Alvarez v. State

• Docket Number: 23A-CR-23
• Decision Date: 31 August 2023
• Parties: Nicolas C. Alvarez, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

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Nicolas C. Alvarez, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff.

No. 23A-CR-23

Court of Appeals of Indiana

August 31, 2023

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.

Appeal from the Posey Circuit Court The Honorable Craig S. Goedde Judge Trial Court Cause No. 65C01-2006-F3-253

ATTORNEY FOR APPELLANT

Erin L. Berger Evansville, Indiana

ATTORNEYS FOR APPELLEE

Theodore E. Rokita Attorney General of Indiana

Jodi Kathryn Stein Deputy Attorney General Indianapolis, Indiana

MEMORANDUM DECISION

BROWN, JUDGE

[¶1] Nicholas C. Alvarez appeals his conviction and sentence for dealing in a narcotic drug as a level 3 felony. Alvarez raises eight issues which we consolidate and restate as:

I. Whether the trial court abused its discretion in admitting certain evidence;

II. Whether the court erred in allowing the State to amend its information;

III. Whether the court erred in refusing to give his lesser included instruction;

IV. Whether the court abused its discretion in denying his motion for funds to hire expert witnesses;

V. Whether the court erred in denying his motion to continue;

VI. Whether the evidence is sufficient to sustain his conviction; and

VII. Whether his sentence is inappropriate in light of the nature of the offense and the character of the offender.

We affirm.

Facts and Procedural History

[¶2] In 2020, Posey County Prosecuting Attorney's Investigator Kenneth Rose worked for a drug investigation called Operation Aftershock to investigate numerous drug dealers. Investigator Rose utilized a confidential informant (the "C.I."). The C.I. communicated with Alvarez via text messages to set up deals. On February 18, 2020, the C.I set up a purchase from Alvarez of about 2.5 grams of heroin, which Investigator Rose characterized as "a dealer amount" or "approximately 25 uses by a drug user." Transcript Volume III at 110.

Investigator Rose met with the C.I. at a pre-buy site where the C.I. and his vehicle were searched and he was given buy money and a recording device. Alvarez arrived with someone who was driving him. Alvarez entered the C.I.'s vehicle and gave him heroin in exchange for money. After the controlled buy, the C.I. provided the suspected heroin to law enforcement, and law enforcement retrieved video from the device given to the C.I., and determined the approximate gross field weight was 2.2 grams.

[¶3] On February 25, 2020, the C.I. communicated with Alvarez to set up another deal for approximately three grams of heroin for a controlled buy. Alvarez delivered heroin to the C.I. in exchange for money, and law enforcement retrieved the heroin and video of the buy.

[¶4] On March 6, 2020, the C.I. communicated with Alvarez through text messages to set up a third deal for "over three-plus grams." Id. at 155. Alvarez again delivered heroin to the C.I., and law enforcement retrieved video of the buy. Posey County Sheriff's Detective Dustin Seitz monitored and followed the C.I. during the three controlled buys.

[¶5] On June 23, 2020, the State charged Alvarez with dealing in a narcotic drug as a level 3 felony. Specifically, the State alleged that "between February 18, 2020 and March 1, 2020 . . . [Alvarez] did knowingly or intentionally deliver Heroin, pure or adulterated, a narcotic drug classified in schedule I, having an aggregate weight of at least seven (7) grams, but less than twelve (12) grams . . . contrary to . . . I.C. 35-48-4-1(a)(1) and I.C. 35-48-4-1(d)(3) ...." Appellant's Appendix Volume II at 21. The probable cause affidavit, which was filed that same day, detailed the transactions between Alvarez and the C.I. on February 18 and 25, 2020, and March 6, 2020.

[¶6] On August 24, 2021, Alvarez filed a Motion for Specific Discovery asking the court to require the State to serve upon defense counsel evidence including any and all controlled buy videos, interviews in which Alvarez was mentioned, the identity of the C.I., recordings of meetings with the C.I., the criminal history of the C.I., and sealed cases pending against the C.I.

[¶7] On December 28, 2021, Alvarez filed a Request to Appoint Defense Experts including an independent forensic scientist to inspect and conduct forensic testing on the alleged controlled substances seized during the investigation and an independent forensic video analyst. On January 26, 2022, the State filed an objection to Alvarez's request to appoint defense experts. That day, the court held a hearing at which Alvarez's counsel requested "an expert to review the video footage to give us an opinion as to why we're seeing glitches and why we're seeing backgrounds change without any reason that this guy goes from normal color to dark blue in a matter of the blink of an eye." Transcript Volume II at 102. On July 18, 2022, the court denied Alvarez's request to appoint defense experts.

[¶8] On August 2, 2022, Alvarez filed a motion to exclude certain evidence from trial. Specifically, he asked that the following be excluded: ISP Laboratory Chain of Custody documents, which were not tendered to defense counsel until July 16, 2022; text messages between him and the C.I., which were "not tendered to counsel until July 20, 2022 and then in an openable format on July 27, 2022"; undercover buy video "from primary wire," which was not tendered to counsel until July 20, 2022; photographs from controlled buys which were not tendered to counsel until July 22, 2022; "[t]he Defendant's CHIRPS from October 1, 2021," which "were not tendered until July 30, 2022"; Drug Task Force chain of custody documents which were tendered to counsel on August 1, 2022; and any and all information from Alvarez's cell phone. Appellant's Appendix Volume II at 107.

[¶9] On August 2, 2022, Alvarez filed a proposed final instruction regarding the lesser included offense of dealing in a narcotic drug which stated:

The crime of dealing in a narcotic drug is defined by law as follows:

A person who knowingly or intentionally delivers a narcotic drug, pure or adulterated, classified in schedule I or II, commits dealing in a narcotic drug a Level 5 Felony. The offense is a Level 4 Felony if the drug is heroin and the amount of heroin involved, added together over a period of not more than ninety (90) days, is at least three (3) grams but less than seven (7) grams.

Before you may convict Nicolas C. Alvarez, the State must have proved each of the following beyond a reasonable doubt:

1. Nicolas C. Alvarez;

2. Knowingly or intentionally delivered;

3. Heroin, a narcotic drug, pure or adulterated, which the Court instructs you is classified by statute as a controlled substance in schedule I or II; 4. And the drug was heroin and the amount of heroin involved, added together over a period of not more than ninety (90) days, was at least three (3) g[r]ams but less than seven (7) grams.

If the State fails to prove each of these elements beyond a reasonable doubt, you must find Nicolas C. Alvarez not guilty of Dealing in a Narcotic Drug, a Level 4 Felony.

Id. at 105.

[¶10] On August 3, 2022, the court held a preliminary hearing. The prosecutor moved "to amend by interlineation the information to say 'on or between February 18th, 2020 and March 6th of 2020." Transcript Volume II at 158. He also stated that he would prefer "if that scrivener's error not have been made" but argued that statute and law allowed the amendment. Id. Alvarez's counsel objected to any amendment. The court took the matter under advisement. Alvarez's counsel also mentioned the motion to exclude and stated that he had received seven new pieces of evidence that had not previously been tendered and received an eighth piece of evidence that morning, and asked why there was a last-minute motion to amend. The prosecutor asserted that defense counsel was welcome to move for a continuance. Alvarez's counsel asserted there was "no good reason that we should be having discovery the two weeks before the fourth trial date" and asked the court to grant the motion to exclude, deny the amendment, and proceed with trial. Id. at 166. The prosecutor asserted that he had provided everything to defense counsel when he received it. After further argument, the court stated:

Based upon the arguments the Court's hearing today, I think the proper remedy is a motion to continue, if the Defense wishes to move it, to give them an opportunity to be able to review any additional documents, seek additional documents, if they find out that what's been tendered to them has not been an extensive or complete discovery response.

Id. at 170. After further discussion, the court granted the State's request to modify the jury instructions related to the charging information to read "on or between February 18th of 2020 and March the 6th of 2020." Id. at 172. Alvarez's counsel moved for a continuance, and the court granted the motion and rescheduled the trial for November 9, 2022.

[¶11] On November 1, 2022, the court held a pretrial conference. Alvarez's counsel asserted: "Judge, this is pretty much a rerun based on - or a redo based on discovery issues that resulted in a continuance at the Defense's request." Id. at 187. After some discussion, the court stated: "We'll show the prior rulings of the Court affirmed here today. We'll show Mr. Alvarez's objection to his counsel with regards to the amendment of the pleadings being of record as of today." Id. at 189.

[¶12] On November 7, 2022, the court held a status conference. Alvarez's counsel stated the prosecutor had informed him that the C.I. was a suspect in a possible charge and "it could be something as serious as an...