Salatheo Isiah Moss v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jul 05 2019, 6:31 am regarded as precedent or cited before any court except for the purpose of establishing CLERK 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 Valerie K. Boots Curtis T. Hill, Jr. Marion County Public Defender Agency Attorney General of Indiana Indianapolis, Indiana Courtney Staton Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Salatheo Isiah Moss, July 5, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-3022 v. Appeal from the Marion Superior State of Indiana, Court Appellee-Plaintiff. The Honorable Mark D. Stoner, Judge

The Honorable Jeffrey L. Marchal, Magistrate

Trial Court Cause No. 49G06-1711-F5-43139

Barteau, Senior Judge. Court of Appeals of Indiana | Memorandum Decision 18A-CR-3022 | July 5, 2019 Page 1 of 6

Statement of the Case [1] Salatheo Moss appeals the trial court’s revocation of his placement in

community corrections. We affirm.

Issue [2] Moss raises one issue: whether the State presented sufficient evidence to

support the trial court’s determination that Moss violated a condition of his

placement.

Facts and Procedural History [3] On November 7, 2017, the State charged Moss with four Class A

misdemeanors: possession of a handgun without a license; unlawful possession

of a firearm by a domestic batterer; dealing in marijuana; and possession of

marijuana. In a separate document, the State alleged the count of possession of

a handgun without a license should be enhanced to a Level 5 felony because

Moss has a prior conviction for the same offense. [4] The parties negotiated a plea agreement. Moss agreed to plead guilty to

possession of a handgun without a license, a Level 5 felony, and unlawful

possession of a firearm by a domestic batterer, a Class A misdemeanor. In

exchange, the State agreed to dismiss the other counts, as well as all counts in

another pending case involving Moss. The parties further agreed that Moss’s

aggregate sentence would be capped at four years, to be served in the Marion

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County Community Corrections Program (“the Program”), subject to

compliance with the Program’s requirements. [5] The trial court accepted the plea agreement. On August 27, 2018, the court

sentenced Moss according to the terms of the agreement and issued an order of

commitment to the Program. The sentencing judge wrote “no violations!!” on

the commitment order. Appellant’s App. Vol. II, p. 87. Moss was immediately

placed in a work release facility. [6] On September 21, 2018, the State filed a notice of violation, alleging Moss

violated the terms of his placement by refusing to comply with an instruction to

submit to a strip search. On September 27, 2018, the trial court held a hearing

on the notice. Moss admitted to the violation. The court directed Moss to

continue with his community corrections placement. [7] On November 8, 2018, the State filed another notice of violation, alleging Moss

violated the terms of his placement by possessing or using a controlled

substance. The trial court ordered Moss detained without bond pending

resolution of the notice of violation. On November 29, 2018, the court held an

evidentiary hearing. At the end of the hearing, the court: (1) determined Moss

had violated the terms of his placement; (2) revoked his placement; and (3)

ordered him to serve the remainder of his sentence in the Indiana Department

of Correction. This appeal followed.

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Discussion and Decision [8] Moss argues the State failed to present sufficient evidence to sustain the trial

court’s determination that he had violated the terms of his community

corrections placement. A reviewing court treats a petition to revoke placement

in a community corrections program the same as a petition to revoke probation.

Bass v. State, 974 N.E.2d 482, 488 (Ind. Ct. App. 2012). A defendant is not

entitled to serve a sentence in either probation or a community corrections

program. Id. Rather, such placement is a “‘matter of grace’” and a

“‘conditional liberty that is a favor, not a right.’” Id. (quoting Million v. State,

646 N.E.2d 998, 1002 (Ind. Ct. App.1995)). [9] A revocation hearing is in the nature of a civil proceeding, and the State must

prove a violation of the terms of placement by a preponderance of the evidence.

Washington v. State, 758 N.E.2d 1014, 1017 (Ind. Ct. App. 2001). We will

neither reweigh the evidence nor judge the credibility of the witnesses. Id.

Rather, we look to the evidence most favorable to the judgment. Id. If there is

substantial evidence of probative value to support the judgment, revocation is

appropriate. Id. [10] Among other conditions of his placement in community corrections, Moss was

required to refrain from consumption or possession of illegal drugs. On

November 3, 2018, at 8:10 p.m., Eddra Price, who was a corrections officer at

the work release facility where Moss had been placed, encountered Moss in a

dormitory. Moss was sitting up in an unmade bed, apparently asleep. Price

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knew Moss was in the wrong dormitory because Moss’s assigned bunk was in a

different room. [11] Price approached Moss and noticed that he had ashes on his pants and feet.

There were also ashes on the floor. Price determined that Moss had been

smoking something. He woke Moss, who struggled to stand up. Moss also

displayed slurred speech and had red, glassy eyes. Price had interacted with

Moss on previous occasions and had never seen him have trouble standing or

speaking or display red eyes. [12] Price searched Moss. Moss would not stay still and kept reaching toward his

right pocket. Price reached into Moss’s right pocket and retrieved a folded-up

piece of paper. When he opened the paper, he found a green, leafy substance.

Price recognized the substance as “K2 or Spice,” a controlled substance. Tr.

Vol. II, p. 20. [13] Next, Price took Moss to a holding cell and strip searched him. He did not find

any other contraband. Price then left Moss in the cell and searched Moss’s

bunk and locker. He did not find contraband there, either. Price released Moss

from the holding cell. [14] Later that same night, at around 8:40 p.m., Price entered Moss’s dormitory. He

saw Moss sitting up in his bunk, apparently asleep. A “small rolled cigarette”

was near Moss’s hand on the bunk. Id. at 21. Moss had ashes on his face.

Price woke Moss, who again had red glassy eyes and slurred speech.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-3022 | July 5, 2019 Page 5 of 6 [15] Moss argues there is insufficient evidence to prove the green, leafy substance

Price found in his pocket was a controlled substance. Moss further argues the

substance was never tested, and Price lacked formal training in recognizing K2

or Spice. We disagree that the evidence was insufficient. The identity of a

controlled substance may be established through witness testimony and

circumstantial evidence. Yoakum v. State, 95 N.E.3d 169, 175 (Ind. Ct. App.

2018), trans. denied. Price explained that he had previously encountered K2 or

Spice fifteen to twenty times in the course of his work, and it had a distinctive

smell. The green, leafy substance he found on Moss had the same smell. In

addition, Moss demonstrated signs of intoxication, including slurred speech,

difficulty standing, and glassy, red eyes. This evidence is sufficient to establish

that Moss possessed a controlled substance, in violation of the terms of his

community corrections placement. See id. (State presented sufficient evidence

to prove defendant possessed Spice; officer identified Spice based on past

encounters with the substance).

Conclusion [16] For the reasons stated above, we affirm the judgment of the trial court.

[17] Affirmed.

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

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