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FOR PUBLICATION
ATTORNEY FOR APPELLANT: JAMES D. CRUM Coots, Henke & Wheeler, P.C. Carmel, Indiana ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana KELLY A. MIKLOS JOBY D. JERRELLS Deputy Attorney General Indianapolis, Indiana

FILED
Dec 31 2009, 9:58 am
of the supreme court, court of appeals and tax court

IN THE COURT OF APPEALS OF INDIANA
JENNIFER L. MOGG, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

CLERK

No. 29A04-0902-CR-82

APPEAL FROM THE HAMILTON SUPERIOR COURT The Honorable Wayne A. Sturtevant, Judge Cause No. 29D05-0610-CM-6683

December 31, 2009

OPINION - FOR PUBLICATION

ROBB, Judge

Case Summary and Issues Jennifer Mogg pled guilty to operating a vehicle while intoxicated, a Class A misdemeanor, and her jail sentence was suspended to probation. Following an admitted violation of her probation, which included as a condition that she consume no alcoholic beverages, the trial court extended Moggs probation and imposed a further condition that she continuously wear a Secure Continuous Remote Alcohol Monitor ("SCRAM") bracelet. Following subsequent allegations of probation violations, the trial court revoked Moggs probation on the basis of findings she consumed alcohol as evidenced by positive readings while on SCRAM. Mogg now appeals the revocation of her probation, raising a single issue that we expand and restate as: 1) whether the trial court abused its discretion in admitting evidence of Moggs alcohol consumption generated by the SCRAM system; and 2) whether sufficient evidence supports the revocation of Moggs probation. We conclude the trial court, based upon the uncontroverted expert testimony and evidence before it, did not abuse its discretion in determining the SCRAM readings were sufficiently reliable to be admissible as evidence of Moggs alcohol consumption for purposes of a probation revocation. As a result, sufficient evidence supports the revocation of Moggs probation, and we affirm the judgment of the trial court.

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Facts and Procedural History1 On January 16, 2007, Mogg pled guilty to operating a vehicle while intoxicated, a Class A misdemeanor. The trial court sentenced her to 365 days in jail, all suspended to probation. Condition 15 of Moggs probation prohibited Mogg from consuming or

possessing alcoholic beverages. On August 2, 2007, the State alleged Mogg violated her probation by being publicly intoxicated or operating a vehicle while intoxicated; as a condition of her bond, she was required to wear a SCRAM bracelet. In January 2008, Mogg was placed on a SCRAM II bracelet, an updated version of SCRAM. On March 17, 2008, Mogg admitted violating her probation in an agreement that extended her probation by four months and required her to remain on SCRAM II. On June 20, 2008, the State filed an information of probation violation alleging Mogg violated her probation by consuming alcohol on June 14 and 15, 2008, "as evidenced by . . . 2 positive SCRAM events." Appellants Appendix at 83.2 On November 12, 2008, the State filed another information of probation violation alleging Mogg violated her probation by consuming alcohol on October 31 and November 1, 2008, "as evidenced by positive readings for alcohol while on SCRAM." Id. at 113.

We heard oral argument on December 3, 2009, at the Court of Appeals courtroom in Indianapolis. We commend counsel for their excellent oral advocacy. The State also alleged Mogg violated her probation by being in arrears on various court costs and fees that were conditions of probation. However, the trial court found "no willful violation" of these conditions and did not rely on them as a basis for revoking Moggs probation. Appellants App. at 134; cf. Ind. Code

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