MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Sep 08 2015, 8:21 am 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 John P. Brinson Gregory F. Zoeller Evansville, Indiana Attorney General of Indiana Ian McLean Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Deonte R. Hester, September 8, 2015 Appellant-Defendant, Court of Appeals Case No. 82A01-1411-CR-515 v. Appeal from the Vanderburgh Superior Court State of Indiana, The Honorable Robert J. Pigman, Appellee-Plaintiff. Judge Trial Court Cause No. 82D02-1303-FA-372
Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-515 | September 8, 2015 Page 1 of 26 [1] Deonte R. Hester was found guilty after a jury trial of possession of cocaine1 as
a Class A felony, operating a vehicle while privileges are forfeited for life 2 as a
Class C felony, resisting law enforcement 3 as a Class A misdemeanor, and
possession of marijuana4 as a Class A misdemeanor and was given a thirty-year
aggregate sentence. He appeals and raises the following restated issues for our
review:
I. Whether the trial court erred in denying Hester’s objection to the State’s use of a peremptory challenge to strike an African- American juror from the jury venire;
II. Whether the trial court abused its discretion in allowing State’s Exhibit 2, the cocaine, to be admitted into evidence because the initial stop of his automobile was unlawful and the State failed to establish an adequate chain of custody;
III. Whether the trial court abused its discretion and denied Hester’s right to present a defense when it refused to allow him to admit into evidence statements or testimony of the deputy prosecuting attorney; and
1 See Ind. Code § 35-48-4-6(a), (b)(3). We note that, effective July 1, 2014, a new version of this and other applicable statutes to this case were enacted. Because Hester committed his crimes prior to July 1, 2014, we will apply the statutes in effect at the time he committed his crimes. 2 See Ind. Code § 9-30-10-17. 3 See Ind. Code § 35-44.1-3-1(a)(3). 4 See Ind. Code § 35-48-4-11.
Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-515 | September 8, 2015 Page 2 of 26 IV. Whether Hester’s sentence is inappropriate in light of the nature of the offense and the character of the offender.
[2] We affirm.
Facts and Procedural History [3] On Saturday, March 9, 2013, at approximately 8:00 a.m., Evansville Police
Department Officer Kacey Ross (“Officer Ross”) was on routine patrol and
supervising the field training of probationary officer Michael Ramirez (“Officer
Ramirez”). The officers turned into the parking lot of Sunburst-Woodland Park
Apartments. When they entered the parking lot, Officer Ross observed a
maroon Yukon parked in an area where vehicles were not supposed to park and
in a manner that blocked several cars from moving. The officers could not see
anyone inside the Yukon due to the darkly-tinted windows. Officer Ross
decided that they should attempt to locate the owner of the Yukon and tell the
owner to move the car rather than ignore the Yukon and risk getting called back
later about the Yukon blocking people’s cars.
[4] The officers parked their patrol car approximately twelve feet behind the
Yukon, and Officer Ross began to show Officer Ramirez how to run the license
plate of the Yukon on the car’s computer to determine the registered owner. As
Officer Ross was showing Officer Ramirez the results on the computer, the
Yukon started to back up toward the patrol car. Officer Ross exited the car and
approached the driver’s side of the Yukon in order to make contact with the
driver. The Yukon continued to move in reverse as Officer Ross was still
Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-515 | September 8, 2015 Page 3 of 26 approaching. When Officer Ross made contact with the driver, the driver’s
window was partially open, and Officer Ross could smell the odor of burnt
marijuana coming from the Yukon. Officer Ross instructed the driver, later
identified as Hester, to put the Yukon in park. Instead, Hester began to drive
forward. Officer Ross asked Hester for identification, and Hester asked “why.”
Tr. at 303. Officer Ross again asked Hester for his identification, and Hester,
who had moved the Yukon approximately ninety degrees from its original
position, put the vehicle in park and again asked why. Officer Ross could not
see what Hester was doing inside of the Yukon, so he tried to open the driver’s
side door, but it was locked. The officer asked Hester to exit the vehicle, and
Hester rolled up the window.
[5] Because Officer Ross was not able to see Hester through the tinted window, the
officer moved to the front of the vehicle to look through the windshield. Officer
Ross called for backup and could see Hester “moving around inside the vehicle
. . . quite a bit within his area below what would be the dashboard.” Id. at 14.
Officer Ross told Hester to show his hands, and when he did not comply,
Officer Ross drew his gun and pointed it in the direction of Hester, but not
directly at him. Hester brought his hands up over the dashboard, and Officer
Ross could see that Hester had a phone in one hand. He asked Hester what he
was doing, to which Hester replied, “I’m calling my mom.” Id. at 305. Ross
went to the passenger side door and attempted to open it, but it was also locked,
so Officer Ross returned to the front of the Yukon. In the meantime, Officer
Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-515 | September 8, 2015 Page 4 of 26 Ramirez had also approached the Yukon with his gun drawn and saw Hester
using his phone inside the vehicle.
[6] At that time, a group of people came out of the apartment building, and three or
four of them identified themselves as family members of Hester. Officer Ross
stated that these people, “were unruly at best,” and Officer Ramirez went to the
group to try to de-escalate the situation. Id. at 307. Meanwhile, Officer Ross
saw Hester lower the window just enough to slide his identification outside of
the vehicle and then close the window again. Officer Ross did not go toward
the Yukon to retrieve the identification at that time. Shortly thereafter, Hester
began to open the door and exit the Yukon. As Hester exited, Officer Ross
could see that Hester did not have a weapon in his hands, so the officer
holstered his gun. Officer Ross told Hester to turn around and put his hands on
the side of the Yukon, and Hester showed his hands, but refused to comply with
the officer’s request. Instead, Hester began shuffling down the side of the
vehicle and yelling to his family members. He then began to flee around the
back of the Yukon.
[7] Officer Ross chased after Hester and attempted to employ his taser to stop
Hester; however, the taser did not fire. A short time later, Hester slipped and
fell in the grass, and Officer Ross was able to tackle him. Hester struggled with
Officer Ross and resisted the officer’s attempt to handcuff him. Hester also
reached into his pants, and Officer Ross tried to gain control of the arm Hester
had thrust down his pants. The officer was able to force Hester to remove his
arm, and he observed that Hester was holding a plastic baggie that he tried to
Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-515 | September 8, 2015 Page 5 of 26 throw. Officer Ross took the baggie from Hester’s hand and handed it to
Officer R.M. “Mike” Winters (“Officer Winters”), who had arrived on the
scene as backup. Immediately after Officer Ross was able to get Hester
handcuffed, Officer Winters returned the baggie to Officer Ross. At that time,
Officer Ross noticed that the baggie taken from Hester contained two smaller
baggies, which contained a white-colored powdery substance.
[8] Officer Ramirez searched Hester incident to his arrest and found a second
plastic baggie, which contained a green, leafy substance, suspected to be
marijuana, and approximately $1,000 in cash. Officer Ross field tested the
white powdery substance and recorded that it tested positive for cocaine salts.
He placed the baggies of suspected cocaine into an evidence bag, marked it,
sealed it, and placed it, along with another evidence bag containing the
suspected marijuana, into the evidence drop box at the Vanderburgh County
Jail. Only Evidence Technician Stacy Lutz (“Lutz”) and a lieutenant had
access to the locked drop box. The evidence that Officer Ross placed into the
drop box were retrieved on Monday, March 11, 2013 by Lutz and processed
and placed in a secure evidence room.
[9] On March 12, 2013, the State charged Hester with Class A felony possession of
cocaine, Class C felony operating a vehicle while privileges are forfeited for life,
Class D felony battery, Class D felony resisting law enforcement, and Class A
misdemeanor possession of marijuana, which was enhanced to a Class D felony
due to a prior conviction. Hester was also alleged to be a habitual substance
offender. On October 24, 2013, a hearing was held on Hester’s motion to
Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-515 | September 8, 2015 Page 6 of 26 continue his trial based on the fact that Hester had not received discovery
regarding the forensic analysis of the substance taken from him during his
arrest. During the hearing, the deputy prosecutor stated to the trial court:
With respect to the Defendant’s Motion for Continuance. Briefly on point three with regards to our lab report. A substance for another defendant was sent to the lab with reference to this case. That has been corrected. On Tuesday our Evidence Custodian delivered the appropriate substance, i.e. the substance related to Mr. Hester’s case to the lab. They rushed. I talked to Kim Early who is an I.S.P. lab chemist this morning. She reported that yesterday they ran the substance on the mass spectrometer. The I.S.P. lab report will be available on Tuesday.
Appellant’s App. at 183-84. Hester’s counsel expressed his concern that the State
“sent another sample of drugs to the lab under [Hester’s] name.” Id. at 184.
The deputy prosecutor explained, “It wasn’t sent with Mr. Hester’s name. It
was a different case sent up by accident because of a typo related to a number.”
Id. at 184-85. Hester’s motion for a continuance was granted.
[10] A jury trial began on October 6, 2014. During voir dire, both Hester and the
State exercised peremptory challenges to various potential jurors. In the first
round of voir dire, the State peremptorily challenged N.P., and both the State
and Hester peremptorily challenged K.G. Both of these jurors were African-
American, as is Hester. In the second round of voir dire, potential juror S.T.
was called, and both Hester and the State questioned her regarding the burden
of proof and her ability to judge the case without bias or sympathy and without
subjective determinations of a defendant’s character. At the conclusion of the
Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-515 | September 8, 2015 Page 7 of 26 questioning, the State peremptorily challenged S.T., who was also African-
American. Hester objected and requested the trial court to take judicial notice
that the State had used peremptory strikes against the only three African-
American jurors and that Hester was also African-American. The State
responded that although juror S.T. was “the perfect juror on paper,” she lacked
“the ability to understand anything we were going over,” and the State wanted
jurors that were “competent enough to wrap their heads around legal principals
[sic].” Id. at 248-49. The trial court overruled Hester’s objection to the State’s
use of a peremptory strike against S.T.
[11] The jury was selected, and the trial was held. During Officer Ross’s testimony,
he identified State’s Exhibits 2 and 3 as the items taken from Hester during his
arrest that he had sealed in evidence bags and placed in the evidence drop box.
Evidence technician Lutz testified that she had taken the evidence bags
containing the white, powdery substance and the green, leafy substance from
the secure evidence room on October 21, 2013 and personally delivered them to
the Indiana State Police (“ISP”) lab. She specifically testified that State’s
Exhibit 2, the suspected cocaine, had been sealed in a bag with brown tape, and
a red tape seal was placed on the evidence by the ISP lab. Lutz further stated
that she personally picked up State’s Exhibits 2 and 3 from the ISP lab on
November 5, 2013 and placed them in the secure evidence room, where they
were kept until the first day of trial, when they were signed out to Officer Ross.
[12] ISP chemist Kimberly Early testified that, on October 21, 2013, she received the
suspected drug evidence seized from Hester, and the evidence was securely kept
Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-515 | September 8, 2015 Page 8 of 26 in the ISP lab. Early’s analysis determined State’s Exhibit 2 to contain 8.56
grams of cocaine base and State’s Exhibit 3 to contain 0.91 grams of marijuana.
Hester objected to the admission of State’s Exhibits 2 and 3 into evidence,
alleging they were illegally seized and that a proper chain of custody had not
been proven for the evidence. The trial court overruled the objection. At the
conclusion of the trial, the jury found Hester guilty of Class A felony possession
of cocaine, Class C felony operating a vehicle while privileges are forfeited for
life, Class A misdemeanor resisting law enforcement, and Class A
misdemeanor possession of marijuana. Prior to trial, the State had dismissed
the charge of Class D felony battery, and subsequent to the trial, the State
dismissed the habitual substance offender allegation. At sentencing, the trial
court imposed an aggregate thirty-year executed sentence. Hester now appeals.
Discussion and Decision
I. Batson5 Challenge [13] Hester argues that the State exercised its peremptory challenge to remove an
African-American juror from the jury venire in violation of his rights to equal
protection guaranteed by the Fourteenth Amendment to the United States
Constitution. “The use of a peremptory challenge to strike a potential juror
solely on the basis of race violates the Equal Protection Clause of the
5 Batson v. Kentucky, 476 U.S. 79 (1986).
Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-515 | September 8, 2015 Page 9 of 26 Fourteenth Amendment to the United States Constitution.” Killebrew v. State,
925 N.E.2d 399, 401 (Ind. Ct. App. 2010) (citing Jeter v. State, 888 N.E.2d 1257,
1262 (Ind. 2008), cert. denied 555 U.S. 1055 (2008)), trans. denied. On appeal, a
trial court’s decision concerning whether a peremptory challenge is
discriminatory is given great deference and will be set aside only if found to be
clearly erroneous. Id. When a party raises a Batson challenge, the trial court
must undertake a three-step test. Jeter, 888 N.E.2d at 1263. First, it must
determine whether the party making the Batson objection has made a prima facie
showing that a peremptory challenge was exercised on the basis of race. Id.
Second, after the contesting party makes a prima facie showing of
discrimination, the burden shifts to the party exercising its peremptory
challenge to present a race-neutral explanation for striking the juror. Id. Third,
if a race-neutral explanation is proffered, the trial court must then determine if
the challenger has carried its burden of proving purposeful discrimination. Id.
[14] Generally, if the State’s reason for the challenge is facially based on something
other than race, it is deemed race-neutral. Collier v. State, 959 N.E.2d 326, 328
(Ind. Ct. App. 2011). “‘Unless a discriminatory intent is inherent in the
prosecutor’s explanation, the reason offered will be deemed race neutral.’”
Addison v. State, 962 N.E.2d 1202, 1209 (Ind. 2012) (quoting Purkett v. Elem, 514
U.S. 765, 768 (1995) (per curiam)). “Although the race-neutral reason must be
more than a mere denial of improper motive, the reason need not be
particularly ‘persuasive, or even plausible.’” Id.
Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-515 | September 8, 2015 Page 10 of 26 [15] In the present case, the record shows that the State used its peremptory
challenges to strike the only three African-American jurors on the venire panel.
Hester objected specifically to the striking of juror S.T., noting that she was the
third African-American juror the State had stricken. The State explained that it
exercised its peremptory challenge to strike S.T. because she lacked “the ability
to understand anything we were going over and in a case where the State has a
burden of proof the State has to know that jurors are competent enough to wrap
their heads around legal principals [sic].” Tr. at 248-49. The State further
stated, “Even though she was great on paper, she wasn’t able to wrap her head
around anything [Hester’s counsel] or I was saying. That is why I struck her.”
Id. at 249. In response, Hester’s counsel disagreed, stating that, he believed she
answered his questions “quite coherently” and that “she seems to be
competent.” Id. at 249-50. The trial court then overruled Hester’s objection
and allowed the State’s request to strike S.T.
[16] In our review of the State’s explanation and the questioning of S.T., we do not
find any racial motivation on the State’s part in striking S.T. The reason given
by the State was that S.T. lacked the ability to understand the concepts about
which the attorneys had questioned her. From her answers to the questions
posed to her, S.T. appeared hesitant and unable to accept that her decision
should be based on the evidence presented and not on her desire to know more
information. When asked by the State in a hypothetical of the prosecutor being
charged with dropping a pen and whether S.T. would be comfortable only
hearing evidence as to whether or not the prosecutor had dropped the pen, S.T.
Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-515 | September 8, 2015 Page 11 of 26 said no and that she would want to know something else, “some of the small
things.” Id. at 239. The State provided a race-neutral explanation for using its
peremptory challenge to strike S.T. from the jury. We conclude that the trial
court did not err in denying Hester’s Batson challenge.
II. Admission of Evidence [17] Although Hester originally challenged the admission of the evidence through a
pre-trial motion to suppress, he appeals following a completed jury trial and
thus challenges the admission of such evidence at trial. The admission or
exclusion of evidence is entrusted to the discretion of the trial court. Collins v.
State, 966 N.E.2d 96, 104 (Ind. Ct. App. 2012) (citing Farris v. State, 818 N.E.2d
63, 67 (Ind. Ct. App. 2004), trans. denied). We will reverse a trial court’s
decision only for an abuse of discretion. Id. We will consider the conflicting
evidence most favorable to the trial court’s ruling and any uncontested evidence
favorable to the defendant. Id. (citing Taylor v. State, 891 N.E.2d 155, 158 (Ind.
Ct. App. 2008), trans. denied, cert. denied 555 U.S. 1142 (2009)). An abuse of
discretion occurs when the trial court’s decision is clearly against the logic and
effect of the facts and circumstances before the court or it misinterprets the law.
Id. In determining whether an error in the introduction of evidence affected an
appellant’s substantial rights, we assess the probable impact of the evidence on
the jury. Id. (citing Oldham v. State, 779 N.E.2d 1162, 1170 (Ind. Ct. App.
2002), trans. denied).
Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-515 | September 8, 2015 Page 12 of 26 A. Legality of Stop
[18] Hester argues that the trial court abused its discretion in admitting State’s
Exhibit 2, the cocaine, into evidence because it was seized illegally and without
a warrant. He contends that the evidence was obtained in violation of the
Fourth Amendment as the stop of the Yukon was unlawful because the officers
lacked reasonable suspicion to stop the vehicle. Hester also asserts that the
evidence was obtained in violation of Article 1, section 11 of the Indiana
Constitution because the stop of the Yukon was not reasonable under the
totality of the circumstances.
[19] The Fourth Amendment to the United States Constitution protects an
individual’s privacy and possessory interests by prohibiting unreasonable
searches and seizures. Sugg v. State, 991 N.E.2d 601, 607 (Ind. Ct. App. 2013)
(citing Washington v. State, 922 N.E.2d 109, 111 (Ind. Ct. App. 2010)), trans.
denied. Generally, a search warrant is a prerequisite to a constitutionally proper
search and seizure. Id. When a search is conducted without a warrant, the
State has the burden of proving that an exception to the warrant requirement
existed at the time of the search. Id. The propriety of a warrantless search is
subject to de novo review. Montgomery v. State, 904 N.E.2d 374, 378 (Ind. Ct.
App. 2009) (citing Engram v. State, 893 N.E.2d 744, 748 (Ind. Ct. App. 2008),
trans. denied), trans. denied.
[20] There are three levels of police investigation, two of which implicate the Fourth
Amendment and one of which does not. First, the Fourth Amendment requires
that an arrest or detention for more than a short period be justified by probable Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-515 | September 8, 2015 Page 13 of 26 cause. Powell v. State, 912 N.E.2d 853, 859 (Ind. Ct. App. 2009) (citing
Overstreet v. State, 724 N.E.2d 661, 663 (Ind. Ct. App. 2000), trans. denied).
Second, it is well-settled under the Fourth Amendment that the police may,
without a warrant or probable cause, briefly detain an individual for
investigatory purposes if, based on specific and articulable facts, the officer has
a reasonable suspicion that criminal activity has or is about to occur. Id. The
third level of investigation occurs when a law enforcement officer makes a
casual and brief inquiry of a citizen which involves neither an arrest nor a stop.
Id. In this type of consensual encounter no Fourth Amendment interest is
implicated. Id.
[21] “Not every encounter between a police officer and a citizen amounts to a
seizure requiring objective justification.” Overstreet, 724 N.E.2d at 663. A
person is seized only when his or her freedom of movement is restrained by
means of physical force or a show of authority. Powell, 912 N.E.2d at 859. It is
not the purpose of the Fourth Amendment to eliminate all contact between
police and the citizenry, and what constitutes a restraint on liberty prompting a
person to conclude that he is not free to leave will vary depending upon the
particular police conduct at issue and the setting in which the conduct occurs.
Id. at 860 (citing Michigan v. Chesternut, 486 U.S. 567, 573 (1988)). Further, the
test for existence of a show of authority is an objective one: not whether the
citizen perceived that he was being ordered to restrict his movement, but
whether the officer’s words and actions would have conveyed that to a
reasonable person. Id. (citing California v. Hodari D., 499 U.S. 621, 628 (1991)).
Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-515 | September 8, 2015 Page 14 of 26 [22] In this case, the record shows that the Yukon that Hester was driving was
parked in an area of the apartment complex parking lot where vehicles were not
supposed to park and in a manner that it was blocking several cars from
moving. When the officers entered the parking lot, they noticed the Yukon and
decided that they should attempt to locate the owner and tell the owner to move
the car rather than ignore the Yukon and risk getting called back later about the
Yukon blocking people’s cars. The officers parked their patrol car
approximately twelve feet behind the Yukon and did not activate the car’s lights
or siren. The officers could not see anyone inside the Yukon due to the darkly-
tinted windows. After they parked behind the Yukon, Officer Ross began to
show Officer Ramirez how to run the license plate of the Yukon on the car’s
computer to determine the registered owner. As Officer Ross was doing this,
the Yukon started to back up toward the patrol car. At that time, Officer Ross
exited the car and approached the driver’s side of the Yukon in order to make
contact with the driver and inform the driver that the vehicle was illegally
parked and not to park there in the future. The Yukon continued to move in
reverse as Officer Ross was still approaching. When Officer Ross made contact
with the driver, the driver’s window was partially open, and Officer Ross could
immediately smell the odor of burnt marijuana coming from the Yukon.
[23] Given these facts, we conclude that the officers’ actions of parking behind the
Yukon and approaching the vehicle did not constitute an investigatory stop or
seizure under the Fourth Amendment. Instead, the evidence supports the
conclusion that the initial encounter between Officer Ross and Hester in the
Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-515 | September 8, 2015 Page 15 of 26 present case was consensual and, therefore, did not implicate the Fourth
Amendment’s protections against unreasonable searches and seizures. Thus,
under the circumstances, Officer Ross did not need to possess reasonable
suspicion of wrongdoing in order to park behind or approach the Yukon to
identify the owner of the vehicle and inform him that his vehicle was parked
illegally and not to park there in the future. As soon as Officer Ross smelled the
odor of burnt marijuana coming from the inside of the Yukon, he then
possessed reasonable suspicion that a crime was being committed. See State v.
Hawkins, 766 N.E.2d 749, 752 (Ind. Ct. App. 2002) (finding that the odor of
burnt marijuana coming from a vehicle establishes probable cause to search the
vehicle under the Fourth Amendment), trans. denied. The trial court did not
abuse its discretion in overruling Hester’s objection to the admission of the
cocaine evidence based upon the Fourth Amendment.
[24] Hester also argues that the trial court abused its discretion in admitting the
cocaine because the officers’ actions of parking behind his vehicle and
approaching it violated the Indiana Constitution. Article I, Section 11 of the
Indiana Constitution provides that “[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable search or seizure,
shall not be violated . . . .” Although virtually identical to the wording of the
search and seizure provision in the federal constitution, Indiana’s search and
seizure clause is independently interpreted and applied. Danner v. State, 931
N.E.2d 421, 431 (Ind. Ct. App. 2010), trans. denied. Under the Indiana
Constitution, the legality of a governmental search turns on an evaluation of the
Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-515 | September 8, 2015 Page 16 of 26 reasonableness of the police conduct under the totality of the circumstances. Id.
(citing Myers v. State, 839 N.E.2d 1146, 1153 (Ind. 2005)). The burden is on the
State to show that under the totality of the circumstances, the intrusion was
reasonable. Id. (citing State v. Bulington, 802 N.E.2d 435, 438 (Ind. 2004)).
Generally, the reasonableness of a search or seizure under the Indiana
Constitution turns on the balance of: (1) the degree of concern, suspicion, or
knowledge that a violation has occurred; (2) the degree of intrusion the method
of the search or seizure imposes on the citizen’s ordinary activities; and (3) the
extent of law enforcement needs. Id. (citing Litchfield v. State, 824 N.E.2d 356,
361 (Ind. 2005)).
[25] Here, the record reveals that Officers Ross and Ramirez parked their patrol car
behind the Yukon in which Hester was seated. The Yukon was parked illegally
and was blocking several vehicles. The officers parked behind the Yukon with
the intention of running the vehicle’s license plate to determine the identity of
the owner and inform the owner to move the vehicle. The officers did not
activate the patrol car’s lights or sirens. As the officers were running the license
plate, the Yukon began to back up toward the patrol car. At that time, Officer
Ross exited and approached the driver’s side door to make contact with the
driver and inform him that he needed to move the Yukon and not to park there
in the future. Officer Ross did not have his weapon displayed as he initially
approached the Yukon. As soon as he made contact with the driver, Officer
Ross smelled the odor of burnt marijuana coming from the partially-open
window of the Yukon. Under these circumstances, we conclude that the
Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-515 | September 8, 2015 Page 17 of 26 officers’ action of parking behind the Yukon and Officer Ross’s approach and
initial contact with Hester constituted a consensual encounter, which did not
violate Hester’s rights against unreasonable search and seizure under Article 1,
section 11 of the Indiana Constitution. The trial court did not abuse its
discretion in overruling Hester’s objection to the admission of the cocaine
evidence based upon Article 1, section 11 of the Indiana Constitution.
B. Chain of Custody
[26] Hester next argues that the trial court abused its discretion in admitting State’s
Exhibit 2 at trial because the State failed to prove an adequate chain of custody
for the cocaine evidence. He contends that “the evidence does not show that
the exhibit passed through various hands undisturbed.” Appellant’s Br. at 23.
Hester specifically alleges that, because Officer Winters did not testify at trial,
the evidence did not show what he did with the cocaine while he held it for
Officer Ross while Officer Ross was handcuffing Hester. Hester also asserts
that no evidence was presented to explain the discrepancies in description of the
evidence between Officer Ross’s report and the lab analysis done by the ISP lab.
Hester further claims that no evidence explained the circumstances of how
another defendant’s evidence was sent to the ISP lab in reference to Hester’s
case. He, therefore, contends that, based on these circumstances, a proper
chain of custody was not established, and the cocaine evidence should not have
been admitted at trial.
[27] In order for physical evidence to be admissible the evidence regarding its chain
of custody must strongly suggest the exact whereabouts of the evidence at all Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-515 | September 8, 2015 Page 18 of 26 times. Filice v. State, 886 N.E.2d 24, 34 (Ind. Ct. App. 2008) (citing Culver v.
State, 727 N.E.2d 1062, 1067 (Ind. 2000)), trans. denied. The State must provide
“reasonable assurances that the property passed through various hands in an
undisturbed condition.” Id. (quoting Culver, 727 N.E.2d at 1067). Because the
State need not establish a perfect chain of custody, slight gaps go to the weight,
not the admissibility, of the evidence. Id. There is a presumption of regularity
in the handling of exhibits by public officers. Id. (citing Murrell v. State, 747
N.E.2d 567, 572 (Ind. Ct. App. 2001), trans. denied). Therefore, merely raising
the possibility of tampering is insufficient to make a successful challenge to the
chain of custody. Id. (citing Cockrell v. State, 743 N.E.2d 799, 809 (Ind. Ct. App.
2001)).
[28] In the present case, the evidence showed that Officer Ross seized the cocaine
from Hester during his arrest and briefly handed the baggie to Officer Winters
to hold while Officer Ross struggled to get Hester handcuffed. Once Hester was
handcuffed, Officer Ross again took possession of the cocaine and placed it in
an evidence bag, which he sealed and placed into the secure evidence drop box
on the day of the arrest, March 9, 2013. The cocaine remained in the drop box
until it was retrieved by evidence technician Lutz on Monday, March 11, 2013
and processed and placed in a secure evidence room until Lutz personally
transported the cocaine to the ISP lab for analysis. The evidence had been
sealed with brown tape by Officer Ross, who marked the seals with the case
number and his badge number. Tr. at 313. This seal was broken by chemist
Early at the ISP lab, who analyzed the drugs, and when she was finished, she
Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-515 | September 8, 2015 Page 19 of 26 re-sealed the cocaine with red tape and placed her own identifying information
on the seal. Id. at 397, 429. This evidence was sufficient to establish a proper
chain of custody and to permit the cocaine to be admitted into evidence.
[29] Hester contends that the cocaine was handled by another officer at the scene,
“whose identity was murky.” Appellant’s Br. at 26. However, the officer to
whom Officer Ross handed the cocaine for the brief time it took him to
handcuff the struggling Hester was identified as Officer Winters, who returned
the cocaine to Officer Ross as soon as Hester had been subdued. Hester also
claims that the cocaine analyzed by Early did not match the description of the
cocaine seized by Officer Ross. Officer Ross’s report described the cocaine as a
“white powdery substance” that field tested “positive for cocaine salts,” Exhibit
D, but Early’s analysis described the cocaine as an “off white powdery
substance” that was determined to contain cocaine base. State’s Ex. 5. Early
testified at trial that descriptions of cocaine vary depending on the environment
in which it is viewed and the viewer’s subjective judgment call. Tr. at 458-59.
Further, although the field test stated that the evidence tested positive for
cocaine salts and the lab analysis determined it contained cocaine base, there is
no differentiation in the statute between types of cocaine, so such evidence
merely suggests possibility of tampering and is insufficient to make a successful
challenge to the chain of custody. Filice, 886 N.E.2d at 34.
[30] As to Hester’s contention that no evidence was presented to explain how
another defendant’s evidence was sent to the ISP lab in reference to Hester’s
case, the State explained to the trial court that, although evidence from another
Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-515 | September 8, 2015 Page 20 of 26 case was originally sent to the ISP lab in reference to Hester’s case, the actual
evidence for Hester’s case was in the secure evidence room and did not leave
until the mistake was discovered and resolved. See Espinoza v. State, 859 N.E.2d
375, 382 (Ind. Ct. App. 2006) (“An adequate foundation establishing a
continuous chain of custody is established if the State accounts for the evidence
at each stage from its acquisition, to its testing, and to its introduction at trial.”).
We, therefore, find that the State presented evidence to “strongly suggest the
exact whereabouts of the evidence at all times” and to establish a sufficient
chain of custody. Filice, 886 N.E.2d at 34.
III. Exclusion of Evidence [31] Criminal defendants are guaranteed a meaningful opportunity to present a
complete defense. Hyser v. State, 996 N.E.2d 443, 447 (Ind. Ct. App. 2013).
“Although a defendant’s right to present a defense is of the utmost importance,
it is not absolute.” Manuel v. State, 971 N.E.2d 1262, 1266 (Ind. Ct. App. 2012).
Both the accused and the State are required to comply with established rules of
procedure and evidence designed to assure both fairness and reliability in the
ascertainment of guilt and innocence. Id.
[32] Hester argues that the trial court abused its discretion when it did not allow him
to admit Defendant’s Exhibit C into evidence, the transcript from the October
24, 2013 hearing on his motion to continue, and to elicit testimony from the
prosecutor regarding the same subject matter. He contends that the transcript,
which contained the prosecutor’s statement about how evidence from another
Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-515 | September 8, 2015 Page 21 of 26 defendant’s case was sent to the ISP lab in reference to this case, should have
been admitted because it was relevant to his defense that the substance taken
from him was not the same substance sent to the ISP lab for testing. In the
alternative, he alleges he should have been allowed to elicit testimony from the
prosecutor regarding the evidence being sent to the lab. Hester asserts that the
imperfections in the chain of custody supported his theory, and the jury should
have been allowed to know that the State had originally sent another
defendant’s evidence in reference to Hester’s case.
[33] The standard of review for admissibility of evidence issues is whether the trial
court’s decision was an abuse of discretion. Hyser, 996 N.E.2d at 448.
Generally, errors in the admission or exclusion of evidence are to be
disregarded as harmless unless they affect the substantial rights of a party. Id.
In determining whether an evidentiary ruling affected a party’s substantial
rights, the court assesses the probable impact of the evidence on the trier of fact.
Id.
[34] Hester asserts that, because the trial court admitted the cocaine into evidence,
all of his contentions regarding imperfections in the chain of custody go to the
weight of the evidence, and therefore, the transcript should have been admitted
as well. See Filice, 886 N.E.2d at 34. (“Because the State need not establish a
perfect chain of custody, slight gaps go to the weight, not the admissibility, of
the evidence.”). Assuming without deciding that the trial court abused its
discretion in excluding the evidence, we find the error to be harmless. At the
October 24, 2013 hearing on Hester’s motion to continue, the prosecutor stated
Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-515 | September 8, 2015 Page 22 of 26 that, due to a typographical error, another defendant’s evidence was sent to the
ISP lab in reference to Hester’s case. Appellant’s App. at 183. The prosecutor
further explained that, once the error was detected, the evidence seized from
Hester was submitted to the ISP lab for analysis on an expedited basis. Id.
When Hester attempted to have the transcript admitted at trial, the prosecutor
explained that, although evidence from another case had been sent to the ISP
lab in reference to Hester’s case, the actual evidence seized from Hester
remained in the secure evidence room until after the error was detected and the
evidence was then sent to the lab on an expedited basis. Tr. at 499. Both
evidence technician Lutz and ISP chemist Early testified that they had no
information regarding any other evidence being taken to the lab in reference to
Hester’s case and that the evidence seized from Hester was taken to the lab on
October 21, 2013. Id. at 398-400, 410.
[35] Additionally, the State submitted evidence that after Officer Ross seized the
cocaine from Hester, he placed it in an evidence bag, which he sealed with
brown tape, marked with the case number and his badge number, and placed
into the secure evidence drop box on the day of the arrest. The cocaine
remained in the drop box until it was retrieved by evidence technician Lutz two
days later and then processed and placed in a secure evidence room until Lutz
personally transported the cocaine to the ISP lab for analysis on October 21,
2013. The seal placed on the evidence by Officer Ross was broken by chemist
Early at the ISP lab, who analyzed the drugs, and Early re-sealed the cocaine
with red tape and placed her own identifying information on the seal after she
Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-515 | September 8, 2015 Page 23 of 26 concluded her analysis. Id. at 397, 429. We conclude that any error in
excluding the challenged evidence was outweighed by the substantial evidence
establishing a proper chain of custody for the cocaine evidence and was
harmless.
IV. Inappropriate Sentence [36] Hester contends that his thirty-year aggregate sentence is inappropriate in light
of the nature of the offense and character of the offender. Under Indiana
Appellate Rule 7(B), “we may revise any sentence authorized by statute if we
deem it to be inappropriate in light of the nature of the offense and the character
of the offender.” Corbally v. State, 5 N.E.3d 463, 471 (Ind. Ct. App. 2014). The
question under Appellate Rule 7(B) is not whether another sentence is more
appropriate; rather, the question is whether the sentence imposed is
inappropriate. King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008). It is the
defendant’s burden on appeal to persuade the reviewing court that the sentence
imposed by the trial court is inappropriate. Chappell v. State, 966 N.E.2d 124,
133 (Ind. Ct. App. 2012), trans. denied.
[37] A person who commits a Class A felony shall be imprisoned for a fixed term of
between twenty and fifty years, with the advisory sentence being thirty years.
Ind. Code § 35-50-2-4. A person who commits a Class C felony shall be
imprisoned for a fixed term of between two and eight years, with the advisory
sentence being four years. Ind. Code § 35-50-2-6. A person who commits a
Class A misdemeanor shall be imprisoned for a fixed term of not more than one
Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-515 | September 8, 2015 Page 24 of 26 year. Ind. Code § 35-50-3-2. In the present case, Hester was sentenced to thirty
years for his Class A felony conviction for possession of cocaine, four years for
his Class C felony conviction for operating a vehicle while privileges are
forfeited for life, one year for his Class A misdemeanor conviction for resisting
law enforcement, and one year for his conviction for Class A misdemeanor
conviction for possession of marijuana. The trial court ordered the sentences to
be served concurrent with each other, resulting in a thirty-year aggregate
sentence. He is, therefore, essentially arguing that his thirty-year advisory
sentence for a Class A felony conviction is inappropriate.
[38] As for the nature of the offense, Hester was found in possession of almost three
times the amount of cocaine required to commit the offense for which he was
convicted. He also fled the police when they initially attempted to handcuff
him and continued to struggle once Officer Ross caught him. He also tried to
toss the baggie of cocaine and distance himself from it as he struggled with the
officer. Additionally, at the time the police encountered Hester he was
operating a vehicle when he was aware that his driving privileges had been
forfeited for life.
[39] As to Hester’s character, he had a lengthy criminal history dating back to 1996
when he was a juvenile. As a juvenile, Hester had adjudications for resisting
law enforcement, battery, possession of marijuana, and possession of cocaine.
As an adult, Hester had two Class D felony convictions for operating a vehicle
after being adjudged a habitual traffic offender, a Class A misdemeanor
conviction for possession of marijuana, a Class A misdemeanor conviction for
Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-515 | September 8, 2015 Page 25 of 26 carrying a handgun without a license, a Class D felony conviction for
possession of marijuana, a Class C felony conviction for operating a vehicle
while privileges are forfeited for life, and a Class A misdemeanor conviction for
resisting law enforcement. At the time he was arrested in the instant case, he
had pending charges for possession of marijuana and operating a vehicle while
privileges are forfeited for life. Additionally, while out on bond for the present
case, Hester was charged in Marion County, Indiana with operating a vehicle
while privileges are forfeited for life and was also cited for driving without a
valid license in Cook County, Georgia. This lengthy criminal history shows a
disregard for the law and disrespect for the authority of the courts. In light of
the nature of the offense and the character of the offender, we do not find that
Hester’s advisory sentence of thirty years was inappropriate.
[40] Affirmed.
Najam, J., and Barnes, J., concur.
Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-515 | September 8, 2015 Page 26 of 26