Ronnell Roberts v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jul 31 2017, 7:34 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Mark K. Leeman Curtis T. Hill, Jr.
Leeman Law Office and Cass County Attorney General
Public Defender
Logansport, Indiana Katherine Cooper
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Ronnell Roberts, July 31, 2017
Appellant-Defendant, Court of Appeals Case No.
09A05-1702-CR-283
v. Appeal from the Cass Superior
Court
State of Indiana, The Honorable Richard
Appellee-Plaintiff Maughmer, Judge
Trial Court Cause No.
09D02-1605-F2-8
Crone, Judge.
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Case Summary
[1] A jury convicted Ronnell Roberts of level 2 felony dealing in cocaine and class
A misdemeanor dealing in marijuana. Roberts now appeals, challenging the
admission of certain evidence at trial as well as the sufficiency of the evidence
to support his convictions. Concluding that he has failed to establish an abuse
of discretion in the trial court’s admission of evidence and finding the evidence
sufficient to support his convictions, we affirm.
Facts and Procedural History
[2] The facts most favorable to the verdicts are as follows. In May 2016, Roberts
and his wife Hollie rented a room in a single-family residence owned by Paula
Lamb. Two weeks later, Logansport police received an anonymous complaint
concerning drug activity and suspicious odors emanating from the house.
Officers James Klepinger and Jason Shideler went to the house and spoke with
Lamb, who invited them in and informed them that she lived there with her
daughter and her daughter’s fiancé and that she had rented a room to “Nello”
and Hollie. Tr. at 33, 38-39, 57-58, 135, 142. Per the officers’ request, Lamb
escorted them to the rented room upstairs. As they approached the room, they
detected the odor of marijuana. When Lamb opened the door, the odor was
significantly stronger. Burnt marijuana cigarette butts were on a plate on the
headboard of the bed, and Roberts and Hollie were sitting on the bed. Roberts
reported that he had been renting the room for about two weeks.
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[3] Police searched the room and found several personal items, including clothing,
identification, a handbag, and two cell phones. They also discovered two velvet
bags inside a dresser drawer. Inside the purple bag, they found nine
individually knotted baggies, four of which were later found to contain an
equally sized off-white rock substance, and five of which contained even
smaller portions of the same substance. In the same purple bag, police found a
separate baggie containing a large rock of the same substance. Subsequent
testing showed the rocks to be cocaine. Also inside the purple bag were a
digital scale, razor blades, and several empty baggies. Inside the green velvet
bag, police discovered a plastic bag containing twenty-four individually
wrapped bags of a green substance determined to be marijuana.
[4] Officers obtained a search warrant for the two phones and determined which
phone was Roberts’s by using contact information and a reference to the user as
“Nello.” Id. at 134-35, 140, 142. The phone determined to be Roberts’s
contained a close-up photo of Roberts as well as photos of marijuana.
[5] The State charged Roberts with level 2 felony dealing in cocaine (at least ten
grams); level 4 felony cocaine possession (at least ten grams); and class A
misdemeanor dealing in marijuana. The State requested permission to conduct
a videotaped deposition of forensic scientist Kimberly Ivanyo, who had
conducted the lab tests on the suspected illegal substances, to be used at trial.
The trial court granted the State’s request, and Roberts appeared in person and
by counsel at the deposition. During his subsequent jury trial, Roberts objected
to the admission of Ivanyo’s deposition, as well as her certificate of analysis
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regarding the weight and composition of the substances tested. He also
objected to the admission of text messages extracted from his cell phone. The
jury convicted him as charged, and the trial court vacated his conviction for
level 4 felony cocaine possession. The trial court sentenced him to an aggregate
thirty-one-year term.
[6] Roberts now appeals. Additional facts will be provided as necessary.
Discussion and Decision
Section 1 – Roberts has failed to establish an abuse of
discretion in the trial court’s admission of the challenged
evidence.
[7] Roberts challenges the admission of certain evidence during his jury trial. We
review rulings on the admission or exclusion of evidence for an abuse of
discretion resulting in prejudicial error. Williams v. State, 43 N.E.3d 578, 581
(Ind. 2015). An abuse of discretion occurs when the trial court’s decision is
clearly against the logic and effect of the facts and circumstances before it or
where the trial court misinterprets the law. Id.[8] Particularly, Roberts challenges the trial court’s admission of certain text
messages extracted from his cell phone as well as Ivanyo’s deposition testimony
concerning the weight of the cocaine seized from his rented room. We address
each separately.
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A. Text messages
[9] Roberts objected to the admission of the extracted text messages on grounds of
authenticity, relevance, and hearsay. To lay a foundation for admission,
writings and recordings must be authenticated pursuant to Indiana Evidence
Rule 901(a). Hape v. State, 903 N.E.2d 977, 990 (Ind. Ct. App. 2009), trans.
denied. Evidence Rule 901(a) reads, “To satisfy the requirement of
authenticating or identifying an item of evidence, the proponent must produce
evidence sufficient to support a finding that the item is what the proponent
claims it is.” Absolute proof of authenticity is not required, but rather only a
reasonable probability that the document is what it purports to be. Fry v. State,
885 N.E.2d 742, 748 (Ind. Ct. App. 2008), trans. denied. Once a reasonable
probability is shown, any inconclusiveness concerning the exhibit’s connection
to the events at issue goes to the exhibit’s weight, not its admissibility. Pavlovich
v. State, 6 N.E.3d 969, 976 (Ind. Ct. App. 2014), trans. denied.
[10] Roberts claims that the State failed to establish that he was the sender of the
extracted messages. We disagree. Police recovered two cell phones from the
room that Roberts rented with Hollie. Because one of the phones listed Hollie
as a frequent contact, police determined that it was Roberts’s phone and sought
to extract information from it. They obtained a search warrant and extracted
several text message conversations purportedly between Roberts and others. In
one of the extracted messages, the sender referred to himself as “Nello.” See
State’s Ex. 44k (“Well if this mike its nello i was wondering if you still have lab
t op”). This nickname is consistent with Roberts’s first name “Ronnell” as well
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as with the nickname by which his landlady referenced him to police. The cell
phone also contained what appeared to be a close-up “selfie” photograph of
Roberts. State’s Ex. 46. The trial court properly found the cell phone and text
messages to be authenticated as Roberts’s.
[11] Roberts also contends that the extracted text messages lacked relevance and
were highly prejudicial. In general, all relevant evidence is admissible. Ind.
Evidence Rule 402; Wilson v. State, 4 N.E.3d 670, 675 (Ind. Ct. App. 2014),
opinion on reh’g, trans. denied. Indiana Evidence Rule 401 provides that evidence
is relevant if it has any tendency to make a fact more or less probable than it
would be without the evidence and the fact is of consequence in determining
the action. The trial court has the discretion to admit even marginally relevant
evidence. Wilson, 4 N.E.3d at 675. Notwithstanding, Indiana Evidence Rule
403 allows the trial court to “exclude relevant evidence if its probative value is
substantially outweighed by a danger of … unfair prejudice.”
[12] Excerpts from the extracted text messages sent from Roberts’s phone include
the following:
Sent: Hey its some decent sh*t G cause im out of state so I got
distinguish myself from the rest in town so I can get the bread
….
Sent: Im coming thru east chicago now and I was wondering if
its good sh*t cause im coming from out of state and got to
distinguish myself with better sh*t then the town
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Sent: to make bread
….
Sent: You think dude rock be having some hood sh*t
….
Sent: Im on the highway now ill hustle and make due with
whatever you hook me up with
….
Sent: Im going back to Chicago its there today I cant keep sitting
dry aint making no money and I want to still be sitting on
something when I pay you back or it will defeat the purpose of
ever borrowing anything to come up you know
….
Sent: My guy aint coming back I got to take the cash to them
and its mids
….
Sent: Mothers day weekend deal before I go until I come back
State’s Exs. 44a, 44f, 44h, 44i, 44j.
[13] These excerpts from Roberts’s text messages are highly probative of Roberts’s
intent to deal (not merely use) cocaine and marijuana. This is especially true
when the messages are considered in conjunction with the quantity of the drugs
recovered, their packaging, and the presence of paraphernalia such as razor
blades and a digital scale. As for Roberts’s claims of unfair prejudice, we
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observe that, except as previously referenced, the messages are largely
mundane, sometimes in code,1 and sometimes speaking merely to his
whereabouts. The relevancy of the text messages was not substantially
outweighed by any danger of prejudice, and Roberts has failed to establish an
abuse of discretion for the admission of the messages on this basis.
[14] Roberts also asserts that the text messages were inadmissible on hearsay
grounds. Hearsay is a statement not made by the declarant while testifying at
the trial or hearing and offered in evidence to prove the truth of the matter
asserted. Ind. Evidence Rule 801(c). Hearsay is generally inadmissible under
Indiana Evidence Rule 802. Harrison v. State, 32 N.E.3d 240, 254 (Ind. Ct. App.
2015), trans. denied. Indiana Evidence Rule 801(d)(2)(A) provides that an
opposing party’s out-of-court statement offered in evidence to prove the truth of
the matter asserted is not hearsay if it is offered against the opposing party and
was made by the party in an individual or representative capacity. Having
authenticated the cell phone and its contents as belonging to Roberts, the State
properly offered the statements contained in the extracted text messages as
statements of a party opponent. That said, we also note that neither Roberts’s
“sent” messages nor the messages in his inbox were offered to prove the truth of
the matters asserted in each of the statements, i.e., not offered to establish that
out-of-state drugs are “better sh*t” that would distinguish Roberts from other
dealers in town. State’s Ex. 44a. Instead, the mere fact that Roberts sent the
1
To alleviate potential jury confusion, Officer Klepinger provided clarifying testimony.
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messages was relevant to the issue of his being a drug dealer. We therefore
conclude that the challenged text messages were properly admitted as non-
hearsay.
B. Ivanyo’s Deposition
[15] Roberts also submits that the trial court abused its discretion in admitting
Ivanyo’s deposition. Essentially, he claims that the State failed to lay a
foundation as to Ivanyo’s competency to testify regarding the weight of the
marijuana and cocaine and the accuracy of the scale used to weigh the cocaine
seized from his rented room. Having reviewed Ivanyo’s deposition, we observe
that the State elicited extensive testimony from Ivanyo concerning her
educational and occupational credentials, i.e., a bachelor’s degree in chemistry
from Purdue University, fifteen years’ experience as a forensic scientist with the
State Police laboratory (having tested over 27,000 items), and testimony in
ninety-five previous cases. Ivanyo explained the nuances of analyzing plant
matter versus powder or rock substances. State’s Ex. 8. The State established
that Ivanyo was an experienced chemist, qualified to test the substances and
testify concerning her findings.
[16] As for the accuracy of the scale that Ivanyo used in her testing, the State made
only a passing reference to calibration but elicited her explanation concerning
the margin of error of her results. We addressed the issue of scale calibration in
Turner v. State, 878 N.E.2d 286, 294 (Ind. Ct. App. 2007), trans. denied (2008).
There, as here, the trial court granted the State’s request to depose its forensic
scientist on videotape due to her unavailability to testify at trial. Id. In Turner,
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the State elicited no testimony from its scientist during her deposition
concerning the calibration of the scale, and the defendant did not object or
question her concerning the scale’s calibration but later objected at trial. Id. In
affirming the trial court’s admission of the forensic scientist’s deposition, the
Turner court reasoned,
We acknowledge that the State bears the burden to show that the
scale used to measure the weight of the cocaine was properly
calibrated. However, such is a foundational requirement and not
an element of the controlled substance offense itself. When the
foundation for the admission of evidence is at issue, this court
has determined that before the prosecution has any responsibility
to establish the foundation, the defense must object that the
prosecution has not laid the proper foundation. Indeed, a party
may not sit idly by and fail to object to the lack of a proper
foundation and subsequently take advantage of that error when a
timely objection could have permitted the proper foundation to
be laid.
As noted above, [the defendant] did not object during the
deposition when [the scientist] was testifying as to the weight of
the substances that she tested. As a result, the trial court properly
admitted the evidence even though the State had not elicited
testimony about the calibration of the scale.
Id. (citations omitted).
[17] Here, the State questioned Ivanyo as follows with respect to the accuracy of her
results concerning the weight of the cocaine collected from Roberts’s rented
room:
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Q. And [what] was your conclusion with regard to Item 1?
A. State’s Exhibit 1, four bags were examined, and each were
found to contain cocaine, a controlled substance, and had a net
weight of zero point three-three grams.
Q. And with regard then to State’s Exhibit 2, what was your
conclusion?
A. Item 2 was found to contain cocaine, a controlled substance,
and had a net weight of ten point zero-zero grams plus or minus
point zero-four grams.
Q. Okay, and what, what does the point zero-four grams
indicate? Why, why is that there?
A. There’s some drugs that have a weight threshold. For
example, cocaine, there’s a different charge if it’s below ten
grams and above ten grams. So ten grams is kind of the magic
number.
Q. Okay.
A. So we have to include the, the measurement certainty of the
balance in that because it could be all the way up to ten point
zero-four and as low as nine point nine-six. So anywhere in that
range is where the weight could lie.
Q. Because on your, on your scientifically calibrated scale at the
Indiana State Police lab, what did that reading come out to?
A. The reading read ten point zero-zero grams.
Q. Okay. So you’re trying to be as accurate as possible. You say
it’s plus or minus four one-hundredths of a gram; is that right?
A. Correct.
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Q. But with regards to then with the weight between the
combination of State’s Exhibit 1 and 2, it puts it well over ten
grams; is that correct?
A. That’s correct.
State’s Ex. 8 (emphasis added).
[18] Roberts did not object when the State characterized Ivanyo’s scale as
“scientifically calibrated,” or at any time thereafter during the deposition. Id.Nor did he avail himself of the opportunity to question Ivanyo as to the
calibration of her scale or her testimony concerning the margin of error. By
waiting until trial to challenge this foundational issue, he waived this issue for
consideration on appeal. See Konopasek v. State, 946 N.E.2d 23, 27 (Ind. 2011)
(failure to object to admission of evidence normally results in waiver and
precludes appellate review). Even so, the challenged evidence was cumulative
of other evidence, see State’s Exhibit 6 (certificate of analysis), and therefore
would be considered harmless error. See Harrison, 32 N.E.3d at 254 (if
erroneously admitted evidence was cumulative of other evidence, admission
was harmless, not reversible, error). Roberts has failed to establish an abuse of
discretion in admitting Ivanyo’s deposition.
Section 2 – The evidence is sufficient to support Roberts’s
convictions.
[19] Roberts maintains that the evidence is insufficient to support his convictions.
When reviewing a challenge to the sufficiency of evidence, we neither reweigh
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evidence nor judge witness credibility. Drane v. State, 867 N.E.2d 144, 146 (Ind.
2007). Rather, we consider only the evidence and reasonable inferences most
favorable to the verdict and will affirm the conviction “unless no reasonable
fact-finder could find the elements of the crime proven beyond a reasonable
doubt.” Id. It is therefore not necessary that the evidence “overcome every
reasonable hypothesis of innocence.” Id. (citation omitted).
[20] Roberts was convicted of level 2 felony dealing in cocaine and class A
misdemeanor dealing in marijuana. To find Roberts guilty of the former, the
State was required to prove beyond a reasonable doubt that he possessed with
intent to deliver cocaine in an amount weighing at least ten grams. Ind. Code §
35-48-4-1(a)(2), -(e)(1). To establish that Roberts committed the latter, the State
was required to prove that he possessed marijuana with intent to deliver it. Ind.
Code § 35-48-4-10(a)(2).
[21] With respect to the quantity of cocaine recovered from Roberts’s room, the
certificate of analysis as well as forensic scientist Ivanyo’s deposition testimony
established its total weight to be just under twelve grams, i.e., 10 grams plus
1.32 grams (0.33 grams x 4) plus 0.58 grams. State’s Exs. 6, 8. This exceeds
the ten-gram threshold weight to establish the level 2 felony offense of dealing
in cocaine.
[22] The State charged both offenses as “possess[ion] with intent to deliver.”
Because Roberts was not caught red-handed with the contraband on his person,
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the State was required to establish that he constructively possessed it. Gray v.
State, 957 N.E.2d 171, 174 (Ind. 2011).
When the State cannot show actual possession, a conviction for
possessing contraband may rest instead on proof of constructive
possession. A person constructively possesses contraband when
the person has (1) the capability to maintain dominion and
control over the item; and (2) the intent to maintain dominion
and control over it.
A trier of fact may infer that a defendant had the capability to
maintain dominion and control over contraband from the simple
fact that the defendant had a possessory interest in the premises
on which an officer found the item. We allow this inference even
when that possessory interest is not exclusive.
A trier of fact may likewise infer that a defendant had the intent
to maintain dominion and control over contraband from the
defendant’s possessory interest in the premises, even when that
possessory interest is not exclusive. When that possessory
interest is not exclusive, however, the State must support this
second inference with additional circumstances pointing to the
defendant’s knowledge of the presence and the nature of the
item. We have previously identified some possible examples,
including (1) a defendant’s incriminating statements; (2) a
defendant’s attempting to leave or making furtive gestures; (3) the
location of contraband like drugs in settings suggesting
manufacturing; (4) the item’s proximity to the defendant; (5) the
location of contraband within the defendant’s plain view; and (6)
the mingling of contraband with other items the defendant owns.
Id. at 174-75 (citations omitted).
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[23] Roberts claims that he did not maintain dominion and control over his rented
room. The record shows that he had been renting the room with his wife for
approximately two weeks. As a lessee of the room, he had a possessory interest
in the premises sufficient to support an inference that he was capable of
maintaining dominion and control over it. Gray, 957 N.E.2d at 174. To the
extent that he cites photographs depicting pink decorations in the room as
evidence that he did not control the room’s environment, he invites us to
reweigh evidence and reassess witness credibility, which we may not and will
not do.
[24] As for Roberts’s intent to maintain dominion and control, we note that all the
contraband was found in close proximity to Roberts’s person and his personal
belongings. When police arrived, the room had a strong smell of burnt
marijuana, and Roberts was present in the room, sitting on the bed. On the
headboard, in plain view, were burnt marijuana blunts. The photographic
exhibits show that the premises rented by Roberts and his wife comprised a
small to medium-sized bedroom. Nearly every part of the room was either
within arm’s reach or within a few steps. Large quantities of drugs neatly
packaged for sale were nestled, along with dealers’ tools, inside the dresser just
steps from where Roberts was sitting. Though he made no furtive gestures or
incriminating remarks to police at the time, his incriminating statements in his
extracted text messages also implicate him as a drug dealer. Roberts had the
intent to maintain dominion and control over his inventory.
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[25] In sum, the presence and proximity of the drugs and paraphernalia to Roberts,
the quantity and packaging of the drugs, and the extracted text messages
combine to support a reasonable inference that Roberts possessed the drugs
with intent to deal them, not merely use them. The evidence most favorable to
the verdicts is sufficient to support Roberts’s convictions. Accordingly, we
affirm.
[26] Affirmed.
Baker, J., and Barnes, J., concur.
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