MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
Jul 30 2015, 10:47 am
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
Mark Leeman Gregory F. Zoeller
Leeman Law Offices Attorney General of Indiana
Logansport, Indiana
J. T. Whitehead
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Ronald Moore, July 30, 2015
Appellant-Defendant, Court of Appeals Case No.
09A02-1411-CR-792
v. Appeal from the Cass Superior
Court.
The Honorable Rick Maughmer,
State of Indiana, Judge.
Appellee-Plaintiff. Cause No. 09D02-1207-FA-1
Garrard, Senior Judge
[1] Ronald Moore appeals from his conviction and sentence after a jury trial on one
1
count of dealing in a schedule I controlled substance as a Class B felony,
1
Ind. Code § 35-48-4-2 (2011).
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contending that: 1) the trial court abused its discretion by allowing the
admission of surveillance video; 2) the prosecutor engaged in prosecutorial
misconduct in statements made in closing argument rebuttal; 3) the evidence
was insufficient to support the conviction; 4) the trial court abused its discretion
by failing to consider mitigating circumstances during sentencing; and 5)
Moore’s sentence is inappropriate in light of the nature of the offense and the
character of the offender. We affirm.
[2] After her arrest in August 2011 for dealing in methamphetamine, Debra Metz,
formerly known as Debra Hinton, agreed to work as a confidential informant
for the Cass County Drug Task Force, and in exchange her bond was
drastically reduced. Metz was not specifically promised anything in return for
her work, but she made it clear that she hoped that her work would “affect [her]
charges.” Tr. p. 66. On January 15, 2012, while working as a confidential
informant, Metz arranged a controlled buy from Moore, who was an
acquaintance. Metz asked Moore to obtain “Defense,” which meant she
wanted some heroin. Id. at 54. Moore agreed to get the heroin for Metz and
arranged for the two to meet at the Logansport YMCA.
[3] Metz contacted Cass County Drug Task Force member Officer Brandon
Bonnell about the potential buy. Bonnell and Cass County Sheriff’s
Department Officer Pat Zeider met with Metz to prepare her for the
transaction. The officers searched Metz, searched her truck, provided her with
$25 in buy money, and gave her a transmitter. Metz drove to the Logansport
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YMCA with police officers following her to the location, maintaining
surveillance of her throughout the transaction.
[4] Moore left the YMCA and entered Metz’s truck. Moore told Metz that they
needed to “go get it” because he did not have the heroin with him. Id. at 58.
Metz drove the two to a white house located at 14th and Market streets, with the
police following behind. Metz stayed inside her truck while Moore entered the
house, and returned to and re-entered Metz’s truck. Metz gave Moore the $25
buy money and drove the two back to the YMCA. During the return trip
Moore gave Metz the heroin. Testing by an employee of the Indiana State
Police Laboratory later identified the white residue inside the foil wrapper to be
a .07 gram mixture of heroin and Benadryl.
[5] Metz left and returned to the agreed-upon location where officers searched her
and her vehicle and took the heroin. None of the buy money was located. The
officers also showed her a photograph of Moore from the Bureau of Motor
Vehicles, which she identified as a photograph of the man who had just sold the
heroin to her. After watching the surveillance video recorded by the officers,
Metz was able to identify the truck depicted in the video as the one she had
driven that night, and that the voices on the recording belonged to her and to
Moore.
[6] Officer Bonnell knew of Moore prior to the controlled buy, but had never met
him in person. After Officer Bonnell unsuccessfully attempted to serve the
arrest warrant at Moore’s address, he left his business card with a woman who
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lived there. Moore called the officer, but refused to meet with him, asking
instead if he was going to jail and for the name of the person who had “snitched
on him.” Id. at 100. When the officer informed Moore of the charges against
him, Moore did not deny the charges.
[7] The State charged Moore with one count of dealing in heroin, a schedule I
controlled substance, as a Class B felony. At the conclusion of Moore’s jury
trial he was found guilty as charged, and he admitted to being a habitual
offender. The trial court sentenced Moore to eighteen years executed,
enhanced by ten years based upon his status offense. Moore now appeals.
I. Admission of Surveillance Video
[8] Moore claims that the trial court abused its discretion by admitting surveillance
video of the controlled buy because of the poor quality of the recording. The
State contends that since Moore has waived review of this issue by failing to
raise that objection below, the only ground available for review of its
admissibility is fundamental error.
[9] In laying the foundation for admission of the surveillance video, the State asked
Officer Zeider about State’s Exhibit 1, the DVD of the surveillance video.
When Officer Zeider referred to it as a copy of the video, Moore’s counsel
asked about the original. The officer explained that he had filmed the
surveillance operation by using the video function of his camera, which he did
not want admitted in evidence in every trial, downloaded the video to his
computer, and burned a DVD of the video for use at trial. Moore’s objection to
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the admission of the video appeared to be one under the best evidence rule,
contending that “the SIM card[’]s the original video.” Id. at 36. The trial court
asked Moore for the evidentiary rule supporting his objection to the exhibit, but
before Moore could provide one, the trial court overruled the objection and
admitted State’s Exhibit 1 which was played for the jury.
[10] The trial court then took a brief recess to discuss the admission of the video.
The colloquy between the trial court and counsel concerned whether Moore
could be seen on the video and if the video connected Moore to the controlled
buy. The trial court told Moore’s counsel that he overruled the objection on the
basis of Indiana Evidence Rule 403, but might have sustained the objection on
Evidence Rule 402. After watching the first part of the video again, the trial
court stated that the video “may be 402 relevant.” Id. at 39.
[11] Moore’s argument on appeal is that the quality of the video is so poor that it left
the jury to speculate as to its content, and was prejudicial to him because Metz
was allowed to summarize the content of the segments of video on the
recording, and that the jury was left to infer that the video’s contents harmed
Moore’s defense. This issue, however, is waived for review for failure to raise it
below, and as a consequence our review will be limited to one for fundamental
error.
[12] Indiana Evidence Rule 402 provides that relevant evidence is admissible unless
excluded by constitutional provisions, statutes, the evidentiary rules, or other
rules. Indiana Evidence Rule 403 provides that relevant evidence may be
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excluded if its probative value is outweighed by the danger of unfair prejudice,
confusion of issues, misleading the jury, undue delay, or the needless
presentation of cumulative evidence.
[13] We agree that the quality of the surveillance video leaves something to be
desired, but assuming without deciding that the trial court erred by admitting
the video in evidence, even the erroneous admission of evidence which is
cumulative of other evidence admitted without objection does not constitute
reversible error. Hoglund v. State, 962 N.E.2d 1230, 1240 (Ind. 2012).
[14] The video was cumulative of Metz’s testimony that she called Moore, a person
with whom she was familiar and later identified in court, arranged to purchase
some heroin, met with him, and received a foil wrapper containing heroin from
him. Further, fundamental error requires a defendant to show greater prejudice
than ordinary reversible error because no objection has been made. Wilson v.
State, 931 N.E.2d 914, 919 (Ind. Ct. App. 2010), trans. denied. Moore has not
established that the trial court’s ruling amounted to fundamental error.
II. Prosecutorial Misconduct
[15] Moore claims that the State engaged in prosecutorial misconduct during its
closing argument rebuttal with respect to the State’s inability to obtain DNA or
fingerprint evidence from the foil used during the transaction. When reviewing
a claim of prosecutorial misconduct we first consider whether the prosecutor
engaged in misconduct and then turn to whether that misconduct placed the
defendant in a position of grave peril to which he should not have been
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subjected. Collins v. State, 966 N.E.2d 96, 106 (Ind. Ct. App. 2012). We refer to
case law and the Rules of Professional Conduct in making the determination of
what constitutes prosecutorial misconduct in argument. Id. The gravity of peril
is measured by the probable persuasive effect of the misconduct on the jury’s
decision, rather than the degree of impropriety of the conduct. Id.
[16] Moore did not object to the prosecutor’s closing rebuttal argument. When a
prompt objection to the alleged prosecutorial misconduct is not made, any
claim of error is waived unless the defendant can establish fundamental error on
appeal. Id. For fundamental error to be found the error must constitute a
blatant violation of basic principles, the harm or potential harm must be
substantial, and the resulting error must deny the defendant fundamental due
process such that a fair trial is impossible. Id.
[17] During closing argument by Moore’s counsel, he challenged the State’s efforts
to determine who lived at the house where Moore was alleged to have
purchased the heroin, claimed that he knew who lived there and that it was not
difficult for him to determine, and observed that the State had not bothered to
request DNA or fingerprint testing on the foil wrapper. Tr. pp. 130-31. Later
during closing argument, Moore’s counsel noted reports in the newspaper and
on television about people who were wrongly convicted, but later released due
to the presence or absence of DNA evidence. Id. at 132.
[18] During the State’s closing rebuttal argument, the prosecutor directly responded
to defense counsel’s argument by noting that those cases of reversals based on
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DNA evidence are publicized because they are the exception and not the norm.
Id. at 133. The State argued that “You’re not going to have DNA on a piece of
foil this big. Do you think that you can get fingerprints from a piece of foil this
big?” Id.
[19] Prosecuting attorneys are entitled to respond to allegations and inferences
raised by the defense even if the prosecutor’s response would otherwise be
objectionable. Cooper v. State, 854 N.E.2d 831, 836 (Ind. 2006). Here, it is clear
that the prosecutor’s comments were in direct response to defense counsel’s
comments. The State responded to the comments, suggesting that DNA and
fingerprint evidence could not be obtained from that small of a piece of foil. On
appeal, Moore argues that the prosecutor’s response is not supported by the
evidence. We find this argument to be unpersuasive. The only material from
which DNA or fingerprint evidence might have been obtained to connect
Moore with the crime was the foil. Moore’s counsel suggested the lack of effort
to obtain the evidence and the State properly responded to that allegation. We
find no error here let alone error rising to fundamental error.
III. Insufficient Evidence
[20] Next, Moore argues that there is insufficient evidence to support his conviction,
claiming that the evidence merely establishes that he was a purchaser of heroin,
not a dealer, and characterizes his actions as that of a go-between. When we
review a challenge involving the sufficiency of the evidence to support a
conviction, we consider only the probative evidence and reasonable inferences
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supporting the fact-finder’s decision, as it is the fact-finder’s role to assess
witness credibility and the weight assigned to the evidence. Bowman v. State, 32
N.E.3d 812, 813 (Ind. Ct. App. 2015). We affirm a conviction unless no
reasonable fact-finder could find that the elements of the crime had been proven
beyond a reasonable doubt. Id.
[21] In order to establish that Moore committed Class B felony dealing in a schedule
I controlled substance, the State was required to prove beyond a reasonable
doubt that Moore knowingly or intentionally delivered heroin to Metz. Ind.
Code § 35-48-4-2.
[22] Here, the evidence established that Metz contacted Moore about the purchase
of heroin and the two agreed to meet at the YMCA. Moore entered the truck
Metz was driving and the two went to a location where Moore obtained the
heroin. Metz testified at trial that she gave twenty-five dollars in buy money to
Moore and that he handed her a foil wrapper containing the heroin. She then
completed her work as a confidential informant by surrendering the heroin to
the police officers.
[23] Moore likens his case to the circumstances leading to the reversal of the
defendant’s convictions in Hyche v. State, 934 N.E.2d 1176 (Ind. Ct. App. 2010),
trans. denied, but we find that case to be factually distinguishable. In Hyche, the
defendant called someone to locate ecstasy pills and was given information
about a person from whom he could arrange to purchase the pills. When that
person who had the pills and his friend arrived at the agreed upon location, they
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saw two people, one of whom they were able to verify was Hyche, the
defendant. The vehicle was fired upon, however, and the seller was shot in the
back of the head while his passenger died from his wounds at the scene. After a
jury trial, Hyche was found not guilty of murder, but was found guilty of felony
murder and dealing in a controlled substance.
[24] On appeal, we reversed Hyche’s convictions, finding persuasive Hyche’s
argument that he was merely attempting to purchase ecstasy, not to deal in it.
We cited the statutory definition of delivery, which means “(1) an actual or
constructive transfer from one (1) person to another of a controlled substance,
whether or not there is an agency relationship; or (2) the organizing or
supervising of an activity described” in the first subdivision. Ind. Code § 35-48-
1-11 (1990). The State argued that by calling someone to gather contact
information, Hyche had organized the transfer of a controlled substance from
one person to another. We held that because Hyche was a transferee, and not
the transferor of the controlled substance there was insufficient evidence to
support his conviction for dealing and that his felony murder conviction
therefore could not stand either. Hyche, 934 N.E.2d at 1180.
[25] In the present case, on the other hand, Moore went to the source of the heroin
and gave it to Metz in exchange for money; therefore, Moore was not merely a
purchaser of the heroin. Other cases distinguished in the Hyche opinion actually
defeat Moore’s argument that because he was merely a go-between, his
conviction cannot stand. For instance, in Smalley v. State, 732 N.E.2d 1231
(Ind. Ct. App. 2000), the defendant took the undercover officer to a person who
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provided a bag of the controlled substance to both the defendant and the officer.
Using the statutory definition of “delivery” we held that the defendant’s
conviction could be supported under the theory that he organized the transfer of
the controlled substance to the officer, or that he actually transferred the
controlled substance to the officer. Id. at 1236. Here, Moore delivered the
heroin from the dealer to Metz, and was thus guilty of dealing in a controlled
substance. Metz, on the other hand, would not be guilty of that same offense,
since, like the defendant in Hyche, she was the purchaser of the heroin. There is
sufficient evidence to support Moore’s conviction.
IV. Failure to Find Mitigators
[26] Moore contends that the trial court abused its discretion by failing to find the
circumstances of the crime as a mitigating factor for purposes of sentencing.
The sentencing range for a Class B felony at the time Moore committed the
offense was a fixed term of between six years and twenty years with the
advisory sentence being ten years. Ind. Code § 35-50-2-5 (2005). The trial court
sentenced Moore to eighteen years executed for the Class B felony conviction.
Moore faced a sentence of between ten years and thirty years for his status
offense. Ind. Code § 35-50-2-8 (2005). The trial court enhanced Moore’s
sentence by ten years due to Moore’s status.
[27] Sentencing decisions rest within the sound discretion of the trial court and are
reviewed on appeal only for an abuse of discretion. Anglemyer v. State, 868
N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (2007). An abuse
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of discretion occurs if the decision is clearly against the logic and effect of the
facts and circumstances before the court, or the reasonable, probable, and actual
deductions to be drawn therefrom. Id. One way in which a trial court may
abuse its discretion is by entering a sentencing statement that omits mitigating
factors that are clearly supported by the record and advanced for consideration.
Id. at 490-91.
[28] Moore claims that the trial court should have considered 1) the amount of
heroin sold was small, 2) this was a controlled buy supervised by law
enforcement, 3) he was not selling to children, 4) he did not brandish or carry a
firearm, 5) there was no serious harm caused or threatened to people or
property, 6) Moore did not sell to a vulnerable buyer or take advantage of same,
and 7) the informant initiated the sale, which was filmed and supervised by law
enforcement.
[29] With respect to the sentence imposed for the underlying felony conviction, the
record reflects that Moore was on probation at the time he committed the
offense and had a fairly extensive criminal history dating back to 1984 when
Moore was twenty-one years old. Moore argued that some consideration
should be given to the mitigating factor of his age and the likelihood that he
would be unable to re-enter society as a productive citizen if given the
maximum sentence. The State emphasized that Moore had numerous arrests
not resulting in convictions, had accumulated five felony convictions, has had
multiple probation violations when placed on probation, admitted to having a
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substance abuse problem, and owed over $20,000.00 in child support at the time
of sentencing.
[30] The finding of mitigating factors is not mandatory, but rests within the trial
court’s discretion. Storey v. State, 875 N.E.2d 243, 252 (Ind. Ct. App. 2007),
trans. denied. Further, a trial court is not required to accept the defendant’s
arguments as to what constitutes a mitigating factor. Id. However, a trial court
may not ignore facts in the record that would be in mitigation, and a failure to
find mitigating circumstances that are clearly supported by the record may
imply that the trial court failed to properly consider them. Id.
[31] A trial court’s failure to include within the record an express statement that it
considered all proffered mitigating circumstances does not necessitate the
assumption that the trial court overlooked mitigating factors that are clearly
supported by the record. Widener v. State, 659 N.E.2d 529, 534 (Ind. 1995). A
trial court is only required to include within the record a statement that it
considered mitigating circumstances found by the court to be significant. Id.
Under the circumstances of this case, including Moore’s extensive criminal
history, we cannot conclude that the circumstances of the drug deal or Moore’s
age were so significant as to constitute overlooked mitigating factors. We find
no abuse of discretion here.
[32] Moore argued at sentencing that he should receive favorable treatment with
respect to the enhancement due to his status. Moore admitted his status, saving
the jury and the trial court from the effort involved in resolving that allegation.
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The trial court imposed the lowest mandatory sentence enhancement allowed
by statute. We find no abuse of discretion with respect to the trial court’s
decision.
V. Inappropriate Sentence
[33] The Indiana Constitution, article VII, section 4, authorizes the independent
appellate review and revision of a sentence imposed by the trial court, and that
review has been incorporated in Indiana Appellate Rule 7. Appellate Rule 7(B)
provides that we may revise a sentence authorized by statute if we find that it is
inappropriate in light of the nature of the offense and the character of the
offender.
[34] With respect to the nature of the offense, it is true that the quantity of the
controlled substance that was delivered was small, and the price was
correspondingly slight. However, the controlled substance Moore delivered to
his friend was heroin. Further, even though the deal was not completed there,
Moore arranged for them to meet at the YMCA, a not-for-profit community
organization, to conduct the deal.
[35] With respect to the character of the offender, Moore’s criminal history dates
back to 1984, including numerous arrests and five felony convictions. It is true
that the significance of a defendant’s criminal history varies based on the
gravity, nature and number of prior offenses in relation to the current offense.
Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct. App. 2007). Further, we
acknowledge that a record of arrests, standing alone, is not evidence of a
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defendant’s criminal history, but it is appropriate for the purpose of considering
that record as a poor reflection on the defendant’s character. Id. This is so
because it may reveal that the defendant is undeterred from criminal activity
despite being subjected to the police authority of the State. Id.
[36] While Moore argues that his role in the offense was merely a go-between for a
friend and a supplier of heroin, his criminal history casts a different light on
Moore’s character. Moore admitted that his use of cocaine and heroin have
caused him significant problems in his life, and he admitted to abusing cocaine,
heroin, and marijuana in the past. He completed substance abuse programs
during a prior incarceration in the Department of Correction, but he has failed
to alter his criminal behavior. His convictions include possession of controlled
substances. Moore was on probation at the time he committed this offense and
owed $20,000.00 in child support.
[37] We conclude that Moore’s sentence is not inappropriate in light of the nature of
the offense and the character of the offender.
[38] In light of the foregoing, we affirm the trial court’s decision.
[39] Affirmed.
Robb, J., and Pyle, J., concur.
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