Deshawn C. Howard v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 22, 2017
• Docket: 20A05-1609-CR-2064
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jun 22 2017, 9:10 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Marielena Duerring Curtis T. Hill, Jr. South Bend, Indiana Attorney General of Indiana Ian McLean Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Deshawn C. Howard, June 22, 2017 Appellant-Defendant, Court of Appeals Case No. 20A05-1609-CR-2064 v. Appeal from the Elkhart Superior Court State of Indiana, The Honorable Teresa L. Cataldo, Appellee-Plaintiff Judge Trial Court Cause No. 20D03-1501-FA-6

Altice, Judge.

Case Summary

Court of Appeals of Indiana | Memorandum Decision 20A05-1609-CR-2064 | June 22, 2017 Page 1 of 12 [1] Following a jury trial, Deshawn Howard was convicted of two counts of Class

A felony dealing cocaine in, on, or within 1000 feet of a family housing

complex. Howard was also determined to be a habitual offender. The trial

court sentenced Howard to an aggregate term of forty years imprisonment, to

be followed by an additional term in community corrections and on probation.

Howard presents four issues for our review, which we consolidate and restate

as:

1. Did the trial court abuse its discretion in admitting video recordings under the silent witness theory?

2. Is the evidence sufficient to sustain his convictions?

[2] We affirm.

Facts & Procedural History

[3] The facts most favorable to Howard’s convictions follow. The investigation

that formed the basis of the criminal charges against Howard involved the use

of confidential sources (CS) during two separate controlled buy situations. On

December 9, 2013, officers with the Interdiction Covert Enforcement Unit of

the Elkhart Police Department met with CS 13-032 and CS 11-119 at a

predetermined location. The officers followed standard procedures for

searching the sources and their vehicle to ensure that neither they nor their

vehicle contained money or contraband. Officers reviewed messages between

CS 13-032 and Howard arranging the location of the proposed drug purchase

and were present when CS 13-032 called Howard to finalize the plans. After Court of Appeals of Indiana | Memorandum Decision 20A05-1609-CR-2064 | June 22, 2017 Page 2 of 12 the search, the sources were provided with money to purchase drugs from

Howard. Officers outfitted the sources with audio-recording devices and

installed a video-recording device in their vehicle.1 The video camera was

activated upon installation and the sources were not told how to switch it off.

[4] Howard directed that the drug sale was to occur in the 400 block of State Street

in Elkhart. Two officers followed the sources’ vehicle as they drove toward the

specified area. Those officers briefly lost sight of the vehicle, but the vehicle

had driven into view of another officer positioned to watch the location of the

proposed sale. This officer observed the sources’ vehicle park near 413 East

State Street. The officer then saw a black man wearing a brown coat and gray

sweatpants, who he later identified as Howard, exit a nearby building, approach

the vehicle, and get in the back seat. A short time later, Howard exited the

sources’ vehicle and returned to the building from where he appeared.

[5] Officers followed the sources’ vehicle to a predetermined location. CS 13-032

gave the officers the package she obtained from Howard in exchange for

money, which was later determined to contain .35 grams of cocaine and

another substance. Officers again searched the sources and their vehicle to

ensure the absence of contraband other than the drugs Howard sold CS 13-032.

An officer also retrieved the audio and video-recording devices. The contents

of the video recorder’s internal disc were downloaded to a computer drive of

1 The video-recording device was self-contained and battery powered and utilized an internal disc to record images.

Court of Appeals of Indiana | Memorandum Decision 20A05-1609-CR-2064 | June 22, 2017 Page 3 of 12 the Elkhart Police Department (EPD). Neither the equipment nor the

recording displayed any sign of tampering.

[6] A printout from Google maps showed that the sale took place 262.64 feet from

the River Run apartment complex in Elkhart. Officers described the

“apartment complex” as containing a number of buildings that housed families

and children. Transcript Vol. 2 at 81. During the drug buy, officers observed

families and children in and about the apartment complex.

[7] A second controlled drug buy between CS 13-032 and Howard was arranged

for December 16, 2013. As before, CS 13-032 and CS 11-119 met officers at a

predetermined location, where the sources and their car were searched to

ensure the absence of drugs or other contraband. As with the December 9 drug

buy, an officer installed a video-recording device in the sources’ car. The

recording device was activated upon installation and ran continuously until it

was retrieved by the officer after the drug buy was completed.

[8] For this second transaction, Howard directed CS 13-032 to the 400 block of

Chapman Avenue. Officers followed the sources’ vehicle to that location,

where Howard, again wearing a brown coat, was seen getting into the sources’

vehicle. Officers followed as the vehicle continued down the road. The video

recording shows that as they drove, CS 13-032 gave Howard cash. Howard

continued riding in the backseat for a few minutes. The sources’ vehicle was

under visual observation by officers during the entire episode. After Howard

exited the vehicle, officers followed the sources to a predetermined location.

Court of Appeals of Indiana | Memorandum Decision 20A05-1609-CR-2064 | June 22, 2017 Page 4 of 12 CS 13-032 gave the officers the package Howard gave her in exchange for

money, which was later determined to contain .44 grams of cocaine. The

video-recording device was retrieved and the video recording was transferred to

an EPD computer drive. The drug-buy occurred within 1000 feet of

Washington Gardens, a government-subsidized, family-housing complex in

Elkhart.

[9] On January 30, 2015, the State charged Howard with two counts of class A

felony dealing in cocaine in, on, or within 1000 feet of a family housing

complex. The State also alleged Howard to be a habitual offender. A two-day

jury trial commenced on July 18, 2016, at the conclusion of which the jury

found Howard guilty as charged.

Discussion & Decision

1. Admission of Evidence

[10] Howard argues that the trial court abused its discretion when it admitted the

video recordings of events inside the confidential sources’ vehicle pursuant to

the “silent witness theory.” Trial courts have broad discretion in ruling on the

admissibility of evidence, and such rulings will be reversed only upon a

showing of an abuse of that discretion. Palilonis v. State, 970 N.E.2d 713, 725

(Ind. Ct. App. 2012), trans. denied. An abuse of discretion occurs when the trial

court’s ruling is clearly against the logic and effect of the facts and

circumstances before it. Id. In reviewing a trial court’s evidentiary rulings, we

Court of Appeals of Indiana | Memorandum Decision 20A05-1609-CR-2064 | June 22, 2017 Page 5 of 12 will not reweigh the evidence, and we will consider conflicting evidence most

favorable to the trial court’s ruling. Id.

[11] On appeal, Howard argues neither video recording of the controlled-buy

transactions “are sufficiently competent to speak for themselves.” Appellant’s

Brief at 8. Specifically, Howard asserts that the videos are not “complete” in

that the recordings only depicted portions of the scene, did not capture an

exchange of a controlled substance, and the December 9 recording does not

show Howard. Howard, however, did not object on these grounds at trial.

Rather, he argued that the recordings contained “gestures” that constituted

hearsay. He also argued that introduction of the recordings in absence of

testimony from the confidential sources violated his right of confrontation in

that he could not explore bias of the confidential sources. Transcript Vol. 2 at

199. When a defendant presents an argument on appeal that is different than

what was argued at trial, the claim is forfeited. Lehman v. State, 730 N.E.2d

701, 703 (Ind. 2000). Howard has therefore waived the issue for review.

[12] Waiver notwithstanding, Howard’s argument is unpersuasive. Pursuant to the

“silent witness” theory, “videotapes may be admitted as substantive evidence,

but ‘there must be a strong showing of authenticity and competency” including

proof that the video recording has not been altered in any way. McHenry v.

State, 820 N.E.2d 124, 128 (Ind. 2005) (quoting Edwards v. State, 762 N.E.2d

128, 136 (Ind. Ct. App. 2002), trans. denied). Our Supreme Court has explained

that “[t]his higher standard is applied in situations where there is no one who

can testify as to its accuracy and authenticity.” Edwards, 762 N.E.2d at 136

Court of Appeals of Indiana | Memorandum Decision 20A05-1609-CR-2064 | June 22, 2017 Page 6 of 12 (citing Bergner v. State, 397 N.E.2d 1012, 1015 (Ind. Ct. App. 1979)). At the

core of the silent witness theory is the principle that there is no need for

someone to testify that the photograph accurately depicts something because

the photograph “speaks for itself”. Id. (quoting Bergner, 397 N.E.2d at 1015).

In cases involving automatic cameras, “there should be evidence as to how and

when the camera was loaded, how frequently the camera was activated, when

the photographs were taken, and the processing and chain of custody of the film

after its removal from the camera. McHenry, 820 N.E.2d at 128 (citing Murry v.

State, 179 Ind.App. 305, 308, 385 N.E.2d 469, 472 (1979)).

[13] Howard has expressly declined to challenge the admissibility of the video

recordings on grounds that they had not been properly recorded and preserved.

Howard argues only that the videos were not supported by sufficient testimony

to persuade the trial court of their competency and authenticity.

[14] At trial, officers testified in detail as to how, for both controlled buys, a video

recording device was placed in the front, center portion of the sources’ vehicle

so that it recorded activity inside the passenger compartment, specifically

images of the back seat, at a relatively wide angle. The officers’ testimony

identified the scene that appeared in the videos as the passenger compartment

of the vehicle used by the sources. The sources are shown seated in the front

seats of the vehicle throughout both video recordings.

[15] The recording of the first controlled buy shows an uninterrupted view for about

twenty-nine minutes. The recording of the second controlled buy shows an

Court of Appeals of Indiana | Memorandum Decision 20A05-1609-CR-2064 | June 22, 2017 Page 7 of 12 uninterrupted view of the back seat of the vehicle that lasts for approximately

fifteen minutes. After each controlled buy was completed, the sources met with

officers at a predetermined location, at which time an officer retrieved the audio

and video recording devices. The officers further testified regarding how the

videos were preserved and that the recordings showed no sign of tampering.

[16] In arguing that the video recordings were incomplete, Howard seems to suggest

that the videos must show everything that was required to decide the case in

order to fall under the silent witness theory. This, however, is not the standard.

[17] Here, the State made a strong showing that the video recordings were authentic

and competent through the officers’ testimony about the procedures used,

installation and use of the video-recording device, and absence of any

indication of tampering. See Mays v. State, 907 N.E.2d 128 (Ind. Ct. App. 2009)

(upholding admission of a silent witness video of a drug deal where officer

testified about the equipment used to make the recording and “that the video

contained on the CD was consistent with what he knew to have taken place,

and that he had no reason to believe that the CD had been altered or tampered

with in any way”), trans. denied. The videos did speak for themselves in that

they were recordings of the interior compartment of the sources’ vehicle at the

time of the controlled buy. The trial court did not abuse its discretion in

admitting the video recordings of the two controlled buys.

Court of Appeals of Indiana | Memorandum Decision 20A05-1609-CR-2064 | June 22, 2017 Page 8 of 12 Sufficiency

[18] Howard argues that the evidence is insufficient to sustain his convictions. In

reviewing a challenge to the sufficiency of the evidence, we neither reweigh the

evidence nor judge the credibility of witnesses. Atteberry v. State, 911 N.E.2d

601, 609 (Ind. Ct. App. 2009). Instead, we consider only the evidence

supporting the conviction and the reasonable inferences flowing therefrom. Id.

If there is substantial evidence of probative value from which a reasonable trier

of fact could have drawn the conclusion that the defendant was guilty of the

crime charged beyond a reasonable doubt, the judgment will not be disturbed.

Baumgartner v. State, 891 N.E.2d 1131, 1137 (Ind. Ct. App. 2008).

[19] To convict Howard of dealing cocaine, the State was required to prove that he

knowingly delivered cocaine within 1000 feet of a family housing complex. See

Ind. Code § 35-48-4-1(a)(1)(C), (b)(3)(B)(iii). Count I was specific to the

controlled buy that took place on December 9, 2013, and alleged that the drug

transaction occurred within 1000 feet of River Run Apartments. Count II

covered the December 16 controlled buy and alleged that the drug transaction

occurred within 1000 feet of Washington Gardens Apartments.

[20] With regard to Count I, Howard argues that that there is a complete lack of

probative evidence from which the jury could have concluded that he

committed the crime charged in Count I. We disagree. The State’s evidence

showed that CS 13-032 planned to meet Howard to purchase cocaine from him.

Officers who served as eyewitnesses to the drug transaction described the man

Court of Appeals of Indiana | Memorandum Decision 20A05-1609-CR-2064 | June 22, 2017 Page 9 of 12 who entered the sources’ vehicle on December 9 as a black man wearing a

brown jacket. A similar procedure was used in conducting the December 16

controlled buy, and in the video recording of that transaction, a black man in a

brown jacket is clearly seen sitting in the back seat of the sources’ vehicle.

Several officers testified that they determined that Howard was the individual

wearing the brown jacket during both controlled-buy situations. Further, the

jury could observe Howard’s appearance in court and compare it with the video

image of the individual in the back seat of the sources’ vehicle during the

December 16 controlled buy. No other person entered or exited the sources’

vehicle during either transaction. This is sufficient evidence from which the

jury could have drawn a reasonable inference that Howard was the drug dealer

during the December 9 drug transaction. Howard’s argument is simply a

request that this court reweigh the evidence and draw inferences favorable to

him, which this court will not do on appeal. See Atteberry, 911 N.E.2d at 609.

[21] As to Count II, Howard argues that the evidence did not prove that there was

an exchange of a controlled substance. Again, Howard’s argument amounts to

a request that this court reweigh the evidence and judge the credibility of the

witnesses. The video recording of the December 16 controlled buy clearly

shows Howard taking money from CS 13-032 and then reaching to an area not

visible to the recording device. The State also established that the sources and

their vehicle were searched to ensure the absence of contraband prior to the

controlled buy and that they were kept under surveillance before, during, and

after the drug transaction until they reached the predetermined location. There,

Court of Appeals of Indiana | Memorandum Decision 20A05-1609-CR-2064 | June 22, 2017 Page 10 of 12 the sources and their vehicle were searched again and only the cocaine that is

the subject of Count II was found in their possession. The jury could draw a

reasonable inference that the cocaine retrieved from CS 13-032 had been

delivered by Howard in exchange for the money he kept.

[22] Finally, with regard to both Counts, Howard argues that the State’s evidence

was insufficient to establish that the drug transactions occurred within 1000 feet

of a family housing complex. At the time the crimes were committed, a family

housing complex was defined as “a building or series of buildings . . . that is

operated as an apartment complex” or “contains subsidized housing.” Ind.

Code § 35-31.5-2-127 (2016). In Count I, the December 9 drug transaction was

alleged to have occurred with 1000 feet of River Run Apartments. The jury

heard testimony that at the time of the December 9 drug transaction, River Run

was an “apartment complex” that contained a number of buildings, it was

“operated as an apartment complex,” and featured families and children

coming and going from the premises. Transcript Vol. 2 at 81; Transcript Vol. 3 at

5. In Count II, the December 16 drug transaction was alleged to have occurred

within 1000 feet of Washington Garden Apartments. There was testimony that

the Washington Garden Apartments was a government-subsidized, family

housing complex operated by the Elkhart Housing Authority and that families

and children lived there. The State presented sufficient evidence from which a

reasonable inference could be drawn that both locations were family housing

complexes within the statute.

Court of Appeals of Indiana | Memorandum Decision 20A05-1609-CR-2064 | June 22, 2017 Page 11 of 12 [23] In sum, the State presented sufficient evidence to sustain Howard’s convictions

for Class A felony dealing cocaine within 1000 feet of a family housing

complex.

[24] Judgment affirmed.

[25] Kirsch, J. and Mathias, J., concur.

Court of Appeals of Indiana | Memorandum Decision 20A05-1609-CR-2064 | June 22, 2017 Page 12 of 12