      MEMORANDUM DECISION
                                                                        FILED
      Pursuant to Ind. Appellate Rule 65(D), this
                                                                    Apr 19 2017, 8:52 am
      Memorandum Decision shall not be regarded as
      precedent or cited before any court except for the                CLERK
                                                                    Indiana Supreme Court
      purpose of establishing the defense of res judicata,             Court of Appeals
                                                                         and Tax Court
      collateral estoppel, or the law of the case.



      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Victoria L. Bailey                                        Curtis T. Hill, Jr.
      Marion County Public Defender Agency                      Attorney General of Indiana
      Indianapolis, Indiana
                                                                Caryn N. Szyper
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana


                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Darion Cook,                                              April 19, 2017

      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                49A05-1609-CR-2153
              v.                                                Appeal from the Marion Superior
                                                                Court.
                                                                The Honorable Anne Flannelly,
      State of Indiana,                                         Magistrate.
      Appellee-Plaintiff.                                       Cause No. 49G04-1410-F4-46872




      Barteau, Senior Judge


                                       Statement of the Case
[1]   Darion Cook appeals the revocation of his probation and placement in

      community corrections. We affirm.



      Court of Appeals of Indiana | Memorandum Decision 49A05-1609-CR-2153 | April 19, 2017   Page 1 of 7
                                                     Issue
[2]   Cook raises one issue, which we restate as: whether the trial court abused its

      discretion in admitting hearsay evidence.


                               Facts and Procedural History
[3]   On October 8, 2014, the State charged Cook with burglary, a Level 4 felony,

      and theft of a firearm, a Level 6 felony. The parties executed a plea agreement.

      Cook agreed to plead guilty to burglary, and the State agreed to dismiss the

      theft charge. In addition, the parties agreed that if the trial court accepted the

      plea agreement, Cook would be sentenced to six years, of which four years

      would be executed and two years would be suspended. The parties further

      agreed Cook would serve the executed portion of the sentence under the

      supervision of Marion County Community Corrections (MCCC).


[4]   On December 23, 2014, the court accepted the plea agreement and ordered

      Cook to serve the executed portion of his sentence through MCCC. The court

      further directed Cook to comply with MCCC’s rules. In addition, the court

      ordered Cook to avoid “illegal drugs or any controlled substance (without a

      valid prescription)” and stated that he would be required to “submit to drug

      screening as directed at [Cook’s] own expense.” Appellant’s App. p. 75.


[5]   MCCC initially placed Cook on home detention. From March 23, 2015

      through March 10, 2016, the State filed four separate notices of violation,

      alleging Cook had violated various MCCC rules. Cook admitted to violating at

      least one rule as to each of the four notices of violation. The court imposed

      Court of Appeals of Indiana | Memorandum Decision 49A05-1609-CR-2153 | April 19, 2017   Page 2 of 7
      sanctions short of revoking Cook’s probation, including a stint in the county jail

      and modification of his placement from home detention to work release.


[6]   On June 21, 2016, the State filed a fifth notice of violation, alleging Cook had

      tested positive for a controlled substance and had failed to comply with

      financial obligations. The State later filed a motion to revoke Cook’s probation.

      On July 25, 2016, Cook sent a letter to the trial court, conceding he had a “dirty

      drop,” meaning he had tested positive for a controlled substance. Id. at 114.

      He asked for leniency, explaining “This is my first dirty drop since last year

      July. This [is] only my second one the whole time I been [sic] on this case.” Id.


[7]   The trial court held an evidentiary hearing on the State’s petition. The State

      presented Exhibit 1, which consisted of a written disciplinary conduct report

      and a urinalysis dip testing stick that was sealed in an evidence bag, both of

      which indicated Cook had tested positive for synthetic marijuana. The

      evidence was admitted over Cook’s objection that the exhibit was based on

      hearsay. The court also took judicial notice of Cook’s letter. The court

      determined Cook had violated the MCCC’s rules and ordered him to serve his

      entire suspended sentence in the Indiana Department of Correction.


                                   Discussion and Decision
[8]   Cook argues the trial court should not have admitted hearsay evidence. The

      State responds that the trial court properly considered hearsay evidence in

      determining Cook had violated MCCC’s rules.



      Court of Appeals of Indiana | Memorandum Decision 49A05-1609-CR-2153 | April 19, 2017   Page 3 of 7
[9]    We review the trial court’s ruling on the admission or exclusion of evidence for

       an abuse of discretion. Williams v. State, 937 N.E.2d 930, 933 (Ind. Ct. App.

       2010). An abuse of discretion occurs if a decision is clearly against the logic

       and effect of the facts and circumstances before the court. Id.


[10]   A defendant is not entitled to serve a sentence on probation or in a community

       corrections program. Monroe v. State, 899 N.E.2d 688, 691 (Ind. Ct. App. 2009).

       Although the Due Process Clause applies to probation revocation proceedings,

       probationers do not receive the same constitutional protections that criminal

       defendants receive at trial. Reyes v. State, 868 N.E.2d 438, 440 (Ind. 2007).

       Instead, the due process right applicable in probation revocation hearings

       allows for procedures that are more flexible than in a criminal prosecution. Id.

       Within this flexible framework, courts may admit evidence during probation

       revocation hearings that would not be permitted in a criminal trial. Id.


[11]   The Indiana Rules of Evidence, which govern hearsay, do not apply in

       proceedings involving sentencing or probation. Ind. Evid. R. 101(d)(2).

       Instead, the Indiana Supreme Court has determined that when a court receives

       hearsay evidence during a probation revocation hearing, it must assess the

       evidence’s reliability and may admit it as evidence only if it is “substantially

       trustworthy.” Smith v. State, 971 N.E.2d 86, 90 (Ind. 2012).


[12]   In the current case, the State presented testimony from Sergeant Austin Helton,

       a shift supervisor with the Duvall Residential Center (the Center). Cook served

       his work release sentence at the Center and submitted to drug tests there,


       Court of Appeals of Indiana | Memorandum Decision 49A05-1609-CR-2153 | April 19, 2017   Page 4 of 7
       including the failed test that led the State to request revocation of Cook’s

       probation and community corrections placement. Helton was trained in the

       Center’s drug testing policies and procedures, including the storage of evidence.

       He testified that the Center’s staff can conduct two different types of urinalysis

       tests: a “five-panel” test for a variety of controlled substances and one that tests

       only for synthetic marijuana. Tr. Vol. II. p. 8.


[13]   Helton identified and discussed State’s Exhibit 1, which consisted of a written

       disciplinary conduct report dated June 18, 2016, and a urinalysis dip testing

       stick in an evidence bag. The Center employee who managed Cook’s drug test

       and prepared the report, RCO George, no longer worked there. George had

       been trained in the Center’s drug testing policies and procedures. Helton was

       not present for the drug test, but he had looked at the dip stick afterward and

       had confirmed that Cook’s sample tested positive for synthetic marijuana. In

       addition, Helton had reviewed and approved George’s report, which stated, in

       relevant part:

               On 06/18/2016 at approximately 1615 hrs. I, Rco [sic] George,
               gave Resident Cook, Darion gallery (#741480) a standard
               urinalysis dip test. The result of the dip test showed that
               Resident Cook tested positive for K2/Spice (a synthetic form of
               marijuana) and THC. I then placed the dip test inside of an
               evidence bag labeled with the Resident’s name and gallery
               number. I then placed the evidence bag inside of the gray
               evidence safe located inside of Station 1.

       Appellant’s Supplemental Ex. Vol. p. 4.



       Court of Appeals of Indiana | Memorandum Decision 49A05-1609-CR-2153 | April 19, 2017   Page 5 of 7
[14]   Helton retrieved the bag from the safe before the revocation hearing. The bag

       had Cook’s name and gallery number written on it. Helton noted that at the

       time of the hearing, the testing stick still showed a positive result for the

       presence of synthetic marijuana.


[15]   The trial court determined that the report and testing device were reliable

       because Helton demonstrated he was knowledgeable about the Center’s policies

       and procedures for conducting drug tests and storing evidence. Tr. Vol. II, p.

       12. We agree that Exhibit 1 had substantial guarantees of trustworthiness.

       Helton proved he understood the Center’s policies. In addition, the report

       identifies Cook as the individual who submitted to the test. Also, Helton found

       the evidence bag in the safe where George had placed it, still bearing Cook’s

       name and gallery number as indicated on the report. Although Helton had not

       been present for Cook’s test, he reviewed George’s report and examined the

       testing stick after the fact. Based on this evidence, the trial court did not abuse

       its discretion in admitting the evidence. See Bass v. State, 974 N.E.2d 482, 487-

       88 (no abuse of discretion in admitting toxicology report during probation

       revocation hearing; case manager described drug testing procedures in detail,

       providing substantial guarantees of trustworthiness).


[16]   Even if the trial court abused its discretion by admitting Exhibit 1, any error

       was harmless. We will not reverse if the admission of evidence constituted

       harmless error. Williams, 937 N.E.2d at 933. Here, the trial court admitted into

       evidence Cook’s letter, in which he admitted to the court that he had failed the


       Court of Appeals of Indiana | Memorandum Decision 49A05-1609-CR-2153 | April 19, 2017   Page 6 of 7
       drug test. Cook’s admission, in combination with Helton’s testimony, is

       sufficient to support the trial court’s decision.


                                                Conclusion
[17]   For the reasons stated above, we affirm the judgment of the trial court.


[18]   Affirmed.


       Bailey, J., and Robb, J., concur.




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