Reynolds/Herr v. State, 87A04-9008-CR-00394

Docket NºNo. 87A04-9008-CR-00394
Citation582 N.E.2d 833
Case DateDecember 11, 1991
CourtCourt of Appeals of Indiana

Page 833

582 N.E.2d 833
Charlotte M. REYNOLDS/HERR, Appellant,
STATE of Indiana, Appellee.
No. 87A04-9008-CR-00394.
Court of Appeals of Indiana,
Fourth District.
Dec. 11, 1991.

Page 835

John Wissner, Boonville, for appellant.

Linley E. Pearson, Atty. Gen., Geoff Davis, Deputy Atty. Gen., Indianapolis, for appellee.

MILLER, Judge.

Charlotte Reynolds Herr (age 41) was convicted by a jury, of Count I--Possession of Cocaine Within 1,000 Feet of School Property, a Class B felony, 1 and Count II--Dealing in Cocaine Within 1,000 Feet of School Property, a Class A felony. 2 Herr received a 20 year sentence for Count I and a concurrent 50 year sentence for Count II. The court suspended 20 years of the sentence and ordered her to be placed on reporting probation for 20 years after her release from prison. She raises five issues on appeal which we rephrase and consolidate as follows:

I. Whether the court erred in admitting evidence of prior uncharged drug dealing.

II. Whether a sufficient chain of custody was established to admit the cocaine into evidence.

III. Whether portions of IC 35-48-4-6 and IC 35-48-4-1, which respectively elevate the possession and dealing in cocaine to higher level felonies when the act is committed within 1,000 feet of school property, are constitutional.

IV. Whether Herr's convictions of dealing in cocaine and the lesser included offense of possession of cocaine can both stand.

We reverse and remand with instructions to vacate judgment of conviction and sentence for Count I--possession, because it is either a lesser included offense of Count II (dealing in cocaine), or because it was based on possession of a substance (allegedly cocaine) which was not placed into evidence and was not identified by either expert testimony based upon chemical analysis or testimony of someone, including a lay witness testifying from personal experience, sufficiently experienced with the drug, indicating that the substance was indeed an illicit drug. See Moon v. State (1990), Ind.App., 560 N.E.2d 76; McConnell v. State (1989), Ind.App., 540 N.E.2d 100, 103. We affirm on all other grounds.


The facts most favorable to the verdict reveal that Carl Overstreet, who was working as an informant for the Indiana State Police, told Trooper Robert Neal that he had spoken to Joey Bradshaw (an acquaintance of Overstreet who had previously purchased drugs from Herr) who agreed to take Overstreet to buy cocaine from Herr in Boonville, Indiana. On March 17, 1989, Neal and Trooper Paul Andre searched Overstreet and his car, gave him $290 in marked money and hid a microphone on his body. While the officers maintained surveillance, Bradshaw entered Overstreet's car. Bradshaw directed Overstreet to a trailer which was located in the Rolls Trailer Court across the street from the Logo Elementary School. The trailer was located 187 feet from the edge of the school property and 266 feet from the school building.

Bradshaw introduced Overstreet to Herr. Overstreet asked her if she had cocaine for sale. She removed a plastic baggie from her purse and told Overstreet that it contained 2 grams of good cocaine. Herr gave the baggie to Overstreet. He then asked her how much it had been diluted and gave her $200.

While Herr was getting the baggie from her purse, Overstreet saw another baggie in her purse. He asked her how much cocaine was in the second baggie. She replied that there was one gram, but that it was not for sale. Overstreet then asked her if she could get more. She made a phone call and told him she could not get more at the present time. Overstreet said in a March 28, 1989, written statement (given to Trooper Neal), which was given to the jury, that Bradshaw had assured him

Page 836

that she was a good connection because Bradshaw had purchased drugs from her before.

The officers then followed Overstreet as he drove to a service station. While there, Overstreet gave Bradshaw a portion of the cocaine as payment for having set up the buy. Overstreet then left Bradshaw at the service station. The officers then followed Overstreet to their original meeting place outside of Boonville where he turned over the baggie. The officers searched him again and he gave them the remaining $90 of buy money. The officers told Overstreet that they disapproved that he had given some of the cocaine to Bradshaw. Trooper Neal conducted a field test on a portion of the contents of the bag. A chemist conducted tests and confirmed that the baggie contained cocaine.

Additional facts will be added as necessary.



Herr argues on appeal that the court erred in admitting State's Exhibits 4 and 7, which contained evidence of uncharged drug dealing. The court granted her Motion in Limine, ordering the State not to present any evidence of her alleged prior drug dealing or any other prior conduct which was allegedly illegal.

State's Exhibit 4 is Overstreet's written statement which he gave to Trooper Neal on March 28, 1989. In the last sentence of that statement Overstreet stated that Bradshaw had told him he had previously purchased drugs from Herr. Herr did not object to the admission of this exhibit at trial.

State's Exhibit 7 was a tape recorded statement made by Bradshaw to Detective Marvin Heilman on October 17, 1989. In addition to the events of March 17, 1989, Bradshaw also stated that Herr had told him that she had dealt a lot of cocaine and crank. Herr objected to the admission of that part of the tape. The court overruled the objection and the State played the whole tape for the jury.

It is settled law that a party waives any objection to the admission of evidence if a contemporaneous objection was not made at trial, even if the court had made a pre-trial ruling on the admissibility of the evidence. Lenoir v. State (1987), Ind., 515 N.E.2d 529. Herr has waived any error in the admission of Exhibit 4--Overstreet's written statement--because she did not object to its admission at trial. Id.

Furthermore, our supreme court has held that "[r]eversal may not be predicated on the erroneous admission of evidence when evidence of the same probative effect is admitted without objection." Fozzard v. State (1988), Ind., 518 N.E.2d 789, 792. Herr did not object to the admission of Overstreet's statement (Exhibit 4) regarding what Bradshaw had told him about Herr's prior drug dealing; therefore, the admission of Bradshaw's statement about her prior drug dealing is not reversible error. Id.

Moreover, evidence of uncharged crimes may be admitted, in the discretion of the trial court, in order to prove intent, motive, purpose, identity or common scheme or plan. Bartruff v. State (1988), Ind.App., 528 N.E.2d 110. In Bombe v. State (1988), Ind., 525 N.E.2d 336, our supreme court found that the admission of uncharged acts of drug dealing was not reversible error where the defendant attacked the veracity of the informant who made the buy and denied that he was the source of the drugs.

In the instant case, Herr denied that she was the source of the cocaine. Her attorney questioned witnesses, at trial, about the possibilities of: 1) Bradshaw having concealed the drugs on his person; 2) Overstreet having had the drugs on his person or in his car and the officers missing the drugs when they searched him; and 3) Overstreet having gotten the cocaine from someone else in the trailer. Therefore, Herr's identity as the source of the cocaine was at issue and the court could, in its discretion, admit evidence of other cocaine

Page 837

dealing by Herr in order to prove that she was the source of the cocaine.


Herr argues that the State did not present sufficient evidence of an adequate chain of custody in order to have the cocaine properly admitted into evidence. We disagree.

In order to establish a sufficient chain of custody, the proponent of fungible evidence need only provide evidence that strongly suggests the whereabouts of the evidence at all times. Russell v. State (1986), Ind., 489 N.E.2d 955. Reasonable assurances must be provided that the evidence passed through various hands in an undisturbed condition. Id. A defense argument which merely raises the possibility of tampering does not make the chain of custody inadequate. Id.

In the instant case, Trooper Neal and laboratory personnel took several precautions with the cocaine in order to avoid tampering. When Overstreet gave Neal the baggie which contained the cocaine, Overstreet wrote his informant number on the baggie and Neal initialed it. Neal used a portion of the baggie's contents for a field test. He then placed the baggie inside a larger plastic bag which he marked with the date, time, his name, the police case number and the location at which the buy was made. The same identifying marks appeared on State's Exhibit 13 (the baggie of cocaine) when it was admitted into evidence. Neal then took the baggie to a temporary storage locker at the State Police Post in Evansville. Access to the locker was restricted to a civilian evidence handler and the laboratory commander.

Fredricka Laux, a civilian chemist for the Indiana State Police, testified that she received the sealed unopened bag from her evidence clerk. She opened the bag by cutting the bottom in order to avoid Trooper Neal's seal. After performing tests on the contents of the bag, she sealed the bottom with red evidence tape and wrote her initials, her employee number, and the date on the seal. At trial she testified that her seal was intact.

Neal testified that before attending the trial, he drove to the Indiana State Police Post at Evansville. While he was there Sergeant Greg Oeth got the bag from the safe in the laboratory and signed it out to Neal. The bag was in Neal's possession until he identified it at trial. Neal testified that the bag was in the same condition as when he left it at the laboratory except for the red evidence...

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