Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Apr 30 2014, 10:07 am 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:
STACY R. ULIANA GREGORY F. ZOELLER Bargersville, Indiana Attorney General of Indiana
CHANDRA K. HEIN Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
KRISTIN A. HOUSSAIN, ) ) Appellant-Defendant, ) ) vs. ) No. 89A04-1307-CR-330 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE WAYNE SUPERIOR COURT The Honorable Charles K. Todd, Judge Cause No. 89D01-1105-FC-30
April 30, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
PYLE, Judge STATEMENT OF THE CASE
In this interlocutory appeal, Kristin Houssain (“Houssain”) appeals the trial court’s
denial of her motion to dismiss her charges of forgery1 and attempting to obtain a
controlled substance by fraud.2
We affirm.
ISSUE
Whether the trial court erred in denying Houssain’s motion to dismiss.
FACTS
On March 10, 2011, Lori Hamilton (“Hamilton”), a pharmacy technician at a
Kroger Pharmacy in Richmond, Indiana, received a prescription that appeared to be
altered. Nurse practitioner Debbie Sexton (“Sexton”) wrote the prescription for Houssain
for 2.5 milligrams of hydrocodone. Hamilton noticed that prescription had been
vigorously underlined so that dosage would appear as 7.5 milligrams of hydrocodone.
Hamilton asked her colleague, Valerie Napier (“Napier”), to look at the prescription, and
Napier agreed that the prescription appeared to be altered. Hamilton and Napier testified
that they had never seen Sexton draw dark underlines on previous prescriptions.
Hamilton then contacted Sexton, who in turn contacted Detective Jon Chilcoate
(“Detective Chilcoate”), an investigator with the Richmond Police Department. Sexton
asked Detective Chilcoate to investigate the prescription submitted to the Kroger
Pharmacy.
1 Ind. Code § 35-43-5-2(b)(3). 2 I. C. §§ 35-41-5-1; 35-48-4-14(c). 2 Detective Chilcoate immediately went to the Kroger Pharmacy and spoke with
Tom Payton (“Payton”), the pharmacist on duty. Payton showed Detective Chilcoate the
original prescription with the questioned alterations. Detective Chilcoate made a copy of
the prescription, leaving the original at the pharmacy. Detective Chilcoate then went to
Sexton’s office to speak with her.
Detective Chilcoate showed Sexton the prescription submitted to the pharmacy
and asked her if she had made the markings in question. Sexton replied no and showed
Detective Chilcoate the prescription she had written for Houssain. Sexton keeps copies
of all prescriptions that she writes. Detective Chilcoate made a copy of the unaltered
prescription for his file.
On May 16, 2011, the State charged Houssain with forgery, a Class C felony, and
attempting to obtain a controlled substance by fraud, a Class D felony. On November 8,
2012, Houssain filed a motion to dismiss the charges. Alternatively, Houssain’s motion
requested that the trial court preclude the State from introducing testimony or evidence
relating to lost or destroyed evidence. Houssain filed her motion because the Kroger
pharmacy lost or destroyed the original prescription submitted.3
On February 13, 2013, the trial court held a hearing on the motion to dismiss.
Houssain presented testimony from Jim Steffen (“Steffen”), a forensic document
examiner. Steffen testified that there was clearly an alteration between the prescription
Sexton wrote and the prescription submitted to Kroger. However, he stated that had he
had access to the original prescription, he would have been able to conduct additional 3 Payton died during the pendency of this case. In a letter to Houssain’s attorney, the deputy prosecutor stated that Kroger may have purged many documents retained by Payton after his death. 3 tests to determine whether the alterations were purposeful or accidental. In addition,
Steffen testified that it was entirely possible that the original prescription had been
purposefully altered and the original could be inculpatory of Houssain’s guilt. He also
stated that even if he were able to determine whether the alterations were purposeful or
accidental, he would have no way of determining who actually altered the original
prescription.
On May 8, 2013, the trial court entered an order denying Houssain’s motion to
dismiss. Houssain filed a motion to certify the trial court’s order for interlocutory appeal
on July 10, 2013. The trial court granted the motion and certified its order. Thereafter,
we accepted jurisdiction.
DECISION
Houssain claims that the trial court erred in denying her motion to dismiss.
Specifically, she argues that she was entitled to dismissal because the lost or destroyed
evidence in question is materially exculpatory and that the State failed to preserve it. The
State counters that the original prescription was potentially useful, rather than materially
exculpatory, evidence.
We review a trial court’s denial of a motion to dismiss for an abuse of discretion.
Filice v. State, 886 N.E.2d 24, 32 (Ind. Ct. App. 2008), trans. denied. An abuse of
discretion occurs where the trial court’s decision is clearly against the logic and effect of
the facts and circumstances or when the trial court has misinterpreted the law. Id.4
4 Houssain, relying on our Indiana Supreme Court’s decision in Austin v. State, 997 N.E.2d 1027 (Ind. 2013), claims that our standard of review should be de novo. Even if we reviewed Houssain’s claim de novo, we would have reached the same conclusion. 4 The defendant in a criminal case has the right to examine physical evidence
possessed by the State. Roberson v. State, 766 N.E.2d 1185, 1187 (Ind. Ct. App. 2002),
trans. denied. The failure of the State to preserve such evidence may present grounds for
dismissal of charges based on the denial of due process of law. Id.
Whether a defendant’s due process rights have been violated by the State’s failure
to preserve evidence depends on whether the evidence in question was “potentially useful
evidence” or “material exculpatory evidence.” Samek v. State, 688 N.E.2d 1286, 1288
(Ind. Ct. App. 1997) (citing Arizona v. Youngblood, 488 U.S. 51, 57, (1988)), reh’g
denied, trans. denied. When claiming that a due process violation has occurred when the
evidence in question is “potentially useful evidence,” a defendant must show that the
State’s failure to preserve the evidence was committed in bad faith. Id. When the
evidence in question is “material exculpatory evidence,” the State’s good or bad faith
actions are irrelevant. Id.
Potentially useful evidence has been described as “evidentiary material of which
no more can be said that it could have been subjected to tests, the results of which might
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Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Apr 30 2014, 10:07 am 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:
STACY R. ULIANA GREGORY F. ZOELLER Bargersville, Indiana Attorney General of Indiana
CHANDRA K. HEIN Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
KRISTIN A. HOUSSAIN, ) ) Appellant-Defendant, ) ) vs. ) No. 89A04-1307-CR-330 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE WAYNE SUPERIOR COURT The Honorable Charles K. Todd, Judge Cause No. 89D01-1105-FC-30
April 30, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
PYLE, Judge STATEMENT OF THE CASE
In this interlocutory appeal, Kristin Houssain (“Houssain”) appeals the trial court’s
denial of her motion to dismiss her charges of forgery1 and attempting to obtain a
controlled substance by fraud.2
We affirm.
ISSUE
Whether the trial court erred in denying Houssain’s motion to dismiss.
FACTS
On March 10, 2011, Lori Hamilton (“Hamilton”), a pharmacy technician at a
Kroger Pharmacy in Richmond, Indiana, received a prescription that appeared to be
altered. Nurse practitioner Debbie Sexton (“Sexton”) wrote the prescription for Houssain
for 2.5 milligrams of hydrocodone. Hamilton noticed that prescription had been
vigorously underlined so that dosage would appear as 7.5 milligrams of hydrocodone.
Hamilton asked her colleague, Valerie Napier (“Napier”), to look at the prescription, and
Napier agreed that the prescription appeared to be altered. Hamilton and Napier testified
that they had never seen Sexton draw dark underlines on previous prescriptions.
Hamilton then contacted Sexton, who in turn contacted Detective Jon Chilcoate
(“Detective Chilcoate”), an investigator with the Richmond Police Department. Sexton
asked Detective Chilcoate to investigate the prescription submitted to the Kroger
Pharmacy.
1 Ind. Code § 35-43-5-2(b)(3). 2 I. C. §§ 35-41-5-1; 35-48-4-14(c). 2 Detective Chilcoate immediately went to the Kroger Pharmacy and spoke with
Tom Payton (“Payton”), the pharmacist on duty. Payton showed Detective Chilcoate the
original prescription with the questioned alterations. Detective Chilcoate made a copy of
the prescription, leaving the original at the pharmacy. Detective Chilcoate then went to
Sexton’s office to speak with her.
Detective Chilcoate showed Sexton the prescription submitted to the pharmacy
and asked her if she had made the markings in question. Sexton replied no and showed
Detective Chilcoate the prescription she had written for Houssain. Sexton keeps copies
of all prescriptions that she writes. Detective Chilcoate made a copy of the unaltered
prescription for his file.
On May 16, 2011, the State charged Houssain with forgery, a Class C felony, and
attempting to obtain a controlled substance by fraud, a Class D felony. On November 8,
2012, Houssain filed a motion to dismiss the charges. Alternatively, Houssain’s motion
requested that the trial court preclude the State from introducing testimony or evidence
relating to lost or destroyed evidence. Houssain filed her motion because the Kroger
pharmacy lost or destroyed the original prescription submitted.3
On February 13, 2013, the trial court held a hearing on the motion to dismiss.
Houssain presented testimony from Jim Steffen (“Steffen”), a forensic document
examiner. Steffen testified that there was clearly an alteration between the prescription
Sexton wrote and the prescription submitted to Kroger. However, he stated that had he
had access to the original prescription, he would have been able to conduct additional 3 Payton died during the pendency of this case. In a letter to Houssain’s attorney, the deputy prosecutor stated that Kroger may have purged many documents retained by Payton after his death. 3 tests to determine whether the alterations were purposeful or accidental. In addition,
Steffen testified that it was entirely possible that the original prescription had been
purposefully altered and the original could be inculpatory of Houssain’s guilt. He also
stated that even if he were able to determine whether the alterations were purposeful or
accidental, he would have no way of determining who actually altered the original
prescription.
On May 8, 2013, the trial court entered an order denying Houssain’s motion to
dismiss. Houssain filed a motion to certify the trial court’s order for interlocutory appeal
on July 10, 2013. The trial court granted the motion and certified its order. Thereafter,
we accepted jurisdiction.
DECISION
Houssain claims that the trial court erred in denying her motion to dismiss.
Specifically, she argues that she was entitled to dismissal because the lost or destroyed
evidence in question is materially exculpatory and that the State failed to preserve it. The
State counters that the original prescription was potentially useful, rather than materially
exculpatory, evidence.
We review a trial court’s denial of a motion to dismiss for an abuse of discretion.
Filice v. State, 886 N.E.2d 24, 32 (Ind. Ct. App. 2008), trans. denied. An abuse of
discretion occurs where the trial court’s decision is clearly against the logic and effect of
the facts and circumstances or when the trial court has misinterpreted the law. Id.4
4 Houssain, relying on our Indiana Supreme Court’s decision in Austin v. State, 997 N.E.2d 1027 (Ind. 2013), claims that our standard of review should be de novo. Even if we reviewed Houssain’s claim de novo, we would have reached the same conclusion. 4 The defendant in a criminal case has the right to examine physical evidence
possessed by the State. Roberson v. State, 766 N.E.2d 1185, 1187 (Ind. Ct. App. 2002),
trans. denied. The failure of the State to preserve such evidence may present grounds for
dismissal of charges based on the denial of due process of law. Id.
Whether a defendant’s due process rights have been violated by the State’s failure
to preserve evidence depends on whether the evidence in question was “potentially useful
evidence” or “material exculpatory evidence.” Samek v. State, 688 N.E.2d 1286, 1288
(Ind. Ct. App. 1997) (citing Arizona v. Youngblood, 488 U.S. 51, 57, (1988)), reh’g
denied, trans. denied. When claiming that a due process violation has occurred when the
evidence in question is “potentially useful evidence,” a defendant must show that the
State’s failure to preserve the evidence was committed in bad faith. Id. When the
evidence in question is “material exculpatory evidence,” the State’s good or bad faith
actions are irrelevant. Id.
Potentially useful evidence has been described as “evidentiary material of which
no more can be said that it could have been subjected to tests, the results of which might
have exonerated the defendant.” Youngblood, 488 U.S. at 57. Material exculpatory
evidence “must possess an exculpatory value that was apparent before the evidence was
destroyed, and be of a nature that the defendant would be unable to obtain comparable
evidence by other reasonably available means.” California v. Trombetta, 467 U.S. 479,
489 (1984).
Houssain urges us to reverse the trial court by comparing the facts in her case to
our decision in Roberson. In Roberson, Madison County jail officers confiscated a
5 wooden food spreader available to prisoners through the jail’s commissary. Roberson,
766 N.E.2d at 1186. The spreader, similar to a tongue depressor, had been split long-
ways, exposing rough edges. Id. The jail officers stated that the edges appeared to have
been shaped to a point. Id. Roberson was disciplined internally by the jail, and the State
charged Roberson with possession of a dangerous device by a prisoner. Id. During the
pendency of the case, the spreader confiscated from Roberson was destroyed by jail
officials. Id. Only a blurry photograph of the spreader remained. Id.
After finding out that the spreader had been destroyed, Roberson made an oral
motion to dismiss the charges, claiming that he could not prepare a defense because the
condition of the spreader was crucial to his case. Id. The trial court held a hearing and,
after acknowledging that it was a “close case” and that the issue was “ripe for appellate
review,” denied Roberson’s motion to dismiss. Id. at 1187.
Upon interlocutory review, we reversed the trial court and held that the evidence
in question was materially exculpatory because (1) the spreader was Roberson’s sole
basis of his defense, and he could not secure comparable evidence; and (2) under the
specific circumstances of that case, a trier-of-fact could have examined the spreader and
reached a different conclusion regarding its intended use, giving it an exculpatory value,
albeit tenuous. Id. at 1189-90.
However, our decision in Roberson is distinguishable from Houssain’s case.
Unlike Roberson, the prescription submitted is not the sole basis of Houssain’s defense.
For example, Houssain claims that “[f]rom the original prescription, [she] could argue
that the markings were not made with the intent to change the dosage of the prescription,
6 but rather were made innocently or not even by her.” (Houssain’s Br. 12). Yet, Steffen,
Houssain’s expert, made the same observations during his testimony having only
examined the copies of the prescription. In addition, Houssain states that “the pressure
applied[,] the color of the pen, the existence of other markings or writings on the original
all must be considered to determine the intent behind the markings. They would be
readily apparent before its destruction.” Id. However, Steffen testified that “if [he] had
had the original [prescription], [he] would have examined it more thoroughly
microscopically to determine if the paper had been tampered with.” (Tr. 83) (emphasis
added). Given that Steffen articulated some of Houssain’s possible defenses using
photocopies of the prescription and the fact that he would have performed more testing,
the original prescription submitted is, at most, potentially useful evidence and not
materially exculpatory.
As stated previously, the State’s failure to preserve potentially useful evidence
does not constitute a denial of due process of law unless a criminal defendant shows bad
faith on the part of the State. Samek, 688 N.E.2d at 1288. Houssain, however, does not
allege bad faith on the part of the State.5 Accordingly, Houssain’s right to due process of
law was not violated, and the trial court did not err in denying her motion to dismiss.
Affirmed.
MATHIAS, J., and BRADFORD, J., concur.
5 “Houssain has not raised on appeal that the State’s failure to preserve the original prescription rises to the level of bad faith.” (Houssain’s Br. 7). 7