Andrew Kitt v. State of Indiana (mem. dec.) ( 2018 )

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D),
Apr 30 2018, 8:58 am
this Memorandum Decision shall not be
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Ruth Johnson Curtis T. Hill, Jr.
Rory Gallagher Attorney General of Indiana
Marion County Public Defender
Ian McLean
Indianapolis, Indiana Supervising Deputy Attorney
General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Andrew Kitt, April 30, 2018
Appellant-Defendant, Court of Appeals Case No.
49A02-1710-CR-2494
v. Appeal from the
Marion Superior Court
State of Indiana, The Honorable
Appellee-Plaintiff. Helen W. Marchal, Judge
Trial Court Cause No.
49G15-1606-CM-25226
Kirsch, Judge.
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[1] Andrew Kitt (“Kitt”) was found guilty after a bench trial of carrying a handgun
without a license1 as a Class A misdemeanor and was sentenced to 365 days
with 305 days suspended to probation. Kitt raises the following restated issue
on appeal: whether the trial court abused its discretion when it imposed
random drug testing as a condition of his probation for a conviction of carrying
a handgun without a license.
[2] We affirm.
Facts and Procedural History
[3] On June 27-28, 2017, around midnight, Tom Crowe (“Crowe”) and his
girlfriend were in Crowe’s apartment at the Autumn Woods Apartments
complex in Indianapolis, Indiana when they heard multiple gunshots. Crowe
looked out a window of the apartment while his girlfriend called 911. Crowe
observed two young men in the street. Crowe saw that one man was holding a
handgun and that the other man was making a gesture resembling a handgun
and “actually mimic shooting the gun with his fingers towards the center part of
that building.” Tr. at 7. Crowe told his girlfriend, who was too frightened to
come to the window, to hand him the phone, and he stayed on the line with
911 reporting the men’s movements. Crowe then observed the two men walk
1
See Ind. Code § 35-47-2-1.
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toward the tennis courts and clubhouse before walking onto another street,
where they entered a parked car.
[4] Indianapolis Metropolitan Police Department officers Joseph Douclef, Mike
Williams, and David Hutson responded to the 911 call of shots-fired. After
arriving at the apartment complex, the officers observed numerous people out
on their balconies, and the officers proceeded to move through the apartment
complex on foot, looking for the men. As the officers neared the area Crowe
had stated the men were located, the officers saw a parked car with its lights on
and two men inside. The officers approached the car and encountered Kitt and
another man, later identified as Bailey Dunlap (“Dunlap”), sitting inside the
car. Kitt was seated in the driver’s seat while Dunlap, who was wearing a
bandana pulled over his face, sat in the front passenger’s seat.
[5] The officers noticed that the interior of the car smelled of the odor of an
alcoholic beverage when Dunlap lowered the passenger-side window; an open
bottle of Captain Morgan Rum was found outside the vehicle, near the car’s
right rear tire. Dunlap was apprehended after a struggle, during which he
threatened to kill one of the officers. Kitt, who cooperated with the officers,
was removed from the vehicle. The officers searched the car’s interior and
found a loaded 9-millimeter caliber handgun under Kitt’s seat. Kitt later
admitted to police that he had handled the handgun earlier in the evening. Id.
at 84. He also claimed the handgun belonged to Dunlap. Id.Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2494 | April 30, 2018 Page 3 of 7
[6] The State charged Kitt with carrying a handgun without a license as a Class A
misdemeanor. Following a bench trial, Kitt was found guilty of the offense.
When he committed this crime, Kitt was twenty-one-years old and was on
probation in Vigo County for a conviction for maintaining a common nuisance.
After his arrest for the instant offense, Kitt was charged with carrying a
handgun without a license in Hamilton County; that charge had not been
disposed of when Kitt was sentenced in this case. Appellant’s App. Vol. II at 66-
67; Tr. at 101. At sentencing, the trial court imposed a 365-day sentence, with
60 days executed on home detention, less credit for time served pending trial.
Tr. at 108. The trial court ordered the remainder of Kitt’s sentence to be
suspended to probation, which included “standard conditions of probation.”
Id. The trial court advised Kitt that such conditions included random drug
testing. Id. Kitt now appeals.
Discussion and Decision
[7] “‘Probation is a criminal sanction where a convicted defendant specifically
agrees to accept conditions upon his behavior in lieu of imprisonment.’” Waters
v. State, 65 N.E.3d 613, 618 (Ind. Ct. App. 2016) (quoting Bratcher v. State, 999
N.E.2d 864, 873 (Ind. Ct. App. 2013), trans. denied). A trial court has broad
discretion to impose conditions of probation. Id. (citing Hevner v. State, 919
N.E.2d 109, 113 (Ind. 2010)). The trial court’s discretion is “limited by the
principle that the conditions imposed on the defendant must be reasonably
related to the treatment of the defendant and the protection of public safety.”
Id. (citing Bratcher, 999 N.E.2d at 873). We will not set aside conditions of
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probation unless the trial court abused its discretion. Id. “An abuse of
discretion occurs when the decision is clearly against the logic and effect of the
facts and circumstances before the court, or the reasonable, probable, and actual
deductions to be drawn therefrom.” Id.
[8] Kitt argues that the trial court abused its discretion when it imposed as a
condition of his probation that he submit to random drug testing. He contends
that, although the trial court may impose drug testing as a condition of
probation, in the present case, it was unreasonable to impose such a search here
because the drug testing interferes with his right to privacy and serves no
rehabilitative purpose. Kitt asserts that imposing drug testing was an abuse of
discretion because he was convicted of carrying a handgun without a license
and not a substance offense, so the drug testing does not serve his rehabilitation
or guarantee the protection of the public.
[9] Initially, we note that Kitt did not object to any of the conditions of probation
at the trial court level. Thus, Kitt has waived the argument. See Hale v. State,
888 N.E.2d 314, 319 (Ind. Ct. App. 2008) (holding that by failing to object to
the conditions of probation at the sentencing hearing, the defendant failed to
preserve the issue for appellate review), trans. denied.
[10] Waiver notwithstanding, it was not an abuse of discretion for the trial court to
impose as a condition of probation that Kitt submit to random drug testing.
Pursuant to Indiana Code section 35-38-2-2.3, the trial court may require, as a
condition of probation, that the probationer periodically undergo a laboratory
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chemical test or a series of chemical tests to detect and confirm the presence of
a controlled substance. Ind. Code § 35-38-2-2.3(20). Abstention from illegal-
drug use is reasonably related to the general goals of rehabilitation served by
conditional release. Carswell v. State, 721 N.E.2d 1255, 1264 (Ind. Ct. App.
1999). Drug “abuse is a pervasive and damaging force in our society, and
presents a unique legal problem due to its psychological and physiological
ramifications.” Id. (quotations omitted). Using illegal drugs is a violation of
the laws of Indiana, and the prohibition against committing new crimes is an
automatic condition of probation by operation of law no matter the offense. Id.at 1264-65 (citing Williams v. State, 695 N.E.2d 1017, 1019 (Ind. Ct. App. 1998)
(stating that “[t]he requirement that a probationer obey federal, state and local
laws is automatically a condition of probation by operation of law”)).
Therefore, ensuring that probationers do not use illegal drugs and commit new
crimes are valid goals of the rehabilitation served by probation. Accordingly, it
follows that a requirement that Kitt submit to random drug testing to determine
whether he is abstaining from illegal drug use is reasonable and a valid
condition of probation. See id. at 1264 n.7 (holding that “the prohibition against
using or possessing any illegal drugs or controlled substances is valid, as is the
requirement that Carswell submit to . . . drug detection tests (including blood,
urine, and hair analysis) to determine personal drug use . . . .”). We conclude
that the trial court did not abuse its discretion when it imposed as a condition of
his probation that Kitt submit to random drug testing.
[11] Affirmed.
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[12] Baker, J., and Bradford, J., concur.
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