MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                  Feb 12 2016, 8:50 am
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
Leanna Weissmann                                         Gregory F. Zoeller
Lawrenceburg, Indiana                                    Attorney General of Indiana
                                                         Paula J. Beller
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

James L. Harness, IV                                     February 12, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         15A01-1508-CR-1153
        v.                                               Appeal from the Dearborn
                                                         Superior Court
State of Indiana,                                        The Honorable Jonathan N.
Appellee-Plaintiff.                                      Cleary, Judge
                                                         Trial Court Cause No.
                                                         15D01-0804-FB-5



Bradford, Judge.



                                    Case Summary

Court of Appeals of Indiana | Memorandum Decision 15A01-1508-CR-1153 | February 12, 2016      Page 1 of 6
[1]   In 2008, Appellant-Defendant James Harness pled guilty to Class B felony

      operating a vehicle while intoxicated (“OWI”) causing death. Harness was

      given a twenty-year sentence with eight years suspended to probation. Harness

      was released from incarceration in February 2015. A condition of Harness’s

      probation was that he not consume alcohol. In June 2015, Harness took a

      routine urine screen which revealed the presence of alcohol metabolites. As a

      result, Appellee-Plaintiff the State of Indiana filed a motion to revoke Harness’s

      suspended sentence. The trial court found that Harness violated his probation

      by consuming alcohol, revoked six years of Harness’s suspended sentence, and

      added an additional year of probation. On appeal, Harness claims that there

      was insufficient evidence to prove that he consumed alcohol. We affirm.



                            Facts and Procedural History
[2]   On December 21, 2007, Harness was a driving a borrowed Jeep Wrangler when

      he lost control of the vehicle and struck a tree. Bryan Morgan, one of the four

      passengers, was thrown from the vehicle and died as a result of his injuries.

      The remaining three passengers suffered only minor injuries. Harness fled the

      scene following the accident.


[3]   The remaining passengers informed police that they had been drinking prior to

      the accident and that Harness had been driving ninety miles per hour and

      ignored their pleas to slow down. Seven hours after the crash, Harness was

      submitted to a portable breathalyzer test which indicated that his blood alcohol



      Court of Appeals of Indiana | Memorandum Decision 15A01-1508-CR-1153 | February 12, 2016   Page 2 of 6
      level was 0.088%. Harness did not have a valid license and had been convicted

      of an OWI the previous year.


[4]   On July 2, 2008, Harness pled guilty to Class B felony OWI resulting in death

      with a prior OWI conviction. The trial court sentenced Harness to a twenty-

      year term with eight years suspended to probation. Harness was released from

      the Department of Correction in February 2015. On June 15, 2015, Harness’s

      probation officer performed a urine screen on Harness which revealed the

      presence of alcohol. The State subsequently filed a motion to revoke Harness’s

      suspended sentence.


[5]   At a fact finding hearing, the State presented testimony from Steve Kelly, Chief

      Probation Officer of the Dearborn Superior Courts, about the failed screen.

      The State also submitted an affidavit from Jeff Retz, the Scientific Director and

      Certifying Scientist at Witham Memorial Hospital Toxicology Laboratory, who

      tested Harness’s urine sample. Retz opined that, based on the urinalysis,

      Harness had consumed alcohol within the five days prior to the screen.

      Harness claimed that the test results were a false positive. The trial court found

      that Harness had violated his probation by consuming alcohol, revoked six

      years of Harness’s suspended sentence, and added one year of probation.



                                 Discussion and Decision
[6]   On appeal, Harness claims that the State failed to present sufficient evidence to

      prove by a preponderance that he violated his probation by consuming alcohol.


      Court of Appeals of Indiana | Memorandum Decision 15A01-1508-CR-1153 | February 12, 2016   Page 3 of 6
      Specifically, Harness argues that the urine screen was unreliable because (1) the

      State failed to present evidence regarding the specific manner in which the

      sample was collected and (2) that the procedure used to test Harness’s urine is

      not scientifically reliable.


[7]           Because a probation hearing is civil in nature, the State must
              prove the alleged probation violation by a preponderance of the
              evidence. Braxton v. State, 651 N.E.2d 268, 270 (Ind.1995), reh’g
              denied; see Ind. Code § 35-38-2-3(e). In reviewing a claim of
              insufficient evidence, we neither reweigh the evidence nor judge
              the credibility of the witnesses. Braxton, 651 N.E.2d at 270.
              Instead, we consider only the evidence most favorable to the trial
              court’s decision to revoke probation. Id. We will affirm when
              there is substantial evidence of probative value to support the
              court’s conclusion that a probationer has violated any condition
              of probation. Id.


      Johnson v. State, 692 N.E.2d 485, 486 (Ind. Ct. App. 1998).


[8]   At the revocation hearing, the State submitted the affidavit of Jeff Retz, who

      tested Harness’s urine sample for the presence of ethyl glucuronide (“ETG”), a

      metabolite produced as a result of ingesting alcohol. Retz outlined the

      procedure which was used to transfer and analyze the sample and avowed that

      all proper steps were taken with Harness’s sample. Bases on Harness’s ETG

      levels, Retz opined that “Harness [] would have had to use or ingest a substance

      containing ethyl alcohol sometime in the five days prior to the urine

      collection.” Ex. 1. Retz also indicated that the sample was sent for

      confirmation testing to a separate laboratory in Kansas. Retz attached the



      Court of Appeals of Indiana | Memorandum Decision 15A01-1508-CR-1153 | February 12, 2016   Page 4 of 6
       affidavit of Dr. David Kuntz to his own affidavit in which Kuntz, the director

       of the Kansas laboratory, confirmed Harness’s positive ETG screen.


[9]    Steve Kelly testified that, at the time of the urine screen, Harness had moved to

       Switzerland County, was under courtesy supervision in that county, and that

       the urine sample was collected by a certified Switzerland County probation

       officer. Kelly also testified that, to the best of his knowledge, “all procedures

       and processes were followed” in the collection of Harness’s urine sample. Tr.

       p. 19.


[10]   First, Harness argues that “[t]he record lacks evidence to show that Harness’s

       sample had been collected and stored in the proper manner.” Appellant’s Br. p.

       11. However, Harness does not describe what proper collection procedure

       might be, how the probation officer in this case may have failed to follow such

       procedure during the collection process, and how any such failure could lead to

       a false positive. We are unpersuaded by Harness’s attempts to generally cast

       doubt on the collection procedure without any specific claims of deficiency.


[11]   Harness goes on to generally question the reliability of ETG testing, arguing

       that the testimony here does not “rest[] upon reliable scientific principles” as is

       required by Indiana Evidence Rule 702. Despite Harness’s contentions with the

       accuracy of the ETG test, the only scientific evidence presented were the

       affidavits of Retz and Kuntz, in which Retz opined that the results of Harness’s

       urine indicated that he consumed alcohol in the previous five days. These

       expert affidavits stand as an endorsement of the reliability of the ETG test.


       Court of Appeals of Indiana | Memorandum Decision 15A01-1508-CR-1153 | February 12, 2016   Page 5 of 6
       Harness offered no expert testimony that may have given the trial court reason

       to question the validity of ETG testing. Absent such evidence, we find that the

       results of the ETG testing are sufficient to sustain the trial court’s conclusion

       that Harness consumed alcohol in violation of the terms his probation.


[12]   The judgment of the trial court is affirmed.


       Baker, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 15A01-1508-CR-1153 | February 12, 2016   Page 6 of 6
