MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Nov 07 2018, 8:59 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Gregory Bowes Curtis T. Hill, Jr. Greg Bowes Legal Services, P.C. Attorney General Nashville, Indiana Matthew B. Mackenzie Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Alexander Zschunke, November 7, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-902 v. Appeal from the Brown Circuit Court State of Indiana, The Honorable Judith A. Stewart, Appellee-Plaintiff Judge Trial Court Cause No. 07C01-1709-F5-578
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-902 | November 7, 2018 Page 1 of 14 Case Summary [1] Alexander Zschunke appeals his convictions for level 5 felony possession of
methamphetamine, level 6 felony unlawful possession of a syringe, and class C
misdemeanor possession of paraphernalia, and his adjudication as a habitual
offender. He argues that the trial court’s denial of his motion to exclude
evidence that the State disclosed the day before trial was improper because it
forced him to choose between a speedy trial and a fair trial. He also challenges
the sufficiency of the evidence supporting his convictions. We conclude that he
abandoned his speedy trial request, he received a fair trial, and the evidence is
sufficient to support his convictions. Therefore, we affirm.
Facts and Procedural History [2] The facts supporting the verdicts show that on September 21, 2017, at
approximately 8:07 a.m., Nashville Police Officer Tim True was dispatched to
a private parking lot on Old School Way regarding a suspicious silver Blazer.
Officer True, who was not in uniform, parked his car away from the lot and
walked south on Old School Way. As he passed the parking lot, he observed a
man, later identified as Zschunke leaning in the Blazer’s passenger-side front
window. Zschunke was wearing a red hat, a red t-shirt, khaki pants, black
shoes, and a black backpack. Officer True continued walking to a public
restroom just south of the parking lot. He attempted to enter the restroom, but
the door was locked. He walked back north on Old School Way and observed
Zschunke talking to the driver of the Blazer. Officer True saw Nashville Police
Chief Ben Seastrom pull up to the parking lot guard house. He also saw
Court of Appeals of Indiana | Memorandum Decision 18A-CR-902 | November 7, 2018 Page 2 of 14 Zschunke, wearing the black backpack, walk south toward Pittman House
Lane, which is across from the public restroom. Tr. Vol. 3 at 79.1 Chief
Seastrom and Officer True spoke to two of the Blazer’s occupants, who
provided information leading to Zschunke’s identification. Id. at 81.
[3] After the Blazer departed, the officers remained in the parking lot, and Chief
Seastrom saw a man wearing a red hat and red shirt, but without a black
backpack, walk from Pittman House Lane toward the public restroom and go
inside. Id. 154. Officer True walked toward Pittman House Lane. Chief
Seastrom remained in the parking lot and while there did not see anyone else go
in or out of the public restroom.
[4] As Officer True walked toward Pittman Lane, he observed the restroom
attendant, whom he knew, exit the mechanical room between the men’s and
women’s restrooms, get in her car, and drive away. It was the attendant’s habit
to clean the bathrooms, empty the trash cans, and replace the trash can liners in
the evening, and open the restroom in the mornings between 8:15 and 9:00 a.m.
Officer True also observed a truck pull in and “[s]omebody exit[] the truck,
walk[] towards the restrooms and then moments later walk[] back and [leave] in
the truck.” Id. at 106.2 Officer True did not see whether that individual went in
the restroom. Id. at 115, 122. Officer True walked down Pittman House Lane
1 The transcript volumes are paginated separately as required by Indiana Appellate Rules Appendix A, but the table of contents does not reflect the separate pagination. 2 It is not clear from the transcript where the truck pulled in or where the individual walked because Officer True showed the jury these locations by pointing at a map. Tr. Vol. 3 at 107.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-902 | November 7, 2018 Page 3 of 14 away from the restroom and discovered a black backpack under a bench near
the road. While on Pittman House Lane, Officer True estimated that he lost
visual contact with the public restroom for two or three minutes. Id. at 87.
[5] Chief Seastrom drove his vehicle to Pittman House Lane and met Officer True
near the bench. Id. at 86. Brown County Sheriff’s Department Officer Andrew
Eggebrecht also arrived to assist. Officer True walked to the restroom to verify
whether Zschunke was inside. Chief Seastrom estimated that five or six
minutes passed between the time he lost sight of the restroom and when Officer
True walked back to the restroom. Id. at 156. Chief Seastrom and Officer
Eggebrecht opened the black backpack and discovered a digital scale with a
white powder on it, clothing, hygiene items, and sunglasses.3 Id. at 108, 156-7.
Based on his training and experience, Officer Eggebrecht believed that the
powder’s color and consistency were consistent with methamphetamine. Id. at
200. They returned all the items to the backpack and took it to Chief
Seastrom’s truck, from which they could observe the public restroom and wait
for Officer True. Id. at 159. While waiting, they did not see anyone go in or
out of the restroom. Id. at 160.
[6] Meanwhile, Officer True entered the restroom and observed a person in the first
stall wearing khaki pants and black tennis shoes. Officer True washed and
dried his hands and returned to Chief Seastrom and Officer Eggebrecht. About
3 The State asserts that Zschunke’s ID was found in his black backpack, but the record does not support that assertion. Tr. Vol. 3 at 166-67, 168-70.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-902 | November 7, 2018 Page 4 of 14 eight to ten minutes later, they saw Zschunke come out of the bathroom
wearing a black shirt and khaki pants and no hat.4 Id. at 106. Officer True
called to Zschunke to come over to the officers, and he complied. Id. at 89.
The officers observed that Zschunke was “sweating profusely,” and at
Zschunke’s trial Officer True testified that increased body temperature is an
early sign of methamphetamine use. Id. at 128, 161.
[7] While Zschunke remained with Chief Seastrom, Officer True returned to the
restroom and observed a red hat on the counter and a black and gray bandana
on the toilet paper dispenser in the bathroom stall that had been previously
occupied. Officer True testified that bandanas are often used as tourniquets to
expose veins. Id. at 91. Officer True also discovered “an alcohol prep pad” and
an orange syringe cap in the trash can and two bags of syringes and sharps
(needles) containers underneath the trash can liner. Id. at 92-93. The single
orange syringe cap matched the orange syringe caps in the bags. One of the
bags of syringes was opened; it was missing some syringes and contained
another clear plastic bag with a crystal. Testing revealed that the crystal was
3.22 grams of methamphetamine. Id. at 96.
[8] The State charged Zschunke with level 5 felony possession of
methamphetamine, level 6 felony unlawful possession of a syringe, and class C
misdemeanor possession of paraphernalia, and alleged that he was a habitual
offender. On December 1, 2017, Zschunke filed a motion for an early trial
4 Officer True believed that the red shirt was in one of Zschunke’s pants pockets. Tr. Vol. 3 at 113.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-902 | November 7, 2018 Page 5 of 14 pursuant to Indiana Criminal Rule 4(B), and the trial court issued an order
granting his motion and setting his trial for February 21, 2018. The date was
outside the seventy-day period provided by Criminal Rule 4(B), but Zschunke
did not object.
[9] From February 21-23, 2018, Zschunke’s jury trial was held. The day before
trial, the prosecutor became aware of 172 recordings of Zschunke’s jail
conversations and notified Zschunke’s attorney. On the morning of trial,
Zschunke filed a motion in limine to exclude the recorded conversations. The
trial court held a preliminary hearing, at which Zschunke argued that the
recordings should be excluded because he did not know what was in the
recordings and had not had a chance to prepare any defense. Tr. Vol. 2 at 31.
The prosecutor explained that he had not yet listened to the recordings, but that
Brown County Sheriff’s Department Detective Paul Henderson had informed
him that they revealed Zschunke taking ownership of the black backpack and
attempting to coordinate the testimony of witnesses. The prosecutor argued
that the recordings were newly discovered evidence and that, barring
malfeasance, the appropriate remedy was a continuance rather than exclusion
of the evidence. Id. at 33-34. The trial court offered either to continue the trial
to allow Zschunke additional time to respond to the recordings, or if Zschunke
was confident that he did not want a continuance, “they could get started and
address admissibility of different aspects of it when it’s offered.” Id. at 65-66.
Zschunke decided to go forward with trial. Id. at 66. He was afforded an
Court of Appeals of Indiana | Memorandum Decision 18A-CR-902 | November 7, 2018 Page 6 of 14 opportunity to question Detective Henderson, listen to the recordings, and
make objections. Only portions of two conversations were ultimately admitted.
[10] The jury found Zschunke guilty as charged and that he was a habitual offender.
The trial court sentenced him to an aggregate term of ten years. This appeal
ensued.
Discussion and Decision
Section 1 – Zschunke was not forced to choose between a speedy trial and a fair trial. [11] Zschunke contends that the trial court’s denial of his motion to exclude the
evidence of his recorded jail conversations improperly forced him to choose
between a speedy trial and a fair trial. As for any speedy trial rights, we note
that Zschunke filed his motion for an early trial pursuant to Indiana Criminal
Rule 4(B), which provides, “If any defendant held in jail on an indictment or an
affidavit shall move for an early trial, he shall be discharged if not brought to
trial within seventy (70) calendar days from the date of such motion.”
Zschunke concedes that the seventy-day period ended February 9, 2018, and he
did not object when the trial court set the trial date outside that period. It is
well established that a defendant’s failure to object to a trial setting outside the
seventy-day period constitutes an abandonment of the request for a speedy trial.
See McKay v. State, 714 N.E.2d 1182, 1189 (Ind. Ct. App. 1999) (“McKay’s
failure to object to the trial setting … ten days beyond the seventy-day period,
… constituted an abandonment of his request for a speedy trial.”); Townsend v.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-902 | November 7, 2018 Page 7 of 14 State, 673 N.E.2d 503, 506 (Ind. Ct. App. 1996) (defendant abandoned early
trial motion by failing to object to trial setting scheduled just one day outside
seventy-day period); James v. State, 622 N.E.2d 1303, 1306 (Ind. Ct. App. 1993)
(same). Accordingly, we conclude that Zschunke abandoned his request for a
speedy trial by acquiescing to the setting of the trial beyond the seventy-day
limit.
[12] Even if we were to conclude that Zschunke did not abandon his speedy trial
request, we are unpersuaded that he was deprived of a fair trial. We observe
that
[t]rial courts have broad discretion in dealing with discovery violations by the State in the alleged late disclosure of evidence to the defense. We may reverse the manner in which the trial court deals with such an alleged violation only for an abuse of that discretion involving clear error and resulting prejudice.
Alcantar v. State, 70 N.E.3d 353, 356 (Ind. Ct. App. 2016). Generally, “the
proper remedy for a discovery violation is a continuance.” Warren v. State, 725
N.E.2d 828, 832 (Ind. 2000). However, “exclusion of evidence may be
appropriate where the violation ‘has been flagrant and deliberate, or so
misleading or in such bad faith as to impair the right of fair trial.’” Dye v. State,
717 N.E.2d 5, 11 (Ind. 1999) (quoting Kindred v. State, 524 N.E.2d 279, 287
(Ind. 1988)), cert. denied (2000).
[13] Zschunke did not argue to the trial court, nor does he argue on appeal, that the
State flagrantly or deliberately violated the discovery rules. Further, Zschunke
Court of Appeals of Indiana | Memorandum Decision 18A-CR-902 | November 7, 2018 Page 8 of 14 cannot show that his right to a fair trial was impaired. Out of the presence of
the jury, Zschunke was given the opportunity to cross-examine Detective
Henderson and listen to the recorded conversations. Ultimately, only portions
of two conversations were admitted, and on appeal Zschunke draws our
attention solely to the September 25, 2017 conversation, during which he states
that his backpack was seized as evidence. However, the only objection to this
evidence that Zschunke’s counsel raised at trial was that it was cumulative of
other evidence. Tr. Vol. 3 at 246. Because the evidence was cumulative,
Zschunke suffered no prejudice. See Iqbal v. State, 805 N.E.2d 401, 406 (Ind. Ct.
App. 2004) (“Any error caused by the admission of evidence is harmless error
for which we will not reverse a conviction if the erroneously admitted evidence
was cumulative of other evidence appropriately admitted.”). We find no abuse
of discretion in the trial court’s denial of Zschunke’s motion to exclude
evidence regarding the recordings of his jail conversations.
Section 2 – The evidence is sufficient to support Zschunke’s convictions. [14] Zschunke challenges the sufficiency of the evidence supporting all three
convictions. In reviewing a claim of insufficient evidence, we do not reweigh
the evidence or judge the credibility of witnesses, and we consider only the
evidence that supports the verdict and the reasonable inferences arising
therefrom. Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009). “We will affirm
if there is substantial evidence of probative value such that a reasonable trier of
Court of Appeals of Indiana | Memorandum Decision 18A-CR-902 | November 7, 2018 Page 9 of 14 fact could have concluded the defendant was guilty beyond a reasonable
doubt.” Id.
[15] We begin by addressing Zschunke’s convictions for possession of
methamphetamine and unlawful possession of a syringe because one of
Zschunke’s sufficiency claims applies to both. To convict Zschunke of level 5
felony possession of methamphetamine, the State was required to prove beyond
a reasonable doubt that he knowingly or intentionally possessed
methamphetamine within five hundred feet of school property. Ind. Code § 35-
48-4-6.1(a), -(b)(2). To convict Zschunke of level 6 felony unlawful possession
of a syringe, the State was required to prove beyond a reasonable doubt that he
knowingly with intent to violate the Indiana Legend Drug Act or an offense
described in Indiana Code Chapter 35-48-4 possessed or had under his control a
hypodermic syringe. Ind. Code § 16-42-19-18(a), -(b). Zschunke argues that the
State failed to prove the element of possession beyond a reasonable doubt.
Specifically, he argues that the State failed to prove that he was the person who
left the methamphetamine and syringes in the restroom.
[16] The evidence shows that the restroom attendant cleaned the restrooms, emptied
the trash cans, and replaced the trash can liner in the evening and unlocked the
restrooms between 8:15 and 9:00 in the morning. When Officer True first went
to the restroom, it was locked. Chief Seastrom saw Zschunke enter the
restroom. Officer True saw the restroom attendant leave the janitor’s room, get
in her car, and depart. This supports a reasonable inference that Zschunke
entered the restroom shortly after it was opened and that the trash can was
Court of Appeals of Indiana | Memorandum Decision 18A-CR-902 | November 7, 2018 Page 10 of 14 empty at that time. Chief Seastrom watched the restroom for two or three
minutes and did not see anyone go in or out. Officer True returned to the
restroom and observed a person wearing Zschunke’s tan pants and black shoes
in the only occupied bathroom stall. Officer True then joined Chief Seastrom
and Officer Eggebrecht, and they waited within clear view of the restroom,
during which time no one entered or exited. Tr. Vol. 3 at 88, 159. When
Zschunke did exit, he was antsy and “sweating profusely,” which Officer True
recognized as a sign of methamphetamine use. Id. at 128. After Zschunke
exited, Officer True discovered a gray and black bandana in the stall Zschunke
had occupied, his red hat on the counter, and an alcohol swab, two packages of
syringes, sharps containers, and methamphetamine in the trash can. From this
evidence, a reasonable trier of fact could have concluded that Zschunke put the
methamphetamine and syringes in the trash can.
[17] Nevertheless, Zschunke directs us to evidence that the police did not have the
restroom in sight from anywhere between two to six minutes and that Officer
True at one point observed a man in a red pickup truck drive up to the restroom
and walk toward the restroom. According to Zschunke, the State failed to
exclude the reasonable hypothesis that the man in the red truck placed the
contraband in the trash can. However, the jury was instructed, “In
determining whether the guilt of the accused is proven beyond a reasonable
doubt, you should require that the proof be so conclusive and sure as to exclude
every reasonable theory of innocence.” Appellant’s App. Vol. 2 at 84. The jury
heard the evidence and determined that Zschunke’s hypothesis was not
Court of Appeals of Indiana | Memorandum Decision 18A-CR-902 | November 7, 2018 Page 11 of 14 reasonable. Zschunke conflates the standard that the jury is required to apply in
determining guilt at trial with the standard this Court applies in determining the
sufficiency of the evidence on appeal. See Drane v. State, 867 N.E.2d 144, 147
(Ind. 2007) (In reviewing sufficiency of evidence to support conviction, “[i]t is
… not necessary that the evidence ‘overcome every reasonable hypothesis of
innocence.’”) (quoting Moore v. State, 652 N.E.2d 53, 55 (Ind. 1995)). His
argument is merely a request to reweigh the evidence, which we must decline.
[18] Regarding his unlawful possession of a syringe conviction, Zschunke also
argues that the State failed to prove that he possessed the syringe with the intent
to violate the Indiana Legend Drug Act or an offense described in Indiana Code
Chapter 35-48-4. Zschunke contends that the State failed to determine whether
he had track marks on his arms and used no fingerprint or DNA analysis to tie
the syringes to him. In Berkhardt v. State, 82 N.E.3d 313, 317 (Ind. Ct. App.
2017), another panel of this Court reviewed our case law regarding sufficient
evidence of unlawful intent and observed, “Cases in which courts have found
sufficient evidence of unlawful intent generally include evidence of prior
narcotics convictions; admissions to drug use; the presence of illegal drugs or
drug residue on the paraphernalia; track marks on the defendant’s arms or
hands; or withdrawal symptoms showing recent drug use.” Here, there was an
opened bag of syringes; syringes were missing from the bag, and there was
methamphetamine in the bag. A single orange cap that matched that of the
bagged syringes was found in the trash can, indicating that a syringe had been
used and discarded. There was a bandana in the bathroom stall occupied by
Court of Appeals of Indiana | Memorandum Decision 18A-CR-902 | November 7, 2018 Page 12 of 14 Zschunke, which could have been used as a tourniquet to inject drugs, and
Zschunke exhibited signs of methamphetamine use when he exited the
restroom. From this evidence, a reasonable jury could conclude that Zschunke
possessed the syringes with the intent to use them unlawfully.
[19] Last, we address Zschunke’s conviction for class C misdemeanor possession of
paraphernalia. To convict Zschunke of that crime, the State was required to
prove beyond a reasonable doubt that he knowingly or intentionally possessed
an instrument, device, or object used for testing the strength, effectiveness, or
purity of a controlled substance. Ind. Code § 35-48-4-8.3(b)(2); Appellant’s
App. Vol. 2 at 47. The offense encompasses knowing or intentional possession
of an instrument, device, or object used to measure the weight of a controlled
substance for purchase. McIlquham v. State, 992 N.E.2d 904, 911 (Ind. Ct. App.
2013), aff’d in relevant part, 10 N.E.3d 506, 510-11 (Ind. 2014). Zschunke
contends that the State failed to identify the powder on the digital scale, and
therefore failed to prove that the scale was intended to be used with a controlled
substance. He notes that Chief Seastrom attempted to conduct a field test on
the powder to determine whether it was methamphetamine but was unable to
gather a sufficient sample. Tr. Vol. 3 at 179. He also asserts that the State may
have contaminated the scale and confused the source of the powder because at
some point Officer True used the scale to weigh the crystal from the open
syringe bag recovered from the restroom trash can. Id. at 109.5 We easily
5 The record does not indicate exactly when Officer True used the digital scale.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-902 | November 7, 2018 Page 13 of 14 dispense with his second assertion because the digital scale had white powder
on it when Chief Seastrom and Officer Eggebrecht initially took it from the
backpack, which was before Officer True even discovered the crystal. As to the
identity of the white powder, Officer Eggebrecht testified that it had a texture
and consistency that was consistent with methamphetamine, and significantly,
Zschunke possessed methamphetamine and an open package of syringes and
showed physical symptoms of methamphetamine use. Therefore, the State
introduced evidence from which a reasonable jury could conclude that
Zschunke used the digital scale to weigh his methamphetamine. Based on the
foregoing, we conclude that Zschunke’s convictions are supported by sufficient
evidence. Accordingly, we affirm.
[20] Affirmed.
Najam, J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-902 | November 7, 2018 Page 14 of 14