Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision 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:
MICHAEL FRISCHKORN
Frischkorn Law LLC
Fortville, Indiana
GREGORY F. ZOELLER
Attorney General of Indiana
ELLEN H. MEILAENDER
Deputy Attorney General
Indianapolis, Indiana
FILED
Sep 19 2011, 10:07 am
IN THE
COURT OF APPEALS OF INDIANA
MARCUS D. BROWN,
Appellant-Defendant,
vs.
STATE OF INDIANA,
Appellee-Plaintiff.
)
)
)
)
)
)
)
)
)
No. 48A04-1103-CR-93
APPEAL FROM THE MADISON CIRCUIT COURT
The Honorable Rudolph R. Pyle, III, Judge
Cause No. 48C01-0912-FB-690
September 19, 2011
MEMORANDUM DECISION - NOT FOR PUBLICATION
KIRSCH, Judge
CLERK
of the supreme court,
court of appeals and
tax court
Marcus D. Brown (“Brown”) appeals from the trial court’s order revoking his
probation. Of the issues presented, Brown raises the following dispositive issue for our
review: whether the trial court erred by admitting a laboratory certificate of analysis during
the probation revocation hearing.
We affirm.
FACTS AND PROCEDURAL HISTORY
On May 10, 2010, Brown pleaded guilty to robbery1 as a Class C felony, and the trial
court imposed a six-year sentence with all but 402 days suspended to probation. Brown was
advised that all standard conditions of probation applied to him with the addition of the
conditions that he: (1) not violate any laws; and (2) report any contact he had with law
enforcement to his probation officer within forty-eight hours. On September 8, 2010, the
State filed a notice of probation violation. After a hearing on the matter, the trial court found
that Brown had violated the terms and conditions of his probation by committing the new
criminal offense of resisting law enforcement and by associating with a convicted felon.
Brown was continued on probation without the imposition of any sanction for the violations.
On December 7, 2010, a confidential informant advised Drug Task Force Detective
Clifford Cole (“Detective Cole”) that he could arrange to purchase cocaine from Brown. The
confidential informant completed the transaction and also identified Brown in a photo lineup
as the individual from whom he had purchased the cocaine. That same day, police officers
1
See Ind. Code § 35-42-5-1.
2
obtained and executed a search warrant for the residence from which the confidential
informant had purchased the cocaine from Brown. Brown was arrested, and the officers
recovered several bags of what appeared to be marijuana in plain view on the living room
table. Brown failed to report this new arrest to his probation officer within forty-eight hours
per the terms and conditions of his probation.
Detective Cole submitted the cocaine and the marijuana to the Indiana State Police
Laboratory for testing. The Indiana State Police Laboratory returned to Detective Cole a
certificate of analysis showing that the item purchased by the informant was 2.71 grams of
cocaine, and that the substance found on the table in the residence was almost thirty grams of
marijuana. The certificate of analysis bore the case number that matches this case and was
signed by the testing analyst.
On December 29, 2010, the State filed a second notice of probation violation alleging
that Brown had committed the new criminal offense of dealing in cocaine as a Class B felony
and had failed to report his new arrest to his probation officer within forty-eight hours of the
arrest. At the hearing on this new probation violation, Brown objected to the admission of
the certificate of analysis, which was admitted through the testimony of Detective Cole, on
the grounds that there was “no foundation, it’s not an affidavit” and “chain of custody.” Tr.
at 7. The trial court overruled the objections, finding that the certificate was substantially
reliable. The trial court found that Brown had violated the terms and conditions of his
probation as alleged, revoked Brown’s probation, and ordered him to serve his previouslysuspended sentence. Brown now appeals.
3
DISCUSSION AND DECISION
A probation revocation hearing is in the nature of a civil proceeding and a violation
only has to be proven by a preponderance of the evidence. Whatley v. State, 847 N.E.2d
1007, 1010 (Ind. Ct. App. 2006). When reviewing an appeal from the revocation of
probation, we consider only the evidence most favorable to the judgment, and we will not
reweigh the evidence or judge the credibility of witnesses. Sanders v. State, 825 N.E.2d 952,
957 (Ind. Ct. App. 2005). “Probation is a matter of grace left to trial court discretion, not a
right to which a criminal defendant is entitled.” Prewitt v. State, 878 N.E.2d 184, 187 (Ind.
2007). The trial court imposes the conditions of probation and may revoke it if those
conditions are violated. Id. Because probation revocation does not deprive a defendant of
his absolute liberty, but only his conditional liberty, he is not entitled to the full due process
rights afforded to a defendant in a criminal proceeding. Piper v. State, 770 N.E.2d 880, 882
(Ind. Ct. App. 2002). Criminal defendants must agree to abide by specific conditions
imposed by the court to avoid imprisonment. Mathews v. State, 907 N.E.2d 1079, 1081 (Ind.
Ct. App. 2009).
Brown argues that the trial court erred by admitting the certificate of analysis in
evidence during the probation revocation hearing. The trial court has broad discretion in
ruling on the admissibility of evidence. Edwards v. State, 930 N.E.2d 48, 50 (Ind. Ct. App.
2010), trans. denied. We will reverse such ruling only when the trial court abuses its
discretion. Id. An abuse of discretion occurs if the decision is clearly against the logic and
4
effect of the facts and circumstances before the trial court. Boggs v. State, 928 N.E.2d 855,
862 (Ind. Ct. App. 2010), trans. denied.
Brown argues here on appeal that the certificate of analysis was inadmissible hearsay
and should have been excluded from evidence. However, as the State notes, Brown objected
to the admission of the evidence at trial on foundational and chain of custody grounds. A
defendant may not object on one ground at trial and then raise a different ground on appeal.
Warren v. State, 725 N.E.2d 828, 834 (Ind. 2000). In that situation, the issue is waived for
review. Id.
Waiver notwithstanding, the trial court did not err in admitting the certificate of
analysis during Brown’s probation revocation hearing. “[P]robation revocation proceedings
are not the equivalent of traditional criminal proceedings and the rule for the latter do not
necessarily apply to the former.” Marsh v. State, 818 N.E.2d 143, 147 (Ind. Ct. App. 2004).
For example, the rules of evidence do not apply in a revocation proceeding. Id.; Ind.
Evidence Rule 101(c)(2). “A revocation hearing is a narrow inquiry, and its procedures are
more flexible than those of a criminal proceeding.” Black v. State, 794 N.E.2d 561, 564 (Ind.
Ct. App. 2003).
“Courts of this state follow the general rule that, with regard to probation proceedings,
they may consider any relevant evidence bearing some substantial indicia of reliability,
including reliable hearsay.” Pitman v. State, 749 N.E.2d 557, 559 (Ind. Ct. App. 2001).
Here, Detective Cole testified that he submitted the items to the Indiana State Police
Laboratory for testing and that he received a certificate of analysis from that laboratory. The
5
certificate is printed on an official Indiana State Police Laboratory form, contains both the
case number and the laboratory number, lists the items submitted for analysis, and is signed
by a forensic scientist employed at the laboratory. Furthermore, the certificate reflects that
the laboratory was accredited by the Laboratory Accreditation Board of the American Society
of Crime Lab Directors. The fact that the analyst who conducted the tests did not testify at
the hearing does not weaken the certificate’s reliability or trustworthiness. The trial court did
not abuse its discretion by finding the evidence to be substantially reliable and trustworthy,
and therefore, admissible.
Because violation of a single condition of probation is sufficient to revoke probation,
we do not reach the other issues presented. Wilson v. State, 708 N.E.2d 32, 34 (Ind. Ct. App.
1999).
Affirmed.
BAKER, J., and BROWN, J., concur.
6
