Kenneth W. Kee v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: November 17, 2016
• Docket: 22A05-1512-CR-2151
• Status: Published

Opinion

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any Nov 17 2016, 7:38 am

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 Matthew J. McGovern Gregory F. Zoeller Anderson, Indiana Attorney General of Indiana George P. Sherman Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Kenneth W. Kee, November 17, 2016 Appellant-Defendant, Court of Appeals Case No. 22A05-1512-CR-2151 v. Appeal from the Floyd Superior Court State of Indiana, The Honorable Maria D. Granger, Appellee-Plaintiff Judge Trial Court Cause No. 22D03-1503-F4-496

Mathias, Judge.

Court of Appeals of Indiana | Memorandum Decision 22A05-1512-CR-2151 | November 17, 2016 Page 1 of 12 [1] Kenneth Kee was convicted in Floyd Superior Court of two counts of Level 4

dealing in methamphetamine. He was also adjudicated a habitual offender.

Kee appeals his conviction and raises three issues, which we restate as:

I. Whether Kee’s right to a speedy trial was violated;

II. Whether Kee was prejudiced when a police officer was allowed to testify that he knew Kee prior to his arrest because of other narcotic investigations; and

III. Whether the State presented sufficient evidence to prove the weight of the methamphetamine.

We affirm.

Facts and Procedural History

[2] In February 2015, Devan Philpott (“Philpott”) was arrested for possession of

methamphetamine by the Clarksville Police Department. Philpott asked to

become a confidential informant, and he was released from custody. On

February 23, 2015, he was interviewed by Indiana State Police Detective Barry

Brown (“Detective Brown”). Philpott identified Kee as his dealer, and

Detective Brown arranged a controlled buy between Philpott and Kee.

[3] Philpott and Kee agreed to meet at a Meijer store in New Albany. Philpott was

given $500 in buy money and told to make the exchange in the Meijer parking

lot. Philpott’s person and vehicle were searched, and he was equipped with a

recording device.

Court of Appeals of Indiana | Memorandum Decision 22A05-1512-CR-2151 | November 17, 2016 Page 2 of 12 [4] When Kee arrived, Philpott went inside the Meijer store with him. Eventually,

they went into a store bathroom where Kee left two baggies of

methamphetamine in a stall. Philpott retrieved the baggies as directed. He then

gave Kee $500: $240 for the two baggies of methamphetamine and $260 for a

prior debt.

[5] Next, Kee instructed Philpott to meet him at a gas station in New Albany

where he would give him more methamphetamine. At the gas station, Kee

threw another baggie into Phipott’s vehicle. Later testing revealed that the

combined weight of the three baggies of methamphetamine was 1.94 grams.

[6] Law enforcement officers arranged a second controlled buy on February 27,

2015. Once again, before the buy, the officers searched Philpott’s person and

vehicle. Philpott was given $260, and he was equipped with a recording device.

This time, Philpott met Kee in the driveway of Kee’s residence. Kee gave

Philpott three baggies containing methamphetamine in exchange for $260.

Later testing revealed the baggies contained a total of 1.59 grams of

methamphetamine.

[7] Kee was subsequently charged with two counts of Level 4 felony dealing in

methamphetamine. The State also alleged that Kee was a habitual offender.

Kee filed a speedy trial request, which was granted and trial was set for May 26,

2015. The State later requested a continuance under Criminal Rule 4(D) and

argued that certain evidence from the State Police Lab could not be obtained

before the trial date. Kee objected to the continuance. After a hearing was held

Court of Appeals of Indiana | Memorandum Decision 22A05-1512-CR-2151 | November 17, 2016 Page 3 of 12 on the motion, the trial court granted the motion and continued the trial to

August 25, 2015.

[8] Prior to trial, Kee again filed a motion for discharge arguing that he had been

denied his right to a speedy trial. The court denied the motion, and Kee’s four-

day jury trial commenced on August 25, 2015. He was found guilty as charged

on the dealing counts. On August 31, 2015, the habitual offender phase of trial

was held, and the jury determined that Kee was a habitual offender. At the

sentencing hearing held on November 6, 2015, the trial court ordered Kee to

serve an aggregate twenty-year sentence. Kee now appeals. Additional facts

will be provided as necessary.

I. Speedy Trial

[9] Kee moved for a speedy trial pursuant to Criminal Rule 4(B). This rule provides

in relevant part that:

If any defendant held in jail on an indictment or an affidavit shall move for an early trial, he shall be discharged if not brought to trial within seventy (70) calendar days from the date of such motion, except where a continuance within said period is had on his motion, or the delay is otherwise caused by his act, or where there was not sufficient time to try him during such seventy (70) calendar days because of the congestion of the court calendar.

Ind. Crim. R. 4(B).

[10] However, Criminal Rule 4(D) permits the State to request a continuance of the

70-day rule. Specifically, Criminal Rule 4(D) provides that a trial court may

Court of Appeals of Indiana | Memorandum Decision 22A05-1512-CR-2151 | November 17, 2016 Page 4 of 12 grant the State a continuance when it is satisfied that: (1) there is evidence for

the State that cannot then be had, (2) reasonable effort has been made by the

State to procure the evidence, and (3) there is just ground to believe that such

evidence can be had within ninety days. Chambers v. State, 848 N.E.2d 298, 303-

04 (Ind. Ct. App. 2006). Any exigent circumstances may warrant a reasonable

delay beyond the limitations of Criminal Rule 4. Id. at 304. The reasonableness

of such delay should be judged in the context of the particular case, and the

decision of the trial judge will not be disturbed except for an abuse of discretion.

Id. “‘Rule 4(D) does not mandate the evidence be essential or unique, only that

it be unavailable and that the State be entitled to present it.’” Wilhelmus v. State,

824 N.E.2d 405, 413 (Ind. Ct. App. 2005) (quoting Smith v. State, 502 N.E.2d

485, 488 (Ind. 1987)). The purpose of Criminal Rule 4(B) is to assure criminal

defendants speedy trials, not to provide them with a technical means of

avoiding trial. Id. at 412.

[11] The State requested a continuance of the May 2015 trial date because the

Indiana State Police Laboratory wanted additional DNA samples from the

possible participants of the controlled buy to conduct further analysis of the

baggies. The State was attempting to obtain the additional, requested DNA

samples when it filed its May 8 motion to continue the May 26 trial date. The

State also stated that the State Police Lab would need additional time to

conduct its DNA analysis. The State hoped the evidence would establish that

Kee handled the baggies because the video evidence did not establish that he

actually possessed them. Tr. p. 21.

Court of Appeals of Indiana | Memorandum Decision 22A05-1512-CR-2151 | November 17, 2016 Page 5 of 12 [12] It was within the trial court’s discretion to determine whether the State had

attempted to procure the evidence at issue but had not been able to do because

of time constraints. The State Police Lab was unable to perform the requested

analysis without additional DNA samples that the State needed time to

procure. The State Police Lab performed the additional analysis once the

samples were obtained. The State established that it did not have an

opportunity to obtain the evidence within the parameters established by

Criminal Rule 4(B). For these reasons, we conclude that the trial court properly

continued Kee’s trial pursuant to Criminal Rule 4(D).

II. Character Evidence

[13] Next, we address Kee’s claims that he was denied a fair trial because Detective

Brown testified that Kee was known to law enforcement officers prior to the

events that occurred in this case. Specifically, during Kee’s re-cross examination

of Detective Brown, Kee referenced the detective’s earlier testimony that he was

familiar with Kee before Philpott asked to be a confidential informant.

KEE: [H]ow did you become familiar with Kenny?

DETECTIVE: I knew him before. Once . . . the CI told me his name, I can go into that if you wish.

KEE: I would like that because you said earlier that you didn’t know anything about Kenny but . . . the confidential informant brought him to you.

Court of Appeals of Indiana | Memorandum Decision 22A05-1512-CR-2151 | November 17, 2016 Page 6 of 12 DETECTIVE: I knew who Kenny Kee was . . . from past, uh, knowing other narcotics officers and their dealings with Mr. Kee, that’s how I was familiar with him.

KEE: But you never tried to arrest him in the past?

DETECTIVE: No, I did not.

Tr. pp. 457-58.

[14] After Detective Brown’s testimony, Kee asked for a mistrial. The State argued

that Kee was not entitled to a mistrial because he elicited the testimony. The

trial court denied the motion for a mistrial but did admonish the jury that the

jurors should not consider Detective Brown’s testimony concerning how he

knew Kee and struck the testimony from the record. Tr. pp. 463-64.

[15] It is well-settled that a defendant may “open the door” to the admission of

evidence otherwise inadmissible under the rules of evidence. See Jackson v. State,

728 N.E.2d 147, 152 (Ind. 2000). Grounded in estoppel, the doctrine of invited

error provides “a party may not take advantage of an error that she commits,

invites, or which is the natural consequence of her own neglect or misconduct.”

Wright v. State, 828 N.E.2d 904, 907 (Ind. 2005). In other words, “[d]efendants

cannot complain of errors that they induced the trial court to make; a party may

not invite error and then rely on such error as a reason for reversal, because

error invited by the complaining party is not reversible error.” Berry v. State, 574

N.E.2d 960, 963 (Ind. Ct. App. 1991), trans. denied; see also Cole v. State, 970

Court of Appeals of Indiana | Memorandum Decision 22A05-1512-CR-2151 | November 17, 2016 Page 7 of 12 N.E.2d 779, 783 (Ind. Ct. App. 2012) (stating that we will not reverse a

conviction on the basis of invited error).

[16] Kee invited error by eliciting the testimony at issue, and then requested a

mistrial after he introduced the error into the proceedings. The trial court

appropriately denied Kee’s motion. Also, recognizing the potentially prejudicial

nature of the detective’s testimony, the trial court admonished the jury and

struck the testimony from the record.1 A timely and accurate admonition is

presumed to cure any error in the admission of evidence. Banks v. State, 761

N.E.2d 403, 405 (Ind. 2002).

[17] Kee also failed to object to Detective Brown’s testimony during direct

examination that he was familiar with Kee. Tr. pp. 134, 292, 302. Specifically,

Detective Brown stated that when Philpott approached him about becoming a

confidential informant, Philpott “mentioned the name Kenneth Kee, who I was

familiar with” and that he was “familiar with Mr. Kee prior to the drug

transaction.” Tr. pp. 134, 292. Because Kee failed to object to these statements,

he did not preserve this issue for appeal. However, a claim waived by a

defendant's failure to object can be reviewed on appeal under the fundamental

error doctrine. See Delarosa v. State, 938 N.E.2d 690, 694 (Ind. 2010).

1 When the court admonished the jury, it mistakenly referred to Detective Brown’s testimony concerning how he knew “Philpott.” The reference to Philpott was a simple misstatement, and in the context in which the admonition was given, we are confident the jury knew the trial court meant to refer to Kee.

Court of Appeals of Indiana | Memorandum Decision 22A05-1512-CR-2151 | November 17, 2016 Page 8 of 12 [18] “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).

[19] Detective Brown’s vague testimony that he was familiar with Kee did not

prejudice Kee to the extent to deny him a fair trial, particularly when this

testimony is considered against the weight of the evidence that Kee committed

dealing in methamphetamine. For all of these reasons, we conclude that Kee

has not established reversible error concerning Detective Brown’s challenged

testimony that he knew Kee prior to the commission of these offenses.

III. Weight of the Methamphetamine

[20] Finally, Kee argues that the State failed to present sufficient evidence that Kee

committing dealing in methamphetamine weighing at least one gram but less

than five grams because the State failed to prove that the scale used to weigh the

drug was tested for accuracy. When reviewing the sufficiency of the evidence to

support a conviction, appellate courts are “markedly deferential to the outcome

below.” Bowman v. State, 51 N.E.3d 1174, 1181 (Ind. 2016). Our court neither

reweighs the evidence nor judges the credibility of the witnesses, and we

consider only the evidence most favorable to the verdict and the reasonable Court of Appeals of Indiana | Memorandum Decision 22A05-1512-CR-2151 | November 17, 2016 Page 9 of 12 inferences that can be drawn from this evidence. Knight v. State, 42 N.E.3d 990,

993 (Ind. Ct. App. 2015). We will not disturb the jury’s verdict if substantial

evidence of probative value supports it. Id. As an appellate court, we respect the

jury’s exclusive province to weigh conflicting evidence. Id.

[21] Although the State bears the burden to establish that the scale used to measure

the weight of the methamphetamine was properly calibrated, the accuracy of

the scale used to weigh the methamphetamine is foundational evidence. See

Turner v. State, 878 N.E.2d 286, 294 (Ind. Ct. App. 2007), trans. denied; Guadian

v. State, 743 N.E.2d 1251. 1255 (Ind. Ct. App. 2001), trans. denied (explaining

“in other words, the scale’s accuracy is foundational evidence; it is not an

element of the crime”).

[22] “When the foundation for the admission of evidence is at issue, this court has

determined that before the prosecution has any responsibility to establish the

foundation, the defense must object that the prosecution has not laid the proper

foundation.” Turner, 878 N.E.2d at 294.

“[A] defendant may not sit idly by while error is committed and later take advantage of it, where a proper objection made at trial could have corrected the error. . . . Had objection been made to the lack of a proper foundation in this case, such foundation could then have been supplied.”

Guadian,743 N.E.2d at 1254 (quoting Mullins v. State, 646 N.E.2d 40, 48 (Ind.

1995)).

Court of Appeals of Indiana | Memorandum Decision 22A05-1512-CR-2151 | November 17, 2016 Page 10 of 12 [23] Because Kee failed to object to admission of the evidence establishing the

weight of the methamphetamine, the trial court properly admitted the evidence

even though the State failed to elicit testimony about the calibration of the

scale. See Turner, 878 N.E.2d at 294.

[24] The weight of the methamphetamine at issue in this case is important because

Kee was charged with two counts of Level 4 felony dealing in

methamphetamine in a weight between one gram but less than five grams. See

Ind. Code 35-48-4-1.1; Appellant’s App. pp. 27. The weight of the baggies was

1.94 grams of methamphetamine and 1.59 grams of methamphetamine,

respectively.

[25] The weight of the methamphetamine would not have been readily apparent to

the jury, and specifically that the weight was between one gram and five grams.

Therefore, the only evidence to establish the weight of the methamphetamine

was the testimony and certificate of analysis admitted during the State Police’s

forensic scientist’s testimony. However, Kee only speculates that the weight of

the methamphetamine might not have been at least one gram. Also, the forensic

scientist, who has over thirty years of experience, explained how the

methamphetamine was weighed. Tr. pp. 577-82. For these reasons, we

conclude that the jury could reasonably infer that the State presented sufficient

evidence to prove that the weight of the methamphetamine for both offenses

was over one gram.

Court of Appeals of Indiana | Memorandum Decision 22A05-1512-CR-2151 | November 17, 2016 Page 11 of 12 Conclusion

[26] Kee has not established any reversible error concerning his right to a speedy

trial, Detective Brown’s testimony, and his claim that the State failed to prove

the weight of the methamphetamine at issue. We therefore affirm his two Level

4 felony dealing in methamphetamine convictions.

[27] Affirmed.

Robb, J., and Brown, J., concur.

Court of Appeals of Indiana | Memorandum Decision 22A05-1512-CR-2151 | November 17, 2016 Page 12 of 12