MEMORANDUM DECISION
                                                                              FILED
Pursuant to Ind. Appellate Rule 65(D),                                    Oct 24 2018, 6:46 am
this Memorandum Decision shall not be
                                                                              CLERK
regarded as precedent or cited before any                                 Indiana Supreme Court
                                                                             Court of Appeals
court except for the purpose of establishing                                   and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
David W. Stone IV                                        Curtis T. Hill, Jr.
Anderson, Indiana                                        Attorney General of Indiana
                                                         Caroline G. Templeton
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Michael Thompson,                                        October 24, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-930
        v.                                               Appeal from the Madison Circuit
                                                         Court
State of Indiana,                                        The Honorable Mark Dudley,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         48D01-1105-FB-828



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-930 | October 24, 2018                   Page 1 of 10
                                Case Summary and Issue
[1]   Michael Thompson appeals the trial court’s revocation of his placement in

      work release and its order that he serve eighteen months at the Indiana

      Department of Correction. On appeal, Thompson presents only one issue for

      our review: whether the State presented sufficient evidence to support the

      revocation of his placement in work release. Concluding the State presented

      sufficient evidence to revoke Thompson’s placement in work release, we affirm.



                            Facts and Procedural History
[2]   On July 12, 2011, Thompson pleaded guilty to burglary, a Class B felony, and

      theft, a Class D felony. Thompson was sentenced to an aggregate of fourteen

      years with six years suspended.


[3]   Thompson began serving probation on January 9, 2014. By May 2, Thompson

      was charged with a new criminal offense and the State filed its first notice of

      violation of probation. The trial court ordered Thompson to serve two years of

      his previously suspended sentence as a sanction. A second notice of violation

      of probation was filed on October 20, 2015, and on December 22, 2015,

      Thompson admitted that he had failed to pay restitution, failed to maintain

      employment, and failed a drug test. However, the trial court choose not to

      impose a sanction for these violations.


[4]   On July 12, 2016, in response to a June 2016 notice of violation of probation,

      the trial court found that Thompson had violated the terms of his probation by

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-930 | October 24, 2018   Page 2 of 10
      failing to comply with his curfew as well as committing the new offenses of

      criminal mischief and possession of marijuana. This time, the trial court

      ordered Thompson to serve the remaining four years of his previously

      suspended sentence, with two and one-half years to be served at the Indiana

      Department of Correction and the remaining sentence to be served on work

      release.


[5]   Thompson completed his time at the Department of Correction and reported to

      work release on January 23, 2018. Just over two weeks later, on February 11, a

      correctional officer observed Thompson sitting on a toilet putting a “green leafy

      substance into a white cigarette rolling paper.” Transcript, Volume I at 21-22.

      When ordered to stop what he was doing, Thompson “grabbed it with his right

      hand, stuffed it between his legs and flushed the toilet.” Id. at 22. Thompson

      then refused orders to stand up and he continued to wipe himself and flushed

      the toilet again before standing up. The correctional officer later testified that

      based on his prior training and experience, the green leafy substance appeared

      to be either marijuana or K2 spice, both illegal substances constituting

      violations of work release. Neither a strip search nor an inspection of

      Thompson’s bunk revealed any additional contraband and the State filed a

      petition to terminate work release the next day, alleging that Thompson

      violated the terms of work release by committing the new offense of obstruction

      of justice.


[6]   On February 13, Thompson’s case manager, Tyler Gross, pulled Thompson for

      a meeting. Gross later testified that Thompson was “sweaty [and] stumbling a

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-930 | October 24, 2018   Page 3 of 10
      little bit.” Id. at 9. Thompson was shaking, had bloodshot eyes, avoided eye

      contact, and could not “sit still[,]” all of which led Gross to conclude that

      Thompson “seemed like he was intoxicated under something[,]” most closely

      resembling the effects of K2 spice. Id. at 10. Gross called an ambulance for

      Thompson, but after Thompson refused treatment, Gross obtained an order to

      incarcerate him and he was subsequently transferred to the jail. The State

      amended its petition to terminate work release by adding an allegation that

      Thompson was intoxicated during his February 13 meeting with Gross.


[7]   The trial court conducted a hearing on March 16, concluding the testimony

      presented by the State was credible and that it therefore met its burden as to

      both allegations. The trial court revoked the remainder of Thompson’s term in

      work release and ordered Thompson to return to the Department of Correction

      to serve the remaining balance of his sentence. Thompson now appeals.



                                 Discussion and Decision
                                      I. Standard of Review
[8]   We review a decision on a petition to revoke placement in a community

      corrections program just as we review decisions on a petition to revoke

      probation. Johnson v. State, 62 N.E.3d 1224, 1229 (Ind. Ct. App. 2016). Both

      community corrections and probation are matters of grace granted by the trial

      court and we therefore review their decisions for abuse of discretion. Id.

      Furthermore, revocation is a civil matter and the State need only prove the

      alleged violations by a preponderance of the evidence. Id. An abuse of
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-930 | October 24, 2018   Page 4 of 10
       discretion occurs “only where the trial court’s decision is clearly against the

       logic and effect of the facts and circumstances.” Robinson v. State, 91 N.E.3d

       574, 577 (Ind. 2018). We will not reweigh the evidence or reconsider witness

       credibility. Dokes v. State, 971 N.E.2d 178, 179 (Ind. Ct. App. 2012). Rather,

       we consider only the evidence most favorable to the trial court’s judgment to

       determine if there was substantial evidence of probative value to support the

       court’s ruling. Id.


                                             II. Revocation
[9]    Thompson contends the State failed to present sufficient evidence to support the

       allegations of obstruction of justice and intoxication to justify revoking his work

       release. We address each of Thompson’s arguments in turn.


                                        A. Obstruction of Justice
[10]   We begin with the State’s allegation of obstruction of justice. Indiana Code

       section 35-44.1-2-2(3) provides that any person who “alters, damages, or

       removes any record, document, or thing, with intent to prevent it from being

       produced or used as evidence in any official proceeding or investigation”

       commits obstruction of justice, a Level 6 felony.


[11]   At the probation revocation hearing, the State presented the testimony of a

       correctional officer who stated that he observed Thompson sitting on a toilet

       putting a “green leafy substance into a white cigarette rolling paper.” Tr., Vol. I

       at 21-22. When ordered to stop what he was doing, Thompson “grabbed it

       with his right hand, stuffed it between his legs and flushed the toilet.” Id. at 22.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-930 | October 24, 2018   Page 5 of 10
       Thompson then refused orders to stand up and he continued to wipe himself

       and flushed the toilet a second time before complying with orders to stand up.

       Thompson denied this allegation but the trial court concluded that it believed

       the correctional officer, despite the conflict with Thompson’s denial, and that

       the State had therefore met its burden of proof.


[12]   On appeal, Thompson argues that “[f]lushing something does not fall under the

       language of the statute [because it] does not refer to the destruction of any thing.”

       Brief of Appellant at 11 (emphasis added). In support thereof, Thompson

       argues:


               The American Heritage Dictionary of the English Language
               (1969) defines “alter” as “to change or make different; modify[.]”
               It defines “damage” as being “impairment of the usefulness or
               value of person or property; loss; harm[.]” “Remove” is defined
               as being :to [sic] convey from one place to another.”


       Id.


[13]   We find Thompson’s argument to be disingenuous. After all, flushing a

       substance down a toilet satisfies all three of the definitions which Thompson

       now provides. See Mullins v. State, 717 N.E.2d 902, 904 (Ind. Ct. App. 1999)

       (concluding the defendant’s argument that he could not be convicted of

       obstruction of justice because when he placed a “white and powdery hard

       substance” into his mouth “he was not under arrest at the time . . . nor did he

       know that a law enforcement officer was about to start an investigation” was

       disingenuous). Mixing a substance with water is sufficient to “alter” or


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-930 | October 24, 2018   Page 6 of 10
       “damage” the substance because it changes or modifies it and such mixture can

       thereafter impair the usefulness of the substance. Ind. Code § 35-44.1-2-2(3);

       Br. of Appellant at 11. Furthermore, one does not require a sophisticated

       understanding of plumbing to understand that what is flushed down a toilet is

       “convey[ed] from one place to another.” Br. of Appellant at 11.


[14]   Although, rather surprisingly, we have never addressed whether flushing a

       substance down a toilet is sufficient to constitute obstruction of justice, other

       states that have addressed this question in the context of similar statutes have

       reached the same conclusion. See State v. Majors, 318 S.W.3d 850, 860 (Tenn.

       2010) (noting “[t]he purpose of flushing a commode is to dispose of the

       contents in the toilet bowl”); McKenzie v. State, 632 So.2d 276, 277 (Fla. Dist.

       Ct. App. 1994) (concluding that “[s]wallowing a substance such as this surely

       constitutes an intent to ‘alter, destroy, conceal, or remove’ as clear as any act

       could, including flushing it down a toilet”); Commonwealth v. Govens, 632 A.2d

       1316, 1328-29 (Pa. Super. Ct. 1993) (holding that flushing drugs down toilet

       while police knocked at door constituted the equivalent of obstruction of

       justice); State v. Papillion, 556 So.2d 1331, 1336 (La. Ct. App. 1990) (also

       holding flushing drugs down the toilet with police at the front door constituted

       obstruction of justice). Accordingly, we conclude flushing a substance down a




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-930 | October 24, 2018   Page 7 of 10
       toilet is sufficient to constitute obstruction of justice as contemplated by the

       language of Indiana Code section 35-44.1-2-2(3).1


[15]   Thompson further argues the “destruction of the substance did not and could

       not obstruct justice since neither production of the suspected drug nor a

       chemical analysis of it is required to establish its nature.” Br. of Appellant at

       11. Again, we are left unconvinced by Thompson’s argument. We find nothing

       about a plain text reading of Indiana Code section 35-44.1-2-2(3) requiring the

       potential evidence “alter[ed], damage[d], or remove[d]” be essential to a later

       official proceeding or investigation. To the contrary, the statute prohibits any

       person from “alter[ing], damag[ing], or remov[ing] any record, document, or

       thing, with intent to prevent it from being produced or used as evidence[.]” Id.

       (emphasis added). Accordingly, the State need not demonstrate the potential

       evidence was essential to its case, only that the defendant altered, damaged, or

       removed the potential evidence “with intent to prevent it from being produced

       or used as evidence in any official proceeding or investigation.” Id.




       1
         Although we conclude the language at issue here is “clear and unambiguous” so we do not need to apply
       any rules of statutory construction, Dobeski v. State, 64 N.E.3d 1257, 1259-60 (Ind. Ct. App. 2016), we
       nevertheless note that interpreting Indiana Code section 35-44.1-2-2(3) pursuant to Thompson’s argument
       would effectively hold that so long as a defendant completely destroys potential evidence, there is insufficient
       evidence to sustain a conviction of obstruction of justice. Such an interpretation would lead to absurd results,
       Anderson v. Gaudin, 42 N.E.3d 82, 85 (Ind. 2015) (explaining that we “do not presume that the Legislature
       intended language used in a statute to be applied illogically or to bring about an unjust or absurd result”), and
       would be inconsistent with the statute’s underlying policy and goals, State v. CSX Trans., Inc., 673 N.E.2d
       517, 519 (Ind. Ct. App. 1996) (explaining that we presume the General Assembly “intended its language to
       be applied in a logical manner consistent with the statute’s underlying policy and goals”).

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-930 | October 24, 2018                     Page 8 of 10
[16]   Here, Thompson’s act of flushing the “green leafy substance” down the toilet

       destroyed the potential evidence and thereby prevented it from being produced

       as evidence at the probation revocation hearing. Tr., Vol. I at 21. The fact

       Thompson took this action immediately after the correctional officer ordered

       him to stop what he was doing and hand over the substance indicated his intent

       to avoid seizure of the potential evidence by flushing it away. Therefore, we

       conclude the evidence was sufficient to support the revocation of Thompson’s

       placement in work release for committing the crime of obstruction of justice.

       See Smith v. State, 809 N.E.2d 938, 943 (Ind. Ct. App. 2004) (holding

       uncorroborated testimony that the defendant had handed two bags of

       precursors to another individual in order for them to be thrown from the car

       was sufficient to prove that the defendant “helped to remove the

       methamphetamine precursors from the car with the intent to prevent them from

       being produced or used as evidence in an official proceeding or investigation”),

       trans. denied.


                                                B. Intoxication
[17]   Next, Thompson argues there was insufficient evidence to support the trial

       court’s finding that Thompson was intoxicated in violation of the rules of his

       work release. However, Thompson’s arguments on this point amount to

       nothing more than an invitation to reweigh the evidence and the credibility of

       the witnesses. Mindful of our standard of review, we must decline this

       invitation and affirm the trial court. Dokes, 971 N.E.2d at 179. Thus, we



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-930 | October 24, 2018   Page 9 of 10
       conclude the evidence was sufficient to support the termination of Thompson’s

       placement in work release for intoxication.



                                               Conclusion
[18]   For the foregoing reasons, we affirm the trial court’s revocation of Thompson’s

       placement in work release and its order that he serve the remaining balance of

       his sentence at the Department of Correction.


[19]   Affirmed.


       Baker, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-930 | October 24, 2018   Page 10 of 10
