Scott Huy v. State of Indiana (mem. dec.) ( 2015 )


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  • MEMORANDUM DECISION                                             Jul 07 2015, 9:29 am
    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                                    ATTORNEYS FOR APPELLEE
    Leanna Weissmann                                          Gregory F. Zoeller
    Lawrenceburg, Indiana                                     Attorney General of Indiana
    Monika Prekopa Talbot
    Deputy Attorney General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    Scott Huy,                                                July 7, 2015
    Appellant-Defendant,                                      Court of Appeals Case No.
    15A01-1410-CR-465
    v.                                                Appeal from the Dearborn Superior
    Court.
    The Honorable Sally A.
    State of Indiana,                                         Blankenship, Judge.
    Appellee-Plaintiff                                        Cause No. 15D02-1312-FA-31
    Baker, Judge.
    Court of Appeals of Indiana | Memorandum Decision 15A01-1410-CR-465 | July 7, 2015      Page 1 of 8
    [1]   Scott Huy appeals his conviction and sentence for Dealing in Cocaine or
    Narcotic Drug,1 a class A felony. Huy argues that the trial court erred in
    denying his motion for a mistrial and that his sentence is inappropriate in light
    of the nature of the offense and his character. Finding that the trial court did
    not err in denying Huy’s motion for a mistrial and that his sentence is not
    inappropriate, we affirm. We remand to the trial court so that it may correct
    the abstract of judgment to reflect that Huy is serving an enhanced, rather than
    consecutive, sentence.
    Facts
    [2]   On September 16, 2013, a confidential informant by the name of Jeremiah
    McCoy informed Detective Carl Pieczonka that he could arrange for Huy to
    sell heroin to an undercover officer. McCoy then contacted Huy and arranged
    a meeting. The next day, McCoy met with Detective Timothy Wuestefeld, an
    undercover officer with the Indiana State Police, and the two went to meet Huy
    at the Hollywood Casino. Once there, all three drove to the roof of the casino’s
    parking garage where Detective Wuestefeld handed Huy $600 in exchange for a
    baggie filled with a substance that was later confirmed to be 6.848 grams of
    heroin.
    1
    
    Ind. Code § 35-48-4-1
    (b)(1). This statute was recently amended with an effective date of July 1, 2014. We
    cite to the statute as it existed when Huy committed the crime.
    Court of Appeals of Indiana | Memorandum Decision 15A01-1410-CR-465 | July 7, 2015               Page 2 of 8
    [3]   The State charged Huy with class A felony dealing in heroin and later added an
    habitual offender count.2 A jury trial took place on August 26 and 27, 2014.
    During the trial, Detective Pieczonka testified that, before the controlled buy
    took place, he advised Detective Wuestefeld that he “had an individual in the
    Cincinnati area that was trafficking heroin.” Tr. p. 200.
    [4]   Immediately following this statement, Huy objected and moved for a mistrial.
    Huy argued that Detective Pieczonka had told the jury that Huy was selling
    heroin in Ohio and that this was evidence of a prior crime prohibited under
    Indiana Evidence Rule 404(b). The State argued that Detective Pieczonka’s
    statement was merely meant to put the detectives’ actions in context and, as
    such, was admissible.
    [5]   The trial court did not grant a mistrial, but prohibited the State from making
    any further mention of Huy’s criminal history and gave the jury a limiting
    instruction. The instruction provided that any statements made by the
    confidential informant to the detectives could not be considered as evidence of
    Huy’s guilt, but were merely meant to provide context for the detectives’
    actions. Huy agreed with the trial court that this was an acceptable remedy.
    [6]   The trial concluded, and the jury found Huy guilty as charged. The jury later
    found Huy to be an habitual offender. The trial court held sentencing hearings
    on September 26 and October 3, 2014. Following these hearings, the trial court
    2
    
    Ind. Code § 35-50-2-8
    .
    Court of Appeals of Indiana | Memorandum Decision 15A01-1410-CR-465 | July 7, 2015   Page 3 of 8
    sentenced Huy to forty years for dealing in heroin, enhanced by thirty years for
    the habitual offender finding. This resulted in an executed term of seventy
    years.3 Huy now appeals.
    Discussion and Decision
    I. Motion for Mistrial
    [7]   Huy first argues that the trial court erred in failing to grant a mistrial following
    Detective Pieczonka’s testimony as to Huy’s involvement with heroin
    trafficking in the Cincinnati area. We review a trial court’s decision to grant or
    deny a motion for mistrial for an abuse of discretion “because the trial court is
    in the best position to gauge the surrounding circumstances of an event and its
    impact on the jury.” Pittman v. State, 
    885 N.E.2d 1246
    , 1255 (Ind. 2008). “A
    mistrial is appropriate only when the questioned conduct is so prejudicial and
    inflammatory that the defendant was placed in a position of grave peril to
    which he should not have been subjected.” 
    Id.
     (quotations omitted). We
    measure the gravity of the peril by considering the conduct’s probable
    persuasive effect on the jury. 
    Id.
    [8]   Indiana Evidence Rule 404(b) provides that “[e]vidence of a crime, wrong, or
    other act is not admissible to prove a person’s character in order to show that on
    3
    On the abstract of judgment, the trial court mistakenly noted that Huy’s sentence was “Consecutive:
    Habitual Substance Offender.” Appellant’s App. p. 180. The State points out that Huy is actually serving an
    enhanced, rather than consecutive, sentence. Huy agrees. Reply Br. p. 5-6. Accordingly, we remand to the
    trial court so that it may correct this mistaken notation.
    Court of Appeals of Indiana | Memorandum Decision 15A01-1410-CR-465 | July 7, 2015              Page 4 of 8
    a particular occasion the person acted in accordance with the character.” Thus,
    Detective Pieczonka’s testimony that the confidential informant “had an
    individual in the Cincinnati area that was trafficking heroin” would not be
    admissible to prove that Huy was likely guilty of trafficking in heroin in the
    instant case. Tr. p. 200. However, Rule 404(b) provides that such evidence
    may be admissible for other purposes, “such as proving motive, opportunity,
    intent, preparation,” etc. Here, the State argues that the testimony was simply
    meant to give the jury some of the story behind the detectives’ investigation of
    Huy.
    [9]   Assuming solely for the sake of argument that Detective Pieczonka’s testimony
    was inadmissible, we do not believe that Huy was placed in a position of grave
    peril when the testimony is viewed in light of the limiting instruction provided
    by the trial court. Following the testimony, the jury was specifically instructed
    that it was not to consider the testimony as evidence of Huy’s guilt as to the
    present crime. Tr. p. 204. Huy himself agreed that this was an appropriate cure
    for any prejudice he may have suffered. 
    Id.
     We agree with Huy. “A timely
    and accurate admonishment is presumed to cure any error in the admission of
    evidence.” Owens v. State, 
    937 N.E.2d 880
    , 895 (Ind. Ct. App. 2010).
    Furthermore, in light of the overwhelming evidence presented against Huy,
    Detective Pieczonka’s statement could have had very little persuasive effect
    upon the jury. Under these circumstances, the trial court did not err in refusing
    to declare a mistrial.
    Court of Appeals of Indiana | Memorandum Decision 15A01-1410-CR-465 | July 7, 2015   Page 5 of 8
    II. Appropriateness of Sentence
    [10]   Huy next argues that his sentence is inappropriate. Indiana Appellate Rule 7(B)
    provides that “[t]he Court may revise a sentence authorized by statute if, after
    due consideration of the trial court’s decision, the Court finds that the sentence
    is inappropriate in light of the nature of the offense and the character of the
    offender.” It is the defendant’s burden to persuade us that his sentence is
    inappropriate. Stokes v. State, 
    947 N.E.2d 1033
    , 1038 (Ind. Ct. App. 2011).
    [11]   In this case, the jury convicted Huy of class A felony dealing in heroin and
    found him to be an habitual offender. “A person who commits a Class A
    felony . . . shall be imprisoned for a fixed term of between twenty (20) and fifty
    (50) years, with the advisory term being thirty (30) years.” I.C. § 35-50-2-4.
    Here, Huy was sentenced to a term of forty years. Our habitual offender statute
    provides that “[t]he court shall sentence a person found to be an habitual
    offender to an additional fixed term that is not less than the advisory sentence
    for the underlying offense . . . .” I.C. § 35-50-2-8. Therefore, the trial court was
    required to add at least thirty years to Huy’s sentence, as this is the advisory
    term for a class A felony. Once the trial court added the minimum thirty-year
    term, Huy’s sentence totaled seventy years.
    [12]   Regarding the nature of his offense, Huy argues that the heroin in this case was
    sold to an undercover officer and, therefore, never made it on to the street. Huy
    also points out that no one was injured. Regarding his character, Huy argues
    that he comes from a family with a history of drug addiction. Both of Huy’s
    Court of Appeals of Indiana | Memorandum Decision 15A01-1410-CR-465 | July 7, 2015   Page 6 of 8
    parents died from heroin. Huy began using drugs at a young age and has been
    battling addiction his entire adult life. However, Huy argues that his problem is
    treatable and that the State should seek to rehabilitate rather than incarcerate
    Huy in this instance.
    [13]   As for the nature of his offense, Huy is correct to point out that no one was hurt
    and that, on this particular occasion, the heroin did not make its way onto the
    street. However, this outcome is the result of the detectives’ intervention rather
    than the intended result of Huy’s crime. Had Huy’s criminal actions gone as
    planned, heroin would have made its way onto the street where it would have
    posed a serious danger to the community. The fact that officers were able to
    prevent harm to the community does not affect the true nature of Huy’s offense
    in this case.
    [14]   As to Huy’s character, while the trial court took note of his difficult upbringing,
    it also took note of his extensive criminal history. The trial court observed that
    Huy has a criminal history that began with multiple juvenile adjudications. Tr.
    p. 389-90. As to Huy’s adult criminal history, the trial court noted Huy’s
    numerous felony convictions, including convictions for possession of more than
    100 grams of cocaine, trafficking in cocaine, and domestic violence. Id. Huy’s
    drug trafficking history also includes “involvement in a multi-state drug
    trafficking operation, possession of [a] weapon while trafficking drugs, throwing
    drugs out of a car window and injury to a police officer while fleeing from
    police while on felony probation.” Id. at 391. The trial court also noted the fact
    that Huy committed the instant crime within a very short time after being
    Court of Appeals of Indiana | Memorandum Decision 15A01-1410-CR-465 | July 7, 2015   Page 7 of 8
    released from prison for similar offenses. Id. It concluded that these facts
    indicate that Huy is a risk to the safety of the community.
    [15]   Given such an extensive criminal history, we agree with the trial court’s
    conclusion. The facts indicate that Huy has no respect for the law and that
    there is a substantial likelihood that he will continue to commit similar crimes
    upon his release. While Huy has certainly suffered from a tragic upbringing,
    the trial court was correct to note that his actions pose a significant risk to the
    safety of others. Huy knows all too well the dangers of heroin and other
    narcotics, and his continued sale of such substances evinces a strong disregard
    for the wellbeing of others. As for the length of his sentence, we note that the
    trial court has not imposed the maximum sentence authorized by statute.
    Accordingly, we cannot conclude that Huy’s sentence is inappropriate in light
    of the nature of the offense and his character.
    [16]   The judgment of the trial court is affirmed and remanded with instructions that
    the trial court correct the abstract of judgment to indicate that Huy is serving an
    enhanced, rather than consecutive, sentence for the habitual offender finding.
    Najam, J., and Friedlander, J., concur.
    Court of Appeals of Indiana | Memorandum Decision 15A01-1410-CR-465 | July 7, 2015   Page 8 of 8
    

Document Info

Docket Number: 15A01-1410-CR-465

Filed Date: 7/7/2015

Precedential Status: Precedential

Modified Date: 4/17/2021