Ross v. State Of Ind.

• Decision Date: 21 December 2010
• Docket Number: No. 49A04-0912-CR-710,49A04-0912-CR-710
• Citation: Ross v. State, No. 49A04-0912-CR-710 (Ind. App. Dec 21, 2010)
• Parties: JAMES T. ROSS, Appellant, v. STATE OF INDIANA, Appellee.
• Court: Indiana Appellate Court

JAMES T. ROSS, Appellant,

v.STATE OF INDIANA, Appellee.

No. 49A04-0912-CR-710

COURT OF APPEALS OF INDIANA

December 21, 2010

Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT:

DANIELLE GREGORY

Marion County Public Defender

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE:

GREGORY F. ZOELLER

Attorney General of Indiana

JOBY D. JERRELLS

Deputy Attorney General

Indianapolis, Indiana

APPEAL FROM THE MARION SUPERIOR COURT

The Honorable Michael Jensen, Magistrate

CauseNo. 49G20-0406-FA-109648

MEMORANDUM DECISION-NOT FOR PUBLICATION

MATHIAS, JudgeJames T. Ross("Ross") challenges the Marion Superior Court's revocation of his probation and raises multiple issues for our review, which we consolidate, restate, and reorder as the following six:

I.Whether the trial court abused its discretion in granting the State two continuances;

II.Whether the trial court properly admitted evidence after the State allegedly committed a discovery violation;

III.Whether the revocation of Ross's probation comported with the dictates of the Due Process clause;

IV.Whether the trial court abused its discretion by admitting evidence obtained as a result of a seizure allegedly conducted in violation of the Fourth AmendmentandArticle 1, Section 11 of the Indiana Constitution;

V.Whether the State presented sufficient evidence that Ross violated the terms of his probation; and

VI.Whether the trial court erred when it failed to award Ross jail credit time for the time he spent incarcerated between his arrest and the trial court's revocation of his probation.

We affirm and remand with instructions.

Facts and Procedural History

On June 2, 2006, Ross pleaded guilty in the Marion Superior Court to Class B felony dealing in cocaine and Class C felony possession of cocaine and a firearm.The trial court sentenced Ross to ten years, with eight years suspended.The trial court also ordered Ross to serve two years on probation.

At approximately 5:15 p.m. on May 14, 2009, Franklin Police Department DetectiveBryan Burton("Detective Burton") was dispatched to a Johnson County Goodwill store after an anonymous tipster reported that a female employee of the store had just placed an order by phone to purchase cocaine and heroin from a black male.The tipster said that the employee's name was Tara and that she had blonde hair and was wearing a blue shirt.The tipster further reported that the transaction was to take place at 6:00 p.m. in the parking lot of the store, and that the dealer would be driving a "nice car with nice rims on it."Tr.p. 27.

Detective Burton went to the store, and while posing as a customer, he observed a female employee with blonde hair wearing a blue shirt and a nametag bearing the name "Tara."Tr.p. 28.The employee was later identified as Tara Rolle("Rolle").Detective Burton exited the store and waited in his vehicle, and a few minutes later, he saw Rolle exit the store, walk to a nearby bank, use the ATM, and then return to the store and sit on the curb.A few minutes later, a black Nissan with "fairly nice" rims pulled up to the curb, and Rolle got into the back seat.Tr.p. 29.Detective Burton witnessed an exchange between Rolle and the front-seat passenger, who was later identified as Ross, and Rolle then got out of the car with a paper towel in her hand.

After calling for backup to stop the car, Detective Burton followed Rolle into the store, where he stopped her and told her to give him the drugs.Rolle then handed Detective Burton the paper towel, which contained substances that Detective Burton recognized as crack cocaine and heroin.Rolle told Detective Burton that she had a cocaine and heroin habit and that Ross was supplying her with drugs.Ross wassubsequently arrested and charged in Johnson County with Class B felony dealing in a controlled substance.

On May 27, 2009, the State filed a notice of probation violation alleging that Ross had violated his probation by being charged in Johnson County with dealing in a controlled substance.On August 6, 2009, the scheduled date of the probation revocation hearing, the State moved for a continuance.The trial court granted the motion, reset the hearing for August 20, 2009, and released Ross on his own recognizance.On August 20, 2009, the State again moved for a continuance after Ross claimed that the State had not provided any discovery.The trial court granted the motion and again reset the revocation hearing.

At the October 1, 2009 evidentiary hearing, the State called Detective Burton as its sole witness.Detective Burton testified regarding the events leading up to Ross's arrest, including the statements made by Rolle.Additionally, the State offered into evidence a report prepared by the Indiana State Police Laboratory Division showing that the substances seized from Rolle contained heroin and cocaine.Ross objected, claiming that the admission of the report without the testimony of the toxicologist who performed the tests violated his right to confront and cross examine witnesses.The court took Ross's objection under advisement.

Ross then testified on his own behalf and denied selling drugs to Rolle.Ross claimed that on May 14, 2009, Justin Boochee("Boochee") invited Ross to ride along with Boochee on a trip to visit Boochee's girlfriend.According to Ross, Boochee told Ross that he would pay back some money Ross had loaned him if Ross accompanied him on the trip.When Boochee and Ross arrived at the Johnson County Goodwill store, Rolle got into the back seat of the car and began talking to Boochee.Ross testified that he saw Boochee hand something to Rolle, and that Rolle then placed money on the console.Boochee then told Ross to take the money, and Ross picked up the money and began counting it.Ross testified that Boochee then removed drugs from the car's air vent and handed them to Rolle.Ross admitted that he was aware that a drug deal had taken place between Rolle and Boochee.

At a subsequent hearing on November 5, 2009, the court overruled Ross's objection and admitted the lab report into evidence.¹The trial court went on to conclude that Ross had violated his probation by "associat[ing] with known criminal activity."Tr.p. 115.The court then revoked Ross's probation and ordered him to serve four years of his suspended eight-year sentence.Ross now appeals.²

I.Continuances

Ross first contends that the trial court abused its discretion when it granted the State's motions for continuance, on August 6 and August 20, 2009, over his objections.Rulings on non-statutory motions for continuance lie within the sound discretion of the trial court, and we will reverse only for an abuse of that discretion and resulting prejudice.Lundquist v. State, 834 N.E.2d 1061, 1066(Ind. Ct. App.2005).An abuse of discretion occurs only where the decision is clearly against the logic and effect of the facts and circumstances before the trial court.Id.

A. August 6, 2009 Continuance

With respect to the August 6, 2009 continuance, Ross argues that granting the State's motion was an abuse of discretion because "the record does not reflect the continuance was timely, in writing, or that good cause established by affidavit or other evidence existed to support the continuance."Appellant's Br.at 12.The chronological case summary indicates that a hearing was held on August 6, 2009 and that the State's motion for continuance was granted.Appellant's App.pp. 31-32.However, because Ross has not provided us with a transcript of that hearing, we are unable to determine the State's reason for requesting a continuance, whether Ross objected to the motion, or the court's reason for granting the motion.It is the appellant's duty to present this court with an adequate record clearly showing the alleged error, and where he fails to do so, the issue is deemed waived.Davis v. State, 935 N.E.2d 1215, 1217(Ind. Ct. App.2010).Ross has therefore waived appellate review of this issue.

B. August 20, 2009 Continuance

Next, Ross claims that the trial court abused its discretion by granting the August 20, 2009 continuance because the State's motion did not satisfy the requirements of the Indiana Trial Rules and the Marion County Local Rules.Ross claims that he suffered prejudice as a result of the continuance because at the time of the August 20, 2009 hearing, the State did not have evidence to prove that the substances Ross was alleged to have sold to Rolle contained cocaine and heroin.Specifically, Ross points out that the lab report that was eventually admitted into evidence was not in existence at the time of the August 20, 2009 hearing and suggests that the true motivation behind the State's motion for continuance was the absence of this evidence.Ross argues that "without admissible evidence to support the violation by a preponderance of the evidence, the State could not have proven its case."Appellant's Br.at 13.

However, the transcript clearly indicates that the State was prepared to present evidence, in the form of Detective Burton's testimony, to establish that the substances had field-tested positive for cocaine and heroin.³Indeed, the State repeatedly indicated that it was ready to go forward with the hearing, stating "If we want discover[y], that's fine.If we want to go forward, that's fine.I'll play it either way."Tr.p. 14.And while the continuance allowed the State time to obtain the lab report that was eventually admitted into evidence, the trial court did not rely on the lab report in revoking Ross'sprobation.In ruling on the admissibility of the report, the trial court made the following observations:

So the Court is going to allow the report into evidence.But in the Court's view of the case, this doesn't matter in the long run because the Defendant

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