Angela L. Blair v. State of Indiana ( 2014 )

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before Dec 11 2014, 10:03 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JAMES A. SHOAF GREGORY F. ZOELLER
Columbus, Indiana Attorney General of Indiana
ERIC P. BABBS
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
ANGELA L. BLAIR, )
)
Appellant-Defendant, )
)
vs. ) No. 03A01-1403-CR-132
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE BARTHOLOMEW SUPERIOR COURT
The Honorable Kathleen T. Coriden, Judge
Cause Nos. 03D02-1208-CM-3882, 03D02-1209-CM-4883, and 03D02-1211-CM-5866
December 11, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
NAJAM, Judge
STATEMENT OF THE CASE
Angela Blair appeals her convictions for two counts of possession of
paraphernalia, as Class A misdemeanors, and conversion, as a Class A misdemeanor,
following three separate bench trials. Blair presents the following issues for our review:
1. Whether the trial court abused its discretion when it tried her in
absentia on the conversion charge.
2. Whether the State presented sufficient evidence to support each of
her convictions.
3. Whether the trial court erred when it calculated her credit time.
We affirm.
FACTS AND PROCEDURAL HISTORY
Cause Number 03D02-1208-CM-3882 (“CM-3882”)
On July 19, 2012, Columbus Police Department Officer Angie Owens saw Blair
driving a vehicle and, after confirming her suspicion that Blair’s driver’s license was
suspended, Officer Owens initiated a traffic stop to investigate. At the conclusion of the
traffic stop, Officer Owens arranged to have the vehicle Blair had been driving towed
from the scene. Blair told Officer Owens that she had left her purse in the car, and, as
Officer Owens retrieved the purse, which was open at the top, Officer Owens observed a
syringe in plain view inside the purse. Unprompted, Blair said, “Oh, I haven’t used
today, there’s no needle in there, I took the needle out.” Tr. at 8. Officer Owens knew
that Blair was a drug user, and Officer Owens arrested Blair. The State charged Blair
with possession of paraphernalia, as a Class A misdemeanor. The trial court found Blair
guilty as charged and entered judgment and sentence accordingly.
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Cause Number 03D02-1209-CM-4883 (“CM-4883”)
On September 9, 2012, Blair’s mother called the Columbus Police Department to
report that Blair was missing “and was possibly murdered earlier in the morning.” Id. at
11. Police officers searched for Blair all day, and at one point Officer Troy Love saw
Blair walking across a downtown street. Blair had a warrant for her arrest, so Officer
Love arrested her. During a search incident to that arrest, Officer Love found “some
syringes on her person.” Id. at 12. The State charged Blair with possession of
paraphernalia, as a Class A misdemeanor. The trial court found Blair guilty as charged
and entered judgment and sentence accordingly.
Cause Number 03D02-1211-CM-5866 (“CM-5866”)
On October 18, 2012, a loss prevention officer at Walmart in Columbus detained
Blair after she “had stolen lice medication and a flashlight.” Id. at 15. Columbus Police
Department Officer Julie Quesenberry responded to the scene and identified Blair, who
had lied to the Walmart loss prevention officer and stated that her name was Amy Baker.
Blair told Officer Quesenberry that “she tried to take [the lice medication] because she
had a lice issue[.]” Id. Officer Quesenberry arrested Blair, and the State charged her
with conversion, as a Class A misdemeanor. The trial court found Blair guilty as charged
and entered judgment and sentence accordingly. These consolidated appeals ensued.
DISCUSSION AND DECISION
Issue One: Trial In Absentia
Blair contends that she did not knowingly or intentionally waive her right to be
present at her trial in CM-5866. We review such questions for an abuse of discretion.
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See Brown v. State, 839 N.E.2d 225, 231 (Ind. Ct. App. 2005), trans. denied. A trial
court abuses its discretion if its decision is clearly against the logic and effect of the facts
and circumstances before the court or if the court misapplies the law. See Speybroeck v.
State, 875 N.E.2d 813, 818 (Ind. Ct. App. 2007).
As our supreme court has stated:
A defendant in a criminal proceeding has a right to be present at all stages
of his or her trial. U.S. Const. amend. VI; Ind. Const. art. I, § 13; Fennell v.
State, 492 N.E.2d 297, 299 (Ind. 1986). A defendant may waive this right
and be tried in absentia if the trial court determines that the defendant
knowingly and voluntarily waived that right. Freeman v. State, 541 N.E.2d
533, 535 (Ind. 1989); Fennell, 492 N.E.2d at 299. The best evidence that a
defendant knowingly and voluntarily waived his or her right to be present at
trial is the “defendant’s presence in court on the day the matter is set for
trial.” Fennell, 492 N.E.2d at 299 (citing Brown v. State, 181 Ind.App.
102, 390 N.E.2d 1058 (1979)).
Lampkins v. State, 682 N.E.2d 1268, 1273 (Ind. 1997) (emphasis added).
Blair does not make cogent argument in support of this contention, nor does she
support her contention with citations to the record or legal authority. Accordingly the
issue is waived. Waiver notwithstanding, Blair was present in court on the day that the
matter was set for trial. Thus, Blair knowingly and voluntarily waived her right to be
present at trial, and the trial court did not abuse its discretion when it tried her in absentia.
See id.Issue Two: Sufficiency of the Evidence
Standard of Review
When the sufficiency of the evidence to support a conviction is challenged, we
neither reweigh the evidence nor judge the credibility of the witnesses, and we affirm if
there is substantial evidence of probative value supporting each element of the crime
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from which a reasonable trier of fact could have found the defendant guilty beyond a
reasonable doubt. Wright v. State, 828 N.E.2d 904, 905-06 (Ind. 2005). It is the job of
the fact-finder to determine whether the evidence in a particular case sufficiently proves
each element of an offense, and we consider conflicting evidence most favorably to the
trial court’s ruling. Id. at 906.
CM-3882 and CM-4883
Blair first contends that the State presented insufficient evidence to support her
possession of paraphernalia convictions in CM-3882 and CM-4883. In particular, Blair
maintains that the State’s evidence was insufficient because “it did not produce the
alleged instrument itself or any testimony or photographic evidence to establish that the
instrument was capable or intended to introduce a controlled substance into the body.”
Appellant’s Br. at 9. We cannot agree.
Indiana Code Section 35-48-4-8.3 (2012) provides in relevant part that a person
who knowingly or intentionally possesses a raw material, an instrument, a device, or
other object that the person intends to use for introducing into the person’s body a
controlled substance commits a Class A misdemeanor for possessing paraphernalia.1 As
we observed in Sluder v. State, 997 N.E.2d 1178, 1181 (Ind. Ct. App. 2013),
[t]he intent to introduce a controlled substance into one’s body may be
inferred from circumstantial evidence. See Dabner v. State, 258 Ind. 179,
279 N.E.2d 797, 798-99 (1972) (puncture marks over the veins of the
defendant’s forearm, evidencing recent injections, are sufficient to establish
intent); Stevens v. State, 257 Ind. 386, 275 N.E.2d 12, 13 (1971)
1
In CM-4883, the State charged Blair under subsection (a)(1), and in CM-3882, the State
charged Blair under subsection (a)(2). But at the bench trials in both CM-4883 and CM-3882, the State
argued that Blair possessed paraphernalia in violation of subsection (a)(1) and presented evidence
accordingly. Blair makes no contention on appeal that the variance between the charging information and
the proof at trial in CM-3882 was fatal.
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(admission to past drug use coupled with needle marks on defendant’s arms
sufficient to establish intent); Von Hauger v. State, 255 Ind. 666, 266
N.E.2d 197, 198 (1971) (previous convictions of drug use sufficient to
establish intent); Trigg v. State, 725 N.E.2d 446, 450 (Ind. Ct. App. 2000)
(residue-encrusted crack pipe found where defendant was sitting was
sufficient to establish intent to use the pipe to smoke crack); McConnell v.
State, 540 N.E.2d 100, 103-04 (Ind. Ct. App. 1989) (expert testimony that
paraphernalia contained drug residue sufficient to establish intent).
And we noted that a defendant’s past drug use would be circumstantial evidence
sufficient to show intent to use paraphernalia to introduce into a person’s body a
controlled substance. Id.Here, in CM-3882 the State presented evidence that, after Officer Owens saw a
syringe in plain view in Blair’s open purse, Blair stated, “I haven’t used today[.]” Tr. at
8. And Officer Owens testified that she knew Blair “as being a user.” Id. That evidence
of Blair’s past drug use is sufficient to prove her intent to use the syringe to introduce
into her body a controlled substance. See Sluder, 997 N.E.2d at 1181. The State
presented sufficient evidence to support her conviction in CM-3882.2
In CM-4883 the State presented evidence that, during a search of Blair’s person
incident to her arrest, Officer Love found “some syringes on her person.” Tr. at 12. And
the State introduced into evidence photographs depicting the following: three syringes,
one of which had a needle attached; what appears to be a crack pipe; a spoon; and a small
baggie containing a white, powdery substance. We hold that that circumstantial evidence
is sufficient to prove Blair’s intent to use the syringes to introduce into her body a
controlled substance. See, e.g., Sluder, 997 N.E.2d at 1181 (holding that circumstantial
2
To the extent Blair contends that the State’s evidence was insufficient because it did not
introduce into evidence the actual syringe found in her purse but presented only the officer’s testimony
and photographs regarding the syringe, Blair’s contention is without merit.
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evidence of intent to use paraphernalia for ingestion of drugs includes, but is not limited
to, evidence of track marks on a defendant’s arms, past drug use, previous drug
convictions, or the presence of drugs). The State presented sufficient evidence to support
her conviction in CM-4883.3
CM-5866
Blair contends that the State presented insufficient evidence to support her
conversion conviction. To prove conversion, the State was required to show that Blair
knowingly or intentionally exerted unauthorized control over the property of another
person. Ind. Code § 35-43-4-3. At trial, Officer Quesenberry testified that, according to
the loss prevention officer at Walmart, Blair “had stolen lice medication and a flashlight”
with a total value of $62.90. Tr. at 15. When questioned, Blair admitted having taken the
items. That evidence is sufficient to support Blair’s conviction.
On appeal, Blair contends that Officer Quesenberry’s testimony is insufficient to
support her conviction because it was hearsay. But Blair was tried in absentia (and
without counsel) and, therefore, made no objection to the testimony at trial. Our supreme
court has held that otherwise inadmissible hearsay evidence may be considered for
substantive purposes and is sufficient to establish a material fact at issue when the
hearsay evidence is admitted without a timely objection at trial. Banks v. State, 567
3
Blair states that “there is no evidence in the record that the State played the CD or that the [trial
court] viewed the pictures on the CD.” Appellant’s Br. at 12. But the trial court admitted into evidence
State’s Exhibit 1, which contains the photos of the items found along with the syringes. While the record
does not indicate whether the trial court actually viewed those photos before it found Blair guilty, it is
mere speculation to suggest otherwise. The State presented sufficient evidence to support Blair’s
convictions.
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N.E.2d 1126, 1129 (Ind. 1991). Again, the State presented sufficient evidence to support
Blair’s conviction.
Issue Three: Credit Time
Finally, Blair contends that the trial court erred when it calculated her credit time.
But, as the State points out, Blair has not supported that contention with relevant citations
to the record or any citations to legal authority. Blair has waived this issue for our
review.
Affirmed.
BAILEY, J., and PYLE, J., concur.
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