Roy Bessler v. State of Indiana

Pursuant to Ind. Appellate Rule 65(D),
this 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:
JEFFREY E. STRATMAN GREGORY F. ZOELLER
Aurora, Indiana Attorney General of Indiana
JOSEPH Y. HO
Deputy Attorney General
FILED
Indianapolis, Indiana
Dec 31 2012, 11:31 am
IN THE CLERK
COURT OF APPEALS OF INDIANA of the supreme court,
court of appeals and
tax court
ROY BESSLER, )
)
Appellant-Defendant, )
)
vs. ) No. 15A04-1201-CR-37
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE DEARBORN SUPERIOR COURT
The Honorable Jonathon N. Cleary, Judge
Cause No. 15D01-1105-FA-012
December 31, 2012
MEMORANDUM DECISION – NOT FOR PUBLICATION
MATHIAS, Judge
Roy Bessler (“Bessler”) was convicted after a jury trial in Dearborn Superior
Court of two counts of Class B felony dealing in cocaine and two counts of Class A
felony dealing in cocaine. Bessler was sentenced to concurrent sentences for the four
counts with an executed sentence of thirty years in the Indiana Department of Correction.
Bessler appeals and argues that the trial court improperly admitted evidence of his
subsequent bad acts to show his predisposition to engage in the conduct and that his
executed sentence of thirty years is inappropriate in light of the nature of the offense and
his character.
We affirm.
Facts and Procedural History
On January 5, 2011, a Confidential Informant (“the CI”)1 contacted Detective
Shane McHenry (“Detective McHenry”) of the Dearborn County Sheriff’s Department
and informed the detective that Bessler had been dealing cocaine. The CI provided
specific details regarding Bessler’s operations, and, based on those details, the officers
began to surveil Bessler.
On January 14, 2011, the CI contacted Detective McHenry and stated that Bessler
had asked her if she had any friends that wanted cocaine. Undercover officer, Detective
Nicholas Beetz (“Detective Beetz”) met with Bessler and the CI that evening to perform a
controlled buy of cocaine. They met in a parking lot, and Detective Beetz got into
Bessler’s truck. While Detective Beetz, the CI, and Bessler were in the truck, Bessler
1
Detective McHenry had dealt with the CI in a prior case in which she provided reliable information.
2
retrieved cocaine2 from the glove box and handed it to the CI, who then conveyed it to
Detective Beetz in exchange for $250. On January 17, 2011, Detective Beetz contacted
the CI, and Bessler, who was with the CI at the time, agreed to sell Detective Beetz his
remaining cocaine and said he could also get Detective Beetz an “eight ball” in a couple
of days.3 Later that day, Detective Beetz met with Bessler and purchased Bessler’s
remaining cocaine4 for $150.
On January 25, 2011, Bessler contacted Detective Beetz, and when Detective
Beetz returned his call, Bessler agreed to sell him more cocaine. Detective Beetz
purchased over three grams of cocaine5 from Bessler for $300 and was given additional
cocaine6 with payment to be made at a later date. On January 28, 2011, Beetz paid
Bessler $300 for the cocaine he had received in advance on January 25, 2011. Then later
that day he again purchased cocaine7 paying $300 dollars and promising to pay an
additional $300 in the future, which Detective Beetz paid on February 4, 2011.
On February 24, 2011, detectives conducted additional surveillance and saw
Bessler meet with a suspected supplier of marijuana and return to his apartment with a
large duffel bag. Bessler also met with Detective Beetz that day, and Bessler discussed
whether Detective Beetz might be interested in transporting marijuana for him. After
2
Lab tests later confirmed that 2.10 grams of cocaine were purchased during the controlled buy.
3
An “eight ball” is street slang for 3.5 grams of cocaine.
4
Lab tests later confirmed the actual amount to be 1.91 grams of cocaine.
5
Lab tests later confirmed the actual amount to be 3.69 grams of cocaine.
6
The State did not test this substance to confirm it was cocaine, but the substance weighed 3.49 grams.
7
Lab tests later confirmed the aggregate weight of the cocaine Bessler sold to Detective Beetz in the
controlled buy on January 25, 2011 was 6.91 grams.
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obtaining a search warrant for Bessler’s apartment and truck, officers seized twenty
pounds of marijuana. Bessler was then arrested and charged, in a separate cause of action
from the current case, with Class C felony possession with intent to deliver marijuana.
On May 27, 2011, Bessler was charged with the crimes at issue in this appeal, two
counts of Class B felony dealing in cocaine and two counts of Class A felony dealing in
cocaine over three grams all based on the earlier cocaine sales to Officer Beetz. On
November 22, 2011, Bessler filed a Motion on the Defense of Entrapment.
At trial, which began on December 12, 2011, Bessler argued the defense of
entrapment. The State raised Bessler’s subsequent possession of marijuana as evidence
that he had a predisposition to engage in dealing cocaine. After a four-day jury trial, the
jury found Bessler guilty on all counts. On January 6, 2012, Bessler was sentenced to
twenty years on both Count I and Count II and to thirty years on both Count III and
Count IV, all to be served concurrently in the Indiana Department of Correction. Bessler
now appeals.
I. Admission of Subsequent Misconduct into Evidence to Show Predisposition
Bessler argues that the trial court erred by allowing the State to admit evidence of
Bessler’s subsequent bad acts to show his predisposition to engage in dealing cocaine and
that the trial court erred by failing to give a limiting instruction regarding the marijuana
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evidence. At trial, Bessler raised entrapment8 as a defense. The defense of entrapment
turns on “the defendant’s state of mind[,]” namely whether the defendant originally had
the criminal intent or whether government action induced the criminal action. Scott v.
State, 772 N.E.2d 473, 475 (Ind. Ct. App. 2002), trans. denied. “If a defendant indicates
that he intends to rely on the defense of entrapment and establishes police inducement,
the burden shifts to the State to demonstrate the defendant’s predisposition to commit the
crime.” Espinoza v. State, 859 N.E.2d 375, 386 (Ind. Ct. App. 2006).
To rebut Bessler’s defense, the State raised Bessler’s prior9 and subsequent bad
acts to show that he had a predisposition to engage in the conduct. Bessler argues that the
trial court abused its discretion by allowing into evidence his subsequent bad acts to show
his predisposition to engage in dealing cocaine. Specifically, Bessler argues that that the
trial court abused its discretion by admitting, over his objection, the marijuana evidence
that was recovered pursuant to a search warrant on February 24, 2011, a date that was
after the offenses for which he was charged in this case. Bessler asserts the evidence was
inadmissible under Indiana Rule of Evidence 404(b).
8
Indiana Code section 35-41-3-9 provides that:
(a) [Entrapment] is a defense that:
(1) the prohibited conduct of the person was the product of a law enforcement officer, or
his agent, using persuasion or other means likely to cause the person to engage in the
conduct; and
(2) the person was not predisposed to commit the offense.
(b) Conduct merely affording a person an opportunity to commit the offense does not constitute
entrapment.
9
Bessler does not argue on appeal that his prior bad acts were inadmissible to show his predisposition to
deal cocaine.
5
We do not reach the issue today of whether Bessler’s subsequent acts were
admissible to show his predisposition to deal cocaine,10 because even if the trial court
erred in admitting evidence of his subsequent acts, the error was harmless. An error is
harmless if there is “substantial independent evidence of guilt satisfying the reviewing
court there is no substantial likelihood the challenged evidence contributed to the
conviction.” Turner v. State, 953 N.E.2d 1039, 1059 (Ind. 2011). “Generally, errors in
the admission7 of evidence are to be disregarded unless they affect the substantial rights
of a party.” Id.Factors that “indicate a predisposition to sell drugs include: knowledge of drug
prices; knowledge of drug sources and suppliers; use and understanding of terminology
of the drug market; solicitation of future drug sales; and multiple sales to undercover
officers.” Young v. State, 620 N.E.2d 21, 24 (Ind. Ct. App. 1993). In this case, Bessler
admitted to buying the drugs he sold to Detective Beetz from two different suppliers, and
he negotiated the prices with Detective Beetz. Tr. p. 461, 486-88, 505-06. These actions
indicate Bessler was knowledgeable of drug prices and drug suppliers. Moreover, he
10
We do note, however, federal courts have generally held “that subsequent similar acts may, under
proper circumstances, be admissible to prove the defendant’s predisposition to commit the crime
charged.” United States v. Moschiano, 695 F.2d 236, 244 (7th Cir. 1982) (holding that evidence that
defendant had attempted to make an illegal drug purchase approximately three months after the charged
incidents was admissible to refute an entrapment defense); see also United States v. Parkin, 917 F.2d 313,
316 (7th Cir. 1990) (noting that “this court has rejected any rule that subsequent acts are per se
inadmissible to show predisposition”); United States v. Posner, 865 F.2d 654, 658 (5th Cir. 1989); United
States v. Mack, 643 F.2d 1119, 1121-22 (5th Cir. 1981); United States v. Warren, 453 F.2d 738 (2nd Cir.
1972). Federal courts have explained that subsequent acts are not per se inadmissible when defendant has
raised an entrapment defense and that they are relevant to show predisposition, because subsequent,
similar acts “make it more probable that the defendant was predisposed to commit the offense charged.”
Moschiano, 695 F.2d at 244. Further, those courts have remarked that “[w]hile it is true that
predisposition turns on a defendant’s mental state prior to commission of the crime, that mental state may
be proved by relevant and admissible evidence concerning the defendant’s actions either before or after
commission of the crime.” United States v. Carreon, 626 F.2d 528, 535 n.14 (7th Cir. 1980).
6
used the terminology of the drug market, such as using the term “eight ball” to describe a
quantity of drug. Furthermore, Bessler was involved in multiple sales to an undercover
agent—he sold cocaine to Detective Beetz on four different occasions, and he had a
previous conviction for dealing cocaine. For all of these reasons, we hold there was
substantial independent evidence that Bessler had a predisposition to deal cocaine and
conclude the admission of the subsequent acts was harmless error.
Bessler also argues that the trial court erred by failing to give a limiting instruction
that the marijuana evidence was only to be considered for whether Bessler was
predisposed to commit the crime of dealing in cocaine and not considered as evidence of
Bessler’s general propensity to deal illegal substances. At trial, Bessler did not tender a
limiting instruction and did not object when the trial court failed to issue a limiting
instruction. “Generally, a defendant who fails to object to the court’s final instructions
and fails to tender a competing set of instructions at trial waives a claim of error on
appeal, unless the error identified rises to the level of fundamental error.” Sanchez v.
State, 675 N.E.2d 306, 308 (Ind. 1996). Bessler does not argue fundamental error on
appeal, and since he did not tender limiting instructions or object when the trial court
failed to issue limiting instructions, we hold that he did not preserve the issue for appeal.
II. Sentencing
Bessler claims that the sentence of thirty years executed in the Indiana Department
of Correction imposed by the trial court is inappropriate in light of the nature of his
offense and of his character. Under Indiana Appellate Rule 7(B), we may “revise a
sentence authorized by statute if, after due consideration of the trial court’s decision, the
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Court finds that the sentence is inappropriate in light of the nature of the offense and the
character of the offender.” Although we may review and revise a sentence, “[t]he
principal role of appellate review should be to attempt to leaven the outliers, and identify
some guiding principles for trial courts and those charged with improvement of the
sentencing statutes, but not to achieve a perceived ‘correct’ result in each case.”
Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). We must give “deference to a trial
court’s sentencing decision, both because Rule 7(B) requires us to give due consideration
to that decision and because we understand and recognize the unique perspective a trial
court brings to its sentencing decisions.” Trainor v. State, 950 N.E.2d 352, 355-56 (Ind.
Ct. App. 2011), trans. denied (quoting Stewart v. State, 866 N.E.2d 858, 866 (Ind. Ct.
App. 2007)) (internal quotation marks omitted).
When we review the appropriateness of a sentence, we consider “the culpability of
the defendant, the severity of the crime, the damage done to others, and myriad other
factors that come to light in a given case.” Cardwell, 895 N.E.2d at 1224. The defendant
has the burden to persuade us “that the sentence imposed by the trial court is
inappropriate.” Id. (citing Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006)).
Furthermore, we focus on the aggregate sentence rather than the “‘consecutive or
concurrent, number of counts, or length of the sentence on any individual count.’”
Heinzman v. State, 970 N.E.2d 214, 228 (Ind. Ct. App. 2012) (quoting Cardwell, 895
N.E.2d at 1225). Here, Bessler was found guilty of four counts of dealing cocaine, and
Bessler’s aggregate sentence was thirty years executed, which is the advisory sentence
for a Class A felony. Indiana Code § 35-50-2-4.
8
Bessler has prior criminal convictions for battery, domestic battery, domestic
violence, and driving under the influence. Bessler also has a prior conviction for Class A
felony dealing in cocaine over three grams, which is particularly relevant to this case
since it involves the same offense for which he was convicted for in the present case. For
all of these reasons, we conclude Bessler’s sentence was not inappropriate.
Conclusion
The admission of Bessler’s subsequent acts was harmless error, and his sentence
was not inappropriate in light of his character and the nature of the offense.
Affirmed.
VAIDIK, J., and BARNES, J., concur
9