MEMORANDUM DECISION
                                                                              FILED
Pursuant to Ind. Appellate Rule 65(D),
                                                                         Apr 30 2018, 8:58 am
this Memorandum Decision shall not be
regarded as precedent or cited before any                                     CLERK
                                                                          Indiana Supreme Court
court except for the purpose of establishing                                 Court of Appeals
                                                                               and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Ruth Johnson                                             Curtis T. Hill, Jr.
Rory Gallagher                                           Attorney General of Indiana
Marion County Public Defender
                                                         Ian McLean
Indianapolis, Indiana                                    Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Andrew Kitt,                                             April 30, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1710-CR-2494
        v.                                               Appeal from the
                                                         Marion Superior Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff.                                      Helen W. Marchal, Judge
                                                         Trial Court Cause No.
                                                         49G15-1606-CM-25226



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2494 | April 30, 2018             Page 1 of 7
[1]   Andrew Kitt (“Kitt”) was found guilty after a bench trial of carrying a handgun

      without a license1 as a Class A misdemeanor and was sentenced to 365 days

      with 305 days suspended to probation. Kitt raises the following restated issue

      on appeal: whether the trial court abused its discretion when it imposed

      random drug testing as a condition of his probation for a conviction of carrying

      a handgun without a license.


[2]   We affirm.


                                       Facts and Procedural History
[3]   On June 27-28, 2017, around midnight, Tom Crowe (“Crowe”) and his

      girlfriend were in Crowe’s apartment at the Autumn Woods Apartments

      complex in Indianapolis, Indiana when they heard multiple gunshots. Crowe

      looked out a window of the apartment while his girlfriend called 911. Crowe

      observed two young men in the street. Crowe saw that one man was holding a

      handgun and that the other man was making a gesture resembling a handgun

      and “actually mimic shooting the gun with his fingers towards the center part of

      that building.” Tr. at 7. Crowe told his girlfriend, who was too frightened to

      come to the window, to hand him the phone, and he stayed on the line with

      911 reporting the men’s movements. Crowe then observed the two men walk




      1
          See Ind. Code § 35-47-2-1.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2494 | April 30, 2018   Page 2 of 7
      toward the tennis courts and clubhouse before walking onto another street,

      where they entered a parked car.


[4]   Indianapolis Metropolitan Police Department officers Joseph Douclef, Mike

      Williams, and David Hutson responded to the 911 call of shots-fired. After

      arriving at the apartment complex, the officers observed numerous people out

      on their balconies, and the officers proceeded to move through the apartment

      complex on foot, looking for the men. As the officers neared the area Crowe

      had stated the men were located, the officers saw a parked car with its lights on

      and two men inside. The officers approached the car and encountered Kitt and

      another man, later identified as Bailey Dunlap (“Dunlap”), sitting inside the

      car. Kitt was seated in the driver’s seat while Dunlap, who was wearing a

      bandana pulled over his face, sat in the front passenger’s seat.


[5]   The officers noticed that the interior of the car smelled of the odor of an

      alcoholic beverage when Dunlap lowered the passenger-side window; an open

      bottle of Captain Morgan Rum was found outside the vehicle, near the car’s

      right rear tire. Dunlap was apprehended after a struggle, during which he

      threatened to kill one of the officers. Kitt, who cooperated with the officers,

      was removed from the vehicle. The officers searched the car’s interior and

      found a loaded 9-millimeter caliber handgun under Kitt’s seat. Kitt later

      admitted to police that he had handled the handgun earlier in the evening. Id.

      at 84. He also claimed the handgun belonged to Dunlap. Id.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2494 | April 30, 2018   Page 3 of 7
[6]   The State charged Kitt with carrying a handgun without a license as a Class A

      misdemeanor. Following a bench trial, Kitt was found guilty of the offense.

      When he committed this crime, Kitt was twenty-one-years old and was on

      probation in Vigo County for a conviction for maintaining a common nuisance.

      After his arrest for the instant offense, Kitt was charged with carrying a

      handgun without a license in Hamilton County; that charge had not been

      disposed of when Kitt was sentenced in this case. Appellant’s App. Vol. II at 66-

      67; Tr. at 101. At sentencing, the trial court imposed a 365-day sentence, with

      60 days executed on home detention, less credit for time served pending trial.

      Tr. at 108. The trial court ordered the remainder of Kitt’s sentence to be

      suspended to probation, which included “standard conditions of probation.”

      Id. The trial court advised Kitt that such conditions included random drug

      testing. Id. Kitt now appeals.


                                     Discussion and Decision
[7]   “‘Probation is a criminal sanction where a convicted defendant specifically

      agrees to accept conditions upon his behavior in lieu of imprisonment.’” Waters

      v. State, 65 N.E.3d 613, 618 (Ind. Ct. App. 2016) (quoting Bratcher v. State, 999

      N.E.2d 864, 873 (Ind. Ct. App. 2013), trans. denied). A trial court has broad

      discretion to impose conditions of probation. Id. (citing Hevner v. State, 919

      N.E.2d 109, 113 (Ind. 2010)). The trial court’s discretion is “limited by the

      principle that the conditions imposed on the defendant must be reasonably

      related to the treatment of the defendant and the protection of public safety.”

      Id. (citing Bratcher, 999 N.E.2d at 873). We will not set aside conditions of

      Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2494 | April 30, 2018   Page 4 of 7
       probation unless the trial court abused its discretion. Id. “An abuse of

       discretion occurs when the decision is clearly against the logic and effect of the

       facts and circumstances before the court, or the reasonable, probable, and actual

       deductions to be drawn therefrom.” Id.


[8]    Kitt argues that the trial court abused its discretion when it imposed as a

       condition of his probation that he submit to random drug testing. He contends

       that, although the trial court may impose drug testing as a condition of

       probation, in the present case, it was unreasonable to impose such a search here

       because the drug testing interferes with his right to privacy and serves no

       rehabilitative purpose. Kitt asserts that imposing drug testing was an abuse of

       discretion because he was convicted of carrying a handgun without a license

       and not a substance offense, so the drug testing does not serve his rehabilitation

       or guarantee the protection of the public.


[9]    Initially, we note that Kitt did not object to any of the conditions of probation

       at the trial court level. Thus, Kitt has waived the argument. See Hale v. State,

       888 N.E.2d 314, 319 (Ind. Ct. App. 2008) (holding that by failing to object to

       the conditions of probation at the sentencing hearing, the defendant failed to

       preserve the issue for appellate review), trans. denied.


[10]   Waiver notwithstanding, it was not an abuse of discretion for the trial court to

       impose as a condition of probation that Kitt submit to random drug testing.

       Pursuant to Indiana Code section 35-38-2-2.3, the trial court may require, as a

       condition of probation, that the probationer periodically undergo a laboratory


       Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2494 | April 30, 2018   Page 5 of 7
       chemical test or a series of chemical tests to detect and confirm the presence of

       a controlled substance. Ind. Code § 35-38-2-2.3(20). Abstention from illegal-

       drug use is reasonably related to the general goals of rehabilitation served by

       conditional release. Carswell v. State, 721 N.E.2d 1255, 1264 (Ind. Ct. App.

       1999). Drug “abuse is a pervasive and damaging force in our society, and

       presents a unique legal problem due to its psychological and physiological

       ramifications.” Id. (quotations omitted). Using illegal drugs is a violation of

       the laws of Indiana, and the prohibition against committing new crimes is an

       automatic condition of probation by operation of law no matter the offense. Id.

       at 1264-65 (citing Williams v. State, 695 N.E.2d 1017, 1019 (Ind. Ct. App. 1998)

       (stating that “[t]he requirement that a probationer obey federal, state and local

       laws is automatically a condition of probation by operation of law”)).

       Therefore, ensuring that probationers do not use illegal drugs and commit new

       crimes are valid goals of the rehabilitation served by probation. Accordingly, it

       follows that a requirement that Kitt submit to random drug testing to determine

       whether he is abstaining from illegal drug use is reasonable and a valid

       condition of probation. See id. at 1264 n.7 (holding that “the prohibition against

       using or possessing any illegal drugs or controlled substances is valid, as is the

       requirement that Carswell submit to . . . drug detection tests (including blood,

       urine, and hair analysis) to determine personal drug use . . . .”). We conclude

       that the trial court did not abuse its discretion when it imposed as a condition of

       his probation that Kitt submit to random drug testing.


[11]   Affirmed.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2494 | April 30, 2018   Page 6 of 7
[12]   Baker, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2494 | April 30, 2018   Page 7 of 7
