Jason McMickle v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Oct 24 2019, 10:10 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Steven E. Ripstra Curtis T. Hill, Jr.
Jasper, Indiana Attorney General of Indiana
Lauren A. Jacobsen
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jason McMickle, October 24, 2019
Appellant-Defendant, Court of Appeals Case No.
19A-CR-676
v. Appeal from the Pike Circuit Court
The Honorable Jeffrey L.
State of Indiana, Biesterveld, Judge
Appellee-Plaintiff. Trial Court Cause No.
63C01-1803-F4-172
Tavitas, Judge.
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Case Summary
[1] Jason McMickle appeals his conviction for dealing in methamphetamine, a
Level 4 felony. We affirm.
Issues
[2] McMickle raises two issues, which we restate as:
I. Whether the trial court properly admitted the
methamphetamine into evidence at trial.
II. Whether the trial court properly allowed testimony by an
officer regarding fingerprinting and DNA evidence.
Facts
[3] On March 10, 2018, Corporal Jared Simmons of the Petersburg Police
Department was informed by a confidential informant (“CI”) that the CI could
purchase methamphetamine that evening from Jason Atkins. The CI faced a
pending petition to revoke probation, and, as a result of her cooperation, the
petition to revoke probation was withdrawn. A controlled buy was arranged,
and Corporal Simmons met with the CI at a little league field to search her and
give her the buy money. Corporal Simmons searched the CI’s pockets and had
the CI “shake . . . out” her bra with two hands. Tr. Vol. II p. 48. Corporal
Simmons did not “go towards the crotch area” due to privacy issues. Id. The
CI, however, was wearing tight “jeggings,” and Corporal Simmons was
“confident” that the CI did not have drugs on her person. Id.
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[4] Corporal Simmons gave the CI $200.00 in twenty-dollar bills to purchase two
grams of methamphetamine. Corporal Simmons also gave the CI a key fob
recording device. Several other officers, including Sergeant Dallas Killian with
the Pike County Sheriff’s Department, were nearby during the transaction to
provide surveillance. Sergeant Killian was observing from a nearby parking lot
with binoculars. A white van arrived with Atkins in the passenger seat and
McMickle driving. The CI got into the van. Corporal Simmons was able to see
the CI’s outline, and Sergeant Killian was able to clearly observe the CI while
she was waiting on the white van, as she entered the van, and after she got out
of the van. After a few minutes, the CI exited the van and gave the signal that
the transaction was complete.
[5] The officers stopped the white van and arrested Atkins and McMickle.
McMickle had $100.00 of the buy money in his hand, and Atkins had the other
$100.00 of the buy money in his jacket pocket. Two “corner baggies”
containing a substance were recovered from the CI’s hand. Id. at 62. Corporal
Simmons weighed the substance with “a standard set of digital scales,” which
were not calibrated and indicated a weight of 1.9 grams. Id. at 90. Corporal
Simmons field tested the substance, put it in packaging, sealed the packaging,
and logged it into evidence at the police department. After the controlled buy,
Corporal Simmons discovered that the key fob recording device failed to record
due to human error. The laboratory later identified the substance as 1.51 grams
of methamphetamine.
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[6] The State charged McMickle with dealing in methamphetamine, a Level 4
felony, and McMickle’s jury trial was held in December 2018. The CI did not
testify because she died in September 2018 as a result of complications of
childbirth. During the first day of the State’s case-in-chief, Corporal Simmons
and Sergeant Killian testified. On the second day of the State’s case-in-chief,
the State recalled Corporal Simmons. Part of Corporal Simmons’ testimony on
the second day pertained to fingerprinting and DNA testing and inaccurate
expectations caused by television programs that depict such forensic testing.
McMickle objected, and the trial court overruled the objection. McMickle also
objected to the admission of the methamphetamine on chain of custody
grounds; the trial court, however, overruled the objection.
[7] Atkins also testified during the State’s case-in-chief that the CI asked to buy two
grams of methamphetamine, but Atkins did not have the requisite amount of
methamphetamine available. Atkins obtained half of the requested
methamphetamine from McMickle, and Atkins then sold the
methamphetamine to the CI and gave half of the money to McMickle.
[8] The jury found McMickle guilty of dealing in methamphetamine, a Level 4
felony. The trial court sentenced McMickle to ten years in the Department of
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Correction. McMickle then filed a motion to correct error, which the trial court
denied. 1 McMickle now appeals.
Analysis
I. Admission of Methamphetamine
[9] McMickle first challenges the admissibility of the methamphetamine based on
chain of custody grounds. In reviewing the admission or exclusion of evidence,
we determine whether the trial court abused its discretion. McCallister v. State,
91 N.E.3d 554, 561 (Ind. 2018). We will reverse only if the trial court’s ruling
was clearly against the logic and effect of the facts and circumstances before it.
Id.
[10] An exhibit is admissible “if the evidence regarding its chain of custody strongly
suggests the exact whereabouts of the evidence at all times.” Culver v. State, 727
N.E.2d 1062, 1067 (Ind. 2000). The State must give “reasonable assurances
that the property passed through various hands in an undisturbed condition.”
1
The State argues that McMickle’s appeal was not timely filed because his motion to correct error was filed
one day late. McMickle contends that his motion to correct error was timely filed by certified mail but that
the CCS does not reflect the correct filing date. We direct McMickle’s attention to Indiana Appellate Rule
32, which provides a procedure for correcting the Clerk’s Record. Regardless, we decline to dismiss this
appeal based on McKnight v. State, 1 N.E.3d 193 (Ind. Ct. App. 2013). There, we dismissed an appeal due to
an untimely motion to correct error. Our Supreme Court, however, granted transfer and vacated our
opinion. “In its order declaring that our appellate jurisdiction has, in fact, been invoked, our supreme court
stated that the timeliness of the motion to correct error had not been raised prior to the State’s appellee’s
brief.” McKnight, 1 N.E.3d at 199 n.2. As such, we addressed the defendant’s arguments on appeal.
Similarly, here, the State failed to raise the timeliness of the motion to correct error until it filed its appellee’s
brief. Based on McKnight, we will address McMickle’s arguments.
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Id. “[T]he State need not establish a perfect chain of custody whereby any gaps
go to the weight of the evidence and not to admissibility.” Id. There is a
presumption of regularity in the handling of exhibits by public officers. Id.
Merely raising the possibility of tampering is insufficient to make a successful
challenge to the chain of custody. Bell v. State, 881 N.E.2d 1080, 1084 (Ind. Ct.
App. 2008), trans. denied.
[11] At the trial, McMickle objected to the admission of the methamphetamine
because the CI was unavailable to testify regarding the chain of custody. 2 On
appeal, McMickle argues that the State failed to establish a proper chain of
custody for the methamphetamine because: (1) the officers failed to completely
search the CI prior to the controlled buy; (2) the officers lost visual contact with
the CI when she was in the van with McMickle and Atkins; (3) the CI was
unable to testify regarding the chain of custody due to her death; (4) the weight
of the methamphetamine was different when the officer weighed it versus when
the laboratory weighed it; and (5) the key fob device did not record the CI’s
interaction with McMickle and Atkins.
[12] The State properly notes that McMickle’s “true argument is that the absence of
[the CI’s] testimony results in a break [in the chain of custody] between
2
The State argues that McMickle waived this issue by failing to object; however, we conclude that McMickle
objected and preserved the issue.
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Defendant and [the CI] rather than any law enforcement official.” 3 Appellee’s
Br. p. 17. The State points out that the purpose of the chain of custody rule is
to “ensure that during the time the evidence is in the possession of the law
enforcement authorities, there is not a substitution or alteration of the evidence.”
Morse v. State, 593 N.E.2d 194, 197 (Ind. 1992).
[13] We have held that “[a] properly conducted controlled buy will permit an
inference the defendant had prior possession of a controlled substance.” Watson
v. State, 839 N.E.2d 1291, 1293 (Ind. Ct. App. 2005). McMickle relies on
Watson, 839 N.E.2d at 1293, which held: “Because the CI was not searched
prior to the buy and the CI did not testify about receiving the cocaine from
Watson, we must agree with Watson that no reasonable fact-finder, based on
this evidence alone, could have found beyond a reasonable doubt he originally
possessed the cocaine found on the CI after the buy.”
[14] Watson is distinguishable from this case. Here, the police searched the CI prior
to the controlled buy. Corporal Simmons searched the CI’s pockets and had
the CI “shake . . . out” her bra with two hands. Tr. Vol. II p. 48. Corporal
Simmons did not “go towards the crotch area” due to privacy issues. Id. The
CI, however, was wearing tight “jeggings,” and Corporal Simmons was
“confident” that the CI did not have drugs on her person. Id. Officers then
3
The State contends that McMickle’s argument is more of a sufficiency of the evidence argument, but
McMickle specifically states that he is not making a sufficiency of the evidence argument. See Appellant’s Br.
p. 14.
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observed the CI as she waited for Atkins and McMickle, as she entered the van,
and as she exited the van and walked away.
[15] McMickle also implies that the chain of custody fails because the weight of the
substance differed when the officer weighed it at the scene and when the
laboratory later weighed it. Corporal Simmons weighed the substance with “a
standard set of digital scales” and found a weight of 1.9 grams. Id. at 90. The
scales, however, were not calibrated. Corporal Simmons then field tested the
substance, put it in packaging, sealed the packaging, and logged it into evidence
at the police department. The laboratory identified the substance as 1.51 grams
of methamphetamine. Although Corporal Simmons was not using calibrated
scales to weigh the substance, the laboratory’s scales were calibrated. Any
difference goes to the weight of the evidence, not its admissibility.
[16] Finally, the CI was in the van with McMickle and Atkins for only a couple of
minutes, and except for her time in the van, she was continuously observed
between the time of the search and the time the methamphetamine was
removed from her hand. At the time of their arrests, McMickle and Atkins
possessed the buy money, and Atkins testified at the trial that he and McMickle
sold methamphetamine to the CI. Although a recording of the transaction
would have been preferable here, especially since the CI was unable to testify in
this case, the lack of a recording is not fatal to the State’s case.
[17] The State presented evidence regarding the methamphetamine’s chain of
custody that strongly suggests the exact whereabouts of the evidence at all
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times. Each of McMickle’s arguments merely goes to the weight of the
evidence, not its admissibility. His implication of the possibility of tampering is
insufficient to challenge the chain of custody of the methamphetamine. The
trial court properly admitted the methamphetamine.
II. Corporal Simmons’s Testimony
[18] Next, McMickle argues that the trial court abused its discretion by allowing
Corporal Simmons to testify a second time during its case-in-chief. In
reviewing the admission or exclusion of evidence, we determine whether the
trial court abused its discretion. McCallister, 91 N.E.3d at 561. We will reverse
only if the trial court’s ruling was clearly against the logic and effect of the facts
and circumstances before it. Id.
[19] On appeal, McMickle argues that the trial court abused its discretion by
allowing the State to recall Corporal Simmons on the second day of its case-in-
chief. McMickle, however, did not object during the trial on these grounds, and
accordingly, the argument is waived. See Treadway v. State, 924 N.E.2d 621,
631 (Ind. 2010) (Generally speaking, “[a] party may not add to or change his
grounds for objections in the reviewing court. . . . Any ground not raised at
trial is not available on appeal.”) (internal citations omitted).
[20] McMickle also contends that Corporal Simmons was not qualified as an expert
witness and that Corporal Simmons speculated on the impact of fingerprinting
and DNA evidence in Pike County cases. During McMickle’s opening
statement, McMickle noted that no fingerprints or DNA connected McMickle
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to the methamphetamine. During McMickle’s cross-examination of Corporal
Simmons on the first day of the trial, McMickle questioned Corporal Simmons
regarding the lack of fingerprint or DNA testing on the baggies that contained
the methamphetamine. Our Supreme Court has held that, “when a party raises
a subject on cross-examination, it is permissible for the opposing party to pursue
that subject on re-direct examination.” Meagher v. State, 726 N.E.2d 260, 266
(Ind. 2000). McMickle opened the door by raising the issues on cross-
examination, and therefore, we cannot say the trial court abused its discretion
by allowing the State to address the issues during Corporal Simmons’s
testimony on the second day of the trial.
[21] Even if the trial court abused its discretion by allowing the testimony, any error
was harmless. An error is harmless when it results in no prejudice to the
substantial rights of a party. Durden v. State, 99 N.E.3d 645, 652 (Ind. 2018);
Ind. Trial Rule 61. “When a conviction is supported by substantial evidence of
guilt sufficient to satisfy this Court that there is no substantial likelihood that
the questioned evidence contributed to the conviction, the error is harmless.”
Weedman v. State, 21 N.E.3d 873, 890 (Ind. Ct. App. 2014), trans. denied.
Immediately following the controlled buy, $100.00 of the buy money was
recovered from McMickle’s hand and the remaining $100.00 of the buy money
was recovered from Atkins’s pocket. Two baggies of methamphetamine were
recovered from the CI’s hand. Atkins testified at the trial that the CI asked to
buy two grams of methamphetamine, but that Atkins did not have enough
methamphetamine available. Atkins obtained half of the requested
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methamphetamine from McMickle. Atkins then gave the methamphetamine to
the CI and gave half of the money to McMickle. Given the overwhelming
evidence, any error in the trial court’s admission of Corporal Simmons’s
testimony was harmless.
Conclusion
[22] The trial court did not abuse its discretion by admitting the methamphetamine
or by admitting Corporal Simmons’s testimony. Even if the trial court erred by
admitting Corporal Simmons’s testimony, any error was harmless. We affirm.
[23] Affirmed.
Brown, J., and Altice, J., concur.
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