MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Aug 08 2019, 8:48 am regarded as precedent or cited before any court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Mark Small Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General Benjamin J. Shoptaw Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Jason L. Sowers, August 8, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-739 v. Appeal from the Clinton Superior Court State of Indiana, The Honorable Appellee-Plaintiff Justin H. Hunter, Judge Trial Court Cause No. 12D01-1612-F6-1116
Vaidik, Chief Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-739 | August 8, 2019 Page 1 of 6 Case Summary [1] Jason L. Sowers appeals his conviction for possession of cocaine as a Level 6
felony, arguing that the State failed to establish a proper chain of custody of the
purported cocaine and that therefore the trial court committed fundamental
error when it admitted certain evidence relating to the cocaine. We affirm.
Facts and Procedural History [2] In December 2016, Clinton County Sheriff’s Department deputies went to a
house in Frankfort to serve a warrant on Sowers. Deputies located Sowers at
the house and took him into custody. After Sowers was transported to the
Clinton County Jail, Officer Christopher Salaba searched him and found a clear
plastic bag containing a white powdery substance in Sowers’s jeans. Officer
Salaba handed the bag to Deputy Allen Donovan, who handed it to Deputy
Jared Yoder. Deputy Yoder then placed the bag in a manila envelope, sealed it,
printed his initials “JY” and the date “12/23/16” on the envelope, and secured
the bag in the evidence locker at the jail.
[3] The State charged Sowers with possession of cocaine as a Level 6 felony. In
March 2019, a jury trial was held. The State’s Exhibit 2 consisted of three
pictures: a picture of a clear plastic bag containing a white powdery substance, a
picture of the front side of a manila envelope used for evidence packaging, and
a picture of the back side of that envelope. That manila envelope has a bar-
code sticker attached to the front of it with “Indianapolis Laboratory” typed
Court of Appeals of Indiana | Memorandum Decision 19A-CR-739 | August 8, 2019 Page 2 of 6 above it and displays the initials “JY” and the date “12/23/16” on the back of
the envelope. See Ex. 2. When the State moved to admit Exhibit 2, Sowers’s
attorney stated, “I don’t have any objection to the admissibility of [Exhibit 2]
your Honor[,]” and the court admitted that exhibit. Tr. p. 113. The State’s
Exhibit 3 was a Certificate of Analysis signed by forensic scientist Hailey
Newton from the Indiana State Police Lab dated February 14, 2017, indicating
a positive test for cocaine. Again, Sowers made no objection, and the court
admitted the exhibit.
[4] The jury found Sowers guilty as charged, and the trial court sentenced him to
547 days executed in the Department of Correction.
[5] Sowers now appeals.
Discussion and Decision [6] Sowers contends that Exhibit 2 should not have been admitted because the
State failed to establish a proper chain of custody of the purported cocaine.
Sowers did not object to the admission of Exhibit 2 at trial, and he
acknowledges this on appeal. “The purpose of the contemporaneous objection
rule is to promote a fair trial by preventing a party from sitting idly by and
appearing to assent to an offer of evidence or ruling by the court only to cry foul
when the outcome goes against him.” Clark v. State, 6 N.E.3d 992, 998 (Ind. Ct.
App. 2014) (citations omitted). Therefore, when a defendant fails to object at
trial and raises a chain-of-custody argument for the first time on appeal, the
Court of Appeals of Indiana | Memorandum Decision 19A-CR-739 | August 8, 2019 Page 3 of 6 argument is waived unless the admission constitutes fundamental error. Troxell
v. State, 778 N.E.2d 811, 814 (Ind. 2002). Fundamental error is an extremely
narrow exception to our waiver rule, and the defendant is faced with 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). “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 a second bite at the apple for defense
counsel who ignorantly, carelessly, or strategically fail to preserve an error.” Id.
[7] Sowers argues that the trial court committed fundamental error when it
admitted Exhibit 2 because “the gaps in chain of custody were far more [than]
should be allowed[.]” Appellant’s Br. p. 11. “The purpose of requiring a
continuous chain of custody from seizure to admission at trial is to lay a proper
foundation connecting the evidence with the accused and to negate any
substantial likelihood of tampering, loss, substitution, or mistake.” Young v.
State, 508 N.E.2d 24, 26 (Ind. 1987). As the Indiana Supreme Court has
explained:
The State bears a higher burden to establish the chain of custody of “fungible” evidence, such as blood and hair samples, whose appearance is indistinguishable to the naked eye. To establish a proper chain of custody, the State must give reasonable assurances that the evidence remained in an undisturbed condition. However, the State need not establish a perfect chain of custody, and once the State “strongly suggests” the exact whereabouts of the evidence, any gaps go to the weight of the evidence and not to admissibility. Moreover, there is a Court of Appeals of Indiana | Memorandum Decision 19A-CR-739 | August 8, 2019 Page 4 of 6 presumption of regularity in the handling of evidence by officers, and there is a presumption that officers exercise due care in handling their duties.
Troxell, 778 N.E.2d at 814 (internal citations omitted).
[8] Here, even though Sowers never made any objection to the admission of
Exhibit 2, let alone a chain-of-custody objection, the State presented several
pieces of evidence relevant to the chain of custody. Officer Salaba testified that
he found a clear plastic bag on Sowers and handed it to Deputy Donovan, who
testified that he handed it to Deputy Yoder. Deputy Yoder testified that he
then secured the evidence in the evidence locker. Officer Salaba further testified
that the picture of the clear plastic bag in Exhibit 2 was consistent with what he
found on Sowers, and Deputy Yoder further testified that he recognized the
envelope in the pictures as the envelope he placed the clear plastic bag into,
that the initials “JY” on the envelope were his initials, that he wrote
“12/23/16” on the envelope to indicate the date that it was sealed, and that
only two detectives had access to the evidence locker when the purported
cocaine was being held there. Additionally, with respect to who handled the
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Aug 08 2019, 8:48 am regarded as precedent or cited before any court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Mark Small Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General Benjamin J. Shoptaw Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Jason L. Sowers, August 8, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-739 v. Appeal from the Clinton Superior Court State of Indiana, The Honorable Appellee-Plaintiff Justin H. Hunter, Judge Trial Court Cause No. 12D01-1612-F6-1116
Vaidik, Chief Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-739 | August 8, 2019 Page 1 of 6 Case Summary [1] Jason L. Sowers appeals his conviction for possession of cocaine as a Level 6
felony, arguing that the State failed to establish a proper chain of custody of the
purported cocaine and that therefore the trial court committed fundamental
error when it admitted certain evidence relating to the cocaine. We affirm.
Facts and Procedural History [2] In December 2016, Clinton County Sheriff’s Department deputies went to a
house in Frankfort to serve a warrant on Sowers. Deputies located Sowers at
the house and took him into custody. After Sowers was transported to the
Clinton County Jail, Officer Christopher Salaba searched him and found a clear
plastic bag containing a white powdery substance in Sowers’s jeans. Officer
Salaba handed the bag to Deputy Allen Donovan, who handed it to Deputy
Jared Yoder. Deputy Yoder then placed the bag in a manila envelope, sealed it,
printed his initials “JY” and the date “12/23/16” on the envelope, and secured
the bag in the evidence locker at the jail.
[3] The State charged Sowers with possession of cocaine as a Level 6 felony. In
March 2019, a jury trial was held. The State’s Exhibit 2 consisted of three
pictures: a picture of a clear plastic bag containing a white powdery substance, a
picture of the front side of a manila envelope used for evidence packaging, and
a picture of the back side of that envelope. That manila envelope has a bar-
code sticker attached to the front of it with “Indianapolis Laboratory” typed
Court of Appeals of Indiana | Memorandum Decision 19A-CR-739 | August 8, 2019 Page 2 of 6 above it and displays the initials “JY” and the date “12/23/16” on the back of
the envelope. See Ex. 2. When the State moved to admit Exhibit 2, Sowers’s
attorney stated, “I don’t have any objection to the admissibility of [Exhibit 2]
your Honor[,]” and the court admitted that exhibit. Tr. p. 113. The State’s
Exhibit 3 was a Certificate of Analysis signed by forensic scientist Hailey
Newton from the Indiana State Police Lab dated February 14, 2017, indicating
a positive test for cocaine. Again, Sowers made no objection, and the court
admitted the exhibit.
[4] The jury found Sowers guilty as charged, and the trial court sentenced him to
547 days executed in the Department of Correction.
[5] Sowers now appeals.
Discussion and Decision [6] Sowers contends that Exhibit 2 should not have been admitted because the
State failed to establish a proper chain of custody of the purported cocaine.
Sowers did not object to the admission of Exhibit 2 at trial, and he
acknowledges this on appeal. “The purpose of the contemporaneous objection
rule is to promote a fair trial by preventing a party from sitting idly by and
appearing to assent to an offer of evidence or ruling by the court only to cry foul
when the outcome goes against him.” Clark v. State, 6 N.E.3d 992, 998 (Ind. Ct.
App. 2014) (citations omitted). Therefore, when a defendant fails to object at
trial and raises a chain-of-custody argument for the first time on appeal, the
Court of Appeals of Indiana | Memorandum Decision 19A-CR-739 | August 8, 2019 Page 3 of 6 argument is waived unless the admission constitutes fundamental error. Troxell
v. State, 778 N.E.2d 811, 814 (Ind. 2002). Fundamental error is an extremely
narrow exception to our waiver rule, and the defendant is faced with 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). “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 a second bite at the apple for defense
counsel who ignorantly, carelessly, or strategically fail to preserve an error.” Id.
[7] Sowers argues that the trial court committed fundamental error when it
admitted Exhibit 2 because “the gaps in chain of custody were far more [than]
should be allowed[.]” Appellant’s Br. p. 11. “The purpose of requiring a
continuous chain of custody from seizure to admission at trial is to lay a proper
foundation connecting the evidence with the accused and to negate any
substantial likelihood of tampering, loss, substitution, or mistake.” Young v.
State, 508 N.E.2d 24, 26 (Ind. 1987). As the Indiana Supreme Court has
explained:
The State bears a higher burden to establish the chain of custody of “fungible” evidence, such as blood and hair samples, whose appearance is indistinguishable to the naked eye. To establish a proper chain of custody, the State must give reasonable assurances that the evidence remained in an undisturbed condition. However, the State need not establish a perfect chain of custody, and once the State “strongly suggests” the exact whereabouts of the evidence, any gaps go to the weight of the evidence and not to admissibility. Moreover, there is a Court of Appeals of Indiana | Memorandum Decision 19A-CR-739 | August 8, 2019 Page 4 of 6 presumption of regularity in the handling of evidence by officers, and there is a presumption that officers exercise due care in handling their duties.
Troxell, 778 N.E.2d at 814 (internal citations omitted).
[8] Here, even though Sowers never made any objection to the admission of
Exhibit 2, let alone a chain-of-custody objection, the State presented several
pieces of evidence relevant to the chain of custody. Officer Salaba testified that
he found a clear plastic bag on Sowers and handed it to Deputy Donovan, who
testified that he handed it to Deputy Yoder. Deputy Yoder testified that he
then secured the evidence in the evidence locker. Officer Salaba further testified
that the picture of the clear plastic bag in Exhibit 2 was consistent with what he
found on Sowers, and Deputy Yoder further testified that he recognized the
envelope in the pictures as the envelope he placed the clear plastic bag into,
that the initials “JY” on the envelope were his initials, that he wrote
“12/23/16” on the envelope to indicate the date that it was sealed, and that
only two detectives had access to the evidence locker when the purported
cocaine was being held there. Additionally, with respect to who handled the
manila envelope containing the clear plastic bag at the laboratory, the
Certificate of Analysis presented as Exhibit 3 at trial disclosed the findings of
the analysis and was signed by forensic scientist Hailey Newton. The
“Laboratory Case Number” on the Certificate of Analysis and the “Lab #” on
the bar-code sticker attached to the front of the manila envelope are identical:
17I-00454. See Exs. 2, 3. While there are gaps in the chain of custody, they
Court of Appeals of Indiana | Memorandum Decision 19A-CR-739 | August 8, 2019 Page 5 of 6 certainly are not so significant that the admission of Exhibit 2 constituted
fundamental error.1
[9] Affirmed.
Riley, J., and Bradford, J., concur.
1 The State contends that Sowers “stated that he had no objection to the admission of [Exhibit 2] when it was offered, and thus, he cannot claim now that it was fundamental error for the trial court to admit this exhibit.” Appellee’s Br. p. 6. The State cites Halliburton v. State, where the Indiana Supreme Court held that “the doctrine of fundamental error is inapplicable to the circumstances . . . [where a defendant makes] an express declaration of ‘no objection[.]’” 1 N.E.3d 670, 679 (Ind. 2013). However, this decision seems to be in conflict with the Court’s more recent decision in Batchelor v. State, 119 N.E.3d 550 (Ind. 2019). In any event, because we find no fundamental error, we need not reach this issue.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-739 | August 8, 2019 Page 6 of 6