Kristin A. Houssain v. State of Indiana ( 2014 )


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  • Pursuant to Ind. Appellate Rule 65(D),
    this Memorandum Decision shall not be                            Apr 30 2014, 10:07 am
    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:
    STACY R. ULIANA                                     GREGORY F. ZOELLER
    Bargersville, Indiana                               Attorney General of Indiana
    CHANDRA K. HEIN
    Deputy Attorney General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    KRISTIN A. HOUSSAIN,                                )
    )
    Appellant-Defendant,                         )
    )
    vs.                                  )      No. 89A04-1307-CR-330
    )
    STATE OF INDIANA,                                   )
    )
    Appellee-Plaintiff.                          )
    APPEAL FROM THE WAYNE SUPERIOR COURT
    The Honorable Charles K. Todd, Judge
    Cause No. 89D01-1105-FC-30
    April 30, 2014
    MEMORANDUM DECISION - NOT FOR PUBLICATION
    PYLE, Judge
    STATEMENT OF THE CASE
    In this interlocutory appeal, Kristin Houssain (“Houssain”) appeals the trial court’s
    denial of her motion to dismiss her charges of forgery1 and attempting to obtain a
    controlled substance by fraud.2
    We affirm.
    ISSUE
    Whether the trial court erred in denying Houssain’s motion to dismiss.
    FACTS
    On March 10, 2011, Lori Hamilton (“Hamilton”), a pharmacy technician at a
    Kroger Pharmacy in Richmond, Indiana, received a prescription that appeared to be
    altered. Nurse practitioner Debbie Sexton (“Sexton”) wrote the prescription for Houssain
    for 2.5 milligrams of hydrocodone.           Hamilton noticed that prescription had been
    vigorously underlined so that dosage would appear as 7.5 milligrams of hydrocodone.
    Hamilton asked her colleague, Valerie Napier (“Napier”), to look at the prescription, and
    Napier agreed that the prescription appeared to be altered. Hamilton and Napier testified
    that they had never seen Sexton draw dark underlines on previous prescriptions.
    Hamilton then contacted Sexton, who in turn contacted Detective Jon Chilcoate
    (“Detective Chilcoate”), an investigator with the Richmond Police Department. Sexton
    asked Detective Chilcoate to investigate the prescription submitted to the Kroger
    Pharmacy.
    1
    Ind. Code § 35-43-5-2(b)(3).
    2
    I. C. §§ 35-41-5-1; 35-48-4-14(c).
    2
    Detective Chilcoate immediately went to the Kroger Pharmacy and spoke with
    Tom Payton (“Payton”), the pharmacist on duty. Payton showed Detective Chilcoate the
    original prescription with the questioned alterations. Detective Chilcoate made a copy of
    the prescription, leaving the original at the pharmacy. Detective Chilcoate then went to
    Sexton’s office to speak with her.
    Detective Chilcoate showed Sexton the prescription submitted to the pharmacy
    and asked her if she had made the markings in question. Sexton replied no and showed
    Detective Chilcoate the prescription she had written for Houssain. Sexton keeps copies
    of all prescriptions that she writes. Detective Chilcoate made a copy of the unaltered
    prescription for his file.
    On May 16, 2011, the State charged Houssain with forgery, a Class C felony, and
    attempting to obtain a controlled substance by fraud, a Class D felony. On November 8,
    2012, Houssain filed a motion to dismiss the charges. Alternatively, Houssain’s motion
    requested that the trial court preclude the State from introducing testimony or evidence
    relating to lost or destroyed evidence. Houssain filed her motion because the Kroger
    pharmacy lost or destroyed the original prescription submitted.3
    On February 13, 2013, the trial court held a hearing on the motion to dismiss.
    Houssain presented testimony from Jim Steffen (“Steffen”), a forensic document
    examiner. Steffen testified that there was clearly an alteration between the prescription
    Sexton wrote and the prescription submitted to Kroger. However, he stated that had he
    had access to the original prescription, he would have been able to conduct additional
    3
    Payton died during the pendency of this case. In a letter to Houssain’s attorney, the deputy prosecutor
    stated that Kroger may have purged many documents retained by Payton after his death.
    3
    tests to determine whether the alterations were purposeful or accidental. In addition,
    Steffen testified that it was entirely possible that the original prescription had been
    purposefully altered and the original could be inculpatory of Houssain’s guilt. He also
    stated that even if he were able to determine whether the alterations were purposeful or
    accidental, he would have no way of determining who actually altered the original
    prescription.
    On May 8, 2013, the trial court entered an order denying Houssain’s motion to
    dismiss. Houssain filed a motion to certify the trial court’s order for interlocutory appeal
    on July 10, 2013. The trial court granted the motion and certified its order. Thereafter,
    we accepted jurisdiction.
    DECISION
    Houssain claims that the trial court erred in denying her motion to dismiss.
    Specifically, she argues that she was entitled to dismissal because the lost or destroyed
    evidence in question is materially exculpatory and that the State failed to preserve it. The
    State counters that the original prescription was potentially useful, rather than materially
    exculpatory, evidence.
    We review a trial court’s denial of a motion to dismiss for an abuse of discretion.
    Filice v. State, 
    886 N.E.2d 24
    , 32 (Ind. Ct. App. 2008), trans. denied. An abuse of
    discretion occurs where the trial court’s decision is clearly against the logic and effect of
    the facts and circumstances or when the trial court has misinterpreted the law. Id.4
    4
    Houssain, relying on our Indiana Supreme Court’s decision in Austin v. State, 
    997 N.E.2d 1027
    (Ind.
    2013), claims that our standard of review should be de novo. Even if we reviewed Houssain’s claim de
    novo, we would have reached the same conclusion.
    4
    The defendant in a criminal case has the right to examine physical evidence
    possessed by the State. Roberson v. State, 
    766 N.E.2d 1185
    , 1187 (Ind. Ct. App. 2002),
    trans. denied. The failure of the State to preserve such evidence may present grounds for
    dismissal of charges based on the denial of due process of law. 
    Id. Whether a
    defendant’s due process rights have been violated by the State’s failure
    to preserve evidence depends on whether the evidence in question was “potentially useful
    evidence” or “material exculpatory evidence.” Samek v. State, 
    688 N.E.2d 1286
    , 1288
    (Ind. Ct. App. 1997) (citing Arizona v. Youngblood, 
    488 U.S. 51
    , 57, (1988)), reh’g
    denied, trans. denied. When claiming that a due process violation has occurred when the
    evidence in question is “potentially useful evidence,” a defendant must show that the
    State’s failure to preserve the evidence was committed in bad faith. 
    Id. When the
    evidence in question is “material exculpatory evidence,” the State’s good or bad faith
    actions are irrelevant. 
    Id. Potentially useful
    evidence has been described as “evidentiary material of which
    no more can be said that it could have been subjected to tests, the results of which might
    have exonerated the defendant.” 
    Youngblood, 488 U.S. at 57
    . Material exculpatory
    evidence “must possess an exculpatory value that was apparent before the evidence was
    destroyed, and be of a nature that the defendant would be unable to obtain comparable
    evidence by other reasonably available means.” California v. Trombetta, 
    467 U.S. 479
    ,
    489 (1984).
    Houssain urges us to reverse the trial court by comparing the facts in her case to
    our decision in Roberson. In Roberson, Madison County jail officers confiscated a
    5
    wooden food spreader available to prisoners through the jail’s commissary. 
    Roberson, 766 N.E.2d at 1186
    . The spreader, similar to a tongue depressor, had been split long-
    ways, exposing rough edges. 
    Id. The jail
    officers stated that the edges appeared to have
    been shaped to a point. 
    Id. Roberson was
    disciplined internally by the jail, and the State
    charged Roberson with possession of a dangerous device by a prisoner. 
    Id. During the
    pendency of the case, the spreader confiscated from Roberson was destroyed by jail
    officials. 
    Id. Only a
    blurry photograph of the spreader remained. 
    Id. After finding
    out that the spreader had been destroyed, Roberson made an oral
    motion to dismiss the charges, claiming that he could not prepare a defense because the
    condition of the spreader was crucial to his case. 
    Id. The trial
    court held a hearing and,
    after acknowledging that it was a “close case” and that the issue was “ripe for appellate
    review,” denied Roberson’s motion to dismiss. 
    Id. at 1187.
    Upon interlocutory review, we reversed the trial court and held that the evidence
    in question was materially exculpatory because (1) the spreader was Roberson’s sole
    basis of his defense, and he could not secure comparable evidence; and (2) under the
    specific circumstances of that case, a trier-of-fact could have examined the spreader and
    reached a different conclusion regarding its intended use, giving it an exculpatory value,
    albeit tenuous. 
    Id. at 1189-90.
    However, our decision in Roberson is distinguishable from Houssain’s case.
    Unlike Roberson, the prescription submitted is not the sole basis of Houssain’s defense.
    For example, Houssain claims that “[f]rom the original prescription, [she] could argue
    that the markings were not made with the intent to change the dosage of the prescription,
    6
    but rather were made innocently or not even by her.” (Houssain’s Br. 12). Yet, Steffen,
    Houssain’s expert, made the same observations during his testimony having only
    examined the copies of the prescription. In addition, Houssain states that “the pressure
    applied[,] the color of the pen, the existence of other markings or writings on the original
    all must be considered to determine the intent behind the markings. They would be
    readily apparent before its destruction.” 
    Id. However, Steffen
    testified that “if [he] had
    had the original [prescription], [he] would have examined it more thoroughly
    microscopically to determine if the paper had been tampered with.” (Tr. 83) (emphasis
    added).    Given that Steffen articulated some of Houssain’s possible defenses using
    photocopies of the prescription and the fact that he would have performed more testing,
    the original prescription submitted is, at most, potentially useful evidence and not
    materially exculpatory.
    As stated previously, the State’s failure to preserve potentially useful evidence
    does not constitute a denial of due process of law unless a criminal defendant shows bad
    faith on the part of the State. 
    Samek, 688 N.E.2d at 1288
    . Houssain, however, does not
    allege bad faith on the part of the State.5 Accordingly, Houssain’s right to due process of
    law was not violated, and the trial court did not err in denying her motion to dismiss.
    Affirmed.
    MATHIAS, J., and BRADFORD, J., concur.
    5
    “Houssain has not raised on appeal that the State’s failure to preserve the original prescription rises to
    the level of bad faith.” (Houssain’s Br. 7).
    7
    

Document Info

Docket Number: 89A04-1307-CR-330

Filed Date: 4/30/2014

Precedential Status: Non-Precedential

Modified Date: 10/30/2014