Elizabeth Benham v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision Oct 02 2015, 9:09 am shall not be 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 Brooke N. Russell Gregory F. Zoeller Indianapolis, Indiana Attorney General of Indiana

Lyubov Gore Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Elizabeth Benham, October 2, 2015 Appellant-Defendant, Court of Appeals Case No. 36A04-1504-CR-132 v. Appeal from the Jackson Circuit Court; State of Indiana, The Honorable Frank W. Guthrie, Senior Judge; Appellee-Plaintiff. 36C01-1310-FD-427

May, Judge. Court of Appeals of Indiana | Memorandum Decision 36A04-1504-CR-132 | October 2, 2015 Page 1 of 7 [1] Elizabeth Benham appeals the revocation of her probation. She argues the trial

court erroneously admitted evidence of a positive oral swab drug screen.

Finding no reversible error in the admission of that evidence, we affirm.

Facts and Procedural History [2] On March 20, 2014, Benham entered a plea of guilty to Class D felony

receiving stolen property 1 as part of a written plea agreement in which the State

agreed to drop other charges. The plea agreement provided Benham would be

sentenced to one year, with all but time already served suspended to probation.

On April 17, 2014, the court accepted the plea agreement and Benham was

sentenced in accordance therewith. [3] One of the terms of Benham’s probation was that she would not use or possess

controlled substances or legend drugs, unless prescribed by a physician.

Another term was that she would permit any type of test or sample to be taken

from her for the purpose of discovering the presence of banned substances. [4] During the course of her probation, Benham admitted to her probation officer,

Jacob Findley, she had ingested banned substances, including heroin. The

State filed a petition to revoke her probation, and the court held a hearing on

February 4, 2015. At the hearing, Benham admitted violating her probation

and also reported she had prescription medications on record. Benham, the

1 Ind. Code § 35-43-4-2(b) (2009).

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State, the probation department, and the trial court reached an agreement

whereby Benham would submit to a drug screen and the result thereof would

determine her sanction for drug use. If she tested negative for drugs, she would

be allowed to continue on probation; however, if she tested positive, she would

be ordered to execute her previously suspended sentence. [5] Immediately following the hearing, Findley collected a sample of Benham’s

saliva using an oral swab and sent the sample to the Redwood Toxicology

Laboratory in California for testing. Findley later obtained the test result from

the Redwood Toxicology Laboratory website, and it was positive for heroin or

opiates. Findley telephoned the laboratory, and a toxicology support

representative confirmed the positive result could not be due to Benham’s

prescription medications. [6] The court held another hearing to determine Benham’s sanction. At the

hearing, Findley testified the probation department tests for drugs using either

saliva or urine samples. He testified he followed the normal procedures for

collecting the saliva sample from Benham, shipping the sample to Redwood

Toxicology Laboratory for testing, and retrieving the results from the laboratory

web site. Findley also testified to his knowledge of the laboratory testing

procedure based on a video he had viewed. The drug test results were

accompanied by a standard certifying statement from the laboratory’s chief

toxicologist, which indicated the test was performed according to standard

procedure, and the results had been reviewed by a scientist. Benham objected

to the admission of the test results based on the reliability of the test and the

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adequacy of the chain of custody of the sample. The court admitted the

positive drug test into evidence over Benham’s objection, revoked her

probation, and ordered her to serve her previously suspended sentence

incarcerated.

Discussion and Decision [7] We find no reversible error in the admission of Benham’s oral fluid drug screen

results at her probation revocation and sanctions hearing. “Probation is a

matter of grace left to trial court discretion, not a right to which a criminal

defendant is entitled.” Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013) (quoting

Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007)). The conditions for probation

and whether to revoke probation when those conditions are violated are left to

the discretion of the trial court. Id. We review probation violation

determinations and sanctions for abuse of discretion. Id. [8] A probation revocation proceeding is civil in nature and a probationer is not

entitled to all of the rights afforded to a criminal defendant. McCauley v. State,

22 N.E.3d 743, 748 (Ind. Ct. App. 2014), reh'g denied, trans. denied. The due

process requirements for probation revocation hearings are more flexible than

in a criminal prosecution. Reyes v. State, 868 N.E.2d 438, 440 (Ind. 2007). This

flexibility allows courts to enforce lawful orders, address an offender’s personal

circumstances, and protect public safety. Id. As such, courts may admit

evidence during probation revocation hearings that would not be admissible in

criminal trials. Id.

Court of Appeals of Indiana | Memorandum Decision 36A04-1504-CR-132 | October 2, 2015 Page 4 of 7 [9] To admit hearsay evidence in a probation revocation hearing, the proponent

must demonstrate its substantial trustworthiness. Id. at 442. Under this test, a

court should evaluate the reliability of the hearsay and explain why it is

sufficiently reliable to supply good cause for not producing live testimony. Id.

Thus, if a drug test is substantially trustworthy, the State is not required to

produce an affidavit or scientific opinion before a drug test result is admissible.

Wann, 997 N.E.2d 1103, 1105-1106 (Ind. Ct. App. 2013) (probation officer’s

hearsay testimony and the Redwood Toxicology Laboratory report were

substantially trustworthy after officer testified to the administration, handling

and transmission of the drug screen), reh’g denied. [10] Here, Benham had already admitted violating her probation by ingesting

banned substances including heroin. As the State notes, the trial court could

have revoked her suspended sentence based on her admission without

performing any test. Nevertheless, the trial court agreed to allow Benham to

undergo a drug screen and, if she tested negative, to give her a reprieve from

execution of her previously suspended sentence. Benham, along with the

probation department and prosecutor’s office, were parties to that agreement

with the trial court. If Benham was concerned about the reliability of some

forms of drug testing, she could have objected to the saliva test before she

agreed to testing. Her failure to do so resulted in this error being waived for

appeal. See Witte v. Mundy ex rel. Mundy, 820 N.E.2d 128, 133 (Ind. 2005)

(Under the doctrine of invited error, “a party may not take advantage of an

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error that she commits, invites, or which is the natural consequence of her own

neglect or misconduct.”). [11] Waiver notwithstanding, Benham has not demonstrated error in the admission

of the test result. The State provided evidence that it had followed the normal

procedure of collecting the saliva sample, transmitting the sample to the testing

laboratory, and retrieving the results. The State then verified with a Laboratory

toxicology support representative that the positive result could not be due to

Benham’s prescription medications. The State also testified that it is standard

practice for the trial court to admit oral swab drug screen results at a probation

hearing. [12] Urinalysis has been accepted as a means of drug-testing and deemed reliable by

Indiana Courts. Carter v. State, 706 N.E.2d 552, 554 (Ind. 1999). We have held

that testimony by a case manager as to the proper procedures followed for a

urine drug screen was substantially reliable in a probation revocation hearing.

Bass v. State, 974 N.E.2d 482, 487 (Ind. Ct. App. 2012). The absence of a

toxicologist’s or laboratory’s affidavit in light of the case manager’s testimony

did not render the drug test results inadmissible. Id. Oral fluid tests have been

found to be comparable to urine tests. 1 DRUG TESTING LAW TECH. &

PRACTICE. § 5:16 (West 2015). As such, we hold that in a probation revocation

hearing, the same standards apply for admitting oral fluid drug screens as does

for admitting urine analysis drug screens.

Court of Appeals of Indiana | Memorandum Decision 36A04-1504-CR-132 | October 2, 2015 Page 6 of 7 [13] Based on the foregoing, the testimony provided by the State as to Benham’s

oral swab test results provided sufficient proof that the results were substantially

reliable to render them admissible. Accordingly, we affirm.

Conclusion [14] The trial court did not abuse its discretion in revoking Benham’s probation. We

accordingly affirm. [15] Affirmed.

Crone, J., and Bradford, J., concur.

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