MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Jun 11 2015, 8:29 am 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 Kimberly A. Jackson Gregory F. Zoeller Indianapolis, Indiana Attorney General of Indiana Cynthia L. Ploughe Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Ian James Dutton, June 11, 2015
Appellant-Defendant, Court of Appeals Case No. 42A01-1407-CR-325 v. Appeal from the Knox Circuit Court. The Honorable Sherry B. Gregg Gilmore, Judge. State of Indiana, Cause No. 42C01-0908-FB-64 Appellee-Plaintiff.
Garrard, Senior Judge
Court of Appeals of Indiana | Memorandum Decision 42A01-1407-CR-325 | June 11, 2015 Page 1 of 14 [1] Ian James Dutton appeals his convictions by jury of dealing in a Schedule II 1 controlled substance (OxyContin), a Class B felony, and maintaining a 2 common nuisance, a Class D felony. We affirm.
Issues [2] Dutton raises three issues, which we restate as:
I. Whether there is sufficient evidence to sustain Dutton’s convictions. II. Whether the trial court committed fundamental error in admitting evidence. III. Whether the prosecutor’s comments to the jury during closing arguments were misconduct that amounted to fundamental error.
Facts and Procedural History [3] During the period of time relevant to this case, Dutton lived with Laura Fleenor
in Vincennes, Indiana. Fleenor had prescriptions for OxyContin and Adipex,
which are medicines that contain controlled substances. Dutton told Fleenor
that he could make money for them by selling her pills. She agreed to his plan.
[4] Meanwhile, Casey Luttrell, who was an informant for the Indiana State Police,
moved to Vincennes. He met Dutton through a mutual acquaintance. After
1 Ind. Code § 35-48-4-2(a)(1) (2001). 2 Ind. Code § 35-48-4-13(b)(2) (2001).
Court of Appeals of Indiana | Memorandum Decision 42A01-1407-CR-325 | June 11, 2015 Page 2 of 14 talking with Dutton, Luttrell told Trooper Chad Woodburn that he could buy
controlled substances from Dutton and Fleenor.
[5] On May 20, 2009, Luttrell set up a buy with Dutton via an Xbox online
communication, in Trooper Woodburn’s presence. Prior to the buy, Trooper
Woodburn interviewed Luttrell and searched him for weapons and contraband.
Finding none, Trooper Woodburn gave Luttrell $125 in buy money and an
audio recording device. The device was activated and secured so that Luttrell
could not turn it off. Next, Trooper Woodburn drove Luttrell to Dutton and
Fleenor’s house in an unmarked car and dropped him off.
[6] Dutton answered the door and let Luttrell enter. Luttrell gave the buy money
to Dutton, and Dutton gave pills to Luttrell after obtaining them from Fleenor.
Once Luttrell returned to Trooper Woodburn’s car, they drove to a prearranged
debriefing location, where Luttrell gave the officer pills that were later identified
as OxyContin and Adipex. During the debriefing, Luttrell told Trooper
Woodburn that Dutton said he was not supposed to smoke marijuana because
he was on house arrest.
[7] On May 22, 2009, and June 2, 2009, Luttrell, working with Trooper
Woodburn, purchased controlled substances from Dutton and Fleenor,
following the same protocols that were used during the May 20, 2009 buy. On
both occasions, Luttrell made the arrangements with Dutton in advance and
went to Dutton and Fleenor’s house. Once there, Luttrell handed Dutton the
buy money, and Fleenor gave Luttrell the pills.
Court of Appeals of Indiana | Memorandum Decision 42A01-1407-CR-325 | June 11, 2015 Page 3 of 14 [8] On June 19, 2009, Luttrell advised State Trooper Robert Hornbrook that he
could purchase more OxyContin from Dutton. Luttrell called Dutton to make
arrangements. Trooper Hornbrook overheard and recorded the call.
[9] After Luttrell and Dutton agreed upon the terms of the sale, Trooper
Hornbrook searched Luttrell for contraband and money. Finding no
contraband, Trooper Hornbrook gave Luttrell $40.00 in buy money and an
audio recording device. Trooper Hornbrook then drove Luttrell to Dutton and
Fleenor’s home in an unmarked car. Trooper Hornbrook instructed Luttrell to
go in, exchange the buy money for controlled substances, and return
immediately to Trooper Hornbrook’s vehicle without meeting anyone else.
[10] Once inside the house, Luttrell gave the money to Dutton, who turned it over
to Fleenor. In exchange, Fleenor gave Luttrell four pills that were later
identified as OxyContin. During the transaction, Luttrell asked Dutton about
two individuals named “Pooter” and “Big Folk.” Luttrell had seen those
individuals participate in transactions with Dutton involving controlled
substances. Luttrell left the house and returned directly to Trooper
Hornbrook’s car. Luttrell gave Trooper Hornbrook the OxyContin during a
subsequent debriefing session.
[11] The State charged Dutton with four counts of dealing in a Schedule II
controlled substance, all Class B felonies, two counts of dealing in a Schedule
IV controlled substance, both Class C felonies, and one count of maintaining a
common nuisance, a Class D felony.
Court of Appeals of Indiana | Memorandum Decision 42A01-1407-CR-325 | June 11, 2015 Page 4 of 14 [12] During trial, Dutton did not object to evidence that he was on home detention
during at least one of the transactions and had used marijuana. Dutton further
failed to object to evidence that he had engaged in transactions with “Pooter”
and “Big Folk” involving controlled substances. Instead, well after that
evidence was admitted and the jury was excused from the courtroom for the
evening, Dutton moved for a mistrial. He alleged that the evidence was unduly
prejudicial. The trial court denied Dutton’s motion.
[13] The jury determined that Dutton was guilty of one count of dealing in a
Schedule II controlled substance and of maintaining a common nuisance. The
jury failed to return verdicts on the other five charges. Dutton filed a motion to
correct error, claiming that the prosecutor engaged in misconduct during
closing argument. The trial court denied the motion and sentenced Dutton
according to the jury’s verdict. This appeal followed.
Discussion and Decision I. Sufficiency of the Evidence [14] Dutton argues that there is insufficient evidence to support his convictions for
dealing in a schedule II controlled substance and maintaining a common
nuisance. In considering challenges to the sufficiency of the evidence, we
neither reweigh the evidence nor judge witness credibility. Kiplinger v. State, 922
N.E.2d 1261, 1266 (Ind. 2010). Instead, we consider only the evidence
supporting the judgment and any reasonable inferences drawn from that
evidence. Tin Thang v. State, 10 N.E.3d 1256, 1258 (Ind. 2014). We affirm a
Court of Appeals of Indiana | Memorandum Decision 42A01-1407-CR-325 | June 11, 2015 Page 5 of 14 conviction unless no reasonable trier of fact could find every element proved
beyond a reasonable doubt. Blount v. State, 22 N.E.3d 559, 565 (Ind. 2014).
A. Dealing in a Schedule II Controlled Substance
[15] Dutton claims that Fleenor, not him, sold controlled substances to Luttrell. In
order to convict Dutton for dealing in a schedule II controlled substance as
charged, the State was required to prove beyond a reasonable doubt: (1) on
June 19, 2009 (2) Dutton knowingly or intentionally (3) delivered (4)
OxyContin, a Schedule II controlled substance. Ind. Code § 35-48-4-2;
Appellant’s App. p. 37. “Delivery” is defined as:
(1) an actual or constructive transfer from one (1) person to another of a controlled substance, whether or not there is an agency relationship; or (2) the organizing or supervising of an activity described in subdivision (1). Ind. Code § 35-48-1-11 (1990).
[16] Dutton told Fleenor he could make money by selling her OxyContin and
Adipex pills. Fleenor agreed to Dutton’s plan. On June 19, 2009, Luttrell
notified Trooper Hornbrook that he could arrange a deal with Dutton and
Fleenor to purchase OxyContin. Luttrell called Dutton, with Trooper
Hornbrook listening to the call, and made arrangements to purchase four
OxyContin pills.
[17] Next, Trooper Hornbrook searched Luttrell for guns, contraband, or currency
other than the buy money he planned to give Luttrell. Finding none, he gave
Court of Appeals of Indiana | Memorandum Decision 42A01-1407-CR-325 | June 11, 2015 Page 6 of 14 Luttrell forty dollars and a concealed recording device. Next, Trooper
Hornbrook drove Luttrell to Dutton and Fleenor’s house. He instructed
Luttrell to go in, exchange the buy money for controlled substances, and return
immediately to his vehicle without meeting anyone else.
[18] Luttrell went inside the house, where Dutton and Fleenor were present.
Luttrell gave the buy money to Dutton in Fleenor’s presence, and Fleenor gave
four pills to Luttrell in Dutton’s presence. When Luttrell returned to Trooper
Hornbrook’s car, he gave Hornbrook the four pills, which were later identified
as OxyContin.
[19] A jury could have reasonably determined from this evidence that Dutton
constructively transferred the OxyContin to Luttrell or, in the alternative,
organized and supervised the delivery of the OxyContin to Luttrell. See Laird v.
State, 483 N.E.2d 68, 70 (Ind. 1985) (defendant constructively delivered
controlled substances by having his girlfriend carry a bag of pills to another
person). Dutton’s arguments to the contrary are requests to reweigh the
evidence, which our standard of review forbids.
[20] The parties dispute whether Dutton’s conviction can be upheld under a theory
of accomplice liability. It is unnecessary for us to address this issue because the
evidence establishes that he delivered the OxyContin to Luttrell.
B. Maintaining a Common Nuisance
[21] In order to obtain a conviction for maintaining a common nuisance as charged,
the State was required to prove beyond a reasonable doubt: (1) from May 20,
Court of Appeals of Indiana | Memorandum Decision 42A01-1407-CR-325 | June 11, 2015 Page 7 of 14 2009 through June 19, 2009 (2) Dutton (3) knowingly or intentionally (4)
maintained a place (5) for unlawfully delivering (6) controlled substances. Ind.
Code § 35-48-4-13; Appellant’s App. p. 38.
[22] Dutton argues that this conviction must be reversed because there is insufficient
evidence that he delivered controlled substances to Luttrell or anyone else. We
have determined that there is sufficient evidence to sustain his conviction for
dealing in controlled substances by delivering pills to Luttrell. As a result,
Dutton’s argument fails, and there is sufficient evidence to sustain his
conviction for maintaining a common nuisance. See Vaughn v. State, 13 N.E.3d
873, 889 (Ind. Ct. App. 2014) (sufficient evidence supported conviction for
maintaining a common nuisance where defendant delivered cocaine to
confidential informant from his apartment), trans. denied.
II. Admission of Evidence and Fundamental Error [23] Dutton argues that the trial court erred by admitting testimony that he: (1) had
smoked marijuana in the past; (2) was on house arrest when one of the
transactions with Luttrell occurred; and (3) had engaged in other controlled
substance transactions with individuals known to Luttrell as “Pooter” and “Big
Folk.”
[24] Dutton did not present contemporaneous objections to any of this evidence.
Therefore, his claims are waived for appellate review. See Brown v. State, 929
N.E.2d 204, 207 (Ind. 2010) (evidentiary claim waived when appellant did not
object to evidence but later made a statement outside the presence of the jury).
Court of Appeals of Indiana | Memorandum Decision 42A01-1407-CR-325 | June 11, 2015 Page 8 of 14 [25] Dutton argues that his motion for mistrial, which he raised after the evidence
had been presented to the jury, was sufficient to preserve this claim. He cites
Pavey v. State, 764 N.E.2d 692 (Ind. Ct. App. 2002), trans. denied, in support of
his argument. In that case, the trial court granted the State’s motion for mistrial
after opening statements. After a retrial was held, the defendant appealed,
challenging the trial court’s grant of a mistrial. A panel of this Court concluded
that the State’s motion for a mistrial was a timely challenge to statements in the
defendant’s opening statement, despite the State’s failure to present a
contemporaneous objection. Id. at 699. The Court noted that because the
defendant was the appealing party, the question of whether the State had
preserved error for appellate review was not at issue. Id.
[26] By contrast, in this case, Dutton claims that the State presented unduly
prejudicial evidence. He, not the State, bore the burden of presenting timely
objections to preserve his claims for appellate review. Pavey is inapplicable
here, and Dutton’s failure to object resulted in waiver despite his belated
motion for mistrial. See Brown, 929 N.E.2d at 207 (stating a party may not
“resurrect an objection after the evidence has been admitted”).
[27] Dutton argues that this Court may review his waived evidentiary claims
because the admission of the evidence resulted in fundamental error.
Fundamental error is an extremely narrow exception to the rule that failure to
object at trial results in waiver of an issue on appeal. Knapp v. State, 9 N.E.3d
1274, 1281 (Ind. 2014), cert. denied, 135 S. Ct. 978, 190 L. Ed. 2d 862 (2015). It
Court of Appeals of Indiana | Memorandum Decision 42A01-1407-CR-325 | June 11, 2015 Page 9 of 14 applies only in egregious circumstances, where an error is so blatant that the
trial court should have taken action sua sponte. Id.
[28] To establish fundamental error, an appellant must demonstrate that the error
made a fair trial impossible or constituted a clearly blatant violation of basic
and elementary principles of due process presenting an undeniable and
substantial potential for harm. Id.
[29] Dutton says that admission of evidence about his past marijuana use, being on
home detention, and engaging in controlled substances transactions with
persons other than Luttrell violated Indiana Evidence Rule 404(b). That rule
provides, in relevant part: “Evidence of a crime, wrong, or other act is not
admissible to prove a person’s character in order to show that on a particular
occasion the person acted in accordance with the character.” Id.
[30] It appears that the evidence Dutton challenges is indicative of prior crimes,
wrongs, or acts. Even if this evidence was erroneously admitted, we cannot
conclude that its admission amounts to fundamental error. The witnesses’
references to Dutton’s past marijuana use, being on home detention, and
engaging in other illegal transactions were limited in nature and made in
passing. Furthermore, as noted above, the evidence supporting Dutton’s
convictions is substantial. With respect to Dutton being on home detention,
Dutton submitted to the jury a copy of the State’s probable cause affidavit,
which referred to Dutton as being on home detention. Thus, the jury heard
additional evidence from Dutton regarding his home detention status.
Court of Appeals of Indiana | Memorandum Decision 42A01-1407-CR-325 | June 11, 2015 Page 10 of 14 [31] Finally, despite hearing evidence of other crimes, wrongs, or acts, the jury did
not return verdicts on five of the seven charges against Dutton. This outcome
indicates that the challenged evidence did not have a substantial impact on the
jury’s decision and did not inflame the jury against Dutton. We cannot
conclude that the admission of the evidence of other alleged crimes, wrongs or
acts made a fair trial impossible or constituted a clearly blatant violation of
basic and elementary principles of due process presenting an undeniable and
substantial potential for harm. See Vermillion v. State, 978 N.E.2d 459, 464 (Ind.
Ct. App. 2012) (no fundamental error from the admission of evidence of other
crimes where the jury heard “unequivocal evidence” supporting the
convictions). Dutton has failed to establish fundamental error.
III. Closing Arguments and Fundamental Error [32] Dutton claims that during closing arguments, the State presented arguments
that amounted to misconduct. He concedes that he did not object at trial to the
prosecutor’s comments. A defendant waives a claim of prosecutorial
misconduct for appellate review by failing to object in the trial court. Ryan v.
State, 9 N.E.3d 663, 667 (Ind. 2014). When a claim of prosecutorial
misconduct is waived but the defendant intends to present it on appeal despite
waiver, the defendant must establish not only the grounds for prosecutorial
misconduct but also that the misconduct constituted fundamental error. Id. at
667-68.
Court of Appeals of Indiana | Memorandum Decision 42A01-1407-CR-325 | June 11, 2015 Page 11 of 14 [33] In reviewing a claim of prosecutorial misconduct, we determine (1) whether the
prosecutor engaged in misconduct, and if so, (2) whether the misconduct, under
all of the circumstances, placed the defendant in a position of grave peril to
which he or she would not have been subjected. Booher v. State, 773 N.E.2d
814, 817 (Ind. 2002). The gravity of peril is measured by the probable
persuasive effect of the misconduct on the jury’s decision rather than the degree
of impropriety of the conduct. Id.
[34] As noted above, fundamental error is an extremely narrow exception to the
waiver rule. Ryan, 9 N.E.3d at 668. Fundamental error is meant to permit
appellate courts a means to correct the most egregious and blatant trial errors
that otherwise would have been procedurally barred, not to provide second
bites at the apple for defense counsel who ignorantly, carelessly, or strategically
fails to preserve an error. Id.
[35] To establish fundamental error, the defendant must show that, under the
circumstances, the trial judge erred by not raising the issue sua sponte because
alleged errors (a) constitute clearly blatant violations of basic and elementary
principles of due process and (b) present an undeniable and substantial potential
for harm. Id. In evaluating the issue of fundamental error, our task in this case
is to look at the alleged prosecutorial misconduct in the context of all that
happened and all relevant information given to the jury—including evidence
admitted at trial, closing argument, and jury instructions—to determine
whether the alleged misconduct had such an undeniable and substantial effect
on the jury’s decision that a fair trial was impossible. Id.
Court of Appeals of Indiana | Memorandum Decision 42A01-1407-CR-325 | June 11, 2015 Page 12 of 14 [36] Dutton points to sixteen separate comments by the prosecutor that he claims
amount to prosecutorial misconduct and fundamental error. Appellant’s Br.
pp. 22-24. The comments include discussion on the credibility of the State’s
witnesses that could amount to vouching for their testimony. Tr. p. 282 (telling
the jury “you can be certain [the evidence] was properly handled by the Indiana
State Police and properly presented by the analysts”). There were also remarks
that could be construed as disparaging defense counsel’s arguments and
burnishing his own credibility. Tr. pp. 317-18 (characterizing defense counsel’s
arguments as “childish” and stating that, as a Marine, he was “a little tougher”
than defense counsel). Finally, among other comments, the prosecutor accused
Dutton of “pump[ing] poison into the streets of our community” and stated that
a not guilty verdict would be “a stench in the nostrils of justice,” statements that
could be interpreted as encouraging the jury to convict for reasons other than
Dutton’s guilt. Tr. p. 327.
[37] Even if the sixteen comments identified by Dutton, taken individually or
cumulatively, amounted to misconduct, we cannot conclude that he was placed
in great peril or that the comments amounted to clearly blatant violations of
basic and elementary principles of due process. The evidence against Dutton
was very strong. Testimony by Trooper Hornbrook, Luttrell, and Fleenor
established that Dutton organized an OxyContin transaction with Luttrell and
took the buy money from Luttrell, after which Fleenor gave Luttrell the agreed-
upon amount of pills in Dutton’s presence. There is no dispute that the pills in
question were OxyContin, a controlled substance.
Court of Appeals of Indiana | Memorandum Decision 42A01-1407-CR-325 | June 11, 2015 Page 13 of 14 [38] In addition, the jury’s verdict was much more favorable to Dutton than to the
State because the jury did not return a verdict on five of the seven charges
against him. The verdict demonstrates that the jury was not unfairly biased in
favor of the State nor unfairly inflamed against Dutton by the prosecutor’s
remarks. See Phillips v. State, 22 N.E.3d 749, 761 (Ind. Ct. App. 2014)
(prosecutor’s remarks did not amount to fundamental error because the
evidence against defendant was strong, so the probable persuasive effect of the
remarks was minimal), trans. denied; Neville v. State, 976 N.E.2d 1252, 1265 (Ind.
Ct. App. 2012) (prosecutor’s remarks did not place defendant in grave peril or
amount to fundamental error because the evidence against the defendant was
strong), trans. denied.
[39] For the reasons stated above, we affirm the judgment of the trial court.
[40] Affirmed-Garrard, Senior Judge
Bailey, J., and Mathias, J., concur.
Court of Appeals of Indiana | Memorandum Decision 42A01-1407-CR-325 | June 11, 2015 Page 14 of 14