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
