MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Apr 14 2016, 9:23 am this Memorandum Decision shall not be regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court
the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Craig Persinger Gregory F. Zoeller Marion, Indiana Attorney General of Indiana James B. Martin Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
James Lee Roby, April 14, 2016 Appellant-Defendant, Court of Appeals Case No. 27A02-1507-CR-954 v. Appeal from the Grant Superior Court State of Indiana, The Honorable Dana J. Appellee-Plaintiff. Kenworthy, Judge Trial Court Cause No. 27D02-1502-F5-12
Mathias, Judge.
[1] James Roby (“Roby”) was convicted in Grant Superior Court of Level 5 felony
dealing in cocaine and of being a habitual offender. Roby was ordered to serve
Court of Appeals of Indiana | Memorandum Decision 27A02-1507-CR-954 | April 14, 2016 Page 1 of 7 an aggregate twelve-year sentence in the Department of Correction. Roby
appeals and argues that the State failed to present sufficient chain of custody of
the cocaine evidence.
[2] We affirm.
Facts and Procedural History
[3] On October 24, 2014, Grant County Sheriff’s Department Detective Wesley
McCorkle (“Detective McCorkle”) was working as an undercover officer for the
Grant County Joint Effort Against Narcotics (“JEAN”) team. Detective
McCorkle was sent to a residence located on South Branson Street in Marion,
Indiana, to conduct a controlled buy from Chanell Smith (“Smith”). While
Detective McCorkle was at Smith’s residence, Roby walked in and kissed her.
Smith then set up a purchase for $60 of crack cocaine on behalf of Detective
McCorkle, and McCorkle paid Smith an additional $20 for arranging the deal.
Shortly after Smith made the phone call, a red Chevrolet pulled up in front of
her residence. Smith retrieved the package from the individual in the car and
handed it to Detective McCorkle.
[4] Detective McCorkle returned to Smith’s residence to conduct another
controlled buy on November 5, 2014.1 However, this time Smith was unable to
obtain the drugs from her source for Detective McCorkle. Roby, who was again
1 Detective McCorkle wore a recording device under his clothes during this encounter.
Court of Appeals of Indiana | Memorandum Decision 27A02-1507-CR-954 | April 14, 2016 Page 2 of 7 present at Smith’s residence, called an individual he identified as “Cuzo” and
confirmed that he could obtain cocaine from him. Detective McCorkle then
drove Roby and Smith to a nearby residence and handed Roby $80 that had
been photocopied by JEAN team officers. Roby exited the vehicle, and Smith
instructed Detective McCorkle to drive around the block. A few minutes later,
Roby returned to the car and handed Detective McCorkle a clear, twisted,
plastic bag containing an off-white rock-like substance. Roby told Detective
McCorkle that he had already taken his $20 out.2 Tr. p. 65.
[5] After taking Smith and Roby back to Smith’s residence, Detective McCorkle
immediately took the clear, plastic bag containing the white substance to the
JEAN task force office and conducted a field test. The test concluded that the
substance was a presumptive positive for cocaine. He then wrote his initials
where he sealed the bag and placed the clear bag into an evidence bag after he
completed the identifying information located on the front. Detective McCorkle
then placed the evidence bag into the locked and secured evidence room.
Evidence technician, Al Culley (“Culley”) was then responsible for ensuring
that the evidence was transported to the Indiana State Police (“ISP”) lab.
[6] Several days later, the evidence bag was sent via certified mail to the ISP lab
where forensic scientist, Nicole Kay (“Kay”) tested the substance
approximately one month later. Kay explained that when evidence arrives at
2 Detective McCorkle took this statement to mean that Roby smoked $20 worth of the crack cocaine in exchange for facilitating the buy.
Court of Appeals of Indiana | Memorandum Decision 27A02-1507-CR-954 | April 14, 2016 Page 3 of 7 the lab, a unique barcode is generated and placed on the bag.3 Then, an
evidence technician places the evidence into a secured vault until an analyst has
time to conduct testing. She also noted that the lab has a backlog and it
sometimes takes awhile to complete testing. When Kay received the evidence,
the bag was completely sealed. Like Detective McCorkle’s field test, Kay’s tests
concluded that the substance in the clear bag contained a cocaine base.4
[7] The State charged Roby with Level 5 felony dealing in cocaine on February 4,
2015, and that same day filed a notice of intent to seek a habitual offender
adjudication. A jury trial was held on June 2 and 3, 2015. At trial, Roby
objected to the admission of State’s Exhibit 1, 2, and 5, which includes the
substance Detective McCorkle obtained from the controlled buy, along with the
corresponding field test report of the substance, and the ISP lab’s certificate of
analysis of the substance.
[8] Roby argued that the State could not establish a sufficient chain of custody
because Grant County Sheriff’s Department evidence technician Culley was not
available to testify to clear up the discrepancies regarding why he mailed the
evidence instead of transporting it himself. The trial court gave Roby’s counsel
and the State an opportunity to speak with Culley over the phone and after
doing so both parties agreed to continue the trial. The court then determined
3 The ISP lab received the evidence on November 17, 2014. 4 Kay conducted fourier transform infrared spectroscopy (FTIR) and ultraviolet spectroscopy tests on the substance. Tr. p. 103.
Court of Appeals of Indiana | Memorandum Decision 27A02-1507-CR-954 | April 14, 2016 Page 4 of 7 that the State established a sufficient foundation for the cocaine evidence
regarding chain of custody and noted that any gaps would go to weight rather
than admissibility.
[9] The jury subsequently found Roby guilty of Level 5 felony dealing in cocaine
and of being a habitual offender. The trial court then entered judgment of
conviction. At a sentencing hearing on June 29, 2015, the trial court ordered
Roby to serve six years for the Level 5 felony conviction, enhanced by six years
for being a habitual offender in the Department of Correction. Roby now
appeals.
Discussion and Decision
[10] The trial court has discretion in matters regarding the admission and exclusion
of evidence, and we review the court’s decision only for an abuse of that
discretion. Wells v. State, 904 N.E.2d 265, 269 (Ind. Ct. App. 2009), trans. denied.
The trial court abuses its discretion only if its decision is clearly against the logic
and effect of the facts and circumstances before it, or if the court has
misinterpreted the law. Id.
[11] Roby argues that the State failed to establish a sufficient chain of custody for the
cocaine evidence. To establish a proper chain of custody, the State must give
reasonable assurances that the evidence at issue remained in an undisturbed
condition. Troxell v.
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MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Apr 14 2016, 9:23 am this Memorandum Decision shall not be regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court
the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Craig Persinger Gregory F. Zoeller Marion, Indiana Attorney General of Indiana James B. Martin Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
James Lee Roby, April 14, 2016 Appellant-Defendant, Court of Appeals Case No. 27A02-1507-CR-954 v. Appeal from the Grant Superior Court State of Indiana, The Honorable Dana J. Appellee-Plaintiff. Kenworthy, Judge Trial Court Cause No. 27D02-1502-F5-12
Mathias, Judge.
[1] James Roby (“Roby”) was convicted in Grant Superior Court of Level 5 felony
dealing in cocaine and of being a habitual offender. Roby was ordered to serve
Court of Appeals of Indiana | Memorandum Decision 27A02-1507-CR-954 | April 14, 2016 Page 1 of 7 an aggregate twelve-year sentence in the Department of Correction. Roby
appeals and argues that the State failed to present sufficient chain of custody of
the cocaine evidence.
[2] We affirm.
Facts and Procedural History
[3] On October 24, 2014, Grant County Sheriff’s Department Detective Wesley
McCorkle (“Detective McCorkle”) was working as an undercover officer for the
Grant County Joint Effort Against Narcotics (“JEAN”) team. Detective
McCorkle was sent to a residence located on South Branson Street in Marion,
Indiana, to conduct a controlled buy from Chanell Smith (“Smith”). While
Detective McCorkle was at Smith’s residence, Roby walked in and kissed her.
Smith then set up a purchase for $60 of crack cocaine on behalf of Detective
McCorkle, and McCorkle paid Smith an additional $20 for arranging the deal.
Shortly after Smith made the phone call, a red Chevrolet pulled up in front of
her residence. Smith retrieved the package from the individual in the car and
handed it to Detective McCorkle.
[4] Detective McCorkle returned to Smith’s residence to conduct another
controlled buy on November 5, 2014.1 However, this time Smith was unable to
obtain the drugs from her source for Detective McCorkle. Roby, who was again
1 Detective McCorkle wore a recording device under his clothes during this encounter.
Court of Appeals of Indiana | Memorandum Decision 27A02-1507-CR-954 | April 14, 2016 Page 2 of 7 present at Smith’s residence, called an individual he identified as “Cuzo” and
confirmed that he could obtain cocaine from him. Detective McCorkle then
drove Roby and Smith to a nearby residence and handed Roby $80 that had
been photocopied by JEAN team officers. Roby exited the vehicle, and Smith
instructed Detective McCorkle to drive around the block. A few minutes later,
Roby returned to the car and handed Detective McCorkle a clear, twisted,
plastic bag containing an off-white rock-like substance. Roby told Detective
McCorkle that he had already taken his $20 out.2 Tr. p. 65.
[5] After taking Smith and Roby back to Smith’s residence, Detective McCorkle
immediately took the clear, plastic bag containing the white substance to the
JEAN task force office and conducted a field test. The test concluded that the
substance was a presumptive positive for cocaine. He then wrote his initials
where he sealed the bag and placed the clear bag into an evidence bag after he
completed the identifying information located on the front. Detective McCorkle
then placed the evidence bag into the locked and secured evidence room.
Evidence technician, Al Culley (“Culley”) was then responsible for ensuring
that the evidence was transported to the Indiana State Police (“ISP”) lab.
[6] Several days later, the evidence bag was sent via certified mail to the ISP lab
where forensic scientist, Nicole Kay (“Kay”) tested the substance
approximately one month later. Kay explained that when evidence arrives at
2 Detective McCorkle took this statement to mean that Roby smoked $20 worth of the crack cocaine in exchange for facilitating the buy.
Court of Appeals of Indiana | Memorandum Decision 27A02-1507-CR-954 | April 14, 2016 Page 3 of 7 the lab, a unique barcode is generated and placed on the bag.3 Then, an
evidence technician places the evidence into a secured vault until an analyst has
time to conduct testing. She also noted that the lab has a backlog and it
sometimes takes awhile to complete testing. When Kay received the evidence,
the bag was completely sealed. Like Detective McCorkle’s field test, Kay’s tests
concluded that the substance in the clear bag contained a cocaine base.4
[7] The State charged Roby with Level 5 felony dealing in cocaine on February 4,
2015, and that same day filed a notice of intent to seek a habitual offender
adjudication. A jury trial was held on June 2 and 3, 2015. At trial, Roby
objected to the admission of State’s Exhibit 1, 2, and 5, which includes the
substance Detective McCorkle obtained from the controlled buy, along with the
corresponding field test report of the substance, and the ISP lab’s certificate of
analysis of the substance.
[8] Roby argued that the State could not establish a sufficient chain of custody
because Grant County Sheriff’s Department evidence technician Culley was not
available to testify to clear up the discrepancies regarding why he mailed the
evidence instead of transporting it himself. The trial court gave Roby’s counsel
and the State an opportunity to speak with Culley over the phone and after
doing so both parties agreed to continue the trial. The court then determined
3 The ISP lab received the evidence on November 17, 2014. 4 Kay conducted fourier transform infrared spectroscopy (FTIR) and ultraviolet spectroscopy tests on the substance. Tr. p. 103.
Court of Appeals of Indiana | Memorandum Decision 27A02-1507-CR-954 | April 14, 2016 Page 4 of 7 that the State established a sufficient foundation for the cocaine evidence
regarding chain of custody and noted that any gaps would go to weight rather
than admissibility.
[9] The jury subsequently found Roby guilty of Level 5 felony dealing in cocaine
and of being a habitual offender. The trial court then entered judgment of
conviction. At a sentencing hearing on June 29, 2015, the trial court ordered
Roby to serve six years for the Level 5 felony conviction, enhanced by six years
for being a habitual offender in the Department of Correction. Roby now
appeals.
Discussion and Decision
[10] The trial court has discretion in matters regarding the admission and exclusion
of evidence, and we review the court’s decision only for an abuse of that
discretion. Wells v. State, 904 N.E.2d 265, 269 (Ind. Ct. App. 2009), trans. denied.
The trial court abuses its discretion only if its decision is clearly against the logic
and effect of the facts and circumstances before it, or if the court has
misinterpreted the law. Id.
[11] Roby argues that the State failed to establish a sufficient chain of custody for the
cocaine evidence. To establish a proper chain of custody, the State must give
reasonable assurances that the evidence at issue remained in an undisturbed
condition. Troxell v. State, 778 N.E.2d 811, 814 (Ind. 2002). The State bears a
higher burden to establish the chain of custody of fungible evidence whose
appearance is indistinguishable to the naked eye. Id. However, the State need
Court of Appeals of Indiana | Memorandum Decision 27A02-1507-CR-954 | April 14, 2016 Page 5 of 7 not establish a perfect chain of custody, and once the State strongly suggests the
exact whereabouts of the evidence, any gaps in the chain of custody go to the
weight of the evidence, not its admissibility. Id.
[12] Moreover, there is a presumption of regularity in the handling of evidence by
officers, and there is a presumption that officers exercise due care in handling
their duties. Id. To mount a successful challenge to the chain of custody, one
must present evidence that does more than raise a mere possibility that the
evidence may have been tampered with. Id.
[13] In the present case, Roby argues a gap is in the chain of custody because the
evidence was transported to the ISP lab via certified mail instead of being
delivered by evidence technician Culley, which is the typical procedure.
Detective McCorkle testified that after obtaining the clear, plastic bag from
Roby, he immediately conducted a field test on the substance at the JEAN
office, sealed the bag marked with his initials, and placed it in the secured and
locked evidence room. The evidence was then sent via certified mail to the ISP
lab, where it was received on November 17, 2014, and stored in a secure
location until an analyst was ready to conduct testing.
[14] ISP forensic scientist, Kay testified that when she received the evidence, the bag
was sealed. No evidence was presented at trial suggesting that the alleged
cocaine evidence was opened or otherwise tampered with before it reached the
ISP lab. Further, both Detective McCorkle’s initial field test report and Kay’s
certificate of analysis indicate that the substance contained a cocaine base.
Court of Appeals of Indiana | Memorandum Decision 27A02-1507-CR-954 | April 14, 2016 Page 6 of 7 Roby has done nothing more than raise a mere possibility of someone
tampering with the evidence when it was sent via certified mail, and therefore
he has not rebutted the presumption of officer due care. For all of these reasons,
we cannot conclude that the trial court abused its discretion when it admitted
the evidence.
[15] The State established a sufficient chain of custody of the alleged cocaine
evidence, and the trial court did not err when it admitted the evidence
identifying the substance Detective McCorkle purchased from Roby as cocaine.
[16] Affirmed.
Vaidik, C.J., and Barnes, J., concur.
Court of Appeals of Indiana | Memorandum Decision 27A02-1507-CR-954 | April 14, 2016 Page 7 of 7