MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be                                 Jul 26 2018, 6:49 am
regarded as precedent or cited before any
                                                                           CLERK
court except for the purpose of establishing                           Indiana Supreme Court
                                                                          Court of Appeals
the defense of res judicata, collateral                                     and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Clifford M. Davenport                                    Curtis T. Hill, Jr.
Anderson, Indiana                                        Attorney General of Indiana
                                                         J. T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Samuel Lawrence Morgan,                                  July 26, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         48A05-1712-CR-2862
        v.                                               Appeal from the Madison Circuit
                                                         Court
State of Indiana,                                        The Honorable Thomas Newman,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         48C03-1504-FC-656



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 48A05-1712-CR-2862 | July 26, 2018           Page 1 of 8
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, Samuel Lawrence Morgan (Morgan), appeals the trial

      court’s revocation of his probation and imposition of his previously suspended

      sentence.


[2]   We affirm.


                                                   ISSUES
[3]   Morgan presents three issues on appeal, which we consolidate and restate as:

      (1) Whether the State presented sufficient evidence to establish Morgan’s

      violation of probation;


      (2) Whether the trial court violated Morgan’s due process rights; and


      (3) Whether the trial court abused its discretion in revoking Morgan’s

      suspended sentence.


                      FACTS AND PROCEDURAL HISTORY
[4]   On April 30, 2015, the State filed an Information, charging Morgan with

      nonsupport of a dependent child, a Class C felony; and nonsupport of a

      dependent child, as a Level 6 felony. On September 14, 2015, Morgan entered

      into a plea agreement with the State wherein Morgan pled guilty to both

      charges in exchange for the State’s recommendation of a suspended sentence.

      During the sentencing hearing, the trial court sentenced Morgan to six years on

      the Class C felony and one year on the Level 6 felony, with both sentences to be



      Court of Appeals of Indiana | Memorandum Decision 48A05-1712-CR-2862 | July 26, 2018   Page 2 of 8
      served concurrently for an aggregate sentence of six years to be suspended to

      probation.


[5]   On April 21, 2016, the Madison County Probation Office filed a notice of

      probation violation, alleging that Morgan had (1) failed to obtain a substance

      abuse evaluation at a treatment facility and comply with the treatment

      recommendations; (2) failed to pay his probation fees; and (3) failed to pay

      administrative fees. During an evidentiary hearing, Morgan admitted to the

      allegations and the trial court placed him back on probation. On November 23,

      2016, the State filed a second notice of probation violation, asserting that

      Morgan had violated his probation by (1) failing to pay probation fees; (2)

      failing to pay administrative fees; and (3) failing to abstain from the use of

      alcohol or drugs. At the evidentiary hearing, Morgan admitted to the violations

      as charged and the trial court placed him back on probation.


[6]   On November 6, 2017, the Probation Department filed a third notice of

      violation in which it was alleged that Morgan had violation his probation by (1)

      taking steps towards the commission of the crime of possession of marijuana;

      (2) failing to provide truthful information to the Probation Department; (3)

      failing to abstain from the use of illicit drugs; and (4) failing to pay child

      support. During the evidentiary hearing held on November 20, 2017, Morgan’s

      supervisor at the Probation Department, Janelle Johnson (Johnson), testified

      that Morgan tested positive for marijuana and “in order to test positive at some

      point, you have to be in possession.” (Transcript Vol. II, p. 81). After the

      screen can back as positive, Johnson clarified that the sample was sent to

      Court of Appeals of Indiana | Memorandum Decision 48A05-1712-CR-2862 | July 26, 2018   Page 3 of 8
      Witham Laboratories for further testing. The Witham Laboratories’

      confirmatory test showed Morgan was positive for THC. Because the

      presumptive test was based on a small sample of urine, Johnson allowed

      Morgan to submit a second screen. However, the results of the second screen

      were “very dilute.” (Tr. Vol. II, p. 83). During the hearing, Morgan denied

      using marijuana, but acknowledged that he had not been meeting his child

      support obligations. At the close of the evidence, the trial court concluded that

      Morgan had violated the terms of his probation by possessing marijuana, failing

      to abstain from the use of illicit drugs, and failing to pay child support.

      Accordingly, the trial court revoked Morgan’s probation and ordered his

      sentence of six years executed.


[7]   Morgan now appeals. Additional facts will be provided as necessary.


                              DISCUSSION AND DECISION
[8]   Morgan contends that the trial court abused its discretion by finding him in

      violation of his probation. Probation is a matter of grace left to the trial court’s

      discretion, not a right to which a criminal defendant is entitled. Prewitt v. State,

      878 N.E.2d 184, 188 (Ind. 2007). The trial court determines the conditions of

      probation and may revoke probation if conditions are violated. Id. Once a trial

      court has exercised its grace by ordering probation rather than incarceration,

      the judge should have considerable leeway in deciding how to proceed. Id. If

      this discretion were not afforded to the trial court and sentences were

      scrutinized too severely on appeal, trial courts might be less inclined to order


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       probation to future defendants. Id. Accordingly, a trial court’s sentencing

       decision for probation violations are reviewable using the abuse of discretion

       standard. Id. An abuse of discretion occurs where the decision is clearly

       against the logic and effect of the facts and circumstances. Id.


                                         I. Sufficiency of the Evidence


[9]    Morgan contends that the State failed to present sufficient evidence to support a

       violation of probation. A probation revocation hearing is in the nature of a civil

       proceeding. Pitman v. State, 749 N.E.2d 557, 559 (Ind. Ct. App. 2001), trans.

       denied. As such, the alleged violation need be proven only by a preponderance

       of the evidence. Id. Moreover, violation of a single condition of probation is

       sufficient to revoke probation. Id.


[10]   Specifically, Morgan focuses on the testimony of Johnson indicating that

       Morgan, after screening positive for marijuana, must have taken steps towards

       the commission of a new crime because to test positive “you have to be in

       possession.” (Tr. Vol. II, p. 81). Johnson explained that while she did not

       personally observe the screen, she sent the sample to Witham Laboratories,

       where it was confirmed that the test was positive for THC. The urine screen

       and Witham Laboratories documents were not entered into evidence, nor did

       the laboratory employee responsible for the testing testify by live testimony or

       affidavit.


[11]   Because the Rules of Evidence do not apply in probation revocation hearings,

       the general rule against hearsay is inapplicable. Figures v. State, 920 N.E.2d 267,

       Court of Appeals of Indiana | Memorandum Decision 48A05-1712-CR-2862 | July 26, 2018   Page 5 of 8
       271 (Ind. Ct. App. 2010). However, due process principles applicable in

       probation revocation hearings afford the probationer “the right to confront and

       cross-examine adverse witnesses.” Id. Yet because “[t]he due process right

       applicable in probation revocation hearings allows for procedures that are more

       flexible than in a criminal prosecution, the right to confrontation and cross-

       examination in probation revocation hearings is narrower than in a criminal

       trial.” Reyes v. State, 868 N.E.2d 438, 440 (Ind. 2007). For these reasons, the

       general rule is that hearsay evidence may be admitted without violating a

       probationer’s right to confrontation if the trial court finds the hearsay is

       “substantially trustworthy.” Id. at 442. Ideally, the trial court should explain

       on the record why the hearsay is substantially trustworthy, or sufficiently

       “reliable” to be admissible. Id.


[12]   “The absence of an affidavit from a toxicologist or laboratory employee does

       not render drug test results inadmissible in probation revocation proceedings

       where there is otherwise a substantial guarantee of trustworthiness.” Bass v.

       State, 974 N.E.2d 482, 487 (Ind. Ct. App. 2012). Here, Morgan vigorously

       cross-examined Johnson on her statements that “in order to test positive at

       some point, you have to be in possession.” (Transcript Vol. II, p. 81). He also

       questioned her on the procedure to perform screens and their results. Thus, the

       substantial guarantee of trustworthiness was provided by a probation officer’s

       testimony who testified to the method of testing and the laboratory report

       generated by Witham Laboratories and who was subjected to cross-




       Court of Appeals of Indiana | Memorandum Decision 48A05-1712-CR-2862 | July 26, 2018   Page 6 of 8
       examination. Accordingly, we cannot say that Morgan’s due process rights

       were violated.


[13]   Nevertheless, even if we were to find error in the admission of Johnson’s

       hearsay statements, any error would not be cause for reversal because Morgan’s

       probation could have been revoked on the more fact that he admitted to failing

       to pay his child support as ordered. See Pitman, 749 N.E.2d at 559 (noting that

       probation can be revoked based on a single violation).


                                           II. Due Process Violation


[14]   Next, Morgan claims that his due process rights were violated because the trial

       court’s order was not sufficiently precise in enumerating the evidence it relied

       on to revoke his probation. Due process requires a written statement by the fact

       finder regarding the evidence relied upon and the reasons for revoking

       probation. Hubbard v. State, 683 N.E.2d 618, 620 (Ind. Ct. App. 1997). This

       requirement is a procedural device aimed at promoting accurate fact finding

       and ensuring the accurate review of revocation decisions. Id. at 620-21. We

       have held that placing the transcript of the evidentiary hearing in the record,

       although not the preferred way of fulfilling the writing requirement, is sufficient

       if it contains a clear statement of the trial court’s reasons for revoking probation.

       Id.


[15]   Here, the trial court here did not issue a writing separate from the abstract of

       judgment elaborating on the specific evidence relied upon; rather, the evidence

       it relied upon in revoking Morgan’s probation is contained in the transcript of

       Court of Appeals of Indiana | Memorandum Decision 48A05-1712-CR-2862 | July 26, 2018   Page 7 of 8
       the trial court’s evidentiary hearing. Accordingly, the trial court’s abstract of

       judgment provides the reasons for, and the hearing transcript provides the

       evidence underlying, the trial court’s revocation of Morgan’s probation. Both

       documents provide an adequate basis for appellate review and, thus, are

       adequate to satisfy the separate writing requirement.


                                           III. Imposition of Sentence


[16]   Relying on its previous two arguments, Morgan contends that “because the trial

       court lacked sufficient evidence to revoke [his] probation” and relied on

       improper hearsay, the “trial court cannot impose sanctions” on him.

       (Appellant’s Br. p. 18). However, as we found that the trial court did not abuse

       its discretion in finding that Morgan violated his conditions of probation, we

       affirm the trial court’s imposition of a sentence.


                                             CONCLUSION
[17]   Based on the foregoing, we conclude that the trial court did not abuse its

       discretion in finding that Morgan violated the conditions of his probation and

       ordering him to serve his previously suspended sentence.


[18]   Affirmed.


[19]   Kirsch, J. and Vaidik, C.J. concur




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