MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any May 30 2017, 9:32 am
court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Scott L. Barnhart Curtis T. Hill, Jr. Brooke Smith Attorney General of Indiana Keffer Barnhart, LLP Indianapolis, Indiana Justin F. Roebel Supervising Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Stacey Cabell, May 30, 2017 Appellant-Defendant, Court of Appeals Case No. 82A01-1608-CR-1962 v. Appeal from the Vanderburgh Circuit Court State of Indiana, The Honorable Michael J. Cox, Appellee-Plaintiff Magistrate Trial Court Cause No. 82C01-1512-F2-7529
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 82A01-1608-CR-1962 | May 30, 2017 Page 1 of 15 Statement of the Case [1] Stacey Cabell appeals his convictions following a jury trial for level 4 felony
methamphetamine possession, level 6 felony maintaining a common nuisance,
and class B misdemeanor marijuana possession. He asserts that the trial court
abused its discretion in admitting certain deposition testimony at trial and in
denying his pretrial motion to compel the State to disclose the identity of its
confidential informant. He also claims that the State presented insufficient
evidence to support his convictions. Finding no abuse of discretion and the
evidence sufficient, we affirm.
Facts and Procedural History [2] On December 7, 2015, Evansville police sought a search warrant for Cabell’s
residence. According to the probable cause affidavit, a confidential informant
approached Detective Cliff Simpson and advised him that Cabell “was
obtaining ounce quantities of crystal methamphetamine” and distributing the
drug from his residence. Appellant’s App. Vol. 2 at 58. The informant stated
that he had seen Cabell inside the residence on numerous occasions with crystal
methamphetamine and firearms. Within the prior forty-eight hours, the
informant observed Cabell inside the residence with at least one ounce of
crystal methamphetamine. Detective Simpson further averred that within the
sixty days prior, he conducted a controlled purchase of methamphetamine from
Cabell using the informant. Detective Simpson provided the informant with
“prerecorded buy money and audio/video equipment.” Id. The informant
went inside Cabell’s residence and purchased one gram of a white crystal
Court of Appeals of Indiana | Memorandum Decision 82A01-1608-CR-1962 | May 30, 2017 Page 2 of 15 substance that later field tested positive for methamphetamine. Detective
Simpson personally reviewed the video of the controlled purchase and
confirmed Cabell’s identity. Detective Simpson additionally stated that he had
conducted approximately fifteen controlled purchases of illegal substances with
this particular informant and that the detective knew him to be credible and
reliable.
[3] A judge approved the search warrant, and officers conducted surveillance of
Cabell’s residence and waited for him to leave. During the surveillance, officers
observed several vehicles come and go from the residence. After Cabell left the
residence, officers knocked on the door to serve the warrant. Cabell’s girlfriend,
LaChrista Cooper, who shared the residence with Cabell and her two children,
answered the door and cooperated with the search. Officers found a bag of
what appeared to be methamphetamine sitting on top of a digital scale in the
kitchen. Subsequent testing confirmed the substance to be methamphetamine
weighing 11.43 grams. Officers also found a substance that appeared to be
marijuana as well as identification cards for Cabell and Cooper in the master
bedroom. Testing confirmed that the substance was 1.87 grams of marijuana.
A marijuana “roach” was located in an ashtray in the bedroom and $350 cash
was found hidden under the mattress. Tr. Vol. 4 at 71. A K-9 officer indicated
a small marijuana “grinder” with residue in it by the living room couch. Id. at
94. Officers also found an empty “hide-a-can,” which is a can disguised to look
like a drink can, but has a “void in the center of the can to hide something.” Id.
at 124. A duffle bag containing forty-three .38 Special bullets and a notebook
Court of Appeals of Indiana | Memorandum Decision 82A01-1608-CR-1962 | May 30, 2017 Page 3 of 15 with Cabell’s name on it was found in a small room adjacent to the kitchen.
Additional ammunition was found in a trash can near the back door, and a
handgun was found in a closet.
[4] The State charged Cabell with level 2 felony dealing in methamphetamine, level
4 felony unlawful possession of a firearm by a serious violent felon, level 6
felony maintaining a common nuisance, and class B misdemeanor possession
of marijuana. The State further alleged that Cabell was a habitual offender. On
February 22, 2016, Cabell requested a speedy trial, and the trial court set a trial
date for April 27, 2016. The day before trial, Cabell moved for a continuance.
The trial court granted Cabell’s motion for continuance over the State’s
objection. Cabell again requested a speedy trial, and the trial court set a new
trial date of June 29, 2016. Cabell also filed a discovery motion to compel the
State to disclose the identity of its confidential informant. The State filed a
response objecting to the disclosure. The trial court subsequently denied
Cabell’s motion to compel.
[5] A final pretrial conference was held five days before trial on June 24, 2016, to
address the unavailability for trial of two of the State’s witnesses, Vanderburgh
County Sheriff’s Office Lieutenant Jason Ashworth and Detective John
Pieszchalski. The State explained to the trial court that the State had allowed
Detective Pieszchalski to schedule a vacation out of the country because
defense counsel had represented to the State that Cabell would stipulate to the
admission of the officer’s evidence. Defense counsel acknowledged his
representation that Cabell would stipulate to the evidence but indicated that he
Court of Appeals of Indiana | Memorandum Decision 82A01-1608-CR-1962 | May 30, 2017 Page 4 of 15 had failed to discuss the matter with his client until the current hearing and his
client did not agree to the stipulation. As for Lieutenant Ashworth, despite
being subpoenaed by the State, the officer informed the trial court that he had
been unaware of the new trial date and had inadvertently scheduled a vacation
during that date. Both officers were witnesses regarding the chain of custody of
evidence obtained at Cabell’s residence. The State proposed that the parties
take the depositions of the two witnesses in open court to allow Cabell the
opportunity to confront and cross-examine them and then a record of the
deposition would be submitted to the jury during trial. In the alternative, the
State proposed setting a trial date of July 11, 2016, which would be six days
beyond the seventy-day speedy trial period, so that the witnesses would be
available for trial. Cabell objected to both the State’s proposals.
[6] Acknowledging the State’s predicament as well as Cabell’s role in placing the
State in a difficult position, the trial court urged a short continuance of the trial
date so that both officers could appear at trial. Cabell rejected the court’s
suggestion and stated that he wished to maintain his trial date. Thus, the trial
court determined that the officers were unavailable for trial and permitted the
State to take the officers’ depositions in open court at the hearing and to later
submit a record of the depositions to the jury during trial.
[7] A jury trial was held on June 29 and 30, 2016. During trial, the trial court
admitted the officers’ deposition testimony into evidence over Cabell’s
objection. The jury found Cabell guilty of level 4 felony possession of
methamphetamine as a lesser included offense of the dealing charge, level 6
Court of Appeals of Indiana | Memorandum Decision 82A01-1608-CR-1962 | May 30, 2017 Page 5 of 15 felony maintaining a common nuisance, and class B misdemeanor possession
of marijuana. The jury acquitted Cabell of the firearm charge, and the State
dismissed the habitual offender allegation. The trial court sentenced Cabell to
an executed sentence of ten years. This appeal ensued.
Discussion and Decision
Section 1 – The trial court did not abuse its discretion in admitting the deposition testimony of two unavailable witnesses. [8] We first address Cabell’s challenge to the trial court’s admission of evidence.
The appellate court affords the trial court wide discretion in ruling on the
admissibility of evidence. Nicholson v. State, 963 N.E.2d 1096, 1099 (Ind. 2012).
“We review evidentiary decisions for abuse of discretion and reverse only when
the decision is clearly against the logic and effect of the facts and
circumstances.” Id.
[9] Here, the trial court admitted the deposition testimony of two police officers
who did not appear at trial due to scheduled vacations. Cabell argues that the
trial court abused its discretion in doing so because the admission of the
officers’ deposition testimony violated his right of confrontation under the Sixth
Amendment to the United States Constitution. We disagree.1
1 As noted by the State, Cabell briefly mentions the Indiana Constitution but provides no separate or independent state constitutional analysis in his brief. Consequently, his state constitutional claim is waived.
Court of Appeals of Indiana | Memorandum Decision 82A01-1608-CR-1962 | May 30, 2017 Page 6 of 15 [10] Addressing this issue, our supreme court has explained,
Generally, deposition testimony of an absent witness offered in court to prove the truth of the matter asserted constitutes classic hearsay. Possible exceptions to the hearsay rule lie under both Indiana Trial Rule 32 and Indiana Evidence Rule 804, which allow the use of prior recorded testimony in lieu of live testimony in certain circumstances. The decision to invoke the rule allowing admission of prior recorded testimony such as a deposition, is within the sound discretion of the trial court.
Nevertheless, the constitutional right of confrontation restricts the range of admissible hearsay by requiring (1) that the statements bear sufficient indicia of reliability and (2) that the prosecution either produce the declarant or demonstrate the unavailability of the declarant whose statement it wishes to use against the defendant. Depositions that comport with the principal purposes of cross-examination provide sufficient indicia of reliability.
Garner v. State, 777 N.E.2d 721, 724 (Ind. 2002) (citations omitted).
[11] Here, the depositions of the two officers were taken in open court, and both
Cabell and his attorney were in attendance. Cabell’s attorney was able to
extensively question and cross-examine the witnesses, and therefore there was
ample opportunity to challenge the credibility of the witnesses. Accordingly,
the depositions demonstrated sufficient indicia of reliability, and we now
See Abel v. State, 773 N.E.2d 276, 278 n.1 (Ind. 2002) (failure to present authority or independent analysis supporting separate standard under state constitution results in waiver of state constitutional claim).
Court of Appeals of Indiana | Memorandum Decision 82A01-1608-CR-1962 | May 30, 2017 Page 7 of 15 address the question of whether the two witnesses were unavailable for
purposes of the constitutional right of confrontation.
A witness is unavailable for purposes of the Confrontation Clause requirement only if the prosecution has made a good faith effort to obtain the witness’s presence at trial. Even though Trial Rule 32(A) permits use of an absent witness’s deposition testimony if the court finds that the “witness is outside the state, unless it appears that the absence of the witness was procured by the party offering the deposition,” we have previously determined that this trial rule is not applicable to claims involving a violation of the defendant’s Sixth Amendment right of confrontation. The issue is not whether the witnesses were out- of-state at the time of trial, but whether the State made a good faith effort to obtain the absent witnesses’ attendance at trial. Even if there is only a remote possibility that an affirmative measure might produce the declarant at trial, the good faith obligation may demand effectuation. Reasonableness is the test that limits the extent of alternatives the State must exhaust.
Id. (citations and footnote omitted).
[12] The record here reflects that the State made a reasonable effort to gain the
attendance of the two officers at Cabell’s trial. Both officers were available and
prepared to testify at the original trial date. However, that date was continued
and reset the day before the scheduled date at the request of Cabell and over the
objection of the State. Regarding Detective Pieszchalski, the State allowed him
to schedule a vacation out of the country during the reset trial date because
defense counsel represented to the State that Cabell would stipulate to the
officer’s evidence. Defense counsel acknowledged that he indeed made this
representation to the State. The State was not made aware that Detective Court of Appeals of Indiana | Memorandum Decision 82A01-1608-CR-1962 | May 30, 2017 Page 8 of 15 Pieszchalski’s testimony would be necessary until five days before trial at the
final pretrial hearing, when Cabell indicated that he would not stipulate to the
officer’s evidence. Regarding Lieutenant Ashworth, the State served him with a
subpoena for the reset trial date, but the officer stated that he was nonetheless
unaware of the reset date and had scheduled an out-of-town vacation. To
procure both officers’ attendance at trial, the State suggested a short
continuance of two weeks so that both officers could appear and provide live
testimony. The trial court agreed that this was the preferable solution in light of
the State’s unwitting predicament as well as Cabell’s role in placing the State in
that position. However, because a continuance would put his trial six days
beyond the second seventy-day speedy trial setting, Cabell refused to agree to a
postponement. The trial court recognized the State’s good faith efforts to
obtain the officers’ attendance at trial and permitted the State to take the steps
necessary to preserve both officers’ testimony by having the State take both their
depositions in open court. See Tr. Vol. 3 at 15-16.
[13] Indiana Criminal Rule 4(D) permits the trial court to extend a trial date beyond
the seventy-day period, and “[t]he absence of a key witness through no fault of
the State is good cause for extending the time period requirements.” Otte v.
State, 967 N.E.2d 540, 546 (Ind. Ct. App. 2012). As noted above, this
alternative was urged by the trial court but rejected by Cabell in favor of
pushing his trial forward. While we agree with Cabell that “[a] mere vacation
is not sufficient to circumvent the right of confrontation,” Garner, 777 N.E.2d at
725, we also note that the test is one of good faith and reasonableness, and
Court of Appeals of Indiana | Memorandum Decision 82A01-1608-CR-1962 | May 30, 2017 Page 9 of 15 reasonableness does not require that the State make every possible effort to
secure a witness’s attendance. Under the circumstances presented here, we
agree with the trial court that the State undertook reasonable efforts to procure
the officers’ presence at Cabell’s trial, and therefore the officers were
unavailable for purposes of the constitutional right of confrontation.
Accordingly, the trial court did not abuse its discretion when it admitted the
officers’ deposition testimony into evidence.
Section 2 – The trial court did not abuse its discretion in denying Cabell’s pretrial motion to compel the State to disclose the identity of its confidential informant. [14] We next address Cabell’s assertion that the trial court abused its discretion in
denying his pretrial motion to compel the State to disclose the identity of its
confidential informant. In Beville v. State, 71 N.E.3d 13, 19 (Ind. 2017), reh’g
pending, our supreme court recently discussed the well-established “informer’s
privilege.”
Under this privilege, Indiana generally withholds the disclosure of evidence that reveals an informant’s identity for at least two important policy reasons—preventing retaliation against informants and ensuring individuals come forward with information to help law enforcement. The informer’s privilege, however, is not absolute: if the accused seeks disclosure, the burden is on him to demonstrate that disclosure is relevant and helpful to his defense or is necessary for a fair trial. To meet this burden, the defendant must also show that he is not merely speculating that the information may prove useful. If the defendant overcomes his burden, the burden shifts to the State to present evidence showing that disclosure is not necessary to the
Court of Appeals of Indiana | Memorandum Decision 82A01-1608-CR-1962 | May 30, 2017 Page 10 of 15 defendant’s case or that disclosure would threaten its ability to recruit or use CIs in the future. Then, with both sides’ evidence, the trial court must determine whether disclosure is appropriate by balancing the public interest in encouraging a free flow of information to the authorities with the defendant’s interest in obtaining disclosure to prepare his defense. The trial court should not disclose an informant’s identity to permit a mere fishing expedition.
Id. (citations and quotation marks omitted).
[15] Here, Cabell did not meet his burden to show how disclosure of the confidential
informant’s identity would have been relevant and helpful to his defense, or was
necessary for a fair trial. Cabell argues that the informant provided “material
information” underlying the search warrant affidavit and that without the
informant’s identity, he was unable to “challenge or confirm that what
Detective Simpson alleged the C.I. told him was true.” Appellant’s Br. at 15.
However, we agree with the State that the informant’s identity had little
relevance because probable cause to search was not simply based on the
uncorroborated statements or credibility of the confidential informant. Instead,
Detective Simpson stated that he personally reviewed video from the controlled
buy which provided him probable cause to search Cabell’s residence. Simply
put, the confidential informant’s statements and/or credibility did not play a
substantial role in the issuance of the search warrant. As such, Cabell’s request
for disclosure appears to have been simply a fishing expedition, and that does
not suffice. Cabell did not meet his burden, and therefore the trial court did not
Court of Appeals of Indiana | Memorandum Decision 82A01-1608-CR-1962 | May 30, 2017 Page 11 of 15 abuse its discretion in denying his pretrial motion to compel the State to
disclose the identity of its confidential informant.
Section 3 – The State presented sufficient evidence to support Cabell’s convictions. [16] Cabell next contends that the State presented insufficient evidence to support
his convictions. When reviewing a claim of insufficient evidence, we neither
reweigh the evidence nor assess witness credibility. Bell v. State, 31 N.E.3d 495,
499 (Ind. 2015). We look to the evidence and reasonable inferences drawn
therefrom that support the conviction, and will affirm if there is probative
evidence from which a reasonable factfinder could have found the defendant
guilty beyond a reasonable doubt. Id. In short, if the testimony believed by the
trier of fact is enough to support the conviction, then the reviewing court will
not disturb it. Id. at 500.
[17] To convict Cabell of possession of methamphetamine and possession of
marijuana, the State was required to prove that he knowingly or intentionally
possessed those drugs. See Ind. Code §§ 35-48-4-6.1(c)(2), 35-48-4-11.2
Possession may be actual or constructive, see Gray v. State, 957 N.E.2d 171, 174
(Ind. 2011), and here the State alleged constructive possession. Cabell’s sole
assertion is that the State presented insufficient evidence that he constructively
possessed the methamphetamine or marijuana found in his residence because
2 Cabell was convicted of level 4 felony possession of methamphetamine pursuant to Indiana Code Section 35-48-4-6.1(c)(2) and class B misdemeanor possession of marijuana pursuant to Indiana Code Section 35-48- 4-11.
Court of Appeals of Indiana | Memorandum Decision 82A01-1608-CR-1962 | May 30, 2017 Page 12 of 15 he did not have exclusive control over the premises where the drugs were found
and he was not present when the drugs were found.
[18] To prove constructive possession, the State was required to show that Cabell
had both the intent and the capability to maintain dominion and control over
the contraband. Thompson v. State, 966 N.E.2d 112, 122 (Ind. Ct. App. 2012).
The jury may infer that a defendant had the capability to maintain dominion
and control over contraband from the simple fact that the defendant had a
possessory interest in the premises on which an officer found the item, even
when that possessory interest is not exclusive. Gray, 957 N.E.2d at 174. When
an individual does not have exclusive dominion over the premises, an inference
indicating knowledge of and capability to maintain dominion and control over
the contraband is permitted by showing additional circumstances. Griffin v.
State, 945 N.E.2d 781, 784 (Ind. Ct. App. 2011). Recognized “additional
circumstances” include: (1) incriminating statements by the defendant; (2)
attempted flight or furtive gestures; (3) a drug manufacturing setting; (4)
proximity of the defendant to the contraband; (5) the contraband is in plain
view; and (6) the location of the contraband is in close proximity to items
owned by the defendant. Id.
[19] Here, the methamphetamine was found in plain view on top of a scale in the
kitchen of the residence that Cabell shared with Cooper and her children. The
marijuana was found in the master bedroom in close proximity to Cabell’s
identification and a large amount of cash that belonged to him and not to
Cooper. Surveillance indicated suspicious traffic in and out of the residence
Court of Appeals of Indiana | Memorandum Decision 82A01-1608-CR-1962 | May 30, 2017 Page 13 of 15 while Cabell was home alone, and the surveillance also indicated that Cabell
had just left the residence and Cooper had just returned at the time of the
search. Cabell further made several incriminating statements to Cooper
regarding his knowledge of the contraband recovered from the residence. This
evidence is sufficient to establish that Cabell had both the intent and the
capability to maintain dominion and control over the contraband, and therefore
that he constructively possessed the contraband. Sufficient evidence supports
Cabell’s convictions for possession of methamphetamine and possession of
marijuana.
[20] Cabell also asserts that the State presented insufficient evidence to support his
conviction for maintaining a common nuisance. To convict him of that crime,
the State was required to prove that he knowingly or intentionally maintained a
building, structure, vehicle, or other place for unlawfully manufacturing,
keeping, offering for sale, selling, delivering, or financing the delivery of
controlled substances or items of drug paraphernalia. See Ind. Code § 35-48-4-
13(b)(2) (effective July 1, 2014 to June 30, 2016). The State presented evidence
that officers found 11.43 grams of methamphetamine on top of a digital scale in
Cabell’s residence, a handgun, ammunition, and $350 in cash hidden under a
mattress. Surveillance of the residence showed several vehicles coming and
going from the residence during the day, including “a few short term traffic
visitors.” Tr. Vol. 5 at 46. The jury could reasonably infer from this evidence
that Cabell knowingly maintained his residence for unlawfully manufacturing,
Court of Appeals of Indiana | Memorandum Decision 82A01-1608-CR-1962 | May 30, 2017 Page 14 of 15 keeping, offering for sale, selling, delivering, or financing the delivery of
controlled substances.
[21] Nevertheless, Cabell claims that “[b]ecause the State failed to show that [he]
constructively possessed the contraband” inside the residence, the State failed to
show that he knowingly maintained the residence with the intent that it be used
for unlawful purposes. Appellant’s Br. at 18. As we already concluded, the
State presented sufficient evidence that Cabell constructively possessed the
contraband found inside his residence. Cabell further argues that the “jury
expressly rejected the State’s belief that Cabell knowingly possess[ed] with the
intent to deliver methamphetamine” because rather than convicting him of
dealing that drug, it convicted him of the lesser included offense of possession.
Id. Be that as it may, that does not render the evidence supporting his
maintaining a common nuisance conviction insufficient. It is well settled that
jury verdicts in criminal cases are not subject to appellate review on the grounds
that they are inconsistent, contradictory, or irreconcilable. Beattie v. State, 924
N.E.2d 643, 649 (Ind. 2010). And, an acquittal on one count does not indicate
a jury’s conclusion about other counts. Id. at 648-49. The State presented
sufficient evidence to support Cabell’s conviction for maintaining a common
nuisance. Therefore, we affirm his convictions.
[22] Affirmed.
Barnes, J., and Robb, J., concur.
Court of Appeals of Indiana | Memorandum Decision 82A01-1608-CR-1962 | May 30, 2017 Page 15 of 15