Aaron L. Fansler v. State of Indiana ( 2017 )

FILED
Aug 01 2017, 8:57 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Evan K. Hammond Curtis T. Hill, Jr.
Office of the Grant County Public Attorney General of Indiana
Defender Eric P. Babbs
Marion, Indiana Angela Sanchez
Deputy Attorneys General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Aaron L. Fansler, August 1, 2017
Appellant-Defendant, Court of Appeals Case No.
27A02-1610-CR-2325
v. Appeal from the Grant Circuit
Court
State of Indiana, The Honorable Mark E. Spitzer,
Appellee-Plaintiff Judge
Trial Court Cause No.
27C01-1506-F3-15
Mathias, Judge.
[1] Aaron L. Fansler (“Fansler”) was convicted after a jury trial in Grant Circuit
Court of dealing heroin and other drug crimes, and was sentenced to ten years
in the Department of Correction. Fansler now appeals the admission of two
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self-incriminating statements and the exercise of the court’s sentencing
discretion.
[2] We affirm.
Facts and Procedural Posture
[3] On June 18, 2015, Fansler received a request over a social media network to
connect with a user who appeared to be a twenty-one-year-old woman named
“Kenzie Allen.” “Kenzie Allen” was in fact an unsworn member of a local law-
enforcement drug-crime task force conducting an undercover investigation.
Fansler accepted the request. By private messages exchanged over the network,
and then by text messages over their cell phones, “Kenzie” invited Fansler to a
room at a local hotel. The hotel owner was friendly with police and would
allow them the use of a room for undercover operations without charge.
“Kenzie” wanted to buy two “points,” or tenths of a gram, of heroin from
Fansler.
[4] On the evening of June 19, 2015, lured by the prospects of sex, companionship,
and a drug sale, Fansler went to the hotel room indicated by “Kenzie.” There,
he found “Kenzie’s brother,” a Grant County sheriff’s deputy and a member of
the same drug-crime task force. “Kenzie” was not in the hotel room, but
Fansler was assured she would arrive soon. As Fansler stepped outside the
hotel to wait, he was arrested by waiting law enforcement officers and taken
back to “Kenzie’s” hotel room. Once inside, Fansler was interrogated and
searched. Fansler had brought with him more than seven grams net weight of
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heroin, more than a dozen clonazepam and oxycodone pills, numerous empty
plastic bags, a digital scale, a hypodermic syringe, a tourniquet, and more than
two hundred dollars cash.
[5] On June 24, 2015, Fansler was charged by information in Grant Circuit Court
with Level 3 possession of heroin with intent to deliver, Level 6 felony
possession of heroin, Class A misdemeanor possession of a controlled
substance, and Class A misdemeanor possession of paraphernalia. Fansler’s
case was tried to a Grant County jury over two days, August 1 and August 2,
2016. Fansler admitted the possession but denied the intent to deliver, and
raised the affirmative defense of entrapment. However, the jury was not
persuaded and found him guilty as charged on all four counts.
[6] At a sentencing hearing on September 9, 2016, Fansler was sentenced to a
thirteen-year term on the dealing charge, ten years executed in the Department
of Correction and three years suspended. Fansler was further sentenced to
concurrent terms of two years executed for possession of heroin, one year
executed for possession of a controlled substance, and one year executed for
possession of paraphernalia. This appeal timely followed.
Discussion and Decision
[7] Fansler presents two issues for our review: whether the trial court abused its
discretion by admitting two self-incriminating statements made by Fansler to
law enforcement officers after being Mirandized in the hotel room, over
Fansler’s objection on the basis of Indiana Evidence Rule 617; and whether the
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sentencing court abused its discretion by failing to find a significant mitigating
circumstance clearly supported by the record and advanced for consideration.
I. Admission of Fansler’s Statements Was Harmless Error
[8] At trial, a witness for the State testified to two self-incriminating statements
made by Fansler in the hotel room. The first was related as follows:
[State:] What questions were asked of [Fansler] after [the
warning required by] Miranda [v. Arizona, 384 U.S.
436 (1966)] was read to him?
[Defense objection overruled.]
[Witness:] I asked him where the two points of heroin were. 1
[State:] And what was his response?
[Witness:] Stated that they should be in the baggies.
Tr. Vol. I, p. 147. Two packages of heroin weighing two tenths of a gram net
each were recovered from a cigarette pack carried by Fansler.
[9] From the same cigarette pack, law enforcement recovered “another clear plastic
baggy that contained a large amount of gray compressed powder[,]” eventually
determined to be more heroin. Id. at 149. In connection with this larger
package, Fansler’s second statement was related by the same witness as follows:
1
Two tenths of a gram, or “a couple points,” was the amount of heroin Fansler had agreed to sell “Kenzie.”
Ex. Vol., State’s Ex. 2 (text messages); Tr. Vol. I, pp. 73, 77-78, 211-12.
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[State:] Did you ask [Fansler] about the large compressed
powder when you found it?
[Witness:] I did.
[State:] What did you ask him?
[Witness:] I asked him why he didn’t tell us about that item
being in the cigarettes in his possession.
[State:] And what did he say?
[Witness:] He didn’t want to get caught with it. He didn’t want
to go jail for it.
Id. at 152.
[10] On appeal, Fansler claims the trial court reversibly erred by admitting these
statements contrary to the mandate of Indiana Evidence Rule 617. We review
challenges to admission of evidence at trial for prejudicial abuse of the trial
court’s discretion. Williams v. State, 43 N.E.3d 578, 581 (Ind. 2015). A trial
court abuses its discretion by ruling in a way clearly against the logic and effect
of the facts and circumstances before it, or by misinterpreting the law. Id. In
reviewing whether an abuse of discretion was prejudicial, we assess the
probable impact of the improperly admitted evidence on the jury in light of the
properly admitted evidence. Id. If the conviction is supported by independent,
properly admitted evidence of guilt such that there is little likelihood the
improperly admitted evidence contributed to the verdict, the error is harmless.
Blount v. State, 22 N.E.3d 559, 564 (Ind. 2014).
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[11] Indiana Evidence Rule 617 provides that, “[i]n a felony criminal prosecution,
evidence of a statement made by a person during a Custodial Interrogation in a
Place of Detention shall not be admitted against the person unless an Electronic
Recording of the statement was made, preserved, and is available at trial, except
upon clear and convincing proof” that one of several exceptions applies. Ind.
Evidence Rule 617(a). One such exception is for statements made as “part of a
routine processing or ‘booking’ of the person[.]” Id. at (a)(1). A “Place of
Detention” is “a jail, law enforcement agency station house, or any other
stationary or mobile building owned or operated by a law enforcement agency
at which persons are detained in connection with criminal investigations.” Id. at
(b).
[12] Here, no electronic recording of Fansler’s interrogation in the hotel was
available at trial. Fansler argues that the two self-incriminating statements were
made in the course of a custodial interrogation, that they were not made in the
course of routine booking or processing, that the hotel room was a place of
detention, and that therefore the rule required exclusion of the statements. The
State concedes that the statements were made in the course of a custodial
interrogation, but argues that they were made in the course of routine booking
and that the hotel room was not a place of detention. The trial court ruled that
the hotel room was not a place of detention because it was “operat[ed]” by the
hotel, and that the statements were admissible in any event under the booking
exception, analogizing the questioning of Fansler to a search incident to arrest.
Appellant’s App. p. 62.
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[13] We are not inclined to read the booking exception as broadly, nor the place-of-
detention requirement as narrowly, as the State urges. Rule 617 is of recent
vintage and has never been construed by our supreme court. Only one
published decision of this court has interpreted the “place of detention”
requirement, Steele v. State, 975 N.E.2d 430, 431 (Ind. Ct. App. 2012), trans.
denied, and none of our published decisions have construed the booking
exception. In Steele, without exhaustive analysis, we held that a gas station to
which a police officer had transported a drunk-driving arrestee for field sobriety
testing was not a place of detention. Id. at 432.
[14] In this case, the hotel room was operated by the police and was used to detain
Fansler in connection with a criminal investigation. The drug-crime task force
investigating Fansler had used the hotel “a couple times” for other
investigations in the year preceding Fansler’s arrest. Tr. p. 49. The owner of the
hotel was “police friendly” and allowed police use of his rooms without charge.
Id. The police had the opportunity to set up the location and prepare it for
Fansler’s arrival, and lay in wait for him there. The police thus had possession
and control over the room, plus ample opportunity to prepare the room for the
custodial interrogation police knew or anticipated would result from Fansler’s
arrest there. Under these circumstances, the hotel room was a place of
detention.
[15] As for the booking exception, the trial court analogized it to searches incident
to arrest, an exception to the Fourth Amendment’s warrant requirement, but we
think the language of Rule 617 plainly evokes the formal, administrative setting
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of the routine-booking exception to the warning requirement of Miranda v.
Arizona, 384 U.S. 436 (1966), and related Fourth Amendment contexts. See, e.g.,
Maryland v. King, 133 S. Ct. 1958, 1971 (2013) (holding buccal DNA swabs for
felony arrestees reasonable as part of routine booking procedure); Pennsylvania
v. Muniz, 496 U.S. 582, 600–02 (1990) (plur.) (holding admission of suspect’s
unwarned statements giving biographical information not in violation of
Miranda because within a “routine booking question” exception for answers to
questions reasonably related to administrative, record-keeping purposes and to
completion of booking or pretrial services). These doctrines contemplate
“routine administrative procedures at a police station house incident to booking
and jailing the suspect” and “formal[] process[ing] into police custody.” King,
133 S. Ct. at 1971. The same setting is contemplated by, for example, “the
public records exception [to the rule against hearsay] permit[ting] admission of
police records created in connection with routine booking procedures.” Fowler v.
State, 929 N.E.2d 875, 879 (Ind. Ct. App. 2010) (noting as examples fingerprint
cards, mugshots, and booking cards recording biographical information), trans.
denied.
[16] In this light, we conclude that, irrespective of whether the precise focus should
be on the nature of the questions asked (administrative or investigative) or on
the character of the setting (formal or informal), Fansler’s answers given
minutes after his arrest in an undercover drug operation to questions of the type
“Where is the heroin?” were not statements made in the course of routine
processing or booking.
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[17] We agree with the State, however, that admission of the challenged statements
was entirely harmless. We note that Fansler has not undertaken to demonstrate
prejudice from admission of the statements; his brief argues only that admission
was erroneous. See Ind. Appellate Rule 66(A) (harmless error no basis for relief
on appeal).
[18] The challenged statements were self-incriminating only to the extent that, by
them, Fansler admitted to possessing the heroin. Neither statement was more
than minimally probative of Fansler’s intent to deliver the heroin, nor of his
predisposition to deliver the heroin, the State’s rebuttal to his entrapment
defense. See Scott v. State, 772 N.E.2d 473, 474–75 (Ind. Ct. App. 2002), trans.
denied. However, Fansler himself admitted possessing the heroin in open court
before the jury (and, indeed, could have hardly denied it):
[Counsel:] No doubt about it though, you possessed those
items [recovered by law enforcement at the hotel
room] on your person, correct?
[Fansler:] Yes I did.
[Counsel:] And you’re freely admitting that here today with
this jury?
[Fansler:] Yes I am.
[Counsel:] But absolutely your intent was not to give or sell
[“Kenzie”] anything?
[Fansler:] No it was not.
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Tr. Vol. I, p. 205; see also id. at 224-25 (Fansler under cross-examination
admitting possession but denying intent to deliver).
[19] To the minimal extent that the challenged statements may have been probative
of Fansler’s intent or predisposition to deliver the heroin, those facts were so
clearly proved by Fansler’s and “Kenzie’s” text messages, and Fansler’s
execution of the arrangements made thereby, that there is no likelihood the
challenged statements contributed to the jury’s verdict as to these issues:
[“Kenzie”:] Tomorrow I’m trying to get to Indy to get
something but not sure it’s gonna happen 😞 But
maybe Saturday if I don’t have to work [. . .]
[Fansler:] but whats up wit indy y u going there???
[“Kenzie”:] I got a guy I’m suppose to get some shit from but he
will probably try to screw me over again lol [. . .]
[Fansler:] what u going up there ta grab[?] might b able ta help
u out nstead wasting gas time n money going all
way up there
[“Kenzie”:] I need to get a couple points
[Fansler:] A cpl points . . . . all way ta indy for that . . . . thats
crazy what u paying for em up there[?]
[“Kenzie”:] Yeah tell me I hate driving all the way up there I
pay dude 35 but he cut me a deal
[Fansler:] 35 a p . . . . . geeeez that’s crazy i let mine go for 30
[. . .]
[“Kenzie”:] I’ll pay 30 easy is it good shit?
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[Fansler:] Yea gotta give me a min ta get going but yea uts
good
[“Kenzie”:] Yeah cool I’m running errands I’ll hit u up in a few
maybe an hour if that’s good with you?
[Fansler:] Yea just lmk [“let me know”] when,ever ur done
Ex. Vol., State’s Ex. 2 (sic passim). This exchange unambiguously showed both
Fansler’s predisposition (“i let mine go for 30”) and intent (“Yea gotta give me
a min ta get going but yea uts good”) to deliver the heroin from Fansler’s own
mouth. Id. The two challenged statements, to the extent they speak to these
issues at all, cannot have contributed to the jury’s decision.
[20] Though the challenged statements were improperly admitted, in light of
Fansler’s admissions at trial, the generally uncontested nature of his possessing
the heroin, and the wealth of direct and circumstantial evidence from which the
jury could infer intent and predisposition to deliver, there is no likelihood that
the challenged statements contributed to the verdict. The error was therefore
harmless and does not entitle Fansler to relief on appeal.
II. The Sentencing Court Did Not Abuse Its Discretion
[21] At Fansler’s September 9, 2016, sentencing hearing, the court found as follows:
Certainly the aggravating circumstance of your criminal history .
. . is a big one, Mr. Fansler. As well as the fact that you were on
probation at the time the crime was . . . committed. I’ll accept the
mitigator that incarceration would be a hardship on your family.
I’ll accept the mitigator that . . . the offense didn’t cause serious
harm to another person given the fact that it was a sting
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operation . . . . [I]f the victim causing the offense is a mitigator,
it’s a mild one, . . . at best. . . . Perhaps you had . . . a substance .
. . dependency, but . . . you also were a dealer and . . . I think all
the circumstances indicate that. . . . So I feel that the aggravating
factors do outweigh the mitigating factors . . . .
Tr. Vol. II, pp. 6-7.
[22] In its judgment order, the court restated its findings as follows:
For its sentencing statement, the court [sic] finds the following
aggravating circumstances:
1. The Defendant has a lengthy history of criminal and juvenile
offenses.
2. The Defendant was on probation for a felony offense when he
committed this offense.
The Court [sic] finds the following mitigating factors:
1. Incarceration may be a hardship on the dependents of the
Defendant.
2. The crime in question did not cause serious harm.
In considering the aggravating and mitigating circumstances, the
Court [sic] determines the circumstances justify the imposition of
an enhanced sentence.2
Appellant’s App. p. 98.
2
That is, a sentence higher than the nine-year advisory sentence for Level 3 felonies. Ind. Code § 35-50-2-
5(b).
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[23] On appeal, Fansler claims the court “failed to consider that the victim of the
crime induced or facilitated the offense” in mitigation of his sentence.
Appellant’s Br. at 12; see Ind. Code § 35-38-1-7.1(b)(3) (court may weigh same
in mitigation). We may review a sentence for abuse of the sentencing court’s
discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007). “An abuse of
discretion occurs if the decision is clearly against the logic and effect of the facts
and circumstances before the court or the reasonable, probable, and actual
deductions drawn therefrom.” Baumholser v. State, 62 N.E.3d 411, 416 (Ind. Ct.
App. 2016), trans. denied.
[24] Claims for “failure to ‘properly weigh’” aggravating and mitigating factors lie
beyond such review, Anglemyer, 868 N.E.2d at 491, but the court abuses its
discretion by failing to find “significant” mitigators, id. at 493, that are “clearly
supported by the record and advanced for consideration[.]” Id. at 491. It was
Fansler’s burden to establish that the mitigating evidence was both significant
and clearly supported by the record. Id. at 493. Remand for resentencing is an
appropriate remedy if “we cannot say with confidence that the trial court would
have imposed the same sentence had it properly considered reasons that enjoy
support in the record.” Id. at 491. However, “the relative weight or value
assignable to [mitigators] properly found, or [to] those that should have been
found, is not subject” to our review. Green v. State, 65 N.E.3d 620, 636 (Ind. Ct.
App. 2016).
[25] Here, the court noted from the bench its view of Fansler’s proffered mitigator:
“[I]f the victim causing the offense is a mitigator, it’s a mild one, . . . at best.”
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Tr. Vol. II, p. 6. Though the court’s judgment order did not refer to this
mitigator in terms, it was apparently given consideration under the rubric of
“not caus[ing] serious harm.” Appellant’s App. p. 98; see Tr. Vol. II, p. 6 (trial
court “accept[ed] the mitigator that . . . the offense didn’t cause serious harm to
another person given the fact that it was a sting operation” (emphasis added) and
fact that investigation was “sting operation” identical to Fansler’s proffered
mitigator). In any event, the trial court clearly heard and considered Fansler’s
proffered mitigator, as Fansler himself concedes. Appellant’s Br. at 12. The
court simply did not think the mitigator was entitled to any great weight. Tr.
Vol. II, p. 6 (“[I]t’s a mild one, . . . at best.”). We will not revisit that
determination here. There was no abuse of discretion.
Conclusion
[26] Though admission at trial of Fansler’s two self-incriminating statements was
error, it was harmless. The sentencing court did not abuse its discretion by
failing to find Fansler’s proffered mitigator. The judgment against Fansler is
therefore affirmed.
[27] Affirmed.
Kirsch, J., and Altice, J., concur.
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