Justin R. Shaul v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any Jun 28 2019, 10:01 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Clifford M. Davenport Curtis T. Hill, Jr.
Anderson, Indiana Attorney General of Indiana
George P. Sherman
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Justin R. Shaul, June 28, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-2260
v. Appeal from the Madison Circuit
Court
State of Indiana, The Honorable Mark Dudley,
Appellee-Plaintiff Judge
Trial Court Cause No.
48C06-1703-F2-608
May, Judge.
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[1] Justin R. Shaul appeals his convictions of two counts of Level 2 felony dealing
in methamphetamine 1 and one count of Level 3 felony dealing in
methamphetamine. 2 He presents three issues for our review, which we revise
and restate as:
I. Whether venue was proper in Madison County;
II. Whether prosecutorial misconduct amounting to fundamental error
occurred during discovery; and
III. Whether his sentence is inappropriate.
We affirm.
Facts and Procedural History
[2] Shaul was born in Anderson, Indiana, and attended Madison Heights High
School in Anderson. He moved to Florida and Alabama for a time but
returned to Indiana. Upon his return, he lived in Indianapolis and was a friend
of Madison Parkhurst. Wendy Whitaker is Parkhurst’s mother, and Whitaker
met Shaul through her daughter. Whitaker did not approve of Shaul’s
association with her daughter.
1
Ind. Code § 35-48-4-1.1(e).
2
Ind. Code § 35-48-4-1.1(d).
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[3] On February 6, 2017, Whitaker contacted the Madison County Drug Task
Force (“DTF”) and conveyed her belief that Shaul was distributing
methamphetamine in Madison County. Consequently, Whitaker agreed to
work for DTF as a confidential informant and participate in a series of
controlled buy operations.
[4] On February 7, 2017, Whitaker called Shaul to set up the first controlled buy.
Whitaker placed the call from her home in Anderson. Shaul mentioned he was
close to Whitaker’s house and offered to stop by her house. However, DTF
was not prepared for a controlled buy to occur. Whitaker arranged for the buy
to occur later in the day, and Shaul indicated Whitaker would need to travel to
Indianapolis to buy the drugs.
[5] Before the buy, Whitaker met DTF officers at the White River Fitness Club in
Anderson. The DTF officers searched Whitaker, gave her $500 in marked bills,
and equipped her with a surreptitious recording device. Whitaker did not
possess any methamphetamine at the time of the pre-buy search. DTF
Detective Mike Anderson, who was in plain clothes, drove Whitaker to Shaul’s
residence in Indianapolis. DTF Officers Dwiggins and Gutherie also drove to
Indianapolis, but they parked away from Shaul’s house. Whitaker bought
18.96 grams of methamphetamine from Shaul for $500. During the buy, Shaul
bragged to Whitaker about his drug dealing operation and claimed he would
change his voice in court if he ever got caught. After leaving Shaul’s residence,
Whitaker gave the methamphetamine to Detective Anderson, and the two
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rendezvoused with the two additional DTF officers at an intersection in
Castleton for the post-buy search and interview.
[6] From her house in Anderson, Whitaker contacted Shaul via Facebook on
February 14, 2017, to set up a second controlled buy. On February 15, 2017,
Whitaker again met DTF Officers Anderson, Dwiggins, and Gutherie at the
White River Fitness Club in Anderson, where the officers conducted a pre-buy
search, gave her $500 in marked bills, and equipped her with a recording
device. While leaving Madison County, Whitaker placed a phone call to Shaul,
who confirmed the buy. DTF Detective Anderson drove Whitaker to Shaul’s
residence in Indianapolis, and Whitaker purchased 9.40 grams of
methamphetamine from Shaul. Detective Anderson drove Whitaker to the
same intersection used after the controlled buy on February 7, and there the
DTF officers searched Whitaker and conducted the post-buy interview.
[7] On March 2, 2017, Whitaker called Shaul from her house in Anderson to set up
a third controlled buy, and the buy occurred during the early morning hours of
March 3, 2017. Whitaker went to her boyfriend’s house in Indianapolis late on
March 2. The DTF officers met Whitaker at her boyfriend’s house in
Indianapolis, and they went to the parking lot of the Hooter’s restaurant in
Castleton to complete the pre-buy preparations. Then, Detective Anderson and
Whitaker went to Shaul’s residence, where Whitaker purchased 21.95 grams of
methamphetamine for $800. She and Detective Anderson met with the other
DTF officers to conduct the post-buy search and interview at the same
intersection previously used.
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[8] The State charged Shaul with two counts of Level 2 felony dealing in
methamphetamine and one count of Level 3 felony dealing in
methamphetamine. At the beginning of the litigation, Shual’s counsel
requested certain materials that would reveal the identity of the confidential
informant, Whitaker. During a status conference on February 9, 2018, Shaul’s
counsel reported he had discussed production of those materials with the State
and they had reached the understanding that the State would withdraw all plea
offers once the materials were produced.
[9] At the final pretrial conference on June 27, 2018, Shaul’s counsel stated he
wished to depose the confidential informant, but he did not request a
continuance of the trial date. The parties discussed outstanding discovery, with
the State indicating that general discovery had already been given to Shaul and
any remaining documents would be given to him by the end of the week. The
State acknowledged it would need to disclose the confidential informant’s
identity sufficiently in advance of trial for Shaul to be able to depose Whitaker,
and Shaul deposed Whitaker on July 19, 2018.
[10] On July 19, 2018, Shaul moved for change of venue. The court held a hearing
on the motion and denied it. The court then held a three-day jury trial
beginning on July 23, 2018. The jury returned a verdict of guilty on all counts,
and the court entered judgments of conviction. During his sentencing hearing,
Shaul quibbled with the number of convictions reported in his pre-sentence
investigation report, but he confirmed he had five previous felony and
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seventeen previous misdemeanor convictions. The court sentenced Shaul to an
aggregate term of twenty-five years in the Indiana Department of Correction.
Discussion and Decision
Venue
[11] Defendants are entitled to be tried in the county where the offense was allegedly
committed. Baugh v. State, 801 N.E.2d 629, 631 (Ind. 2004); see also Ind. Const.
Art. I, § 13; Ind. Code § 35-32-2-1. When venue is not an element of the
offense, the State is only required to demonstrate proper venue by a
preponderance of the evidence. Id. More than one county may have
concurrent jurisdiction to try a crime. Henke v. State, 801 N.E.2d 633, 634 (Ind.
2004) (holding motorist’s conduct in operating vehicle while intoxicated on
border road for two counties had sufficient nexus with both counties to permit
prosecution in either). “The standard of review for a claim that the evidence
was insufficient to prove venue is the same as for other claims of insufficient
evidence.” Eberle v. State, 942 N.E.2d 848, 855 (Ind. Ct. App. 2011), trans.
denied. Consequently, we do not reweigh the evidence or assess credibility. Id.
Rather, we “look to the evidence and reasonable inferences therefrom which
support the conclusion of requisite venue.” Id.
[12] Venue is appropriate in a county if the defendant directs criminal activity into
the county. See Baugh, 801 N.E.2d at 632 (“if the defendant directs acts into a
county, venue is proper in that county”). For example, we held a Marion
County resident may be tried in Vanderburgh County when the Marion County
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resident solicited an undercover officer in Evansville, who was posing as a
thirteen-year-old boy, for sex. Laughner v. State, 769 N.E.2d 1147, 1157 (Ind.
Ct. App. 2002), reh’g denied, trans. denied, cert. denied 538 U.S. 1013 (2003), but
overruled on other grounds by Fajardo v. State, 859 N.E.2d 1201, 1206 n.9 (Ind.
2007). Venue was proper in Vanderburgh County because the Marion County
resident had taken action directed at Vanderburgh County. Id. Similarly, a
person who fires a gun over a state line may be tried in either the county where
the person fired the gun or the county where the victim was hit. Wurster v. State,
715 N.E.2d 341, 350 (Ind. 1999), reh’g denied.
[13] Shaul was aware Whitaker was a resident of Madison County when she
initiated the transactions because Shaul and Whitaker had met before and
Shaul was a friend of Whitaker’s daughter. Whitaker was in Madison County
when she arranged all three of the buys, and Shaul initially offered to deliver the
drugs to Whitaker’s house for the first buy. Although the drug sales were
completed in Marion County, we may reasonably infer that Shaul understood
Whitaker was going to return to Madison County with the drugs.
[14] Additionally, Shaul’s own words demonstrate he was willing to supply
Madison County residents with narcotics. Shaul described his business model
by saying, “I go around these cities, and I find these dudes that sell the most
dope, and I tell them, I can get you the best dope for a cheaper price.” (St. Ex.
12; St. Ex. 12A at 89.) In fact, Shaul told Whitaker, “I don’t understand why
people in Anderson didn’t [sic] realize that I’m the mother****ing ticket.” (St.
Ex. 12; St. Ex. 12A at 88.) In the case at bar, Madison County was a proper
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venue because there was a sufficient nexus between Shaul’s criminal activity
and Madison County. Shaul could have been prosecuted in Marion County,
but his criminal activity sufficiently implicated the interests of the citizens of
Madison County to make venue in Madison County proper. See Heinzman v.
State, 895 N.E.2d 716, 723 (Ind. Ct. App. 2008) (holding evidence supported
finding of venue in Hamilton County when defendant drove from Hamilton
County to gain access to victim and communicated with victim from Hamilton
County in furtherance of his offenses), trans. denied.
Prosecutorial Misconduct
[15] Shaul contends the State committed prosecutorial misconduct by not timely
responding to discovery. However, he failed to raise a contemporaneous
objection to this alleged misconduct. Therefore, he “must establish not only the
grounds for prosecutorial misconduct but also the additional grounds for
fundamental error.” McKinney v. State, 873 N.E.2d 630, 642 (Ind. Ct. App.
2007), trans. denied. Fundamental error occurs when the violations “make a fair
trial impossible or constitute clearly blatant violations of basic and elementary
principles of due process.” Benson v. State, 762 N.E.2d 748, 756 (Ind. 2002).
Shaul alleges the prosecutor supplied requested discovery only after ending plea
negotiations and did not supply it with sufficient time for defense counsel to
review and advise Shaul. He also asserts he would have considered accepting a
plea bargain had he known the confidential informant’s identity sooner.
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[16] The State has a valid interest in protecting the identity of a confidential
informant, and therefore “the general policy is to prevent the disclosure of the
identity of a confidential informant unless the defendant can demonstrate that
disclosure is relevant and helpful to his defense or is necessary for a fair trial.”
Shell v. State, 927 N.E.2d 413, 420 (Ind. Ct. App. 2010). “Bare speculation that
the informant’s identity may possibly prove useful is not enough to justify
disclosure, and an informant’s identity shall not be disclosed to permit a mere
‘fishing expedition.’” Id. Prematurely revealing the identity of a confidential
informant risks retaliation against the informant, compromising current
investigations, and chilling future cooperation. As a result, and in some
circumstances, the State may convict a criminal defendant without disclosing a
confidential informant’s identity. Furman v. State, 496 N.E.2d 811, 814 (Ind.
1980) (holding trial court’s failure to order pretrial disclosure of confidential
informant’s identity was not an abuse of discretion).
[17] Shaul was not prejudiced as the result of any delay in revealing the confidential
informant’s identity. “The purpose of discovery is to put the other party on
notice of the evidence upon which a party intends to rely at trial.” Bennett v.
State, 5 N.E.3d 498, 511 (Ind. Ct. App. 2014), reh’g denied, trans. denied. The
general remedy for curing a discovery violation is a continuance. Warren v.
State, 725 N.E.2d 828, 832 (Ind. 2000). A defendant waives any discovery
argument on appeal if a continuance may have cured the alleged violation, but
the defendant failed to request a continuance. Id. The trial rules anticipate that
counsel will work together to effectuate the discovery process. See Ind. T. R.
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26(F) (requiring counsel to make reasonable effort to reach an agreement with
opposing party before filing a motion to compel). Shaul’s counsel indicated at
the February 9, 2018, status conference and the June 27, 2018, pretrial hearing
that he and the prosecutor had discussed the State’s discovery compliance.
Shaul’s counsel did not ask the trial court to compel discovery. Also, Shaul’s
counsel did not seek to continue Shaul’s trial during the final pre-trial
conference. In fact, Shaul’s counsel indicated that he was willing and able to
proceed with trial on July 23, 2018. Shaul deposed Whitaker prior to trial and
relied on her deposition testimony in arguing his motion for change of venue.
[18] Additionally, Shaul’s claim that the discovery delays by the State impeded his
decision to accept a plea deal lack merit. Shaul’s counsel never indicated that a
delay by the State in revealing the identity of the confidential informant affected
Shaul’s decision to accept a plea deal. In fact, Shaul’s counsel informed the
court that Shaul was not interested in accepting a plea deal, and Shaul intended
to take his case to trial. Shaul had sufficient information about the State’s case
at the time this representation was made to make an informed decision
regarding whether to accept a plea deal. He had access to the probable cause
affidavit which revealed the dates of the transactions, where the transactions
occurred, the controlled substance Shaul supplied, and the amount of the
controlled substance he supplied. Consequently, any discovery delays related
to revealing the identity of the confidential informant do not amount to
fundamental error. See Murray v. State, 442 N.E.2d 1012, 1018 (Ind. 1982)
(holding asserted discovery violations did not warrant reversal).
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Shaul’s Sentence
[19] We “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.” Ind.
Appellate Rule 7(B). We look “not whether another sentence is more
appropriate but rather whether the sentence imposed is inappropriate.” Cannon
v. State, 117 N.E.3d 643, 645 (Ind. Ct. App. 2018) (internal quotation marks
omitted), trans. denied. Shaul bears the burden of persuading us that his
sentence is inappropriate. Id. We are very deferential to the trial court in
reviewing sentencing decisions. Id.
[20] Shaul was convicted of two counts of Level 2 felony dealing in
methamphetamine and one count of Level 3 felony dealing in
methamphetamine. A Level 2 felony carries a minimum term of ten years and
a maximum term of thirty years, with an advisory sentence of seventeen and
one-half years. Ind. Code § 35-50-2-4.5. A Level 3 felony carries a minimum
term of three years and a maximum term of sixteen years, with an advisory
sentence of nine years. Ind. Code § 35-50-2-5. The trial court imposed an
executed sentence of twenty-five years on each of the Level 2 felony counts and
an executed sentence of thirteen years on the Level 3 felony count, and then the
court ordered the sentences served concurrently.
[21] As the State aptly observes, Shaul’s offense demonstrates “he was a high level
drug dealer who was ready and willing to supply methamphetamine on a
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regular basis.” (Appellee Br. at 21.) Shaul’s own comments demonstrate his
desire to supply other drug dealers with drugs, and Shaul sold large quantities
of drugs to Whitaker on multiple occasions. Further, Shaul has a lengthy
criminal record, including at least seventeen misdemeanor and five felony
convictions. Shaul had four open cases at the time of completion of the
presentence investigation report, and he was on probation when he committed
the instant offenses. While Shaul’s imposed sentence is longer than what the
presentence investigation report recommended, we cannot say it is
inappropriate in light of his offenses or his character. 3 See Fugate v. State, 516
N.E.2d 75, 80 (Ind. Ct. App. 1987) (stating “trial court need not base its
sentencing determination on the presentence investigation report or upon the
probation officer’s sentencing recommendation”).
Conclusion
[22] Madison County was a proper venue, Shaul has not demonstrated the
prosecutor engaged in misconduct, and Shaul’s sentence was not inappropriate
3
Shaul also claims the trial judge was biased against him because Shaul filed a lawsuit against the trial judge
while this criminal action was pending. However, Shaul fails to point to any comments by the trial judge at
sentencing that demonstrate bias. See Smith v. State, 770 N.E.2d 818, 823 (Ind. 2002) (“The law presumes
that a judge is unbiased and unprejudiced. And to rebut that presumption, a defendant must establish from
the judge’s conduct actual bias or prejudice that places the defendant in jeopardy.”) (internal citations
omitted). Further, the judge’s correct denial of Shaul’s motion for change of venue cannot equate to bias
against Shaul. See Cook v. State, 612 N.E.2d 1085, 1088 (Ind. Ct. App. 1993) (“Adverse rulings or the
imposition of the maximum possible sentence do not support a claim of bias.”). Shaul fails to demonstrate
his sentence was the result of bias.
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given his long criminal history and the large amounts of narcotics involved in
these offenses. Accordingly, we affirm.
[23] Affirmed.
Mathias, J., and Brown, J., concur.
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