John Randall Portis v. State of Indiana (mem. dec.) ( 2015 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Mar 31 2015, 10:14 am
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
P. Jeffrey Schlesinger Gregory F. Zoeller
Public Defender Attorney General of Indiana
Crown Point, Indiana
Jesse R. Drum
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
John Randall Portis, March 31, 2015
Appellant-Defendant, Court of Appeals Case No.
45A03-1408-CR-285
v.
Appeal from the Lake Superior
State of Indiana, Court
The Honorable Samuel L. Cappas,
Appellee-Plaintiff,
Judge
Trial Case No. 45G04-1306-FB-52
Robb, Judge.
Case Summary and Issues
[1] Following a jury trial, John Portis was convicted of one count of dealing in
cocaine, a Class B felony. Portis appeals, raising the following two restated
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issues for our review: (1) whether the State established a sufficient chain of
custody for the cocaine purchased during a controlled buy on January 30, 2013;
and (2) whether the evidence presented at trial was sufficient to support his
conviction. Concluding that the State established a sufficient chain of custody
and presented evidence sufficient to support a conviction, we affirm.
Facts and Procedural History
[2] In mid-January 2013, Walter Howard agreed to work for the Hammond Police
Department as a confidential informant. Howard identified “Smokey” as a
person from whom he could buy cocaine and agreed to participate in controlled
buys from Smokey. Howard had known Smokey “for a long time” but did not
know Smokey’s real name. Transcript at 27.
[3] On January 30, 2013, Howard called Smokey to arrange a controlled buy.
Detective Michael Darnell of the Hammond Police Department supervised.
Prior to the buy, Detective Darnell searched Howard for contraband, equipped
Howard with an audio/video recording device, and provided Howard with buy
money. Detective Darnell drove Howard from the police station to a grocery
store parking lot at the corner of Sohl Avenue and Thornton Street. Howard
called Smokey from the parking lot and proceeded to walk east on Thornton
Street toward Calumet Avenue.
[4] Howard stopped at the corner of Thornton Street and Calumet Avenue and
waited for approximately fifteen minutes. Detective Darnell spoke with
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Howard on the phone while Howard was waiting, and Howard said that
Smokey told him to wait on the corner. Detective Darnell testified that he did
not see Howard come into physical contact with any other person while he
waited.
[5] Smokey eventually exited a nearby building and met Howard at the corner.
Smokey and Howard walked west on Thornton Street for about a block and
then made the exchange at the corner of Thornton Street and Beall Avenue.
Howard used the buy money to purchase two bags of cocaine. Detective
Darnell was parked at the corner of Calumet Avenue and May Street,“about
half a block” away. Id. at 200. From this vantage point, Detective Darnell
personally observed the entire transaction, including the fifteen minutes that
Howard waited on the corner. The transaction was also captured on video with
the recording device Howard was wearing.
[6] After the buy, Howard continued walking west on Thornton Street—towards
the grocery store parking lot—until Detective Darnell picked him up. Detective
Darnell then drove Howard back to the police station to remove the recording
equipment and search for contraband. Howard no longer had the buy money.
Detective Darnell inventoried the suspected cocaine and took it to the
Hammond Police Department vault. The inventory sheet is dated January 30,
2013, and references a particular case number. It identifies “[t]wo clear plastic
bags with a white in color rock like substance inside of them” as items
recovered in reference to an ongoing investigation. State’s Ex. 8. The bags of
suspected cocaine are listed as “EX#2” on the inventory sheet. Id. The
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evidence envelope is also marked “EX#2” and references the same case number
as the inventory sheet. State’s Ex. 4.
[7] After the controlled buy on January 30, 2013, Howard was unable to set up
additional buys. The police had not yet learned Smokey’s real name and were
unable to locate him. The investigation was revived when Howard called
Detective Darnell approximately a month later and said he saw Smokey driving
a black Crown Victoria in the neighborhood where the controlled buy had
taken place. After conducting surveillance on the area, Detective Darnell found
Smokey, determined Smokey’s real name, and put together a photo lineup. On
April 7, 2013, Howard picked Portis out of the photo lineup and identified him
as the person who sold cocaine to him on January 30, 2013.
[8] Portis was arrested on June 6, 2013, and charged with two counts of dealing in
cocaine, both Class B felonies.1 Between January 30, 2013, and March 25,
2014, the suspected cocaine was kept in the Hammond Police Department
vault. On March 25, 2014, Detective Anthony Mosier of the Hammond Police
Department transported the suspected cocaine to the Indiana State Police
(“ISP”) Lab for testing. Sara Wildeman, a forensic drug chemist employed by
the ISP Lab, received the evidence in a sealed envelope and determined that the
“off-white rock-like substance” was indeed cocaine. State’s Ex. 5. Wildeman’s
1
Portis was the target of two controlled buys. The first controlled buy occurred on January 25, 2013, and
was charged as Count 1. The second buy occurred on January 30, 2013, and was charged as Count 2. Both
buys were conducted by Howard and supervised by Detective Darnell. The jury returned a verdict of not
guilty as to Count 1.
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initials are written on the evidence envelope, and her certificate of analysis
references the same case number listed on the evidence envelope and Detective
Darnell’s inventory sheet. She testified at trial that the evidence was returned to
the Hammond Police Department upon completion of testing.
[9] A jury trial was held on April 21, 2014, at which time Detective Mosier
retrieved the cocaine from the Hammond Police Department vault. At trial, the
cocaine was admitted without objection. Portis was found guilty on one count
of dealing in cocaine for delivering cocaine to Howard on January 30, 2013.
The trial court sentenced Portis to fourteen years, with eleven years to be served
in the Indiana Department of Correction followed by three years in Lake
County Community Corrections. Portis now appeals.
Discussion and Decision
I. Chain of Custody
A. Standard of Review
[10] Portis contends that the State failed to establish a sufficient chain of custody for
the cocaine purchased during the controlled buy on January 30, 2013.
Specifically, Portis argues that the chain of custody is insufficient because
neither Howard nor Detective Darnell testified that Detective Darnell received
the cocaine purchased from Portis that day. Because there was no chain of
custody objection at trial, however, this claim is not available on appeal unless
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the admission of the evidence constituted fundamental error. Troxell v. State, 778
N.E.2d 811, 814 (Ind. 2002).
[11] To establish fundamental error, the defendant must show that the alleged errors
constitute blatant violations of due process and are so prejudicial to the
defendant’s rights that a fair trial is impossible. Ryan v. State, 9 N.E.3d 663, 668
(Ind. 2014). Our supreme court has stressed that “[f]undamental error is meant
to permit appellate courts a means to correct the most egregious and blatant
trial errors that otherwise would have been procedurally barred, not to provide
a second bite at the apple for defense counsel . . . .” Id.
B. Chain of Custody for the Cocaine Purchased on January 30, 2013
[12] “The State is required to show a chain of custody for the purpose of showing
the unlikelihood of tampering, loss, substitution or mistake[,]” but a perfect
chain of custody is not required. Vaughn v. State, 13 N.E.3d 873, 882 (Ind. Ct.
App. 2014) (citation omitted), trans. denied. “If the State presents evidence that
strongly suggests the exact whereabouts of the evidence at all times, that is
sufficient.” Id. To successfully challenge chain of custody, the defendant must
present evidence that overcomes the presumption that public officers exercise
due care in handling evidence. Troxell, 778 N.E.2d at 814. Merely raising the
possibility of tampering or mistake is insufficient. Id.
[13] Although neither Howard nor Detective Darnell testified that Detective Darnell
received the cocaine from Howard, the State established a sufficient chain of
custody for the cocaine. Howard testified that Portis gave him “two bags” of
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cocaine for sixty dollars. Tr. at 76. Detective Darnell testified that he searched
Howard prior to the buy and that he personally observed the transaction.
Before the buy, Howard did not possess cocaine. After the buy, Howard no
longer had the buy money, and Detective Darnell inventoried two bags of
cocaine as “EX#2.” State’s Ex. 8. The inventory sheet is dated January 30,
2013, and references a specific case number. The evidence envelope, also
marked “EX#2,” references the same case number. State’s Ex. 4. The cocaine
was transported to the Hammond Police Department vault, where it was stored
until Detective Mosier took it the ISP lab for testing. After testing, the evidence
was returned to the Hammond Police Department. It remained there until the
day of trial.
[14] Because the evidence presented at trial “strongly suggests the exact whereabouts
of the [cocaine] at all times,” Vaughn, 13 N.E.3d at 882, the State established a
sufficient chain of custody. Portis is merely raising the possibility of tampering
or mistake, which is insufficient to overcome the presumption of due care in
evidence handling. Troxell, 778 N.E.2d at 814. Portis has not established error,
let alone the kind of prejudice necessary to support a claim of fundamental
error.
II. Sufficiency of Evidence
A. Standard of Review
[15] Portis also argues that the evidence presented at trial was insufficient to support
his conviction for dealing in cocaine as a Class B felony. When reviewing the
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sufficiency of the evidence to support a conviction, we neither reweigh the
evidence nor judge witness credibility. Wright v. State, 828 N.E.2d 904, 905-06
(Ind. 2005). We consider “only the evidence most favorable to the verdict and
any reasonable inferences that may be drawn from that evidence.” Freshwater v.
State, 853 N.E.2d 941, 942 (Ind. 2006). The conviction will be affirmed unless
no reasonable trier of fact could find the elements of the offense proven beyond
a reasonable doubt. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007).
B. Evidence to Support the Dealing Conviction
[16] To convict Portis of dealing in cocaine as a Class B felony, the State was
required to prove beyond a reasonable doubt that Portis knowingly or
intentionally delivered cocaine. Ind. Code § 35-48-4-1(a)(1)(C) (2013).
[17] Portis was the target of a controlled buy. This court has described a controlled
buy as follows:
A controlled buy consists of searching the person who is to act as the
buyer, removing all personal effects, giving him money with which to
make the purchase, and then sending him into the residence in
question. Upon his return he is again searched for contraband. Except
for what actually transpires within the residence, the entire transaction
takes place under the direct observation of the police. They ascertain
that the buyer goes directly to the residence and returns directly, and
they closely watch all entrances to the residence throughout the
transaction.
Ross v. State, 908 N.E.2d 626, 630 (Ind. Ct. App. 2009) (quoting Mills v. State,
177 Ind. App. 432, 434, 379 N.E.2d 1023, 1026 (1978)). A properly conducted
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controlled buy with adequate controls permits an inference that the target had
prior possession of a controlled substance. Vaughn, 13 N.E.3d at 888.
[18] Here, the controls were in place but largely unnecessary because the entire
transaction took place on the street rather than inside a residence. Detective
Darnell testified that he could see Howard the entire time and personally
witnessed the exchange of cash for cocaine. He described the buy: “[A]s soon
as [Portis] made contact with the informant, they started walking west on
Thornton to about Beall Street. There is a tree right there where they kind of
stopped right there and the transaction occurred.” Tr. at 165. Moreover, the
State admitted video of the transaction, and the confidential informant testified
at trial. Howard testified that he called Portis on January 30, 2013, to set up
the buy and that he did in fact purchase “two bags” of cocaine from Portis that
day. Id. at 76. Howard likewise described the buy: “We made the buy right on
the street . . . . He handed it to me when we came across Beall . . . . He handed
me the stuff and I handed him the money.” Id. at 71. Finally, the substance
that Portis sold to Howard tested positive for cocaine.
[19] The evidence is more than sufficient to support Portis’s conviction for dealing
in cocaine. See Hudson v. State, 462 N.E.2d 1077, 1083 (Ind. Ct. App. 1984)
(“[T]he sole uncorroborated testimony of the informant-buyer is sufficient to
convict, despite any arguable inadequacies in the controls of the buy.”).
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Conclusion
[20] The State established a sufficient chain of custody for the cocaine and presented
evidence sufficient to support the conviction. Portis’s conviction is therefore
affirmed.
[21] Affirmed.
Bailey, J., and Brown, J., concur.
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