MEMORANDUM DECISION
Dec 09 2015, 7:13 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
Patricia Caress McMath Gregory F. Zoeller
Indianapolis, Indiana Attorney General of Indiana
Michael Gene Worden
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Trenton B. Holcomb, December 9, 2015
Appellant-Defendant, Court of Appeals Case No.
52A02-1505-CR-290
v. Appeal from the Miami Circuit
Court
State of Indiana, The Honorable Timothy P. Spahr,
Appellee-Plaintiff. Judge
Trial Court Cause No.
52C01-1407-FB-31
Mathias, Judge.
[1] Trenton Holcomb (“Holcomb”) was convicted in Miami Circuit Court of Class
B felony dealing in methamphetamine and Class D felony possession of
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methamphetamine. Holcomb appeals and claims that the trial court abused its
discretion by admitting into evidence a chain-of-custody report and the
methamphetamine forming the basis of Holcomb’s convictions. Concluding
that the trial court properly admitted the chain-of-custody report and that this
report adequately established the chain of custody of the methamphetamine, we
affirm. However, we note sua sponte that the trial court improperly entered
judgments of conviction on both counts without vacating the lesser count. We
therefore remand for correction of this sentencing error.
Facts and Procedural History
[2] On June 25, 2014, a confidential informant (“CI”) working with officers of the
Peru Police Department participated in a controlled buy of methamphetamine.
The CI made plans to meet with Kenny Howell to purchase the
methamphetamine. When the CI went to the location for the buy, he saw two
other individuals in addition to Howell, one of whom was the defendant in this
case, Holcomb. The CI gave Holcomb $50 he had been given by the police to
buy the methamphetamine. In return, Holcomb gave the CI a small, tied baggie
containing a white, powdery substance later determined to be
methamphetamine.
[3] The CI gave the baggie to Detective Jeff Grant (“Detective Grant”), who in
turn gave the baggie to Officer Mike Stuber (“Officer Stuber”). Officer Stuber
then returned to the police department and gave the baggie to Captain Mike
Vinopal (“Capt. Vinopal”), who put the baggie in an evidence locker. Captain
Vinopal later took the baggie to Fort Wayne to be tested, where he gave the
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baggie to lab technician Sheila Romano (“Romano”). After the testing was
complete, Capt. Vinopal retrieved the evidence from the lab and returned it to
the evidence locker at the Peru Police Department.
[4] On July 3, 2014, the State charged Holcomb with Class B felony dealing in
methamphetamine and Class D felony possession of methamphetamine. A jury
trial was held on March 9 – 10, 2015. At trial, Holcomb objected to the
admission of State’s Exhibit 6, which is a chain-of-custody report of the Peru
Police Department. Holcomb’s counsel noted that she had not been provided
with a copy of the report prior to trial and requested exclusion as the remedy for
this discovery violation. The prosecuting attorney acknowledged that the State
had not provided the report to Holcomb prior to trial but claimed that he had
just received it himself. The trial court offered Holcomb’s counsel the
opportunity to question the witness about the report, but she declined. The trial
court then overruled Holcomb’s objection and admitted the report into
evidence. Holcomb also objected to the admission of the methamphetamine,
arguing that the State had failed to adequately establish the chain of custody.
The trial court overruled this objection, and the jury subsequently found
Holcomb guilty as charged. The trial court then entered judgments of
conviction on both counts.
[5] At a sentencing hearing held on April 9, 2015, the trial court “merged” the two
convictions and sentenced Holcomb on the Class B felony to fourteen years,
with twelve years executed and two years suspended to probation. Holcomb
now appeals.
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I. Admission of Evidence
[6] Holcomb argues that the trial court abused its discretion in admitting into
evidence the methamphetamine the CI gave to the police.
A. Standard of Review
[7] The trial court has discretion in matters regarding the admission and exclusion
of evidence, and we review the court’s decision only for an abuse of that
discretion. Wells v. State, 904 N.E.2d 265, 269 (Ind. Ct. App. 2009), trans. denied.
The trial court abuses its discretion only if its decision is clearly against the logic
and effect of the facts and circumstances before it, or if the court has
misinterpreted the law. Id.
B. Chain of Custody
[8] According to Holcomb, the State failed to establish a sufficient chain of custody
for the methamphetamine. To establish a proper chain of custody, the State
must give reasonable assurances that the evidence at issue remained in an
undisturbed condition. Troxell v. State, 778 N.E.2d 811, 814 (Ind. 2002). The
State bears a higher burden to establish the chain of custody of fungible
evidence whose appearance is indistinguishable to the naked eye. Id. However,
the State need not establish a perfect chain of custody, and once the State
strongly suggests the exact whereabouts of the evidence, any gaps in the chain
of custody go to the weight of the evidence, not its admissibility. Id. Officer
handling of evidence has a presumption of regularity; it is also presumed that
officers exercise due care in handling their duties. Id. To mount a successful
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challenge to the chain of custody, the defendant must present evidence that
does more than raise a mere possibility that someone tampered with the
evidence. Id.
[9] In the present case, Holcomb claims a lack of testimony regarding how the
methamphetamine got from the laboratory in Fort Wayne to a laboratory in
Lowell and back again. This argument wholly disregards State’s Exhibit 6,
which was the chain-of-custody report. As acknowledged by Holcomb, this
report shows the transfer of the methamphetamine from the laboratory in Fort
Wayne to the laboratory in Lowell and back again. See Appellant’s Br. p. 4.
Holcomb claims that the State cannot rely on State’s Exhibit 6 because it, too,
was improperly admitted.
[10] As noted above, Holcomb objected to the admission of State’s Exhibit 6 on
grounds that the report had not been previously disclosed to him during
discovery. That is, Holcomb claims that State’s Exhibit 6 should have been
excluded as a discovery sanction.
C. Discovery Violations
[11] A trial court has broad discretion in dealing with discovery violations and may
be reversed only for an abuse of that discretion. Berry v. State, 715 N.E.2d 864,
866 (Ind. 1999). Generally, the proper remedy for a discovery violation is a
continuance. Id. Exclusion of the evidence is an extreme remedy to be used
only if the State’s actions were deliberate and the conduct prevented a fair trial.
Id.
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[12] Here, nothing in the record indicates that Holcomb requested a continuance to
remedy any discovery violation by the State. Indeed, his counsel rejected the
trial court’s offer to question the sponsoring witness regarding the chain-of-
custody report. Although he now claims that a continuance would have been of
no use because the sponsoring witness did not make the entries on the report,
nothing prevented Holcomb from requesting permission to question whomever
made the entries. This is precisely the sort of discovery violation that could have
been remedied by a request for a continuance.
[13] Moreover, Holcomb’s request for exclusion is an extreme remedy warranted
only if the State’s actions were deliberate. See id. Nothing in the record for this
case indicates that the failure to disclose the chain-of-custody report was
deliberate. Indeed, the trial court seemed to credit the prosecuting attorney’s
explanation that the report had just been provided to him that day.
Accordingly, the trial court’s decision to admit State’s Exhibit 6 into evidence
was within the court’s broad discretion regarding both the admission of
evidence and dealing with discovery violations. Because State’s Exhibit 6 was
properly admitted, Holcomb’s claim of an inadequate chain of custody for the
admission of the methamphetamine fails.
II. Sentencing Error
[14] As noted above, the trial court here specifically entered judgments of conviction
on both of the guilty verdicts. When sentencing Holcomb, the trial court
correctly noted that Holcomb could not properly be convicted of both dealing in
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methamphetamine and possession of that same methamphetamine.1 Therefore,
the trial court “merged” the convictions and imposed sentence only on the
Class B felony dealing conviction. This was insufficient.
[15] As we explained in Kovats v. State:
If a trial court does not formally enter a judgment of conviction
on a jury verdict of guilty, then there is no requirement that the
trial court vacate the conviction, and merger is appropriate.
However, if the trial court does enter judgment of conviction on a
jury’s guilty verdict, then simply merging the offenses is
insufficient and vacation of the offense is required.
982 N.E.2d 409, 414-15 (Ind. Ct. App. 2013) (citations omitted).
[16] We therefore remand with instructions that the trial court vacate the judgment
of conviction entered on the verdict finding Holcomb guilty of Class D felony
possession of methamphetamine.
Conclusion
[17] The trial court did not abuse its discretion by admitting into evidence the chain-
of-custody report. Because this report was properly admitted, the State
sufficiently established the chain of custody of the methamphetamine admitted
into evidence. Accordingly, we affirm Holcomb’s conviction for Class B felony
dealing in methamphetamine. However, we remand with instructions that the
1
See Bookwalter v. State, 22 N.E.3d 735, 742 (Ind. Ct. App. 2014) (noting that possession of a controlled
substance is an inherently-included lesser offense of dealing that substance, and a defendant may not
generally be convicted and sentenced for dealing and possession of the same substance), trans. denied.
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trial court vacate Holcomb’s conviction for Class D felony possession of
methamphetamine.
[18] Affirmed and remanded.
Baker, J., and Bailey, J., concur.
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