MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any May 06 2019, 10:00 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 Kimberly A. Jackson Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana Tyler G. Banks Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Stephen Boger, May 6, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-2622 v. Appeal from the Greene Superior Court State of Indiana, The Honorable Dena A. Martin, Appellee-Plaintiff. Judge Trial Court Cause No. 28D01-1705-F4-10
Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2622 | May 6, 2019 Page 1 of 30 Case Summary and Issues [1] Following a two-day jury trial, Stephen Boger was convicted of one count of
Level 4 felony dealing in methamphetamine and three counts of dealing in
methamphetamine as Level 5 felonies. He was sentenced to ten years for the
Level 4 felony and four years each for the Level 5 felonies, with the sentences to
be served consecutively in the Indiana Department of Correction. Because his
sentenced was capped at fifteen years pursuant to statute,1 the trial court
sentenced him to total of fifteen years. Boger now appeals, raising several
issues which we restate as follows: (1) whether the trial court abused its
discretion in admitting evidence, (2) whether there was sufficient evidence to
support his convictions; and (3) whether the trial court erred in imposing
consecutive sentences. Concluding that the trial court did not abuse its
discretion in admitting evidence and the State presented sufficient evidence to
support Boger’s convictions, but that the trial court did err in imposing
consecutive sentences, we affirm in part, reverse in part, and remand.
Facts and Procedural History [2] Boger’s acquaintance, D.D., was serving a term of probation for the
misdemeanor offense of operating while intoxicated. He agreed to work as a
confidential informant after police officers found marijuana and a syringe at his
1 See Ind. Code § 35-50-1-2(d)(3).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2622 | May 6, 2019 Page 2 of 30 home during an unannounced probation search. The officers asked D.D. to
suggest names of individuals from whom he believed he could purchase
methamphetamine, and D.D. suggested Boger because D.D. had “bought
[methamphetamine] from him personally in the past.” Transcript of Evidence,
Volume II at 200.
[3] Working as a confidential informant, D.D. arranged two separate controlled
buys from Boger. The first occurred on March 8, 2017. D.D. called and sent
numerous text messages to Boger and the two agreed that D.D. would travel to
Boger’s house to purchase two grams of methamphetamine for the negotiated
price of $200.00. However, D.D. did not have access to transportation; so,
police officers arranged to transport him to an area near Boger’s house and
allow him to walk the rest of the way to complete the transaction. Prior to
doing so, however, the officers searched D.D. to ensure that he was not already
in possession of contraband. The officers then provided D.D. with $200.00 in
pre-recorded buy money and a digital recording device. After being dropped
off, D.D. walked to Boger’s house, entered, and proceeded to purchase
methamphetamine from Boger. He exited the house with a plastic baggie
containing what was later determined to be 2.52 grams of methamphetamine
that had been cut with Dimethazone, a dietary supplement.
[4] The second controlled buy between D.D. and Boger occurred on March 20,
2017. As with the previous buy, police officers searched D.D. and provided
him with a recording device and $200.00 in buy money to purchase two grams
of methamphetamine. The officers then dropped D.D. off near Boger’s house,
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2622 | May 6, 2019 Page 3 of 30 and D.D. walked the rest of the way to complete the transaction. However,
when D.D. arrived, Boger told him that he was unable to obtain “that much”
methamphetamine. Id. at 165. D.D. gave Boger $100.00 and then left,
agreeing to meet Boger later, at a predetermined location, to pick up whatever
amount of methamphetamine Boger could obtain. As D.D. walked back to
where the police officers were waiting, Boger drove up beside D.D. in a
minivan and told D.D. that he would “text or call [D.D.] as soon as he got [the
methamphetamine].” Id. at 167.
[5] D.D. waited with the officers for Boger’s call, which came approximately one-
half hour later. D.D. suggested that he and Boger meet in the parking lot of a
local business. The officers drove D.D. to the parking lot. When they arrived,
Boger was waiting in his vehicle. D.D. then exited the officers’ van and walked
to Boger’s vehicle window. Boger handed him what was later determined to be
.89 grams of methamphetamine that had been cut with Dimethazone. The
controlled buys between Boger and D.D. were recorded.
[6] Boger also twice sold methamphetamine to another confidential informant,
P.W. P.W. agreed to act as a confidential informant when he was pulled over
by law enforcement officers for committing a traffic infraction after he was
observed visiting the house of a suspected methamphetamine dealer. During
the stop, the officers discovered that P.W. had three grams of
methamphetamine in his vehicle. P.W. suggested Boger as an individual from
whom he could purchase methamphetamine because P.W. had purchased
methamphetamine from Boger in the past.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2622 | May 6, 2019 Page 4 of 30 [7] The first controlled buy with P.W. occurred on April 13, 2017. P.W.
exchanged text messages with Boger and arranged to meet Boger in the parking
lot of a tobacco store to purchase $50.00-worth of methamphetamine. P.W.
first met with police officers, who searched his person and his vehicle and then
provided him with the buy money and a recording device. P.W., under
constant surveillance by the officers, drove to the tobacco store and parked his
vehicle next to Boger’s. He then exited his vehicle, entered Boger’s vehicle, and
purchased what was later determined to be methamphetamine. P.W. then
drove back to where he had first met with the officers and gave them the
methamphetamine he had purchased from Boger.
[8] P.W. next arranged to purchase $50.00-worth of methamphetamine from Boger
on April 17, 2017. This time, Boger told P.W. to meet him at his house. Prior
to travelling to Boger’s house, P.W. met with police officers. The officers
searched P.W.’s person and his vehicle and then provided P.W. with the buy
money and a recording device. P.W., again under constant surveillance by the
officers, drove to Boger’s house, entered, and purchased what was later
determined to be methamphetamine. After the transaction was completed, but
before P.W. left Boger’s house, Boger asked P.W. for some of the
methamphetamine he had just sold to P.W. P.W. obliged, and Boger placed
some of the methamphetamine in a pipe and consumed it. P.W. eventually left
Boger’s house, met with the officers, and provided them with what was left of
the methamphetamine he had purchased. The transactions that occurred
between Boger and P.W. were recorded.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2622 | May 6, 2019 Page 5 of 30 [9] On May 24, 2017, the State charged Boger with one count of dealing in
methamphetamine as a Level 4 felony and three counts of dealing in
methamphetamine as Level 5 felonies. The next day, law enforcement officers
executed a search warrant they had obtained for the search of Boger’s house.
They found digital scales, broken glass pipes, three cell phones, and a jar that
contained MSM – “a [non-controlled] substance” with a similar appearance to
crystal methamphetamine “that people use to cut their methamphetamine with
in order to make more money and make a small amount of meth go a little
further [sic] when they’re selling it.” Tr., Vol. III at 53.
[10] Prior to the start of Boger’s trial, a number of pretrial matters were addressed.
On May 30, 2017, the trial court issued a pretrial order that (among other
things) directed the State to provide the defense with notice of any Indiana Rule
of Evidence 404(b) evidence “the State intend[ed] to introduce at trial” no later
than ten days prior to the final pretrial conference, which was scheduled to be
held on August 20, 2018. Appellant’s Appendix, Volume II at 42. It does not
appear from the record that the State did so; however, it does appear that
Boger’s counsel was at least aware that the State intended to introduce evidence
of Boger’s prior conviction for maintaining a common nuisance. At the final
pretrial conference, Boger’s counsel informed the court that he had “filed with
the State of Indiana the defense of entrapment,” and it was defense counsel’s
understanding that:
the Prosecutor has secured a transcript from Circuit Court regarding a previous plea made by [Boger in a separate case from 2010 where he was convicted of maintaining a common Court of Appeals of Indiana | Memorandum Decision 18A-CR-2622 | May 6, 2019 Page 6 of 30 nuisance]. The case law appears to allow them to do so, but I may file something regarding that, also. I want to make sure that case law is still current. I still may file something regarding the State’s ability to raise that at trial, your honor.
Tr., Vol. II at 16.
[11] On August 31, 2018, Boger filed a motion in limine, pursuant to Evidence Rule
404(b), arguing (among other things) that the State should be prevented from
introducing evidence of his previous conviction for maintaining a common
nuisance. On September 5, 2018, the State filed its response, stating in relevant
part that it “expect[ed] [Boger] to present the defense of entrapment[;]” that it
“intend[ed] to rebut that [Boger’s] decision to sell drugs was the product of
police inducement[;]” and that “the evidence [Boger] is attempting to keep out[,
i.e., his 2010 conviction for maintaining a common nuisance,] is directly related
to [his] predisposition to sell controlled substances and should be allowed into
evidence.” Appellant’s App., Vol. II at 84. Boger’s motion was addressed on
September 11, 2018, the first day of Boger’s two-day trial, when the trial court
entertained additional arguments from the parties.
[12] In support of its argument, the State asserted that if Boger raised the defense of
entrapment at trial, it should be allowed to introduce evidence of:
[Boger’s] previous conviction [for maintaining a common nuisance] which . . . should come in because there’s several factors a jury can consider in determining whether or not the defendant has a predisposition to deal drugs, if that entrapment defense is raised. One of those factors are, previous convictions – where controlled substances were delivered. And, . . . defendant
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2622 | May 6, 2019 Page 7 of 30 indicated that he delivered a controlled substance to a friend. I believe that was morphine. So, that should be something the jury should be allowed to consider to determine the defendant’s predisposition – dealing controlled substances.
Tr., Vol. II at 117-18. Defense counsel countered that the probative value of the
evidence was outweighed by the prejudicial effect. The trial court ruled that the
State would be allowed to present evidence of the prior conviction “if the
defense of entrapment is raised.” Id. at 122.
[13] Prior to giving its opening statement, the State asked for a brief sidebar to make
defense counsel aware that it intended to introduce evidence that both
confidential informants, D.D. and P.W., had previously bought
methamphetamine from Boger. The sidebar was granted and the following
colloquy occurred:
[STATE:] . . . One of the issues in this case is, is potentially entrapment. But, but also how the CI, confidential informants came to buy from Mr. Boger specifically. And, one of the reasonings behind that is that both of them have bought methamphetamine from Mr. Boger previously. And they’re both prepared to testify to that fact. I understand that could also be construed as a prior ba[d] act and I wanted to get defense counsel a preview of that prior to going ahead and arguing that in front of the jury and previewing that evidence during opening statement. The State would argue that evidence is inextricably intertwined to how the CI’s came to buy from Mr. Boger and why we’re all here in the first place. So, the State would argue that evidence should come in because there’s no way to explain why they bought from Mr. Boger without going into that detail. And, I think the jury’s going to have too many questions if they’re not allowed inside into that detail.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2622 | May 6, 2019 Page 8 of 30 BY THE COURT: And, [defense counsel], do you wish to be heard?
[DEFENSE COUNSEL]: I guess I would ask the question the State for ought [sic] to be heard, your honor. Did the State, under the discovery order, specifically, under 404(b) provide information that it intended to present that here today?
[STATE]: I believe counsel was on notice through the previous depositions that the State and defense counsel entered in to [sic].
[DEFENSE COUNSEL]: Well, I guess, what I’m asking specifically under the discovery order, were specifically 404(b), did you set that out in your discovery?
[STATE]: No.
[DEFENSE COUNSEL]: I’m going to objection [sic] to this evidence coming in. First of all, it was not set out under the requirement that the court has regarding discovery for purposes of 404(b). It is clearly allegations of bad acts, crimes, offenses that allegedly took place prior to the issues that are before the court or before the jury here today, your honor. It is prejudicial to my client for that evidence to be introduced at this particular time, even though [sic] a, an opening statement. I have talked to or spoken with the State and, of course, we’ve had argument already about what happens if we choose to introduce an entrapment defense at this stage of the trial, this has not been done. And until we do so, then certain things should not be allowed just as, for instance, the prior conviction, that the State alleges that my client has for maintaining a common nuisance. I would argue respectfully to the court, that this falls in line with, with that issue, also. Because, again, of the prior bad act is what they’re alleging. Now, the case laws appears to be settled. And if we did in fact offer an, an entrapment, there are certain things
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2622 | May 6, 2019 Page 9 of 30 that be brought out, including some prior criminal offenses, convictions, acts. So, I would argue at this particular point in time, it points to the jury is not appropriate, the State should not be allowed to discuss it in the opening statement. I do appreciate Mr. Prosecutor your fairness and willingness to bring that to our attention prior to the opening statement.
Id. at 134-36. The trial court determined that evidence of previous drug sales
could not be introduced until Boger “opened the door with the entrapment”
defense. Id. at 136.
[14] Later, at trial, defense counsel cross-examined D.D., posing questions regarding
the circumstances under which D.D. become a confidential informant, the
number of times D.D. contacted Boger to set up the controlled buys, and
whether Boger was coerced into selling methamphetamine to D.D. When
cross-examination concluded, the State asked for an evidentiary ruling outside
the presence of the jury, argued that defense counsel had raised the entrapment
defense through his cross-examination of D.D., and requested permission to
question D.D. and P.W. about prior drug sales with Boger. The trial court
determined that the entrapment defense had been raised and allowed the State
to question D.D. and P.W. about the prior drug transactions.
[15] Boger’s trial proceeded, following which a jury found Boger guilty as charged.
On October 11, 2018, the trial court sentenced Boger to ten years for the Level 4
felony conviction and four years each for the three Level 5 felony convictions.
The sentences were ordered to be served consecutively, in the Indiana
Department of Correction, subject to a statutory cap that limited the aggregate
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2622 | May 6, 2019 Page 10 of 30 sentence to fifteen years. See Ind. Code § 35-50-1-2(d)(3). Boger now appeals.
Additional facts will be provided as necessary.
Discussion and Decision I. Abuse of Discretion [16] Boger contends the trial court abused its discretion when it admitted evidence
of his prior drug sales to D.D. and P.W., his previous conviction from 2010 for
maintaining a common nuisance, and his reliance on an entrapment defense in
the 2010 case. We address each of Boger’s evidentiary arguments in turn.
A. Standard of Review [17] A trial court has broad discretion in ruling on the admissibility of evidence.
Turner v. State, 953 N.E.2d 1039, 1045 (Ind. 2011). We review its rulings for
abuse of discretion, which occurs only if the decision was clearly against the
logic and effect of the facts and circumstances. Id.
B. Admission of Evidence of Prior Drug Sales [18] Boger first argues the trial court abused its discretion in admitting evidence of
his prior drug sales to the confidential informants. Boger claims the evidence
was inadmissible under Evidence Rule 404(b) because “the prior misconduct
evidence was offered solely to show Boger’s bad character and that he acted in
conformity with that bad character with respect to the charged offenses.” Brief
of the Appellant at 10. He further argues that even if the evidence is admissible
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2622 | May 6, 2019 Page 11 of 30 under Rule 404(b), it is inadmissible under Indiana Rule of Evidence 403
because “its prejudicial impact far exceeded its probative value.” Id.
[19] The State argues that Boger’s claim of error is waived because he failed to make
a contemporaneous objection at the time the evidence was introduced at trial.
In his reply brief, Boger maintains that when the State sought permission to
introduce the evidence at trial, he “specifically objected to such evidence as
inadmissible[,]” and that once the court ruled that the evidence was admissible
on grounds that Boger had raised the entrapment defense, Boger “had no
further obligation to repeat his objection.” Reply Brief of the Appellant at 5.
We find that Boger preserved for appeal his claim regarding the evidence of his
prior drug sales.
1. Waiver
[20] To preserve a claim of evidentiary error for purposes of appeal, a defendant
must make a contemporaneous objection at the time the evidence is introduced.
Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010) (citing Jackson v. State, 735
N.E.2d 1146, 1152 (Ind. 2000)). This is true regardless of whether the appellant
filed a pretrial motion seeking to exclude the evidence in question. Id. “The
purpose of this rule is to allow the trial judge to consider the issue in light of any
fresh developments and also to correct any errors.” Id.
[21] Here, at the time the State sought permission from the trial court to introduce
the evidence in question, Boger objected; arguments on the matter were heard
from both parties; and the trial court definitively ruled that the evidence was
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2622 | May 6, 2019 Page 12 of 30 admissible. Boger’s objection at trial on the merits preserved the matter for
appeal. As such, Boger did not need to renew the objection. See Ind. Evidence
Rule 103(a)(1), -(b) (providing that a “party may claim error in a ruling to admit
. . . evidence only if . . . the party . . . , on the record[,] . . . timely objects . . .
and . . . states the specific ground” for the objection, and that “[o]nce the court
rules definitively on the record at trial a party need not renew an objection or
offer of proof to preserve a claim of error for appeal”); see also K.G. v. State, 81
N.E.3d 1078, 1080 n.5 (Ind. Ct. App. 2017) (noting that the defendant
preserved his claim of evidentiary error by renewing his pretrial objection at the
time the evidence was admitted, giving the trial court the opportunity to
definitively rule on the record per Evidence Rule 103(b)).
2. Admissibility Under Evidence Rules 404(b) and 403
[22] Finding that the claim of error regarding the admission of evidence of Boger’s
prior drug sales was properly preserved, we address whether the evidence was
inadmissible under Evidence Rules 404(b) and 403. Rule 404(b) prohibits the
State from presenting evidence of a person’s “crime, wrong, or other act” to the
extent it is used to prove a person’s character and demonstrate on a particular
occasion a person acted in accordance with that character. Id. The purpose of
the rule is to protect against the “forbidden inference – that the defendant acted
badly in the past, and that the defendant’s present, charged actions conform
with those past bad acts. . . .” Nicholson v. State, 963 N.E.2d 1096, 1099-1100
(Ind. 2012) (citation and internal quotations omitted). However, evidence of
crimes, wrongs, or other acts are admissible if offered for another purpose, such
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2622 | May 6, 2019 Page 13 of 30 as to prove “motive, opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake, or lack of accident.” Evid. R. 404(b)(2).
[23] In assessing the admissibility of 404(b) evidence, we (1) determine whether the
evidence of other crimes, wrongs, or acts is relevant to a matter at issue other
than the defendant’s propensity to commit the charged act; and (2) balance the
probative value of the evidence against its prejudicial effect pursuant to Rule
403. Hicks v. State, 690 N.E.2d 215, 221 (Ind. 1997). Evidence Rule 403
permits the trial court to exclude relevant evidence “if its probative value is
substantially outweighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue delay, or needlessly
presenting cumulative evidence.”
[24] In Stoker v. State, a panel of this court held that an entrapment defense
“affirmatively presented a claim of contrary intent, thereby triggering the
exception to [Rule] 404(b).” 692 N.E.2d 1386, 1391 (Ind. Ct. App. 1998).
Thus, in Stoker, we determined that the trial court did not err in allowing
testimony concerning the defendant’s prior drug sales. See id. Similarly,
in Dixon v. State, a panel of this court held that the defendant’s entrapment
defense rendered testimony of prior drug transactions “relevant to proving [the
defendant’s] knowledge and intent to deal in cocaine.” 712 N.E.2d 1086, 1089
(Ind. Ct. App. 1999). Here, Boger raised the defense of entrapment during trial,
essentially challenging his intent to deal in methamphetamine. In light
of Stoker and Dixon, Boger’s entrapment defense placed his intent at issue and
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2622 | May 6, 2019 Page 14 of 30 the State was therefore permitted to present the evidence of prior drug sales in
order to rebut that defense.
[25] However, even if evidence of a prior bad act is admissible, its probative value
must still be weighed against the unfair prejudice that its admission may cause
to a defendant. Evid. R. 403; Jones v. State, 708 N.E.2d 37, 40 (Ind. Ct. App.
1999), trans. denied. To be inadmissible, the prejudicial effect of the evidence
must outweigh its probative value. Burgett v. State, 758 N.E.2d 571, 580 (Ind.
Ct. App. 2001), trans. denied. Given Boger’s entrapment defense and the State’s
burden to rebut it, we conclude the probative value of Boger’s previous drug
sales outweighed the danger of unfair prejudice. Accordingly, Boger has failed
to show the trial court abused its discretion in admitting the evidence.
3. 404(b) Evidence Prematurely Admitted
[26] Boger next argues that the admission of evidence of his prior drug sales violated
Evidence Rule 404(b) because, according to Boger, the trial court admitted the
evidence before he “rais[ed] any entrapment defense.” Br. of Appellant at 19.
We disagree.
[27] Entrapment in Indiana is statutorily defined as follows:
(a) It is a defense that:
(1) the prohibited conduct of the person was the product of a law enforcement officer, or his agent, using persuasion or other means likely to cause the person to engage in the conduct; and
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2622 | May 6, 2019 Page 15 of 30 (2) the person was not predisposed to commit the offense.
(b) Conduct merely affording a person an opportunity to commit the offense does not constitute entrapment.
Ind. Code § 35-41-3-9. A defendant does not need to formally plead the
entrapment defense; rather, it is raised, often on cross-examination of the
State’s witnesses, by affirmatively showing the police were involved in the
criminal activity and expressing an intent to rely on the defense. Griesemer v.
State, 26 N.E.3d 606, 609 (Ind. 2015). The State then has the opportunity for
rebuttal, its burden being to disprove one of the statutory elements beyond a
reasonable doubt. Id. In Townsend v. State, 418 N.E.2d 554, 559 (Ind. Ct. App.
1981), cert. denied, 455 U.S. 992 (1982), this court held that “the defendant must
in some manner affirmatively raise the defense of entrapment before rebuttal by
the State is either necessary or desired.” However, in Allen v. State, 518 N.E.2d
800, 802 (Ind. 1988), our supreme court found that “[i]t was not error to admit
evidence of appellant’s prior convictions once he indicated an intention to use an
entrapment defense[;]” and that it was “immaterial that [appellant] did not
submit such evidence.” (Emphasis added.)
[28] At the final pretrial conference, Boger’s counsel indicated an intent to use an
entrapment defense when he informed the trial court that he had “filed with the
State of Indiana the defense of entrapment[.]” Tr., Vol. II at 16 (emphasis added).
Counsel then revealed his intention to use the defense during cross-examination
of D.D. by posing questions regarding the circumstances under which D.D.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2622 | May 6, 2019 Page 16 of 30 become a confidential informant, the number of times D.D. contacted Boger to
set up the controlled buys, and whether Boger was coerced into selling
methamphetamine to D.D. Specifically, and in relevant part, counsel
questioned D.D. as follows:
Q So, right away [police officers are] trying to entice you to work for them or whoever they might catch in this net, would that be fair to say?
A I guess it would be, yes.
*****
Q Let’s go back and talk about the number of attempts that you’ve made to try to get this [first drug deal between you and Boger] to work. When I took your deposition, you indicated under oath, sir, that you had contacted Mr. Boger somewhere between 60 to 100 times through text messages. Is that correct, sir?
A Yes.
Q And, I believe your testimony a while ago was maybe what?
A Forty to eighty. . . .
Q I also [asked the question] . . . , it was clear that Mr. Boger did not want to sell you something. Is that correct, sir?
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2622 | May 6, 2019 Page 17 of 30 A Yes.
Q And, I asked you, is that fair to say. And what did you say?
A I said, yeah. At that time that we talked, when he, over the phone, he thought I was a CI.
Q And, my question to you was, and so how many attempts did you have to make until you finally convinced him to do it. And your response was what, sir?
A I can’t give an exact, I mean, he just eventually, finally agreed to get it for me.
Q You can’t give an exact, but he “eventually, finally agreed to do it.”
Q That was your response under oath?
A Yes, it was.
Q And again, it’s very important to the State, to the law enforcement officers that you cooperate, is that true?
Id. at 184, 185, 186-87, 193.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2622 | May 6, 2019 Page 18 of 30 [29] When cross-examination concluded, the State asked for an evidentiary ruling
outside the presence of the jury, argued that defense counsel had raised the
entrapment defense through his cross-examination of D.D., and then requested
permission to question D.D. and P.W. about prior drug transactions with
Boger. Defense counsel countered that he did not “use[ ] the word entrap,”
and, therefore, did not believe he had raised the defense. Id. at 196. The trial
court ultimately determined, however, that the entrapment defense had “been
placed before the jury” and allowed the State to question D.D. and P.W. about
the prior drug transactions. Id. at 197.
[30] Our review of the record leads us to the conclusion that Boger affirmatively
raised the defense of entrapment before the State requested permission to
introduce evidence of Boger’s prior bad acts. Therefore, the State did not
prematurely introduce evidence of Boger’s prior misconduct, and the trial court
did not violate Evidence Rule 404(b) in admitting the evidence.
4. Lack of Notice
[31] Boger’s next claim of error is that the State failed to provide him proper pretrial
notice of its intent to offer evidence of his prior drug sales. According to Boger,
the State’s failure to provide the requisite notice rendered the 404(b) evidence
inadmissible.
[32] Evidence Rule 404(b) states in relevant part that “[o]n request by a defendant in
a criminal case, the prosecutor must: (A) provide reasonable notice of the
general nature of any such evidence [of a crime, wrong, or other act] that the
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2622 | May 6, 2019 Page 19 of 30 prosecutor intends to offer at trial; and (B) do so before trial – or during trial if
the court, for good cause, excuses lack of pretrial notice.” Reasonable notice of
intent to offer evidence of other crimes, wrongs, or acts is a prerequisite for
admissibility. Abdul-Musawwir v. State, 674 N.E.2d 972, 975 (Ind. Ct. App.
1996), trans. denied. The defendant has the burden to make a “reasonably
understandable and sufficiently clear” request for such notice from the
State. Id. Moreover, a defendant who is not given notice after making a proper
request must object to the State’s 404(b) evidence at trial to preserve any error
for appeal. Id.
[33] It is unclear from the record whether Boger’s counsel requested notice from the
State. However, on May 30, 2017, the trial court issued a pretrial order that
(among other things) directed the State to provide the defense with notice of
any Evidence Rule 404(b) evidence “the State intend[ed] to introduce at trial”
no later than ten days prior to the final pretrial conference, which was
scheduled to be held on August 20, 2018. Appellant’s App., Vol. II at 42. It
does not appear from the record that the State did so.
[34] At trial, however, defense counsel did object to the admission of the evidence in
question, arguing that the State’s Evidence Rule 404(b) notice did not
“specifically” indicate that the State would ask the two confidential informants
about their prior drug purchases from Boger. Tr., Vol. II at 196. Defense
counsel conceded that: “In the discovery as to that prior, I would not sit here
and suggest to the court that I have not seen information regarding that in my
investigation of this case[.]” Id. However, counsel maintained: “But, again, I
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2622 | May 6, 2019 Page 20 of 30 would argue that under the 404B [sic] without a specific notice by the State of
Indiana, they should not be able to present such evidence further.” Id. The trial
court admitted the evidence over Boger’s objection.
[35] In Hatcher v. State, our supreme court stated, “there is no hard and fast rule
governing the time period in which the State should respond to an appropriate
request under 404(b).” 735 N.E.2d 1155, 1158 (Ind. 2000) (citation and internal
quotations omitted). The court found that the reasonableness of the State’s
notice does not turn on its relation in time to either the defendant’s request for
notice or the date of trial; rather, the reasonableness of the notice requires an
examination of whether the purpose of the notice provision was achieved based
upon the circumstances of a particular case. Id. The purpose of the notice
requirement in Rule 404(b) “is to reduce surprise and to promote the early
resolution of questions of admissibility.” Id. (citation and internal quotations
omitted).
[36] At trial, Boger’s counsel conceded that he was aware of the evidence of the
prior drug sales and that the State might introduce the evidence at trial.
Consequently, because the defense was not surprised by the evidence, the trial
court did not abuse its discretion in allowing the State to present the evidence.
C. Admission of Evidence Related to Prior Conviction [37] At trial, the State introduced into evidence the transcript from the change of
plea and sentencing hearing for Boger’s 2010 conviction (pursuant to a guilty
plea) of maintaining a common nuisance. Boger was convicted for maintaining
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2622 | May 6, 2019 Page 21 of 30 a common nuisance after he admitted to “knowingly maintain[ing] a building
or structure that [wa]s used one or more times for unlawfully delivering
controlled substances” and to delivering morphine to an acquaintance. State’s
Exhibit 13 at 4; see also Ind. Code § 35-48-4-13(b)(2)(e) (repealed in 2016 and
replaced by Ind. Code § 35-45-1-5). At the 2010 hearing, Boger also presented
the defense of entrapment. Boger now argues that evidence of his 2010
conviction as well as his reliance on an entrapment defense in the 2010 case
should have been excluded under Evidence Rules 404(b) and 403. We find,
however, that Boger has waived these arguments because he did not object at
trial to the admission of the evidence on such grounds.
[38] Boger’s only objection to the introduction of the evidence was based upon
whether the State laid a proper foundation for the evidence before requesting its
admission. The trial court, apparently finding that a proper foundation was
laid, admitted the evidence over Boger’s objection. 2 A defendant is limited on
appeal to the grounds advanced at trial and may not raise a new ground
for objection for the first time on appeal. Jackson v. State, 712 N.E.2d 986, 988
(Ind. 1999). As such, Boger has waived his Evidence Rules 404(b) and 403
claims as to this evidence. Moreover, Boger also failed to raise the issue of
2 We note that, at the time Boger’s counsel formally objected to the admission of evidence of the prior drug sales, counsel referenced his pretrial opposition to the introduction of evidence of Boger’s 2010 conviction, stating: “And until we [raise the entrapment defense], then certain things should not be allowed just as, for instance, the prior conviction, that the State alleges that my client has for maintaining a common nuisance.” Tr., Vol. II at 136 (emphasis added). However, a passing reference to pretrial opposition to the admission of evidence is not akin to the level of objection necessary to preserve the claim of error on appeal.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2622 | May 6, 2019 Page 22 of 30 fundamental error in his initial appellate brief.3 We, therefore, find his claims
of error with respect to Rules 404(b) and 403 entirely waived. See Bowman v.
State, 51 N.E.3d 1174, 1179 (Ind. 2016) (finding waiver of fundamental error
claim for failure to raise it in initial appellate brief).
II. Sufficiency of the Evidence A. Standard of Review [39] Boger next argues that the State failed to present sufficient evidence to rebut his
entrapment defense. Boger contends that “[t]he record, as a whole, establishes
as a matter of law Boger was entrapped” and that the State “failed to prove
beyond a reasonable doubt Boger’s predisposition to commit the offenses with
which he was charged.” Br. of the Appellant at 22, 23. In support of his
argument, Boger points to the following:
One of the officers was with [D.D.] when he sent numerous text messages to Boger to arrange the drug purchase. Police provided transportation to [D.D.] to the drug sale locations, oversaw his communications with Boger, gave him the money for the two drug sales, and confiscated the drugs from [D.D.] immediately after the sales. Similarly, [P.W.’s] two drug deals with Boger were orchestrated by police, implemented with money the officers provided, and conducted by [P.W.] under the supervision of those officers.
3 The “fundamental error exception is extremely narrow[] and applies only when the error constitutes a blatant violation of basic principles, the harm or potential for harm is substantial, and the resulting error denies the defendant fundamental due process.” Halliburton v. State, 1 N.E.3d 670, 678 (Ind. 2013) (citation and internal quotations omitted).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2622 | May 6, 2019 Page 23 of 30 Id. at 23 (citations omitted). According to Boger, “[t]he record contains no
evidence of any solicitation by Boger of future drug sales[;] Boger never
contacted [P.W.] to set up any drug transactions[; and] Boger referenced one
drug supplier but did not indicate any generalized knowledge of drug sources
and suppliers.” Id. at 24 (citations omitted).
[40] “We review a claim of entrapment using the same standard that applies to other
challenges to the sufficiency of evidence.” Dockery v. State, 644 N.E.2d 573, 578
(Ind. 1994). We neither reweigh the evidence nor reassess the credibility of
witnesses. Id. Instead, we look to the probative evidence supporting the verdict
and the reasonable inferences drawn from that evidence. Id. If we find a
reasonable trier of fact could infer guilt beyond a reasonable doubt, we will
affirm the conviction. Id.
B. Rebuttal of Entrapment Defense [41] Entrapment is an affirmative defense that admits the facts of the crime but
claims that the act was justified. See Hoskins v. State, 563 N.E.2d 571, 576 (Ind.
1990). As noted above, Indiana Code section 35-41-3-9(a) defines entrapment
as:
[a] defense that:
(1) the prohibited conduct of the person was the product of a law enforcement officer, or his agent, using persuasion or other means likely to cause the person to engage in the conduct; and
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2622 | May 6, 2019 Page 24 of 30 (2) the person was not predisposed to commit the offense.
“Conduct merely affording a person an opportunity to commit the offense does
not constitute entrapment.” I.C. § 35-41-3-9(b). The State may rebut this
defense either by disproving police inducement or by proving the defendant’s
predisposition to commit the crime. McGowan v. State, 674 N.E.2d 174, 175
(Ind. 1996).
[42] Our review of the record indicates that the State sufficiently rebutted the
defense of entrapment. The evidence of record established that in a 2010 case,
Boger was convicted (pursuant to a guilty plea) of maintaining a common
nuisance, which involved Boger admitting to delivering morphine to an
acquaintance. Boger raised the defense of entrapment in that case. As for the
instant offenses, evidence was presented that Boger had a supplier. Boger sold
methamphetamine on four different occasions within approximately forty-five
days to two different confidential informants, and evidence was presented that
Boger had previously sold methamphetamine to the confidential informants.
The evidence presented at trial showed no reluctance on Boger’s part to sell
methamphetamine to the confidential informants. When D.D. was asked at
trial whether he had to “convince Mr. Boger to sell [him] methamphetamine,”
he responded in the negative, stating, “It seemed like he was pretty open about
getting it for me.” Tr., Vol. II at 152-53. When P.W. was asked if “Boger ever
seem[ed] reluctant to sell methamphetamine to [him,]” P.W. replied, “No. . . .”
Id. at 218. At trial, D.D. testified to a reason why he needed to send so many
text messages to Boger to set up the purchase of the methamphetamine, i.e., “I
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2622 | May 6, 2019 Page 25 of 30 guess because [Boger] didn’t trust me. . . . Because he had heard that I was a CI
in the past.” Id. at 200.
[43] Evidence also was presented that during one of the drug sales to P.W., Boger
asked for some of the methamphetamine in return for his services, which
demonstrated his understanding of how the drug market worked. When law
enforcement officers executed a search of Boger’s house, they found an agent
used to cut methamphetamine to make the supply of the drug go farther and,
thus, increase profits.
[44] Boger’s sufficiency argument asks us to do no more than reweigh the evidence
presented by the State. This we will not do. The evidence presented by the
State was such that a reasonable juror could infer, beyond a reasonable doubt,
that Boger willingly participated in the four controlled buys and that he was
predisposed to commit the crimes, thus rebutting his entrapment defense. We,
therefore, find there is sufficient evidence of probative value to support Boger’s
convictions of dealing in methamphetamine.
III. Sentencing A. Standard of Review [45] Finally, Boger contends that the trial court’s imposition of consecutive
sentences for his convictions of four counts of dealing in methamphetamine was
inappropriate under Beno v. State, 581 N.E.2d 922 (Ind. 1991), and Gregory v.
State, 644 N.E.2d 543 (Ind. 1994). Boger argues that because “the four offenses
arose from a series of similar controlled buys orchestrated by the State,
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2622 | May 6, 2019 Page 26 of 30 consecutive sentencing was improper.” Br. of the Appellant at 26. Boger asks
this court to reverse his sentences and remand the matter to the trial court “for
entry of concurrent sentences of [ten] years imprisonment, with two years
suspended to probation.” Id.
[46] Article 7, Section 6 of the Indiana Constitution provides this court with the
authority to review and revise a criminal sentence. Indiana Appellate Rule 7(B)
explains that we may revise a sentence “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 character of the offender.” Because a trial court’s
judgment “should receive considerable deference[,]” our principal role is to
“leaven the outliers[.]” Cardwell v. State, 895 N.E.2d 1219, 1222, 1225 (Ind.
2008). “Such deference should prevail unless overcome by compelling evidence
portraying in a positive light the nature of the offense (such as accompanied by
restraint, regard, and lack of brutality) and the defendant’s character (such as
substantial virtuous traits or persistent examples of good character).” Stephenson
v. State, 29 N.E.3d 111, 122 (Ind. 2015). The defendant bears the burden to
persuade this court that his or her sentence is inappropriate. Childress v. State,
848 N.E.2d 1073, 1080 (Ind. 2006). We may rely on any factors appearing in
the record in making the determination of whether a sentence is inappropriate.
Stokes v. State, 947 N.E.2d 1033, 1038 (Ind. Ct. App. 2011), trans. denied.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2622 | May 6, 2019 Page 27 of 30 B. Inappropriate Sentence [47] We agree, and the State concedes, that Boger’s sentence is inappropriate in light
of Beno and Gregory. In those cases, the court held it was manifestly
unreasonable to impose consecutive sentences for multiple drug dealing
convictions where the convictions were based upon nearly identical State-
sponsored sales to a police informant as part of an ongoing sting operation.
Beno, 581 N.E.2d at 924; Gregory, 644 N.E.2d at 546.
[48] In Hopkins v. State, 668 N.E.2d 686 (Ind. Ct. App. 1996), trans. denied, the
defendant was convicted of two counts of dealing in a controlled substance
based upon incidents which were virtually identical to one another as the buys
occurred within one week of each other, were sponsored by the State with the
use of the same police informant, and both involved prescription painkillers.
We concluded that trial court’s imposition of consecutive sentences in that
instance contravened our supreme court’s directive in Beno and Gregory.
Hopkins, 668 N.E.2d at 689. In Williams v. State, we held that the principle that
“the State may not ‘pile on’ sentences by postponing prosecution in order to
gather more evidence . . . applies equally to convictions arising from evidence
gathered as a direct result of the State-sponsored criminal activity.” 891 N.E.2d
621, 635 (Ind. Ct. App. 2008). In Rios v. State, 930 N.E.2d 664, 669 (Ind. Ct.
App. 2010), we held that consecutive sentences for two counts based on almost
identical police-sponsored buys was inappropriate.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2622 | May 6, 2019 Page 28 of 30 [49] Here, the record reveals that within the span of approximately forty-five days,
Boger sold methamphetamine on four different occasions to two different
confidential informants. The controlled buys were arranged and coordinated by
the police. The buys involved similar amounts of methamphetamine for similar
amounts of money. The lead police investigator for the case testified at trial
that the reason multiple buys were performed using different confidential
informants was to “eliminate entrapment arguments.” Tr., Vol. III at 95.
Based upon the foregoing, we conclude, as we did in Hopkins, that “the
imposition of consecutive sentences in this instance contravenes” the long-
standing “Indiana Supreme Court’s directive in Beno and Gregory . . . .”
Hopkins, 668 N.E.2d at 689 (footnote omitted). Accordingly, the order
sentencing Boger to serve consecutive sentences is reversed.
[50] “When we find an irregularity in the trial court’s sentencing decision, we may
remand to the trial court for a clarification or a new sentencing determination,
or affirm the sentence if the error is harmless, or impose a proper sentence.”
Rios, 930 N.E.2d at 669. In the instant case, we elect to remand to the trial
court for a new sentencing determination. We express no opinion as to the
sentence to be imposed, but we note that in resentencing Boger to serve
concurrent terms on the dealing convictions, the trial court retains its right to
enhance the advisory term based on any factors it finds applicable.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2622 | May 6, 2019 Page 29 of 30 Conclusion [51] The trial court did not abuse its discretion in admitting evidence of Boger’s
previous drug sales, and there was sufficient evidence to rebut Boger’s
entrapment defense and support his convictions. However, we reverse his
consecutive sentences as inappropriate and remand for the trial court to
resentence Boger consistent with this opinion, modify its orders accordingly,
and notify the Department of Correction of this change.
[52] Affirmed in part, reversed in part, and remanded.
Baker, J., and Najam, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2622 | May 6, 2019 Page 30 of 30