back on, Officer

Court of Appeals of Indiana | Memorandum Decision 49A05-1701-CR-192 | July 28, 2017 Page 4 of 9 Carlson returned and spotted the bags on the floor. Boyd testified that he never

saw the bags on the floor and did not have the bags in his mouth or in his

possession at any point. He also testified that he had not used K2, was

unfamiliar with K2, and had never tested positive for any other substances prior

to this incident.

[9] At the conclusion of the hearing, the trial court determined that the State had

not presented sufficient evidence to sustain the allegations concerning

conspiracy or failure to pay DRC funds but had presented sufficient evidence

that Boyd violated DRC rules against trafficking and possession or use of a

controlled substance. As such, the trial court revoked Boyd’s community

corrections placement and ordered him to serve the remainder of his sentence in

the DOC. Boyd now appeals.

Analysis

I. Admission of Evidence

[10] Boyd argues that the trial court abused its discretion by allowing hearsay

evidence and revoking his placement in community corrections. Probationers

during a revocation hearing are not entitled to the full array of constitutional

rights afforded a defendant at trial. Reyes v. State, 868 N.E.2d 438, 440 (Ind.

2007). They are entitled to certain due process rights, which include “written

notice of the claimed violations, disclosure of the evidence against him, an

opportunity to be heard and present evidence, the right to confront and cross-

examine witnesses, and a neutral and detached hearing body.” Cox v. State, 706

N.E.2d 547, 549 (Ind. 1999). The procedures at such hearings are to be flexible

Court of Appeals of Indiana | Memorandum Decision 49A05-1701-CR-192 | July 28, 2017 Page 5 of 9 and as such the strict rules of evidence do not apply in revocation hearings. Id.;

see also Holmes v. State, 923 N.E.2d 479, 482 (Ind. Ct. App. 2010) (holding the

Indiana Rules of Evidence in general and the rules against hearsay in particular

do not apply in community corrections placement revocation hearings).

Instead, courts may consider any relevant evidence bearing some substantial

indicia of reliability, including hearsay evidence. Cox, 706 N.E.2d at 551.

During a revocation hearing, a trial court may admit hearsay evidence without

violating a probationer’s right to confrontation if the trial court finds the

hearsay evidence to be “substantially trustworthy.” Reyes, 868 N.E.2d at 442.

“[T]he absence of strict evidentiary rules places particular importance on the

fact-finding role of judges in assessing the weight, sufficiency, and reliability or

proffered evidence.” Cox, 706 N.E.2d at 551. “This assessment, then, carries

with it a special level of judicial responsibility and is subject to appellate

review.” Id.

[11] Boyd argues that the trial court abused its discretion by allowing Sergeant

Williams to testify about the results of Boyd’s urine sample. Boyd contends

that this testimony was unreliable hearsay and, as such violated his due process

right to cross-examine witnesses. As discussed, the hearsay exclusion rule is

not applicable to these proceedings. Id. at 552. The trial court may consider all

relevant evidence, including reliable hearsay. Consequently, we need not

address whether the officer’s testimony was hearsay. Rather, we will consider

only whether the evidence was substantially trustworthy and has a substantial

indicia of reliability.

Court of Appeals of Indiana | Memorandum Decision 49A05-1701-CR-192 | July 28, 2017 Page 6 of 9 [12] Boyd contends that Sergeant Williams’s testimony was not substantially

trustworthy because Sergeant Williams had “absolutely no scientific expertise

about a scientific test he conducted.” Appellant’s Br. p. 10. Sergeant Williams

testified that he had conducted the dip stick test on several occasions and

explained in detail how the urinalysis test is performed. He also testified that he

followed standard procedure when he conducted the test on Boyd, including

watching Boyd urinate, opening the test strips in front of him, and allowing him

to review the results. In addition, Boyd was given the opportunity to cross-

examine Sergeant Williams during the hearing. Given the evidentiary

standards applicable to revocation proceedings, we find that the trial court did

not abuse its discretion by admitting the testimony of Sergeant Williams. We

also note the trial court had the opportunity to assess and assign the weight to

be given to this evidence.

II. Sufficiency of Evidence

[13] Boyd contends that the evidence was insufficient to show that he violated the

terms of his community corrections placement. We review a decision to revoke

placement in a community corrections program in the same manner as a

decision to revoke probation. Cox, 706 N.E.2d at 549. “A probation hearing is

civil in nature and the State need only prove the alleged violations by a

preponderance of the evidence.” Id. at 551. We will not reweigh the evidence

or judge the credibility of witnesses and will consider all the evidence most

favorable to the judgment of the trial court. Id. “If there is substantial evidence

of probative value to support the trial court’s conclusion that a defendant has Court of Appeals of Indiana | Memorandum Decision 49A05-1701-CR-192 | July 28, 2017 Page 7 of 9 violated any terms of probation, we will affirm its decision to revoke

probation.” Id. The violation of a single condition of probation is enough to

support revocation. Pierce v. State, 44 N.E.3d 752, 755 (Ind. Ct. App. 2015).

[14] Boyd contends that “the testimony of [Officer Carlson] is not sufficient to show

by a preponderance of the evidence that [he] possessed K2.” Appellant’s Br. p.

17. Specifically he argues that Officer Carlson’s testimony that “the matter in

question was similar to or consistent with the substances the witness was shown

during his training is not really probative of the conclusion that it was actually

one of these substances.” Id. Our supreme court, however, has established

that, “The State is not required to introduce the subject contraband to obtain a

conviction for dealing or possession.” Helton v. State, 907 N.E.2d 1020, 1024

(Ind. 2009) (holding the identity and quantity of a controlled substance and the

defendant’s possession of or dealing in narcotics may all be established through

witness testimony and circumstantial evidence). In order to sustain a

conviction for possession, the opinion of someone sufficiently experienced with

the drug as well as other circumstantial evidence is sufficient. Clifton v. State,

499 N.E.2d 256, 258 (Ind. 1986). The burden of proof in a revocation

proceeding is even less than for obtaining a criminal conviction.

[15] Officer Carlson testified that he observed Boyd spit out two bags containing

substances similar in appearance to K2 or marijuana. Officer Carlson also

testified that he had been trained on how to identify K2 and marijuana.

Although he stated that the differences between the two are hard to visually

discern, Sergeant Williams established that both substances are visually

Court of Appeals of Indiana | Memorandum Decision 49A05-1701-CR-192 | July 28, 2017 Page 8 of 9 distinctive from other substances, such as tobacco. Officer Carlson also testified

that he had encountered K2 and marijuana on several occasions during his

employment. In addition, the State presented testimony that Boyd tested

positive for K2 and that Boyd would have violated placement rules by either

possessing or testing positive for any controlled substance. 1 Because only a

single violation of a condition of community corrections is sufficient to support

revocation, we find that the evidence was sufficient to revoke Boyd’s placement

in MCCC.

Conclusion

[16] The trial court did not abuse its discretion by admitting the testimony of

Sergeant Williams, and there was sufficient evidence to support the trial court’s

decision to revoke Boyd’s placement in community corrections. We affirm.

[17] Affirmed.

Baker, J., and Crone, J., concur.

1 This also includes possession or use of tobacco.

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