MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision Oct 02 2015, 9:09 am shall not be 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 Brooke N. Russell Gregory F. Zoeller Indianapolis, Indiana Attorney General of Indiana
Lyubov Gore Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Elizabeth Benham, October 2, 2015 Appellant-Defendant, Court of Appeals Case No. 36A04-1504-CR-132 v. Appeal from the Jackson Circuit Court; State of Indiana, The Honorable Frank W. Guthrie, Senior Judge; Appellee-Plaintiff. 36C01-1310-FD-427
May, Judge.
Court of Appeals of Indiana | Memorandum Decision 36A04-1504-CR-132 | October 2, 2015 Page 1 of 7 [1] Elizabeth Benham appeals the revocation of her probation. She argues the trial
court erroneously admitted evidence of a positive oral swab drug screen.
Finding no reversible error in the admission of that evidence, we affirm.
Facts and Procedural History [2] On March 20, 2014, Benham entered a plea of guilty to Class D felony
receiving stolen property 1 as part of a written plea agreement in which the State
agreed to drop other charges. The plea agreement provided Benham would be
sentenced to one year, with all but time already served suspended to probation.
On April 17, 2014, the court accepted the plea agreement and Benham was
sentenced in accordance therewith.
[3] One of the terms of Benham’s probation was that she would not use or possess
controlled substances or legend drugs, unless prescribed by a physician.
Another term was that she would permit any type of test or sample to be taken
from her for the purpose of discovering the presence of banned substances.
[4] During the course of her probation, Benham admitted to her probation officer,
Jacob Findley, she had ingested banned substances, including heroin. The
State filed a petition to revoke her probation, and the court held a hearing on
February 4, 2015. At the hearing, Benham admitted violating her probation
and also reported she had prescription medications on record. Benham, the
1 Ind. Code § 35-43-4-2(b) (2009).
Court of Appeals of Indiana | Memorandum Decision 36A04-1504-CR-132 | October 2, 2015 Page 2 of 7 State, the probation department, and the trial court reached an agreement
whereby Benham would submit to a drug screen and the result thereof would
determine her sanction for drug use. If she tested negative for drugs, she would
be allowed to continue on probation; however, if she tested positive, she would
be ordered to execute her previously suspended sentence.
[5] Immediately following the hearing, Findley collected a sample of Benham’s
saliva using an oral swab and sent the sample to the Redwood Toxicology
Laboratory in California for testing. Findley later obtained the test result from
the Redwood Toxicology Laboratory website, and it was positive for heroin or
opiates. Findley telephoned the laboratory, and a toxicology support
representative confirmed the positive result could not be due to Benham’s
prescription medications.
[6] The court held another hearing to determine Benham’s sanction. At the
hearing, Findley testified the probation department tests for drugs using either
saliva or urine samples. He testified he followed the normal procedures for
collecting the saliva sample from Benham, shipping the sample to Redwood
Toxicology Laboratory for testing, and retrieving the results from the laboratory
web site. Findley also testified to his knowledge of the laboratory testing
procedure based on a video he had viewed. The drug test results were
accompanied by a standard certifying statement from the laboratory’s chief
toxicologist, which indicated the test was performed according to standard
procedure, and the results had been reviewed by a scientist. Benham objected
to the admission of the test results based on the reliability of the test and the
Court of Appeals of Indiana | Memorandum Decision 36A04-1504-CR-132 | October 2, 2015 Page 3 of 7 adequacy of the chain of custody of the sample. The court admitted the
positive drug test into evidence over Benham’s objection, revoked her
probation, and ordered her to serve her previously suspended sentence
incarcerated.
Discussion and Decision [7] We find no reversible error in the admission of Benham’s oral fluid drug screen
results at her probation revocation and sanctions hearing. “Probation is a
matter of grace left to trial court discretion, not a right to which a criminal
defendant is entitled.” Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013) (quoting
Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007)). The conditions for probation
and whether to revoke probation when those conditions are violated are left to
the discretion of the trial court. Id. We review probation violation
determinations and sanctions for abuse of discretion. Id.
[8] A probation revocation proceeding is civil in nature and a probationer is not
entitled to all of the rights afforded to a criminal defendant. McCauley v. State,
22 N.E.3d 743, 748 (Ind. Ct. App. 2014), reh'g denied, trans. denied. The due
process requirements for probation revocation hearings are more flexible than
in a criminal prosecution. Reyes v. State, 868 N.E.2d 438, 440 (Ind. 2007). This
flexibility allows courts to enforce lawful orders, address an offender’s personal
circumstances, and protect public safety. Id. As such, courts may admit
evidence during probation revocation hearings that would not be admissible in
criminal trials. Id.
Court of Appeals of Indiana | Memorandum Decision 36A04-1504-CR-132 | October 2, 2015 Page 4 of 7 [9] To admit hearsay evidence in a probation revocation hearing, the proponent
must demonstrate its substantial trustworthiness. Id. at 442. Under this test, a
court should evaluate the reliability of the hearsay and explain why it is
sufficiently reliable to supply good cause for not producing live testimony. Id.
Thus, if a drug test is substantially trustworthy, the State is not required to
produce an affidavit or scientific opinion before a drug test result is admissible.
Wann, 997 N.E.2d 1103, 1105-1106 (Ind. Ct. App. 2013) (probation officer’s
hearsay testimony and the Redwood Toxicology Laboratory report were
substantially trustworthy after officer testified to the administration, handling
and transmission of the drug screen), reh’g denied.
[10] Here, Benham had already admitted violating her probation by ingesting
banned substances including heroin. As the State notes, the trial court could
have revoked her suspended sentence based on her admission without
performing any test. Nevertheless, the trial court agreed to allow Benham to
undergo a drug screen and, if she tested negative, to give her a reprieve from
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision Oct 02 2015, 9:09 am shall not be 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 Brooke N. Russell Gregory F. Zoeller Indianapolis, Indiana Attorney General of Indiana
Lyubov Gore Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Elizabeth Benham, October 2, 2015 Appellant-Defendant, Court of Appeals Case No. 36A04-1504-CR-132 v. Appeal from the Jackson Circuit Court; State of Indiana, The Honorable Frank W. Guthrie, Senior Judge; Appellee-Plaintiff. 36C01-1310-FD-427
May, Judge.
Court of Appeals of Indiana | Memorandum Decision 36A04-1504-CR-132 | October 2, 2015 Page 1 of 7 [1] Elizabeth Benham appeals the revocation of her probation. She argues the trial
court erroneously admitted evidence of a positive oral swab drug screen.
Finding no reversible error in the admission of that evidence, we affirm.
Facts and Procedural History [2] On March 20, 2014, Benham entered a plea of guilty to Class D felony
receiving stolen property 1 as part of a written plea agreement in which the State
agreed to drop other charges. The plea agreement provided Benham would be
sentenced to one year, with all but time already served suspended to probation.
On April 17, 2014, the court accepted the plea agreement and Benham was
sentenced in accordance therewith.
[3] One of the terms of Benham’s probation was that she would not use or possess
controlled substances or legend drugs, unless prescribed by a physician.
Another term was that she would permit any type of test or sample to be taken
from her for the purpose of discovering the presence of banned substances.
[4] During the course of her probation, Benham admitted to her probation officer,
Jacob Findley, she had ingested banned substances, including heroin. The
State filed a petition to revoke her probation, and the court held a hearing on
February 4, 2015. At the hearing, Benham admitted violating her probation
and also reported she had prescription medications on record. Benham, the
1 Ind. Code § 35-43-4-2(b) (2009).
Court of Appeals of Indiana | Memorandum Decision 36A04-1504-CR-132 | October 2, 2015 Page 2 of 7 State, the probation department, and the trial court reached an agreement
whereby Benham would submit to a drug screen and the result thereof would
determine her sanction for drug use. If she tested negative for drugs, she would
be allowed to continue on probation; however, if she tested positive, she would
be ordered to execute her previously suspended sentence.
[5] Immediately following the hearing, Findley collected a sample of Benham’s
saliva using an oral swab and sent the sample to the Redwood Toxicology
Laboratory in California for testing. Findley later obtained the test result from
the Redwood Toxicology Laboratory website, and it was positive for heroin or
opiates. Findley telephoned the laboratory, and a toxicology support
representative confirmed the positive result could not be due to Benham’s
prescription medications.
[6] The court held another hearing to determine Benham’s sanction. At the
hearing, Findley testified the probation department tests for drugs using either
saliva or urine samples. He testified he followed the normal procedures for
collecting the saliva sample from Benham, shipping the sample to Redwood
Toxicology Laboratory for testing, and retrieving the results from the laboratory
web site. Findley also testified to his knowledge of the laboratory testing
procedure based on a video he had viewed. The drug test results were
accompanied by a standard certifying statement from the laboratory’s chief
toxicologist, which indicated the test was performed according to standard
procedure, and the results had been reviewed by a scientist. Benham objected
to the admission of the test results based on the reliability of the test and the
Court of Appeals of Indiana | Memorandum Decision 36A04-1504-CR-132 | October 2, 2015 Page 3 of 7 adequacy of the chain of custody of the sample. The court admitted the
positive drug test into evidence over Benham’s objection, revoked her
probation, and ordered her to serve her previously suspended sentence
incarcerated.
Discussion and Decision [7] We find no reversible error in the admission of Benham’s oral fluid drug screen
results at her probation revocation and sanctions hearing. “Probation is a
matter of grace left to trial court discretion, not a right to which a criminal
defendant is entitled.” Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013) (quoting
Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007)). The conditions for probation
and whether to revoke probation when those conditions are violated are left to
the discretion of the trial court. Id. We review probation violation
determinations and sanctions for abuse of discretion. Id.
[8] A probation revocation proceeding is civil in nature and a probationer is not
entitled to all of the rights afforded to a criminal defendant. McCauley v. State,
22 N.E.3d 743, 748 (Ind. Ct. App. 2014), reh'g denied, trans. denied. The due
process requirements for probation revocation hearings are more flexible than
in a criminal prosecution. Reyes v. State, 868 N.E.2d 438, 440 (Ind. 2007). This
flexibility allows courts to enforce lawful orders, address an offender’s personal
circumstances, and protect public safety. Id. As such, courts may admit
evidence during probation revocation hearings that would not be admissible in
criminal trials. Id.
Court of Appeals of Indiana | Memorandum Decision 36A04-1504-CR-132 | October 2, 2015 Page 4 of 7 [9] To admit hearsay evidence in a probation revocation hearing, the proponent
must demonstrate its substantial trustworthiness. Id. at 442. Under this test, a
court should evaluate the reliability of the hearsay and explain why it is
sufficiently reliable to supply good cause for not producing live testimony. Id.
Thus, if a drug test is substantially trustworthy, the State is not required to
produce an affidavit or scientific opinion before a drug test result is admissible.
Wann, 997 N.E.2d 1103, 1105-1106 (Ind. Ct. App. 2013) (probation officer’s
hearsay testimony and the Redwood Toxicology Laboratory report were
substantially trustworthy after officer testified to the administration, handling
and transmission of the drug screen), reh’g denied.
[10] Here, Benham had already admitted violating her probation by ingesting
banned substances including heroin. As the State notes, the trial court could
have revoked her suspended sentence based on her admission without
performing any test. Nevertheless, the trial court agreed to allow Benham to
undergo a drug screen and, if she tested negative, to give her a reprieve from
execution of her previously suspended sentence. Benham, along with the
probation department and prosecutor’s office, were parties to that agreement
with the trial court. If Benham was concerned about the reliability of some
forms of drug testing, she could have objected to the saliva test before she
agreed to testing. Her failure to do so resulted in this error being waived for
appeal. See Witte v. Mundy ex rel. Mundy, 820 N.E.2d 128, 133 (Ind. 2005)
(Under the doctrine of invited error, “a party may not take advantage of an
Court of Appeals of Indiana | Memorandum Decision 36A04-1504-CR-132 | October 2, 2015 Page 5 of 7 error that she commits, invites, or which is the natural consequence of her own
neglect or misconduct.”).
[11] Waiver notwithstanding, Benham has not demonstrated error in the admission
of the test result. The State provided evidence that it had followed the normal
procedure of collecting the saliva sample, transmitting the sample to the testing
laboratory, and retrieving the results. The State then verified with a Laboratory
toxicology support representative that the positive result could not be due to
Benham’s prescription medications. The State also testified that it is standard
practice for the trial court to admit oral swab drug screen results at a probation
hearing.
[12] Urinalysis has been accepted as a means of drug-testing and deemed reliable by
Indiana Courts. Carter v. State, 706 N.E.2d 552, 554 (Ind. 1999). We have held
that testimony by a case manager as to the proper procedures followed for a
urine drug screen was substantially reliable in a probation revocation hearing.
Bass v. State, 974 N.E.2d 482, 487 (Ind. Ct. App. 2012). The absence of a
toxicologist’s or laboratory’s affidavit in light of the case manager’s testimony
did not render the drug test results inadmissible. Id. Oral fluid tests have been
found to be comparable to urine tests. 1 DRUG TESTING LAW TECH. &
PRACTICE. § 5:16 (West 2015). As such, we hold that in a probation revocation
hearing, the same standards apply for admitting oral fluid drug screens as does
for admitting urine analysis drug screens.
Court of Appeals of Indiana | Memorandum Decision 36A04-1504-CR-132 | October 2, 2015 Page 6 of 7 [13] Based on the foregoing, the testimony provided by the State as to Benham’s
oral swab test results provided sufficient proof that the results were substantially
reliable to render them admissible. Accordingly, we affirm.
Conclusion [14] The trial court did not abuse its discretion in revoking Benham’s probation. We
accordingly affirm.
[15] Affirmed.
Crone, J., and Bradford, J., concur.
Court of Appeals of Indiana | Memorandum Decision 36A04-1504-CR-132 | October 2, 2015 Page 7 of 7