Antonio R. Harrison v. State of Indiana (mem. dec.) ( 2016 )

MEMORANDUM DECISION FILED
Pursuant to Ind. Appellate Rule 65(D), Aug 09 2016, 8:48 am
this Memorandum Decision shall not be CLERK
Indiana Supreme Court
regarded as precedent or cited before any Court of Appeals
and Tax Court
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
Joseph P. Hunter Gregory F. Zoeller
Muncie, Indiana Attorney General of Indiana
J.T. Whitehead
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Antonio R. Harrison, August 9, 2016
Appellant-Defendant, Court of Appeals Case No.
27A04-1411-CR-551
v. Appeal from the Grant Superior
Court
State of Indiana, The Honorable Dana J.
Appellee-Plaintiff Kenworthy, Judge
Trial Court Cause No.
27D02-1407-FA-16
Baker, Judge.
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[1] Antonio Harrison appeals his convictions for Dealing in a Narcotic Drug, 1 a
class A felony, Possession of a Controlled Substance, 2 a class D felony,
Maintaining a Common Nuisance,3 a class D felony, Possession of
Paraphernalia,4 a class A misdemeanor, Possession of a Narcotic Drug, 5 a class
D felony, and Possession of a Synthetic Drug, 6 a class A misdemeanor.
Harrison argues that the trial court committed fundamental error by admitting
certain evidence, that there is insufficient evidence supporting the dealing in a
narcotic drug conviction, and that he received the ineffective assistance of trial
counsel. We affirm.
Facts
[2] On May 6, 2014, the Grant County Joint Effort Against Narcotics (JEAN)
Drug Force utilized a confidential informant (CI) to engage in a controlled buy
of heroin at Harrison’s residence in Marion. The CI had notified the JEAN
Drug Force that he could buy heroin from Harrison. Officer Mark Stefanatos
and Officer Leland Smith were both familiar with Harrison, having interacted
with him in the past. Both Officers Stefanatos and Smith were able to identify
1
Ind. Code § 35-48-4-1.
2
I.C. § 35-48-4-7.
3
I.C. § 35-48-4-13.
4
I.C. § 35-48-4-8.3
5
I.C. § 35-48-4-6.
6
I.C. § 35-48-4-11.5.
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Harrison by hearing his voice. Based on the information provided by the CI,
the police obtained a search warrant for Harrison’s residence.
[3] The morning of May 6, the CI was in police custody from 10:30 a.m. until the
completion of the controlled buy. Police took his cell phone—the only time the
CI used it was when he made a recorded and monitored call to Harrison to
arrange the buy. An officer procured the money for the controlled buy, and
Officer Smith captured the serial number of each bill with his telephone camera.
The CI was searched at the police station before Officer Stefanatos drove him to
Harrison’s house, and he had nothing on his person. The officers affixed audio
and video recording devices to the CI’s person and gave him $1,000 to complete
the buy.
[4] Officer Stefanatos drove the CI to a location near to Harrison’s residence. The
officer watched and followed the CI as he walked to and from the residence; the
video camera also captured the journey. The CI did not stop or pick anything
up on his way to or from the house. The CI knocked on Harrison’s door and
entered. Once inside, Harrison told the CI that he would have “more coming
in next week.” Tr. p. 302. Upon completing the transaction, the CI exited the
house and walked back to the police vehicle. He had 3.37 grams of heroin in
his possession that had been given to him by Harrison in exchange for the
money.
[5] A few minutes later, the Emergency Response Team executed the search
warrant at Harrison’s residence. In the master bedroom, the officers found the
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following items: an assault rifle, a loaded handgun, an eyeglass case holding
five grams of marijuana, 1.4 grams of heroin, one hydrocodone pill, one
morphine pill, one Alprazolam pill, a hitter pipe, small Ziploc baggies, two
digital scales, and a piece of a straw. In the basement, the officers found the
following items: 1.2 grams of heroin behind an electrical panel, a digital scale,
an eyeglass case containing a tie-off string (typically used by drug users to tie off
the circulation in their arms or legs), needles, a metal measuring spoon with
some residue on it, a small cotton ball, cotton swabs, and two lighters. In the
kitchen and dining room, the officers found the following items: a partially
burned synthetic marijuana cigarette, two digital scales, and a pack of synthetic
marijuana. Harrison was arrested and transported to jail. The search incident
to his arrest revealed approximately $1,700 dollars; the serial numbers on the
bills used by the CI matched those in Harrison’s possession.
[6] On July 11, 2014, the State charged Harrison with class A felony dealing in a
narcotic drug, class D felony possession of a controlled substance, class D
felony maintaining a common nuisance, and class A misdemeanor possession
of paraphernalia. On September 17, 2014, the State added the following
charges: class D felony possession of a narcotic drug, class D felony possession
of marijuana, and class A misdemeanor possession of a synthetic drug.
Harrison’s jury trial took place from September 23 to September 25, 2014. The
jury found Harrison not guilty of possession of marijuana and guilty of all
remaining charges. The trial court sentenced Harrison on October 20, 2014, to
the following concurrent terms: forty-five years for dealing, with five years
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suspended; two years for possession of a controlled substance; two years for
maintaining a common nuisance; one year for possession of paraphernalia; two
years for possession of a narcotic drug; and one year for possession of a
synthetic drug. Harrison now appeals.
Discussion and Decision
I. Admission of Evidence
[7] Harrison first argues that three pieces of evidence should not have been
admitted: the recording of the telephone call between the CI and Harrison
setting up the drug buy; the audio recording of the buy; and the video recording
of the buy. Harrison concedes that he did not object to the admission of this
evidence at trial. As a result, he must establish that the admission of the
evidence constituted fundamental error. To rise to the level of fundamental
error, the error must produce a degree of prejudice beyond that ordinarily
associated with a misapplication of the law. Maul v. State, 731 N.E.2d 438, 440
(Ind. 2000). The error must constitute “a blatant violation of basic principles,
the harm or potential for harm must be substantial, and the resulting error must
deny the defendant fundamental due process.” Id. In other words, the
defendant must show that, as a result of the error, a fair trial was impossible.
Boatright v. State, 759 N.E.2d 1038, 1042 (Ind. 2001).
[8] Harrison’s argument for all of the items of evidence is, essentially, that
foundational requirements were not met. With respect to the telephone call, the
following evidence was presented:
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 Officer Smith testified that he is able to recognize Harrison by his voice.
Tr. p. 185.
 He further testified that he helped to facilitate a recorded phone call
between the CI and Harrison. Id. at 186.
 Officer Smith identified the CD on which the phone call was recorded
and testified that it bore his handwriting, his name, a case number, and
the date. He stated that the CD contained the recording about which he
had just testified. Id. at 186-87.
 After the recording was played for the jury, Officer Smith identified one
voice as the CI and the other voice as Harrison. Id. at 188-89.
With respect to the audio recording of the controlled buy, the following
evidence was presented:
 Officer Stefanatos testified that he affixed a listening device to Harrison’s
person just before the controlled buy took place. Tr. p. 299.
 Additionally, Officer Stefanatos testified that he was able to monitor the
controlled buy while listening to the audio recording. On that recording,
he was able to identify the voices of the CI and Harrison. Id. at 300.
 Officer Stefanatos identified the CD bearing the audio recording of the
controlled buy and stated that it had not been altered in any way. Id.
 As the recording was played for the jury, Officer Stefanatos answered a
number of questions about it, confirming that it was what he had heard
during the controlled buy. Id. at 300-03.
Finally, with respect to the video recording, the following evidence was
presented:
 Officer Stefanatos testified that, in addition to the audio recording device,
a video recording device had been affixed to the CI before the controlled
buy took place. Id. at 301.
 Officer Stefanatos identified the DVR bearing the video recording of the
controlled buy and stated that it had not been altered in any way. Id. at
303.
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[9] Harrison complains that there was no evidence regarding how the recordings
were made and processed or regarding the chain of custody of the recordings.
While it may be true that the State did not lead its witnesses to jump through
every single foundational hoop, we cannot say that its failure to do so
amounted to fundamental error. The witnesses testified as to the operators of
the equipment and the manner of its use. They further confirmed that the
voices or persons being recorded were the parties involved in the investigation
that day—Harrison and the CI—and that the recordings as played for the jury
were consistent with what they had heard and observed the day of the
controlled buy. We find that this meets enough of the foundational
requirements to prevent it from being fundamental error—it certainly did not
deny Harrison a fair trial. We also note that, had a foundational objection been
made, we are confident that the witnesses would have been able to answer more
specific foundational questions such that the evidence would have been
admitted anyway. We decline to reverse on this basis.
II. Sufficiency
[10] Next, Harrison argues that there is insufficient evidence supporting his
conviction for class A felony dealing in a narcotic drug. When reviewing a
claim of insufficient evidence, we will consider only the evidence and
reasonable inferences that support the conviction. Gray v. State, 957 N.E.2d
171, 174 (Ind. 2011). We will affirm if, based on the evidence and inferences, a
reasonable jury could have found the defendant guilty beyond a reasonable
doubt. Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009). Circumstantial
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evidence alone is sufficient if inferences may reasonably be drawn that enable
the factfinder to find the defendant guilty beyond a reasonable doubt. Pratt v.
State, 744 N.E.2d 434, 437 (Ind. 2001). To convict Harrison of class A felony
dealing in a narcotic drug, the State was required to prove beyond a reasonable
doubt that he knowingly or intentionally delivered more than three grams of
heroin. Ind. Code § 35-48-4-1.
[11] The record reveals the following evidence:
 The CI was with officers all day before the controlled buy took place, and
was thoroughly searched before and after the buy.
 The CI was physically observed by Officer Stefanatos and was equipped
with audio and video recording devices that captured his walks to and
from the residence as well as the buy itself.
 The CI did not make any stops or pick up anything on his way to or from
the residence.
 The CI entered Harrison’s residence with $1,000 in cash. Officer
Stefanatos recognized Harrison’s voice from prior encounters.
 The CI exited Harrison’s residence with no cash and 3.37 grams of
heroin.
 Law enforcement executed the search warrant on Harrison’s residence
within a few minutes of the CI’s exit. Harrison was arrested. During the
search incident to arrest, law enforcement found over $1,000 in cash on
his person. The serial numbers on those bills matched the serial numbers
of the bills handed to the CI to use in the controlled buy.
We find that this evidence, albeit circumstantial, is more than sufficient to
support the jury’s conclusion that Harrison was guilty of class A felony dealing
in a narcotic drug. Harrison’s arguments amount to a request that we reweigh
evidence and assess witness credibility—a request we decline. We will not
reverse on this basis.
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III. Assistance of Counsel
[12] Finally, Harrison contends he received the ineffective assistance of trial
counsel.7 To prevail on a claim of ineffective assistance, a defendant must show
that (1) defense counsel’s representation fell below an objective standard of
reasonableness, and (2) there is a reasonable probability that the result would
have been different but for the inadequate representation. Troutman v. State, 730
N.E.2d 149, 154 (Ind. 2000). If a court can dispose of an ineffective assistance
claim on the ground of lack of prejudice, that course should be followed. Wentz
v. State, 766 N.E.2d 351, 361 (Ind. 2002).
[13] Harrison argues that his attorney’s performance was ineffective because counsel
did not object to the phone call recording or the audio or video recordings of
the controlled buy. Initially, as noted above, we are confident that even if an
objection had been raised, the State’s witnesses would have sufficiently
answered any and all foundational questions.
[14] Even if that had not been the case, however, there is so much evidence
supporting the convictions aside from these recordings that it would not have
mattered. Specifically, the record reveals that the CI entered Harrison’s home
with $1,000 and returned with 3.37 grams of heroin. The money later found in
7
Typically, ineffective assistance claims are raised in a petition for post-conviction relief. While not
prohibited from raising an ineffective assistance claim on direct appeal, if a defendant chooses to do so, he is
precluded from re-raising the issue in any subsequent post-conviction proceedings. Jewell v. State, 887 N.E.2d
939, 941 (Ind. 2008).
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Harrison’s possession matched the serial numbers of the money used by the CI
in the controlled buy. In Harrison’s home, the police found the following
evidence: 1.4 grams of heroin in one location and 1.2 grams in another;
marijuana, synthetic marijuana, and various opiate pills; firearms; digital scales
in nearly every room of the house; and various paraphernalia typically used by
drug users and by those preparing to sell drugs to others, including Ziploc
baggies, a cut off straw, a tie-off string, needles, a metal measuring spoon with
residue, and lighters. Therefore, even if Harrison’s attorney had objected to the
recordings and the objection had been sustained, the remainder of the evidence
in the record would have readily supported the convictions. He cannot
establish that he was prejudiced as a result of his attorney’s failure to object to
these pieces of evidence. Consequently, his claim of ineffective assistance of
counsel must fail.
[15] The judgment of the trial court is affirmed.
Vaidik, C.J., and Najam, J., concur.
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