Gurpreet Singh v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 27, 2016
• Docket: 20A04-1508-CR-1097
• Status: Published

Opinion

FILED MEMORANDUM DECISION Jun 27 2016, 6:47 am

CLERK Pursuant to Ind. Appellate Rule 65(D), Indiana Supreme Court Court of Appeals and Tax Court this Memorandum Decision shall not be 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 Nancy A. McCaslin Gregory F. Zoeller McCaslin & McCaslin Attorney General of Indiana Elkhart, Indiana Justin F. Roebel Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Gurpreet Singh, June 27, 2016 Appellant-Defendant, Court of Appeals Case No. 20A04-1508-CR-1097 v. Appeal from the Elkhart Superior Court State of Indiana, The Honorable David C. Appellee-Plaintiff Bonfiglio, Judge Trial Court Cause No. 20D06-1406-FD-657

Mathias, Judge.

[1] Gurpreet Singh (“Singh”) was convicted in Elkhart Superior Court of three

counts of Class D felony dealing in a synthetic drug or a synthetic drug

Court of Appeals of Indiana | Memorandum Decision 20A04-1508-CR-1097 | June 27, 2016 Page 1 of 11 lookalike and three counts of Class D felony money laundering. Singh appeals

his convictions and raises two issues on appeal:

I. Whether the trial court committed fundamental error when it admitted the synthetic marijuana purchased during three controlled buys into evidence; and II. Whether sufficient evidence supports Singh’s convictions.

[2] We affirm.

Facts and Procedural History

[3] In February 2014, Elkhart City Police Officer Andrew Whitmyer (“Officer

Whitmyer”) made arrangements with a confidential informant to conduct an

undercover buy of synthetic marijuana at a Marathon gas station on Bristol

Street in Elkhart, Indiana. On February 11, the officer searched the confidential

informant, and gave him $40 in buy money and a recording device.

[4] The confidential informant entered the gas station and told Singh, the counter

clerk, that he needed “a bag.” Tr. pp. 25, 46-47. Singh gave the confidential

informant a bag labeled “7h” and the informant gave Singh $40, $20 for the bag

and $20 that he owed for a previous purchase of synthetic marijuana.

[5] “7h” is a common brand or type of packaging for synthetic marijuana. Officer

Whitmyer had seen “7h” numerous times in prior controlled buys. The

confidential informant told the officer that the Marathon gas station on Bristol

Street sold synthetic marijuana “like a speak easy,” the sales were “hush hush,”

and the product was not displayed. Tr. pp. 44-45, 56, 73.

Court of Appeals of Indiana | Memorandum Decision 20A04-1508-CR-1097 | June 27, 2016 Page 2 of 11 [6] The next day, Officer Whitmyer and the confidential informant arranged a

second controlled buy. Because of the quantity the confidential informant asked

to purchase, the confidential informant requested a “special order” of synthetic

marijuana. The officer then drove the confidential informant to the gas station,

searched him, and gave him $500 in buy money and a recording device. The

informant gave Singh the money, and Singh gave the informant two large black

grocery bags from under the store’s counter. The bags contained thirty-three

small packages of “7h.”

[7] A third controlled buy occurred on May 28, 2014. On that date, the

confidential informant was searched and provided with $20 and a recording

device. He went into the gas station and told Singh that he “needed a bag.” Tr.

pp. 34, 62-63. Singh gave him a single bag of synthetic marijuana called “Eye

Blown,” which was packaged in a bag designed to look like an iPhone. Both

Officer Whitmyer and the confidential informant were familiar with this brand

of synthetic marijuana that was the “same as 7h.” Tr. pp. 34, 63.

[8] Officer Whitmyer attempted to make his own undercover purchase of synthetic

marijuana from Singh. Howver, Singh told him that the station did not sell it.

Tr. pp. 131-32. Another officer attempted to purchase synthetic marijuana on a

separate occasion but was not successful. The confidential informant told the

officers that Singh would not sell synthetic marijuana to him if other patrons

were inside the store.

Court of Appeals of Indiana | Memorandum Decision 20A04-1508-CR-1097 | June 27, 2016 Page 3 of 11 [9] When he was questioned by the police, Singh admitted that he sold the

synthetic marijuana “on a couple of occasions.” Tr. p. 77. Singh stated that he

was not sure whether the substance was legal. He explained that the sales

transaction would be entered into the gas station’s cash register as “grocery”

and the money from the sale was placed in the register. Tr. pp. 77-78. Singh was

paid a salary for working at the gas station and did not receive any additional

money or other benefit from the sale of the synthetic marijuana.

[10] On June 13, 2014, Singh was charged with three counts of Class D felony

dealing in a synthetic drug or synthetic drug lookalike and three counts of Class

D felony money laundering. A bench trial was held on March 13, 2015. Singh,

who immigrated from India in 2010, speaks Punjabi, and an interpreter was

appointed for trial. After the evidence was presented, the trial court took the

matter under advisement.

[11] On April 20, 2015, Singh was found guilty as charged. For each Class D felony

conviction, Singh was ordered to serve concurrent terms of 540 days with 180

days suspended to probation and the remainder to be served on community

corrections. Singh now appeals. Additional facts will be provided as necessary.

Fundamental Error

[12] Singh argues that the State did not present an adequate chain of custody for the

synthetic marijuana and did not properly calibrate the scales used to weigh the

drug. However, Singh did not object to the admission of the evidence on these

grounds at trial and raises the arguments for the first time on appeal; therefore,

Court of Appeals of Indiana | Memorandum Decision 20A04-1508-CR-1097 | June 27, 2016 Page 4 of 11 he cannot claim that the trial court abused its discretion in admitting the

synthetic marijuana into evidence. See Kubsch v. State, 784 N.E.2d 905, 923

(Ind. 2003). To avoid waiver, Singh contends that the admission of the evidence

constitutes fundamental error.

[13] “Fundamental error is an extremely narrow exception to the waiver rule where

the defendant faces the heavy burden of showing that the alleged errors are so

prejudicial to the defendant’s rights as to make a fair trial impossible.” Ryan v.

State, 9 N.E.3d 663, 668 (Ind. 2014) (citation and internal quotation marks

omitted). The error must be “so egregious and abhorrent to fundamental due

process” that the trial judge should have acted, “irrespective of the parties’

failure to object or otherwise preserve the error for appeal.” Whiting v. State, 969

N.E.2d 24, 34 (Ind. 2012).

[14] First, we address Singh’s argument that the State did not establish an adequate

chain of custody for the synthetic marijuana. “The State is required to show a

chain of custody for the purpose of showing the unlikelihood of tampering, loss,

substitution or mistake[,]” but a perfect chain of custody is not required. Vaughn

v. State, 13 N.E.3d 873, 882 (Ind. Ct. App. 2014) (citation omitted), trans. denied.

“If the State presents evidence that strongly suggests the exact whereabouts of

the evidence at all times, that is sufficient.” Id. To successfully challenge chain

of custody, the defendant must present evidence that overcomes the

presumption that public officers exercise due care in handling evidence. Troxell

v. State, 778 N.E.2d 811, 814 (Ind. 2002). Merely raising the possibility of

tampering or mistake is insufficient. Id.

Court of Appeals of Indiana | Memorandum Decision 20A04-1508-CR-1097 | June 27, 2016 Page 5 of 11 [15] At trial, Officer Whitmyer testified that after the confidential informant turned

the synthetic marijuana over to him after each controlled buy, he retained

possession of it until the evidence was “entered into the wet room.” Tr. p. 26.

The officer stated that he put the evidence in a plastic bag, wrote the assigned

case number on the bag, sealed the bag and initialed it, and prepared a voucher

for the evidence. The voucher was attached to the plastic bag and then placed

into the evidence locker. Tr. p. 27. Once the evidence was placed in the locker,

only the evidence clerks had access to the locker. Tr. p. 32. The evidence clerks

then transferred the evidence to a more secure area where the evidence

remained until it was requested by the officer. Tr. p. 36.

[16] The officer removed the exhibits from the evidence room on one occasion to

weigh them. After he finished, he resealed the bags, and he put his initials and

date on the exhibit. The evidence clerk remained with Officer Whitmyer while he

was weighing the synthetic marijuana, and the the clerk took the exhibits back to

the secure evidence area. Tr. p. 38. The evidence remained with the evidence

clerk until the morning of trial when Officer Whitmyer requested them from the

evidence clerk and brought them with him to trial. Tr. pp. 38-39.

[17] Prior to introducing the synthetic marijuana purchased during the three

controlled buys, i.e. Exhibits 5, 6, and 7, into evidence at trial, Officer

Whitmyer testified that his initials were on the exhibits, he recognized the case

number and had personally written the case number on the bag containing the

synthetic marijuana. See Tr. pp. 30-35; Ex. Vol., State’s Ex. 5, 6, and 7. Officer

Whitmyer testified that it did not appear that the three exhibits had been

Court of Appeals of Indiana | Memorandum Decision 20A04-1508-CR-1097 | June 27, 2016 Page 6 of 11 tampered with and that they were in substantially the same condition as on the

day they were obtained during the respective controlled buys. Tr. p. 39.

[18] Officer Whitmyer’s testimony strongly suggests the exact whereabouts of the

synthetic marijuana at all times. Therefore, the State established a sufficient

chain of custody. See Vaughn, 13 N.E.3d at 882. In his brief, Singh argues that

the exhibits could have been tampered with, but a mere possibility of tampering

is insufficient to overcome the presumption of due care in evidence handling.

See Troxell, 778 N.E.2d at 814. Therefore, Singh has not established error

necessary to support a claim of fundamental error.

[19] Singh also argues that the State failed to prove that the scales used to weigh the

synthetic marijuana were properly calibrated.1 Although the State bore the

burden to establish that the scale used to measure the weight of the synthetic

marijuana was properly calibrated, the scale’s accuracy is foundational evidence

and not an element of the crime. See McKnight v. State, 1 N.E.3d 193, 203 (Ind.

Ct. App. 2013) (citations omitted).

[20] Here, Officer Whitmyer placed a nickel on the scale to calibrate it. Tr. p. 37.

The officer testified that a nickel weighs five grams. Id. While it is possible that

the officer’s nickel did not weigh precisely five grams, since each of the buys at

issue involved more than the Class D felony threshold of more than two grams,

1 Singh was charged with three counts of Class D felony dealing in a synthetic drug or synthetic drug lookalike substance of more than two grams. See Appellant’s Confidential App. p. 14. The officer testified that one bag of synthetic marijuana from each controlled buy weighed five grams. Tr. p. 37.

Court of Appeals of Indiana | Memorandum Decision 20A04-1508-CR-1097 | June 27, 2016 Page 7 of 11 we cannot conclude that the officer’s potentially imprecise calibration of the

scale constitutes fundamental error.

Sufficient Evidence

Singh argues that the evidence is insufficient to prove he knowingly sold a

synthetic drug or synthetic drug lookalike to the confidential informant or that

he committed money laundering. When the sufficiency of evidence is

challenged, we neither reweigh the evidence nor judge the credibility of

witnesses. Chappell v. State, 966 N.E.2d 124, 129 (Ind. Ct. App. 2012) (citing

McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005)), trans. denied. Rather, we

recognize the exclusive province of the trier of fact to weigh any conflicting

evidence and we consider only the probative evidence supporting the conviction

and the reasonable inferences to be drawn therefrom. Id. If substantial evidence

of probative value exists 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, then the judgment will not be disturbed. Baumgartner v. State,

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

A. Dealing in a Synthetic Substance

[21] To prove that Singh committed Class D felony dealing in a synthetic drug or

synthetic drug lookalike, the State was required to prove that Singh knowingly

delivered more than two grams of a synthetic drug or a synthetic drug lookalike.

Court of Appeals of Indiana | Memorandum Decision 20A04-1508-CR-1097 | June 27, 2016 Page 8 of 11 Ind. Code 35-48-4-10.5;2 Appellant’s Confidential App. pp. 14-15. Singh argues

that the State failed to prove both what substance was in the packages the

confidential informant purchased and that Singh knew the substance was

synthetic marijuana rather than tobacco.

[22] During the controlled buys, the confidential informant purchased a substance

packaged as “7h” or “Eye Blown.” The confidential informant was an admitted

frequent user of the substance “7h” and described it as “ground up plants that

are sprayed with a chemical or something,” “a synthetic substance, supposedly

a fake marijuana.” Tr. pp. 48-49, 53. The confidential informant told Officer

Whitmyer that using “7h” causes impairment and is “far more harsh” than

marijuana. Tr. p. 48. The confidential informant also told the officer that “Eye

Blown” was “the same as ‘7h.’” Officer Whitmyer testified that he has seen

these brands of synthetic marijuana “on the street” and in prior controlled buys,

and “7h” is a common brand for synthetic marijuana. Tr. p. 25.

[23] The packages of “7h” and “Eye Blown” were not displayed at the gas station but

kept in a bag behind the counter. The confidential informant purchased the

synthetic drug by asking for “a bag.” When undercover officers attempted to buy

“a bag,” Singh told them that the gas station did not sell it. Singh was authorized

to charge between $12 and $50 for “a bag.” The confidential informant received

2 On July 1, 2014, the General Assembly amended Indiana Code section 35-48-4-10.5 to make the offense a felony when the amount of the synthetic drug or synthetic drug lookalike involved in the offense is more than five grams. Singh committed these offenses in February and March 2014.

Court of Appeals of Indiana | Memorandum Decision 20A04-1508-CR-1097 | June 27, 2016 Page 9 of 11 each of the buys in an unmarked grocery bag, and the sale was rung up

generically as “groceries or lottery.” Singh would not sell synthetic marijuana to

the confidential informant if other people were inside the gas station. The

confidential informant testified that at certain times Singh would not sell the

synthetic marijuana because police had been in the gas station and Singh’s boss

had told him not to sell it for a week. Tr. pp. 134-36. Singh also lied when he told

the police he had only sold a few bags of synthetic marijuana, and he never told

the police that he thought he was selling tobacco. Ex. Vol., State’s Ex. 9.

[24] Considering these facts and circumstances, the State proved that Singh

knowingly sold synthetic marijuana or a synthetic drug lookalike substance to

the confidential informant on the three dates as charged. See Appellant’s

Confidential App. pp. 14-15; Ind. Code § 35-31.5-2-321.5 (defining a synthetic

drug lookalike); See Clark v. State, 6 N.E.3d 992, 998-99 (Ind. Ct. App. 2014)

(quoting Vasquez v. State, 741 N.E.2d 1214, 1216-17 (Ind. 2001) (stating “[t]he

identity of a drug can be proven by circumstantial evidence”)). For all of these

reasons, we conclude that the evidence is sufficient to support Singh’s dealing in

a synthetic drug or synthetic drug lookalike substance convictions.

B. Money Laundering

[25] To prove that Singh committed money laundering, the State was required to

prove that Singh knowingly acquired or maintained an interest in, received,

concealed, possessed, transferred, or transported the proceeds of a criminal

activity. Ind. Code 35-45-15-5(a); Appellant’s Confidential App. pp. 14-15. The

Court of Appeals of Indiana | Memorandum Decision 20A04-1508-CR-1097 | June 27, 2016 Page 10 of 11 term “proceeds” is defined by statute as “funds acquired or derived directly or

indirectly from, produced through, or realized through an act.” Ind. Code § 35-

45-15-4. The term “criminal activity” is defined by statute as “any offense” that

“is classified as a felony under Indiana” law. Ind. Code § 35-45-15-1. Singh

argues that the State failed to prove that he transferred proceeds of a criminal

activity because he merely put money in the cash register and did not receive

any proceeds from the sale of the synthetic marijuana.

[26] The State proved that on three occasions, Singh sold synthetic drugs to the

confidential informant. Singh took the informant’s money in exchange for the

synthetic drug. He placed the money into the gas station’s cash register,

effectively transferring the buy money from the confidential informant to the

gas station’s owner. This evidence is sufficient to prove that Singh knowingly

transferred the proceeds of a criminal activity. For these reasons, we affirm his

Class D felony money laundering convictions.

Conclusion

[27] The trial court did not commit fundamental error when it admitted the three

exhibits containing the synthetic drug into evidence. Sufficient evidence

supports Singh’s three Class D felony dealing in a synthetic drug or synthetic

drug lookalike and three Class D felony money laundering convictions.

[28] Affirmed.

Vaidik, C.J., and Barnes, J., concur.

Court of Appeals of Indiana | Memorandum Decision 20A04-1508-CR-1097 | June 27, 2016 Page 11 of 11