MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Dec 21 2018, 10:38 am
court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE David L. Joley Curtis T. Hill, Jr. Fort Wayne, Indiana Attorney General of Indiana
Laura R. Anderson Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Daniel T. Perrey, December 21, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-1498 v. Appeal from the Allen Superior Court State of Indiana, The Honorable Wendy Davis, Appellee-Plaintiff Judge The Honorable Samuel Keirns, Magistrate Trial Court Cause No. 02D04-1707-F6-772
Altice, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1498 | December 21, 2018 Page 1 of 6 [1] After finding that Daniel T. Perrey violated the terms of his placement in
community corrections, the trial court revoked his placement and ordered that
he serve his suspended sentence in the Indiana Department of Correction
(DOC). On appeal, Perrey argues that the evidence is insufficient to prove that
he violated the conditions of his placement in community corrections.
[2] We affirm.
Facts & Procedural History
[3] On December 14, 2017, Perrey pled guilty to Level 6 felony unlawful
possession of a syringe and Class A misdemeanor resisting law enforcement.
On January 5, 2018, the trial court sentenced Perrey to concurrent sentences of
one year and 183 days with one year suspended to probation for the felony
conviction and 183 days for the misdemeanor conviction.
[4] On February 5, 2018, the State filed a petition to revoke Perrey’s probation.
After Perrey admitted to violating the terms of his probation, the trial court
revoked his probation and ordered that he serve his suspended sentence in Allen
County Work Release. Perrey was admitted to the work release program on
March 13, 2018. On that date, Perrey signed an Inmate Agreement that set
forth the conditions for his participation in the work-release program. Rule No.
8 provides:
I will not use, possess or introduce into the Work Release Center any weapons, alcoholic beverages, narcotics, or drugs (unless under Doctor’s orders) or anything relating to their use. I will not have K2 or any Synthetic form of mood/behavior altering Court of Appeals of Indiana | Memorandum Decision 18A-CR-1498 | December 21, 2018 Page 2 of 6 substances in my possession and I will refrain from using such items.
Appellant’s Appendix Vol. 2 at 29.
[5] On April 13, 2018, the Allen County Sheriff’s Department filed a petition to
revoke Perrey’s work-release placement. The trial court held a hearing on June
7, 2018. At the hearing, Phil Goodrich, Perrey’s third-shift supervisor, testified
that during the shift that began at 11:00 p.m. on March 26, he was called over
to the machine Perrey was working on because Perrey “didn’t seem like he was
acting right.” Transcript at 7. As he approached, Goodrich observed that
Perrey “had a lot of swaying going on” and that he had “bloodshot, red, puffy
eyes.” Id. at 7, 9. Goodrich asked Perrey if he was okay and Perrey had
difficulty responding, communicating with only grunts and nods. Goodrich
told Perrey to go to Goodrich’s office so they could talk about his physical
condition. It took Perrey about seven minutes to walk fifty feet, and as he
walked he was swaying and falling down. Goodrich believed that Perrey could
not perform his job duties and that he posed a safety risk given his physical
condition. When Goodrich asked Perrey for his work-release card, Perrey
struggled for ten minutes to get the card out of his wallet. Based on his
observations, Goodrich “absolutely” believed that Perrey was under the
influence of something intoxicating. Id. at 9.
[6] Goodrich eventually contacted Shawn Oetinger, a confinement officer with
Allen County work release. Oetinger had been with the Allen County Sheriff’s
Department for fourteen years, with five of those years served with work Court of Appeals of Indiana | Memorandum Decision 18A-CR-1498 | December 21, 2018 Page 3 of 6 release. Goodrich explained Perrey’s demeanor to Oetinger, who then
contacted the work-release director to determine what course of action should
be followed. The director advised Oetinger to pick up Perrey and that, if
Oetinger believed Perrey was still under the influence, Oetinger was to take
Perrey to jail. When Oetinger arrived at Perrey’s place of employment, Perrey
was slumped over in a chair in Goodrich’s office. Oetinger woke Perrey and
noted that his eyes were “completely bloodshot” and his “pupils were huge.”
Id. at 14. When questioned, Perrey denied having taken anything. Perrey then
became argumentative toward Goodrich and Oetinger to such an extent that
Oetinger felt it necessary to place Perrey in handcuffs. Oetinger testified that he
believed Perrey was under the influence of something that would cause him to
be intoxicated. Oetinger then transported Perrey to jail.
[7] Perrey testified in his own defense and denied that he had taken any illegal,
controlled substances during his work shift. He also denied having taken any
prescription medication. Perrey argued to the court that his demeanor was just
as consistent with a neurological disorder or sleep deprivation as it was to
intoxication. The court disagreed, noting the complete lack of evidence that
Perrey had a neurological disorder or that he was tired. The court found that
“[e]verything [Goodrich] described is completely in line with somebody who is
intoxicated and under the influence of a mood or behavior altering substance
because certainly [Perrey’s] mood and behavior was altered.” Id. at 19. The
court revoked Perrey’s placement on work release and ordered that he be
committed to jail for a period of one year. Perrey now appeals.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1498 | December 21, 2018 Page 4 of 6 Discussion & Decision
[8] We review a decision to revoke placement in a community corrections program
in the same manner as a decision to revoke probation. Cox v. State, 706 N.E.2d
547, 549 (Ind. 1999). “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 violated any terms of probation, we will
affirm its decision to revoke probation.” Id.
[9] Perrey argues that the opinion testimony of Goodrich and Oetinger was
insufficient to prove by a preponderance of the evidence that he was under the
influence of an intoxicating substance because neither testified to having any
training in detecting intoxication. It has long been established, however, that a
non-expert witness may offer an opinion on intoxication. See Woodson v. State,
966 N.E.2d 135, 142-43 (Ind. Ct. App. 2012), trans. denied; Wright v. State, 772
N.E.2d 449, 460 (Ind. Ct.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Dec 21 2018, 10:38 am
court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE David L. Joley Curtis T. Hill, Jr. Fort Wayne, Indiana Attorney General of Indiana
Laura R. Anderson Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Daniel T. Perrey, December 21, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-1498 v. Appeal from the Allen Superior Court State of Indiana, The Honorable Wendy Davis, Appellee-Plaintiff Judge The Honorable Samuel Keirns, Magistrate Trial Court Cause No. 02D04-1707-F6-772
Altice, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1498 | December 21, 2018 Page 1 of 6 [1] After finding that Daniel T. Perrey violated the terms of his placement in
community corrections, the trial court revoked his placement and ordered that
he serve his suspended sentence in the Indiana Department of Correction
(DOC). On appeal, Perrey argues that the evidence is insufficient to prove that
he violated the conditions of his placement in community corrections.
[2] We affirm.
Facts & Procedural History
[3] On December 14, 2017, Perrey pled guilty to Level 6 felony unlawful
possession of a syringe and Class A misdemeanor resisting law enforcement.
On January 5, 2018, the trial court sentenced Perrey to concurrent sentences of
one year and 183 days with one year suspended to probation for the felony
conviction and 183 days for the misdemeanor conviction.
[4] On February 5, 2018, the State filed a petition to revoke Perrey’s probation.
After Perrey admitted to violating the terms of his probation, the trial court
revoked his probation and ordered that he serve his suspended sentence in Allen
County Work Release. Perrey was admitted to the work release program on
March 13, 2018. On that date, Perrey signed an Inmate Agreement that set
forth the conditions for his participation in the work-release program. Rule No.
8 provides:
I will not use, possess or introduce into the Work Release Center any weapons, alcoholic beverages, narcotics, or drugs (unless under Doctor’s orders) or anything relating to their use. I will not have K2 or any Synthetic form of mood/behavior altering Court of Appeals of Indiana | Memorandum Decision 18A-CR-1498 | December 21, 2018 Page 2 of 6 substances in my possession and I will refrain from using such items.
Appellant’s Appendix Vol. 2 at 29.
[5] On April 13, 2018, the Allen County Sheriff’s Department filed a petition to
revoke Perrey’s work-release placement. The trial court held a hearing on June
7, 2018. At the hearing, Phil Goodrich, Perrey’s third-shift supervisor, testified
that during the shift that began at 11:00 p.m. on March 26, he was called over
to the machine Perrey was working on because Perrey “didn’t seem like he was
acting right.” Transcript at 7. As he approached, Goodrich observed that
Perrey “had a lot of swaying going on” and that he had “bloodshot, red, puffy
eyes.” Id. at 7, 9. Goodrich asked Perrey if he was okay and Perrey had
difficulty responding, communicating with only grunts and nods. Goodrich
told Perrey to go to Goodrich’s office so they could talk about his physical
condition. It took Perrey about seven minutes to walk fifty feet, and as he
walked he was swaying and falling down. Goodrich believed that Perrey could
not perform his job duties and that he posed a safety risk given his physical
condition. When Goodrich asked Perrey for his work-release card, Perrey
struggled for ten minutes to get the card out of his wallet. Based on his
observations, Goodrich “absolutely” believed that Perrey was under the
influence of something intoxicating. Id. at 9.
[6] Goodrich eventually contacted Shawn Oetinger, a confinement officer with
Allen County work release. Oetinger had been with the Allen County Sheriff’s
Department for fourteen years, with five of those years served with work Court of Appeals of Indiana | Memorandum Decision 18A-CR-1498 | December 21, 2018 Page 3 of 6 release. Goodrich explained Perrey’s demeanor to Oetinger, who then
contacted the work-release director to determine what course of action should
be followed. The director advised Oetinger to pick up Perrey and that, if
Oetinger believed Perrey was still under the influence, Oetinger was to take
Perrey to jail. When Oetinger arrived at Perrey’s place of employment, Perrey
was slumped over in a chair in Goodrich’s office. Oetinger woke Perrey and
noted that his eyes were “completely bloodshot” and his “pupils were huge.”
Id. at 14. When questioned, Perrey denied having taken anything. Perrey then
became argumentative toward Goodrich and Oetinger to such an extent that
Oetinger felt it necessary to place Perrey in handcuffs. Oetinger testified that he
believed Perrey was under the influence of something that would cause him to
be intoxicated. Oetinger then transported Perrey to jail.
[7] Perrey testified in his own defense and denied that he had taken any illegal,
controlled substances during his work shift. He also denied having taken any
prescription medication. Perrey argued to the court that his demeanor was just
as consistent with a neurological disorder or sleep deprivation as it was to
intoxication. The court disagreed, noting the complete lack of evidence that
Perrey had a neurological disorder or that he was tired. The court found that
“[e]verything [Goodrich] described is completely in line with somebody who is
intoxicated and under the influence of a mood or behavior altering substance
because certainly [Perrey’s] mood and behavior was altered.” Id. at 19. The
court revoked Perrey’s placement on work release and ordered that he be
committed to jail for a period of one year. Perrey now appeals.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1498 | December 21, 2018 Page 4 of 6 Discussion & Decision
[8] We review a decision to revoke placement in a community corrections program
in the same manner as a decision to revoke probation. Cox v. State, 706 N.E.2d
547, 549 (Ind. 1999). “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 violated any terms of probation, we will
affirm its decision to revoke probation.” Id.
[9] Perrey argues that the opinion testimony of Goodrich and Oetinger was
insufficient to prove by a preponderance of the evidence that he was under the
influence of an intoxicating substance because neither testified to having any
training in detecting intoxication. It has long been established, however, that a
non-expert witness may offer an opinion on intoxication. See Woodson v. State,
966 N.E.2d 135, 142-43 (Ind. Ct. App. 2012), trans. denied; Wright v. State, 772
N.E.2d 449, 460 (Ind. Ct. App. 2002) (noting that “[w]ith respect to the
sufficiency of the evidence upon the element of intoxication, it is established
that a non-expert witness may offer an opinion upon intoxication”).
[10] Here, Goodrich testified that Perrey exhibited classic signs of intoxication,
including red, bloodshot eyes, dilated pupils, swaying, difficulty standing and
walking, slow movements, and poor manual dexterity. When questioned,
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1498 | December 21, 2018 Page 5 of 6 Perrey used only grunts and nods to communicate. These observations led
Goodrich to opine that Perrey was under the influence of an intoxicating
substance. Oetinger likewise observed similar objective indications of
intoxication. Further, the trial court clearly indicated that it found the
testimony of Goodrich and Oetinger more credible than Perrey’s self-serving
statement. Assessing the credibility of the witnesses and weighing the evidence
is within the province of the trial court. We will not second guess the trial court
in this regard. The evidence is sufficient to support the trial court’s finding that
Perrey was intoxicated and under the influence of a mood or behavior altering
substance. This finding supports the court’s decision to revoke Perrey’s
placement in community corrections. We therefore affirm the trial court’s
decision.
[11] Judgment affirmed.
[12] Najam, J. and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1498 | December 21, 2018 Page 6 of 6