MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Feb 24 2015, 5:57 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 ATTORNEY FOR APPELLEE Craig Persinger Gregory F. Zoeller Marion, Indiana Attorney General of Indiana George P. Sherman Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Nathan C. Cook, February 24, 2015
Appellant-Defendant, Court of Appeals Case No. 27A02-1403-CR-00211 v. Appeal from the Grant Superior Court
State of Indiana, The Honorable Randall L. Johnson, Judge, and the Honorable Dana J. Appellee-Plaintiff Kenworthy, Judge Case No. 27D02-0703-FA-32
Mathias, Judge.
[1] Nathan Cook (“Cook”) was convicted in Grant Superior Court of Class A
felony dealing in cocaine in an amount over three grams and Class A felony
conspiracy to deal in cocaine. The trial court sentenced Cook to an aggregate
Court of Appeals of Indiana | Memorandum Decision 27A02-1403-CR-00211 | February 24, 2015 Page 1 of 8 term of fifty years executed in the Department of Correction. Cook appeals and
presents two issues, which we restate as:
I. Whether, because a portion of the transcript is unavailable, Cook is
entitled to a new trial; and
II. Whether the sentence imposed by the trial court is inappropriate in
light of the nature of the offense and the character of the offender.
[2] We affirm.
Facts and Procedural History
[3] On April 20, 2006, undercover Marion Police Officer Robert Moore (“Officer
Moore”) arrived at a Marion residence after arranging with Gary Brown
(“Brown”) to purchase cocaine in a controlled buy. Cook, who was also at the
residence, placed the cocaine on a digital scale. The scale indicated that the
cocaine weighed over twenty grams. The men agreed to a price for the cocaine,
and Officer Moore handed Cook $700. Cook placed the cocaine in a plastic
baggie and gave the baggie to Officer Moore.
[4] Officer Moore then met Grant County Sherriff’s Deputy Tom Fleece (“Deputy
Fleece”) at another location and gave him the baggie of cocaine he had
purchased from Cook. Tests performed at the Indiana State Police Lab
determined that the substance was cocaine, with a net weight of 17.98 grams.
[5] On March 5, 2007, the State charged Cook with Class A felony dealing in
cocaine and Class A felony conspiracy to commit dealing in cocaine. A jury
Court of Appeals of Indiana | Memorandum Decision 27A02-1403-CR-00211 | February 24, 2015 Page 2 of 8 trial was held from April 13 to April 15, 2009. Officer Moore testified at trial,
but it was later discovered that approximately seventeen minutes of his
testimony was not recorded because of a malfunction in the courtroom’s
recording equipment.
[6] After the first day of the trial, Cook failed to appear, and his defense counsel
could not locate him. Cook was tried in absentia and found guilty of both
counts. Nearly five years later, on February 14, 2014, Cook, who had been
living in Minnesota under a false identity, was arrested for driving while
impaired. Authorities in Minnesota discovered the arrest warrant that had been
issued after Cook failed to appear for his trial and Cook was arrested. The trial
court held Cook’s sentencing hearing on March 17, 2014, after which it ordered
Cook to serve two concurrent terms of fifty years in the Department of
Correction.
[7] Cook filed his Notice of Appeal, and pursuant to Appellate Rule 31,1 the trial
court held a hearing on the missing portion of the record containing Officer
Moore’s testimony. Cook submitted a statement of the evidence, which
included the court reporter’s log notes containing summaries of Officer Moore’s
testimony. The log notes indicated that during Officer Moore’s testimony,
Cook made an objection challenging the accuracy of one of the scales used to
1 Indiana Appellate Rule 31 provides:
If no Transcript of all or part of the evidence is available, a party or the party’s attorney may prepare a verified statement of the evidence from the best available sources, which may include the party's or the attorney’s recollection. The party shall then file a motion to certify the statement of evidence with the trial court or Administrative Agency. The statement of evidence shall be attached to the motion.
Court of Appeals of Indiana | Memorandum Decision 27A02-1403-CR-00211 | February 24, 2015 Page 3 of 8 measure the drugs Cook sold to Officer Moore. The log notes also show that
Cook’s objection was overruled. Cook’s statement of the evidence noted that
both the deputy prosecutor assigned to the case and Cook’s defense counsel had
submitted affidavits stating that they had no recollection of the substance of
Officer Moore’s testimony.
I. The Missing Testimony
[8] Cook first argues that he “is entitled to retrial because appellate review of a key
issue is not possible due to a failure to record a 17 minute portion of the
testimony of a key State’s witness.” Appellant’s Br. at 6. He notes that now, five
years after the trial, neither his defense counsel nor the State can recall the
relevant details of Officer Moore’s testimony. Of course, Cook himself cannot
remember the officer’s testimony since he failed to appear after the first day of
his trial. Cook contends that Officer Moore’s testimony and Cook’s objection to
the accuracy of the scale used to measure the drugs Cook sold to Officer Moore
“[go] directly to an element of both crimes which Cook was convicted of” and
that “[w]ithout proof of those elements beyond a reasonable doubt, Cook
would have been acquitted.” Id. at 8.
[9] We disagree. A new trial is appropriate where there is “no usable transcript
available for appeal.” Gallagher v. State, 274 Ind. 235, 410 N.E.2d 1290, 1292
(1980). However, here, although a portion of the transcript containing Officer
Moore’s testimony is missing, the record contains ample evidence to support
Cook’s convictions. Brown testified that he observed Cook placing the cocaine
on a digital scale, which indicated that the cocaine weighed over twenty grams, Court of Appeals of Indiana | Memorandum Decision 27A02-1403-CR-00211 | February 24, 2015 Page 4 of 8 and a forensic chemist from the Indiana State Police lab testified that the
cocaine Cook sold to Officer Moore weighed 17.98 grams.
[10] Furthermore, even if this court had before it a full record of Cook’s objection to
Officer Moore’s testimony concerning the accuracy of the scales, and even if we
determined that the trial court abused its discretion in admitting the testimony
over Cook’s objection, the error would be harmless. “Generally, errors in the
admission of evidence are to be disregarded unless they affect the substantial
rights of a party.” Turner v. State, 953 N.E.2d 1039, 1059 (Ind. 2011). Here,
Brown testified that he observed Cook sell what he believed was over 20 grams
of cocaine to Officer Moore. Forensic chemist Kristi Long from the Indiana
State Police laboratory testified that the cocaine had a net weight of 17.98
grams.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Feb 24 2015, 5:57 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 ATTORNEY FOR APPELLEE Craig Persinger Gregory F. Zoeller Marion, Indiana Attorney General of Indiana George P. Sherman Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Nathan C. Cook, February 24, 2015
Appellant-Defendant, Court of Appeals Case No. 27A02-1403-CR-00211 v. Appeal from the Grant Superior Court
State of Indiana, The Honorable Randall L. Johnson, Judge, and the Honorable Dana J. Appellee-Plaintiff Kenworthy, Judge Case No. 27D02-0703-FA-32
Mathias, Judge.
[1] Nathan Cook (“Cook”) was convicted in Grant Superior Court of Class A
felony dealing in cocaine in an amount over three grams and Class A felony
conspiracy to deal in cocaine. The trial court sentenced Cook to an aggregate
Court of Appeals of Indiana | Memorandum Decision 27A02-1403-CR-00211 | February 24, 2015 Page 1 of 8 term of fifty years executed in the Department of Correction. Cook appeals and
presents two issues, which we restate as:
I. Whether, because a portion of the transcript is unavailable, Cook is
entitled to a new trial; and
II. Whether the sentence imposed by the trial court is inappropriate in
light of the nature of the offense and the character of the offender.
[2] We affirm.
Facts and Procedural History
[3] On April 20, 2006, undercover Marion Police Officer Robert Moore (“Officer
Moore”) arrived at a Marion residence after arranging with Gary Brown
(“Brown”) to purchase cocaine in a controlled buy. Cook, who was also at the
residence, placed the cocaine on a digital scale. The scale indicated that the
cocaine weighed over twenty grams. The men agreed to a price for the cocaine,
and Officer Moore handed Cook $700. Cook placed the cocaine in a plastic
baggie and gave the baggie to Officer Moore.
[4] Officer Moore then met Grant County Sherriff’s Deputy Tom Fleece (“Deputy
Fleece”) at another location and gave him the baggie of cocaine he had
purchased from Cook. Tests performed at the Indiana State Police Lab
determined that the substance was cocaine, with a net weight of 17.98 grams.
[5] On March 5, 2007, the State charged Cook with Class A felony dealing in
cocaine and Class A felony conspiracy to commit dealing in cocaine. A jury
Court of Appeals of Indiana | Memorandum Decision 27A02-1403-CR-00211 | February 24, 2015 Page 2 of 8 trial was held from April 13 to April 15, 2009. Officer Moore testified at trial,
but it was later discovered that approximately seventeen minutes of his
testimony was not recorded because of a malfunction in the courtroom’s
recording equipment.
[6] After the first day of the trial, Cook failed to appear, and his defense counsel
could not locate him. Cook was tried in absentia and found guilty of both
counts. Nearly five years later, on February 14, 2014, Cook, who had been
living in Minnesota under a false identity, was arrested for driving while
impaired. Authorities in Minnesota discovered the arrest warrant that had been
issued after Cook failed to appear for his trial and Cook was arrested. The trial
court held Cook’s sentencing hearing on March 17, 2014, after which it ordered
Cook to serve two concurrent terms of fifty years in the Department of
Correction.
[7] Cook filed his Notice of Appeal, and pursuant to Appellate Rule 31,1 the trial
court held a hearing on the missing portion of the record containing Officer
Moore’s testimony. Cook submitted a statement of the evidence, which
included the court reporter’s log notes containing summaries of Officer Moore’s
testimony. The log notes indicated that during Officer Moore’s testimony,
Cook made an objection challenging the accuracy of one of the scales used to
1 Indiana Appellate Rule 31 provides:
If no Transcript of all or part of the evidence is available, a party or the party’s attorney may prepare a verified statement of the evidence from the best available sources, which may include the party's or the attorney’s recollection. The party shall then file a motion to certify the statement of evidence with the trial court or Administrative Agency. The statement of evidence shall be attached to the motion.
Court of Appeals of Indiana | Memorandum Decision 27A02-1403-CR-00211 | February 24, 2015 Page 3 of 8 measure the drugs Cook sold to Officer Moore. The log notes also show that
Cook’s objection was overruled. Cook’s statement of the evidence noted that
both the deputy prosecutor assigned to the case and Cook’s defense counsel had
submitted affidavits stating that they had no recollection of the substance of
Officer Moore’s testimony.
I. The Missing Testimony
[8] Cook first argues that he “is entitled to retrial because appellate review of a key
issue is not possible due to a failure to record a 17 minute portion of the
testimony of a key State’s witness.” Appellant’s Br. at 6. He notes that now, five
years after the trial, neither his defense counsel nor the State can recall the
relevant details of Officer Moore’s testimony. Of course, Cook himself cannot
remember the officer’s testimony since he failed to appear after the first day of
his trial. Cook contends that Officer Moore’s testimony and Cook’s objection to
the accuracy of the scale used to measure the drugs Cook sold to Officer Moore
“[go] directly to an element of both crimes which Cook was convicted of” and
that “[w]ithout proof of those elements beyond a reasonable doubt, Cook
would have been acquitted.” Id. at 8.
[9] We disagree. A new trial is appropriate where there is “no usable transcript
available for appeal.” Gallagher v. State, 274 Ind. 235, 410 N.E.2d 1290, 1292
(1980). However, here, although a portion of the transcript containing Officer
Moore’s testimony is missing, the record contains ample evidence to support
Cook’s convictions. Brown testified that he observed Cook placing the cocaine
on a digital scale, which indicated that the cocaine weighed over twenty grams, Court of Appeals of Indiana | Memorandum Decision 27A02-1403-CR-00211 | February 24, 2015 Page 4 of 8 and a forensic chemist from the Indiana State Police lab testified that the
cocaine Cook sold to Officer Moore weighed 17.98 grams.
[10] Furthermore, even if this court had before it a full record of Cook’s objection to
Officer Moore’s testimony concerning the accuracy of the scales, and even if we
determined that the trial court abused its discretion in admitting the testimony
over Cook’s objection, the error would be harmless. “Generally, errors in the
admission of evidence are to be disregarded unless they affect the substantial
rights of a party.” Turner v. State, 953 N.E.2d 1039, 1059 (Ind. 2011). Here,
Brown testified that he observed Cook sell what he believed was over 20 grams
of cocaine to Officer Moore. Forensic chemist Kristi Long from the Indiana
State Police laboratory testified that the cocaine had a net weight of 17.98
grams. Detective Fleece identified the cocaine that he received from Officer
Moore after Officer Moore purchased the drugs from Cook. Therefore, even if
the trial court erred in overruling Cook’s objection, the error would be harmless
because the challenged evidence was cumulative of other substantial
independent evidence of Cook’s guilt.
II. Inappropriate Sentence
[11] Cook next argues that his sentence in inappropriate in light of the nature of the
offense and the character of the offender.
[12] Under Indiana Appellate Rule 7(B), we may “revise a sentence authorized by
statute if, after due consideration of the trial court’s decision, the Court finds
that the sentence is inappropriate in light of the nature of the offense and the
Court of Appeals of Indiana | Memorandum Decision 27A02-1403-CR-00211 | February 24, 2015 Page 5 of 8 character of the offender.” Although we may review and revise a sentence,
“[t]he principal role of appellate review should be to attempt to leaven the
outliers, and identify some guiding principles for trial courts and those charged
with improvement of the sentencing statutes, but not to achieve a perceived
‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.
2008). We must give “deference to a trial court’s sentencing decision, both
because Rule 7(B) requires us to give due consideration to that decision and
because we understand and recognize the unique perspective a trial court brings
to its sentencing decisions.” Trainor v. State, 950 N.E.2d 352, 355-56 (Ind. Ct.
App. 2011), trans. denied (quoting Stewart v. State, 866 N.E.2d 858, 866 (Ind. Ct.
App. 2007)) (internal quotation marks omitted).
[13] When we review the appropriateness of a sentence, we consider “the culpability
of the defendant, the severity of the crime, the damage done to others, and
myriad other factors that come to light in a given case.” Cardwell, 895 N.E.2d at
1224. The defendant has the “burden to persuade us that the sentence imposed
by the trial court is inappropriate.” Shell v. State, 927 N.E.2d 413, 422 (Ind. Ct.
App. 2010).
[14] Cook was convicted of Class A felony dealing in cocaine over three grams and
Class A felony conspiracy to deal in cocaine. On the date of Cook’s offense, the
sentencing range for Class A felony was twenty to fifty years, with an advisory
sentence of thirty years. Ind. Code § 35-50-2-4. For his two Class A felony
convictions, Cook was ordered to serve an aggregate term of fifty years
imprisonment. In sentencing Cook, the trial court found as aggravating factors
Court of Appeals of Indiana | Memorandum Decision 27A02-1403-CR-00211 | February 24, 2015 Page 6 of 8 that Cook has a lengthy criminal history and that Cook fled to Minnesota
during his jury trial.
[15] Cook argues that his sentence is inappropriate because 1) “[t]here is nothing in
the nature of Cook’s offenses which are unusually heinous or aggravating, and
2) “Cook’s character flaws are balanced by the positive character traits shown in
his stable and supportive relationship” with his fiancée, who suffers from
diabetes and whom Cook supported financially during his time in Minnesota.
Appellant’s Br. at 11. We note, however, that Cook’s criminal history began
with a juvenile adjudication for theft when he was only seven years old. Cook’s
adult criminal history includes three prior felony offenses, four prior
misdemeanor offenses, and six probation violations. He has continued to deal
in cocaine despite prior felony convictions for possessing and dealing drugs.
Also, the fact that he fled from the state during the trial for the instant offense
does not reflect well on his character.
[16] With regard to the nature of Cook’s offense, we note that Cook conspired to
deal and sold nearly eighteen grams of cocaine, almost six times the amount of
cocaine necessary to commit dealing in cocaine as a Class A felony, to an
undercover police officer. See Ind. Code § 35-48-4-1.
[17] Under these facts and circumstances, we cannot say that Cook’s aggregate fifty-
year sentence is inappropriate in light of the nature of the offense and the
character of the offender.
Court of Appeals of Indiana | Memorandum Decision 27A02-1403-CR-00211 | February 24, 2015 Page 7 of 8 Conclusion
[18] For all of these reasons, we conclude that the missing portion of the transcript
does not entitle Cook to a new trial. We also conclude that Cook’s sentence is
not inappropriate in light of the nature of the offense and the character of the
offender.
[19] Affirmed.
Najam, J., and Bradford, J., concur.
Court of Appeals of Indiana | Memorandum Decision 27A02-1403-CR-00211 | February 24, 2015 Page 8 of 8