Emmanuel Joseph Cain v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
May 26 2015, 8:26 am
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
Kimberly A. Jackson Gregory F. Zoeller
Indianapolis, Indiana Attorney General of Indiana
Michael Gene Worden
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Emmanuel Joseph Cain, May 26, 2015
Appellant-Defendant, Court of Appeals Case No.
53A01-1406-CR-242
v. Appeal from the Monroe Circuit
Court
State of Indiana, The Honorable Marc R. Kellams,
Appellee-Plaintiff. Judge
Cause No. 53C02-1308-FB-797
Bailey, Judge.
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Statement of the Case
[1] Emmanuel Joseph Cain appeals his convictions for two counts of Dealing in
Cocaine, each as a Class B felony,1 following a jury trial. Cain presents three
issues for our review:
1. Whether the trial court committed fundamental error
when it admitted recordings of Cain’s drug transactions
and testimony regarding those recordings;
2. Whether the State presented sufficient evidence to support
Cain’s convictions; and
3. Whether Cain’s twenty-year sentence is inappropriate
under Indiana Appellate Rule 7(B).
[2] We affirm.
Facts and Procedural History
[3] On July 18, 2013, confidential informant C.H. contacted Bloomington Police
Department Detective Erich Teuton. Detective Teuton arranged to have C.H.
buy drugs from Cain at a hotel in Bloomington and met her there at 8:30 p.m.
Detective Teuton searched C.H. for drugs and money, and he provided her
with a video recording device and money to buy drugs. C.H. then bought two
1
Ind. Code § 35-48-4-1.
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half-gram bags of crack cocaine from Cain. The resulting buy video was of
poor quality, and C.H. had entered another room before locating Cain.
[4] In order to obtain better quality, recorded evidence, C.H. and Detective Teuton
conducted two similar controlled buys from Cain the following day, this time
using a different recording device. The first buy on July 19 yielded two bags
containing .27 grams and .19 grams of crack cocaine, and the second buy
yielded two more bags containing .27 and .23 grams of crack cocaine. The
Indiana State Crime Lab tested the larger bags from each buy and confirmed
that both contained a cocaine base.
[5] On August 15, 2013, the State charged Cain with three counts of dealing in
cocaine, all as Class B felonies, each of which related to one of the three sales of
crack cocaine that transpired on July 18 and 19. At his ensuing jury trial on
April 14, 2014, the trial court admitted into evidence the video recordings of
Cain’s sales to C.H. and Detective Teuton’s related testimony. Cain did not
object to the admission of this evidence. However, after the jury had returned
its verdicts, Cain for the first time complained that the State’s video evidence
violated his Sixth Amendment rights.
[6] The jury found Cain not guilty as to Count I, the alleged July 18 sale of crack
cocaine to C.H., but found him guilty as to Counts II and III, which related to
the two sales that took place on July 19. The court sentenced Cain to twenty
years executed for each of his two convictions, which the court ordered to run
concurrently. The court ordered Cain’s twenty-year sentence to be served
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consecutively to a prior ten-year sentence on another offense. This appeal
ensued.
Discussion and Decision
Issue One: Admission of the Recordings and Testimony
[7] Cain first contends that the trial court violated his Sixth Amendment right to
confront the witnesses against him by allowing the State to submit the buy
videos into evidence without presenting C.H. for cross-examination. He also
argues that the court admitted testimony by Detective Teuton in violation of
Indiana Evidence Rule 701.
[8] We generally review a trial court’s decision to admit evidence for an abuse of
discretion, and we will not disturb that decision unless it is “clearly against the
logic and effect of the facts and circumstances before it.” Hoglund v. State, 962
N.E.2d 1230, 1237 (Ind. 2012). However, where, as here, no contemporaneous
objection is made to the admission of evidence, any error in that admission is
waived unless the error constitutes fundamental error. Fundamental error
requires “a substantial, blatant violation of due process that must be so
prejudicial to the rights of a defendant as to make a fair trial impossible.”
Rosales v. State, 23 N.E.3d 8, 11 (Ind. 2015) (quotations omitted).
A. Admission of the Buy Videos
[9] Cain first asserts that the admission of the buy videos violated his Sixth
Amendment right to confront C.H.. In Crawford v. Washington, 541 U.S. 36, 59
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(2004), the Supreme Court of the United States held that out-of-court,
testimonial statements are admissible at trial only if the declarant is unavailable
to testify and the defendant has had a prior opportunity to cross examine the
declarant. “However, the Confrontation Clause ‘does not bar the use of
testimonial statements for purposes other than establishing the truth of the
matter asserted.’ Thus, if a statement is either nontestimonial or nonhearsay,
the federal Confrontation Clause will not bar its admissibility at trial.” Williams
v. State, 930 N.E.2d 602, 607-08 (Ind. Ct. App. 2010) (quoting Crawford, 541
U.S. at 59 n.9), trans. denied.
[10] Statements are hearsay under Indiana Evidence Rule 801 if they were made out
of court and are offered to prove the truth of the matter asserted. But this Court
has held that a confidential informant’s statements recorded in the course of a
controlled drug buy are not offered by the State for the truth of those
statements, but merely to prompt responses from the defendant being recorded,
and, therefore, those statements are not hearsay. Lehman v. State, 926 N.E.2d
35, 38 (Ind. Ct. App. 2010), trans. denied. See also Vaughn v. State, 13 N.E.3d
873, 880 (Ind. Ct. App. 2014) (concluding that videos of drug transactions
merely showed the conduct of the CI and defendant and that a detective’s
testimony regarding the videos was not hearsay because it was based on the
detective’s personal observation and did not relay an out-of-court statement),
trans. denied. Therefore, despite Cain’s assertions to the contrary, C.H.’s
statements were not inadmissible hearsay and were not subject to the
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Confrontation clause. Thus, the trial court did not commit fundamental error
when it admitted C.H.’s statements at Cain’s trial.
B. Admission of Detective Teuton’s Testimony
[11] Cain next asserts that Detective Teuton gave a lay opinion as to what the video
recordings demonstrated in violation of Indiana Evidence Rule 701. In Groves
v. State, 456 N.E.2d 720, 723 (Ind. 1983), our supreme court held that, because
photographs and videos admitted as substantive evidence speak for themselves,
lay witnesses’ opinions of that evidence invade the province of the jury.
However, Groves predated the adoption of Evidence Rule 701. As we have
explained:
More recently, however, this court has held that the lay opinion
of a police officer familiar with the defendant was admissible
under Indiana Evidence Rule 701 as being helpful to the jury in
reaching a decision about the identification of the person
depicted in a videotape admitted as a silent witness. See Gibson v.
State, 709 N.E.2d 11, 15 (Ind. Ct. App. 1999) (citing United States
v. Stormer, 938 F.2d 759, 762 (7th Cir. 1991)), trans. denied. At
first blush, the holding in Gibson seems inconsistent with the
above-quoted portion of Groves. However, Groves was decided
before the adoption of Evidence Rule 701, upon which Gibson
relied. Furthermore, the holding of Groves was that the State had
failed to lay a sufficient evidentiary foundation for the
photograph. 456 N.E.2d at 723.
Goodson v. State, 747 N.E.2d 1181, 1184 (Ind. Ct. App. 2001), trans. denied; see
also Keller v. State, 25 N.E.3d 807, 814 (Ind. Ct. App. 2015) (recognizing that a
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police officer’s identification of a defendant, with whom the officer is familiar,
in a video can be helpful to the jury and is admissible), trans. pending.
[12] Here, Detective Teuton’s descriptions of the videos helped the jury identify
Cain in the videos and understand the language used in the videos with respect
to the transaction. Thus, Cain cannot demonstrate fundamental error on this
issue.2
Issue Two: Sufficiency of the Evidence
[13] Cain also contends that the State presented insufficient evidence to support his
convictions. Our supreme court has held that, when there is substantial
evidence of probative value to support a conviction, it will not be set aside.
Jones v. State, 783 N.E.2d 1132, 1139 (Ind. 2003). When reviewing the
sufficiency of the evidence to support a conviction, we must consider only the
probative evidence and reasonable inferences supporting the conviction. See
Dallaly v. State, 916 N.E.2d 945, 950 (Ind. Ct. App. 2009). We do not assess
witness credibility or reweigh the evidence. Id. We consider conflicting
evidence most favorably to the trial court’s ruling. Id. We affirm the conviction
unless “no reasonable fact finder could find the elements of the crime proven
beyond a reasonable doubt.” Id. (quoting Jenkins v. State, 726 N.E.2d 268, 270
2
We note that pages 99-120 are missing from the trial transcript, which contain portions of Detective
Teuton’s testimony on cross-examination on redirect. Regardless, their absence does not affect the outcome
here.
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(Ind. 2000)). Evidence is sufficient if an inference may reasonably be drawn
from it to support the conviction. Id.
[14] To prove Dealing in Cocaine under Indiana Code Section 35-48-4-1(a)(1), the
State was required to show that Cain knowingly or intentionally delivered
cocaine to C.H.. Cain contends that he was not identified by any admissible
evidence, that no hand-to-hand delivery from Cain to C.H. was recorded, and
that the State did not prove that the drugs C.H. turned over to Detective Teuton
for testing were the same ones sold to her by Cain.
[15] As was discussed above, the trial court did not err by admitting either the
recordings or the testimony of Detective Teuton. Thus, insofar as Cain’s
argument here is premised on the exclusion of this evidence, Cain’s argument
must fail. In light of that evidence, the State presented sufficient evidence to
support the jury’s finding that Cain sold crack cocaine to C.H. We affirm
Cain’s convictions.
Issue Three: Sentencing
[16] Finally, Cain contends that his aggregate sentence of twenty years executed is
inappropriate in light of the nature of the offense and his character, and he
instead requests that we impose an aggregate term of thirteen years executed.
Article 7, Sections 4 and 6 of the Indiana Constitution “authorize[] independent
appellate review and revision of a sentence imposed by the trial court.” Roush v.
State, 875 N.E.2d 801, 812 (Ind. Ct. App. 2007) (alteration original). This
appellate authority is implemented through Indiana Appellate Rule 7(B). Id.
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Revision of a sentence under Rule 7(B) requires the appellant to demonstrate
that his sentence is inappropriate in light of the nature of his offense and his
character. See Ind. Appellate Rule 7(B); Rutherford v. State, 866 N.E.2d 867, 873
(Ind. Ct. App. 2007). We assess the trial court’s recognition or non-recognition
of aggravators and mitigators as an initial guide to determining whether the
sentence imposed was inappropriate. Gibson v. State, 856 N.E.2d 142, 147 (Ind.
Ct. App. 2006). “[A] defendant must persuade the appellate court that his or
her sentence has met th[e] inappropriateness standard of review,” Roush, 875
N.E.2d at 812, and we recognize the special expertise of the trial court in
making sentencing decisions, Davis v. State, 851 N.E.2d 1264, 1267 (Ind. Ct.
App. 2006).
[17] Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate
sentence to the circumstances presented, and the trial court’s judgment “should
receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222, 1224
(Ind. 2008). The principal role of appellate review is to attempt to “leaven the
outliers.” Id. at 1225. Whether we regard a sentence as inappropriate at the
end of the day turns on “our sense of the culpability of the defendant, the
severity of the crime, the damage done to others, and myriad other facts that
come to light in a given case.” Id. at 1224.
[18] Cain asserts that his sentence is inappropriate in light of the nature of the
offenses and his character because he earned his GED while incarcerated in
2011, he is writing and hopes to publish a book, he has struggled with a drug
problem, and he would like to return to Michigan to be with his family. But the
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trial court accounted for those facts and found them to be insignificant.
Moreover, Cain committed the instant offenses while on probation for another
crime, just three months after he had been placed on that probation. Further,
Cain has four prior convictions, including three felonies, two of which were for
dealing in cocaine. Thus, we cannot say that Cain’s sentence is inappropriate.
[19] Affirmed.
Riley, J., and Barnes, J., concur.
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