Cherry v. State

• Decision Date: 27 July 2012
• Docket Number: No. 55A01–1112–CR–585.,55A01–1112–CR–585.
• Citation: 971 N.E.2d 726
• Parties: John CHERRY, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

971 N.E.2d 726

John CHERRY, Appellant–Defendant,

v.STATE of Indiana, Appellee–Plaintiff.

No. 55A01–1112–CR–585.

Court of Appeals of Indiana.

July 27, 2012.

Ryan P. Dillon, Law Office of Ryan P. Dillon, P.C., Franklin, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Brian Reitz, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

BRADFORD, Judge.

Appellant–Defendant John Cherry appeals from his convictions of and sentences for Class B felony Aiding, Inducing, or Causing Dealing in Heroin ¹ and Class D felony Unlawful Possession of a Syringe.² As restated, Cherry contends that the trial court abused its discretion in admitting certain evidence, the State failed to produce sufficient evidence to sustain his convictions, the trial court abused its discretion in denying his mistrial motion, and his sentence is inappropriately harsh. We affirm.

FACTS AND PROCEDURAL HISTORY

On May 24, 2011, Morgan County Sheriff's Deputy Larry Sanders learned from a confidential informant (“CI”) that Austin Quick, from whom the CI had previously purchased heroin, was presently dealing in heroin. Detective Sanders contacted Detective Brian Chambers and Sergeant John Richards of the Martinsville Police Department to assist in a controlled drug buy. Quick was riding in a truck with Cherry, driver Cheyne Smith, Angela Montgomery, and Brenda Loy when he received a telephone call, whereupon he asked Smith to drive to an alley where the controlled buy was to occur.

When the truck arrived at the meeting location, Quick and Cherry noticed police in the area, and Quick told Smith to keep driving. Before police pulled the truck over, Quick ingested two “balloons” that contained “tar” heroin. Tr. pp. 155,156. From along the path traveled by the truck, Martinsville Police Detective Timothy Foley recovered two syringes and a spoon with residue wrapped in a string or rope. Heroin in tar form is heated until liquid for injection, a process “[a] lot of people” carry out using a spoon. Tr. p. 79.

Detective Chambers stopped the truck after a short chase, its occupants were removed, and Detective Sanders began obtaining information from them. While Detective Sanders was speaking to Montgomery, Cherry asked to speak with him. Cherry told Detective Sanders that Quick was “not the person that [he] wanted” and that “[h]e was the person supplying the heroin.” Tr. p. 70. Cherry repeated the statement after Detective Sanders called another police officer over. Sergeant Richards recovered a syringe from Cherry's right front pants pocket, and Cherry was transported to the Morgan County Sheriff's Department. Detective Sanders proceeded to question Cherry, who told Detective Sanders that Quick was dealing heroin and that he was supplying it to Quick. Cherry explained that he had stayed at a friend's house “right behind the Rural King” the night before, had received some money for scrap metal that morning, and had then driven to Indianapolis with Quick to purchase heroin. State's Ex. 3. Detective Sanders also interviewed Quick, who told him that he sold heroin for Cherry.

The State charged Cherry with two counts of Class B felony aiding, inducing, or causing dealing in heroin ³ and Class D felony unlawful possession of a syringe. At trial, the State's first witness testified that the balloons Quick had swallowed, and which were later recovered, contained heroin, and a laboratory report to that effect was entered into evidence. As is happened, however, the report was later withdrawn when the trial court ruled that the State had failed to establish a sufficient chain of custody for the heroin. Cherry moved for a mistrial and then requested an admonition, and the trial court admonished the jury not to consider any evidence from the witness who had testified regarding the test results or the laboratory report. The jury found Cherry guilty as charged, and the trial court sentenced him to ten years of incarceration for aiding, inducing, or causing dealing in heroin, with two years suspended and to be followed by four years of probation, and a concurrent three years for Class D felony unlawful possession of a syringe.

DISCUSSION AND DECISION

I. Whether the Trial Court Abused its Discretion in Admitting Certain Evidence

The admissibility of evidence is within the sound discretion of the trial court. Curley v. State, 777 N.E.2d 58, 60 (Ind.Ct.App.2002), trans. denied. We will reverse a trial court's decision on the admissibility of evidence only upon a showing of an abuse of that discretion. Id. An abuse of discretion may occur if the trial court's decision is clearly against the logic and effect of the facts and circumstances before the court, or if the court has misinterpreted the law. Id. The Court of Appeals may affirm the trial court's ruling if it is sustainable on any legal basis in the record, even though it was not the reason enunciated by the trial court. Moore v. State, 839 N.E.2d 178, 182 (Ind.Ct.App.2005), trans. denied. We do not reweigh the evidence, and consider the evidence most favorable to the trial court's ruling. Hirshey v. State, 852 N.E.2d 1008, 1012 (Ind.Ct.App.2006), trans. denied.

A. Statements to Detective Sanders

Cherry contends that the trial court abused its discretion in admitting his videotaped statement to Detective Sanders because any probative value is outweighed by its prejudicial effect and because the State had failed to previously establish a corpus delicti at trial.

1. Evidence Rule 403

Indiana Evidence Rule 403 provides: “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.” Cherry argues that the prejudicial effect of his admissions to acts unrelated to the events of May 24, 2011, only served to inflame the jury. Specifically, Cherry challenges his admission that he had driven with Quick to purchase heroin on previous occasions.

We cannot conclude that the trial court abused in discretion in this regard. First, we find the statement that Cherry and Quick had worked together in the past to be highly relevant to the question of Cherry's intent on May 24, 2011. Moreover, the record contains ample evidence from other sources that Cherry was helping Quick to deal heroin, including Cherry's statement to Detective Sanders at the scene that he was the person supplying the heroin and Quick's own statement to Detective Sanders that he sold heroin for Cherry. In light of the substantial evidence that Cherry and Quick were working together on May 24, 2011, we doubt the jury was much affected by evidence that the duo had worked together in the past. The trial court did not abuse its discretion in this regard.

2. Corpus Delicti

Cherry argues that his videotaped statement was inadmissible because the State had not yet established a corpus delicti for the aiding, inducing, or causing heroin dealing charge when it was admitted. “Proof of the corpus delicti means proof that the specific crime charged has actually been committed by someone.” Taylor v. State, 236 Ind. 415, 421, 140 N.E.2d 104, 108 (1957).

For a confession to be admitted into evidence, the State must establish the corpus delicti. Rickey v. State, 661 N.E.2d 18, 23 (Ind.Ct.App.1996), trans. denied. The purpose for requiring proof of the corpus delicti is to prevent the admission of a defendant's confession to a crime that never occurred. Hurt v. State, 570 N.E.2d 16, 19 (Ind.1991). The State is not required to prove the corpus delicti beyond a reasonabledoubt, but must present independent evidence from which an inference may be drawn that a crime was committed. Douglas v. State, 481 N.E.2d 107, 110 (Ind.1985). The corpus delicti need not be established prior to admission of the confession so long as the totality of independent evidence presented at trial establishes it. Morgan v. State, 544 N.E.2d 143, 146 (Ind.1989). The corpus delicti may be established by circumstantial evidence. Grey v. State, 273 Ind. 439, 442, 404 N.E.2d 1348, 1350 (1980).

Weida v. State, 693 N.E.2d 598, 600 (Ind.Ct.App.1998), trans. denied. Regardless of the order of the presentation of evidence, the totality of the evidence apart from Cherry's confession, specifically Quick's admission and the fact that the truck reported as instructed for a controlled drug buy, established that a crime was committed. The trial court did not abuse its discretion in admitting Cherry's videotaped statement.

B. Syringes Found Near the Truck's Route

Cherry contends that the trial court abused its discretion in admitting the syringes found near the truck's route following the traffic stop. Cherry has, however, waived this argument for appellate consideration. Although Cherry initially objected to the admission of the syringes, he did not object when they were actually admitted into evidence. The purpose of the contemporaneous objection rule is to promote a fair trial by preventing a party from sitting idly by and appearing to assent to an offer of evidence or ruling by the court only to cry foul when the outcome goes against him. Purifoy v. State, 821 N.E.2d 409, 412 (Ind.Ct.App.2005), trans. denied (citation omitted). “The rule requires parties to voice objections in time so that harmful error may be avoided or corrected and a fair and proper verdict will be secured.” Id. Because Cherry did not object to the admission of the syringes found by the road, he has waived the issue on appeal.

II. Whether the State Produced Sufficient Evidence to Sustain Cherry's Convictions

Our standard of review for challenges to the sufficiency of the evidence supporting a criminal conviction is well-settled:

In reviewing a sufficiency of the evidence claim, the Court neither reweighs the evidence nor assesses the credibility of the witnesses. We look to the evidence most favorable...