MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
                                                                            FILED
court except for the purpose of establishing                            Jul 28 2017, 9:52 am

the defense of res judicata, collateral                                     CLERK
                                                                        Indiana Supreme Court
estoppel, or the law of the case.                                          Court of Appeals
                                                                             and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Michael R. Fisher                                        Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         Christina D. Pace
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Daniel Boyd,                                             July 28, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A05-1701-CR-192
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Shatrese Flowers,
                                                         Judge
Appellee-Plaintiff.
                                                         The Honorable James Snyder,
                                                         Commissioner
                                                         Trial Court Cause No.
                                                         49G20-1408-FB-38247



Barnes, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A05-1701-CR-192 | July 28, 2017             Page 1 of 9
                                                Case Summary

[1]   Daniel Boyd appeals the trial court’s decision to revoke his placement at

      Marion County Community Corrections (“MCCC”). We affirm.

                                                      Issues

[2]   Boyd raises two issues on appeal, which we restate as:


                I.     whether the trial court abused its discretion in admitting
                       evidence regarding a urine sample taken from Boyd; and


               II.     whether there was sufficient evidence to show that Boyd
                       violated the terms of his placement at MCCC.


                                                      Facts

[3]   On August 5, 2014, Boyd was charged with two counts of Class B felony

      dealing in cocaine and two counts of Class D felony possession of cocaine. On

      December 30, 2014, Boyd pled guilty to Class B felony dealing in cocaine and

      Class D felony possession of cocaine; the other charges were dismissed. The

      trial court sentenced Boyd to six years with three years executed in the

      Department of Correction (“DOC”) and three years executed in MCCC. Once

      Boyd was released from the DOC, he was placed in Duvall Residential Center

      (“DRC”).


[4]   On September 8, 2016, MCCC filed a notice of community corrections

      violation, which alleged that Boyd: (1) violated DRC rules regarding

      conspiracy/attempting/aiding or abetting; (2) violated DRC rules regarding

      trafficking; (3) violated DRC rules regarding the possession or use of a

      Court of Appeals of Indiana | Memorandum Decision 49A05-1701-CR-192 | July 28, 2017   Page 2 of 9
      controlled substance; and (4) failed to comply with the DRC payment policy.

      All of these alleged violations occurred on September 7, 2016.


[5]   A hearing was held on December 29, 2016. During the hearing, an employee

      of DRC, Officer Andrew Carlson, testified that on September 7, 2016, he was

      responsible for conducting searches of residents coming back to the facility after

      leave on day passes. Officer Carlson testified that he encountered Boyd and,

      pursuant to DRC rules, conducted a search of Boyd and his belongings. While

      conducting the search, Officer Carlson noticed Boyd was mumbling when he

      spoke, which was something Boyd had not done during previous encounters.

      Officer Carlson then asked Boyd to open his mouth and remove whatever was

      in his mouth. Boyd complied, and Officer Carlson testified that Boyd “spit …

      two baggies of K2 onto the floor.” Tr. Vol. II p. 8. Boyd objected to this

      statement on hearsay grounds. The trial court overruled the objection.


[6]   Officer Carlson then testified that he received training on how to identify

      synthetic marijuana, or K2, but he could not recall any specifics about the

      training. He also testified that he had encountered what he believed was K2

      multiple times. On cross-examination, Officer Carlson testified that he was not

      sure if the substance was K2, marijuana, or something else. He later clarified

      that it is hard to visually discern the differences between K2 and marijuana.

      Officer Carlson also testified that residents of DRC are required to sign a

      contract, which includes the proper procedure for bringing items into the facility

      and an agreement to abstain from using or possessing drugs.



      Court of Appeals of Indiana | Memorandum Decision 49A05-1701-CR-192 | July 28, 2017   Page 3 of 9
[7]   DRC Sergeant Danny Williams testified that residents are not allowed to bring

      tobacco or other substances into the facility, unless they are prescribed by a

      physician. He stated that, if residents have a prescription, they must follow

      specific procedures that include first checking them into the front desk upon

      arrival. Sergeant Williams testified that on the day of the incident, he was

      called into Boyd’s holding cell by Officer Carlson, and he was shown the two

      bags recovered from Boyd’s mouth. Sergeant Williams then decided to conduct

      a “drop” on Boyd. Id. at 19. He explained that a “drop” is a urine drug screen

      in which he collects a urine sample and then dips a K2 tester and five point

      tester in the resident’s urine in order to get a positive or negative result for

      illegal substances. Sergeant Williams testified that it is standard procedure for

      the officer to open the packages in front of the resident, watch the resident use

      the bathroom, and dip the testers in the cup. Sergeant Williams testified that he

      had conducted the test on several occasions and followed standard procedure

      when he conducted the test on Boyd. Sergeant Williams then testified that

      Boyd tested positive for K2, based on the results of the dip stick test. Boyd

      again objected on hearsay grounds. The objection was overruled. Sergeant

      Williams also testified that he showed Boyd the positive result, and he stated

      that a positive result violated DRC rules.


[8]   Boyd testified that, when he returned to DRC, he did not have anything in his

      mouth. He testified that, when he entered the search room, Officer Carlson

      conducted a search and, when the search was complete, Officer Carlson left the

      room. Boyd then claimed that, as he began putting his clothes back on, Officer


      Court of Appeals of Indiana | Memorandum Decision 49A05-1701-CR-192 | July 28, 2017   Page 4 of 9
       Carlson returned and spotted the bags on the floor. Boyd testified that he never

       saw the bags on the floor and did not have the bags in his mouth or in his

       possession at any point. He also testified that he had not used K2, was

       unfamiliar with K2, and had never tested positive for any other substances prior

       to this incident.


[9]    At the conclusion of the hearing, the trial court determined that the State had

       not presented sufficient evidence to sustain the allegations concerning

       conspiracy or failure to pay DRC funds but had presented sufficient evidence

       that Boyd violated DRC rules against trafficking and possession or use of a

       controlled substance. As such, the trial court revoked Boyd’s community

       corrections placement and ordered him to serve the remainder of his sentence in

       the DOC. Boyd now appeals.

                                                     Analysis

                                           I.    Admission of Evidence

[10]   Boyd argues that the trial court abused its discretion by allowing hearsay

       evidence and revoking his placement in community corrections. Probationers

       during a revocation hearing are not entitled to the full array of constitutional

       rights afforded a defendant at trial. Reyes v. State, 868 N.E.2d 438, 440 (Ind.

       2007). They are entitled to certain due process rights, which include “written

       notice of the claimed violations, disclosure of the evidence against him, an

       opportunity to be heard and present evidence, the right to confront and cross-

       examine witnesses, and a neutral and detached hearing body.” Cox v. State, 706

       N.E.2d 547, 549 (Ind. 1999). The procedures at such hearings are to be flexible

       Court of Appeals of Indiana | Memorandum Decision 49A05-1701-CR-192 | July 28, 2017   Page 5 of 9
       and as such the strict rules of evidence do not apply in revocation hearings. Id.;

       see also Holmes v. State, 923 N.E.2d 479, 482 (Ind. Ct. App. 2010) (holding the

       Indiana Rules of Evidence in general and the rules against hearsay in particular

       do not apply in community corrections placement revocation hearings).

       Instead, courts may consider any relevant evidence bearing some substantial

       indicia of reliability, including hearsay evidence. Cox, 706 N.E.2d at 551.

       During a revocation hearing, a trial court may admit hearsay evidence without

       violating a probationer’s right to confrontation if the trial court finds the

       hearsay evidence to be “substantially trustworthy.” Reyes, 868 N.E.2d at 442.

       “[T]he absence of strict evidentiary rules places particular importance on the

       fact-finding role of judges in assessing the weight, sufficiency, and reliability or

       proffered evidence.” Cox, 706 N.E.2d at 551. “This assessment, then, carries

       with it a special level of judicial responsibility and is subject to appellate

       review.” Id.


[11]   Boyd argues that the trial court abused its discretion by allowing Sergeant

       Williams to testify about the results of Boyd’s urine sample. Boyd contends

       that this testimony was unreliable hearsay and, as such violated his due process

       right to cross-examine witnesses. As discussed, the hearsay exclusion rule is

       not applicable to these proceedings. Id. at 552. The trial court may consider all

       relevant evidence, including reliable hearsay. Consequently, we need not

       address whether the officer’s testimony was hearsay. Rather, we will consider

       only whether the evidence was substantially trustworthy and has a substantial

       indicia of reliability.


       Court of Appeals of Indiana | Memorandum Decision 49A05-1701-CR-192 | July 28, 2017   Page 6 of 9
[12]   Boyd contends that Sergeant Williams’s testimony was not substantially

       trustworthy because Sergeant Williams had “absolutely no scientific expertise

       about a scientific test he conducted.” Appellant’s Br. p. 10. Sergeant Williams

       testified that he had conducted the dip stick test on several occasions and

       explained in detail how the urinalysis test is performed. He also testified that he

       followed standard procedure when he conducted the test on Boyd, including

       watching Boyd urinate, opening the test strips in front of him, and allowing him

       to review the results. In addition, Boyd was given the opportunity to cross-

       examine Sergeant Williams during the hearing. Given the evidentiary

       standards applicable to revocation proceedings, we find that the trial court did

       not abuse its discretion by admitting the testimony of Sergeant Williams. We

       also note the trial court had the opportunity to assess and assign the weight to

       be given to this evidence.


                                          II.    Sufficiency of Evidence


[13]   Boyd contends that the evidence was insufficient to show that he violated the

       terms of his community corrections placement. We review a decision to revoke

       placement in a community corrections program in the same manner as a

       decision to revoke probation. Cox, 706 N.E.2d at 549. “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
       Court of Appeals of Indiana | Memorandum Decision 49A05-1701-CR-192 | July 28, 2017   Page 7 of 9
       violated any terms of probation, we will affirm its decision to revoke

       probation.” Id. The violation of a single condition of probation is enough to

       support revocation. Pierce v. State, 44 N.E.3d 752, 755 (Ind. Ct. App. 2015).


[14]   Boyd contends that “the testimony of [Officer Carlson] is not sufficient to show

       by a preponderance of the evidence that [he] possessed K2.” Appellant’s Br. p.

       17. Specifically he argues that Officer Carlson’s testimony that “the matter in

       question was similar to or consistent with the substances the witness was shown

       during his training is not really probative of the conclusion that it was actually

       one of these substances.” Id. Our supreme court, however, has established

       that, “The State is not required to introduce the subject contraband to obtain a

       conviction for dealing or possession.” Helton v. State, 907 N.E.2d 1020, 1024

       (Ind. 2009) (holding the identity and quantity of a controlled substance and the

       defendant’s possession of or dealing in narcotics may all be established through

       witness testimony and circumstantial evidence). In order to sustain a

       conviction for possession, the opinion of someone sufficiently experienced with

       the drug as well as other circumstantial evidence is sufficient. Clifton v. State,

       499 N.E.2d 256, 258 (Ind. 1986). The burden of proof in a revocation

       proceeding is even less than for obtaining a criminal conviction.


[15]   Officer Carlson testified that he observed Boyd spit out two bags containing

       substances similar in appearance to K2 or marijuana. Officer Carlson also

       testified that he had been trained on how to identify K2 and marijuana.

       Although he stated that the differences between the two are hard to visually

       discern, Sergeant Williams established that both substances are visually

       Court of Appeals of Indiana | Memorandum Decision 49A05-1701-CR-192 | July 28, 2017   Page 8 of 9
       distinctive from other substances, such as tobacco. Officer Carlson also testified

       that he had encountered K2 and marijuana on several occasions during his

       employment. In addition, the State presented testimony that Boyd tested

       positive for K2 and that Boyd would have violated placement rules by either

       possessing or testing positive for any controlled substance. 1 Because only a

       single violation of a condition of community corrections is sufficient to support

       revocation, we find that the evidence was sufficient to revoke Boyd’s placement

       in MCCC.


                                                        Conclusion


[16]   The trial court did not abuse its discretion by admitting the testimony of

       Sergeant Williams, and there was sufficient evidence to support the trial court’s

       decision to revoke Boyd’s placement in community corrections. We affirm.


[17]   Affirmed.


       Baker, J., and Crone, J., concur.




       1
           This also includes possession or use of tobacco.


       Court of Appeals of Indiana | Memorandum Decision 49A05-1701-CR-192 | July 28, 2017   Page 9 of 9
