FILED
Mar 09 2017, 5:37 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
James H. Voyles, Jr. Curtis T. Hill, Jr.
Tyler D. Helmond Attorney General of Indiana
Voyles Zahn & Paul
Michael G. Worden
Indianapolis, Indiana
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Devon L. Hunter, March 9, 2017
Appellant-Defendant, Court of Appeals Case No.
45A04-1605-CR-1015
v. Appeal from the Lake Superior
Court.
The Honorable Salvador Vasquez,
State of Indiana, Judge.
Appellee-Plaintiff. Cause No. 45G01-1401-FA-1
Sharpnack, Senior Judge
Court of Appeals of Indiana | Opinion 45A04-1605-CR-1015 | March 9, 2017 Page 1 of 14
Statement of the Case
[1] Devon Hunter appeals his conviction and sentence on three counts of dealing in
1
cocaine, all as Class A felonies; one count of possession of cocaine as a Class B
2 3
felony; and one count of maintaining a common nuisance as a Class D felony.
We affirm in part and reverse and remand in part with instructions.
Issues
[2] Hunter presents three issues for our review, which we restate as:
I. Whether the trial court erred by admitting video and audio
recordings into evidence.
II. Whether Hunter’s convictions violate the double jeopardy
provision of the Indiana Constitution.
III. Whether the trial court erred in sentencing Hunter by failing
to find a mitigating factor proposed by him.
Facts and Procedural History
[3] The facts most favorable to the verdict show that on three occasions Hunter
sold cocaine to a confidential informant (CI), and, on another occasion, he was
stopped in his vehicle and found to be in possession of cocaine. Based upon the
facts surrounding these offenses, Hunter was charged with three counts of
1
Ind. Code § 35-48-4-1 (2006).
2
Ind. Code § 35-48-4-6 (2006).
3
Ind. Code § 35-48-4-13 (2001).
Court of Appeals of Indiana | Opinion 45A04-1605-CR-1015 | March 9, 2017 Page 2 of 14
dealing in cocaine, one count of possession of cocaine, and one count of
maintaining a common nuisance.
[4] The charges proceeded to a jury trial, at which Hunter failed to appear for the
final day. The jury found Hunter guilty on all counts, and the court sentenced
him to an aggregate sentence of twenty-seven years. Hunter now appeals his
conviction and sentence.
Discussion and Decision
I. Admission of Video and Audio Recordings
[5] Hunter first contends the trial court erred by admitting into evidence video and
audio recordings without a proper foundation. The trial court admitted State’s
Exhibits 2, 4, and 8 at trial over Hunter’s objection and published them to the
jury. Exhibits 2 and 8 are video recordings of two of the three controlled drug
buys between Hunter and the CI and were recorded by a device worn by the CI.
Exhibit 4 is an audio recording of the phone call between Hunter and the CI
arranging the second controlled buy.
Video Recordings – Exhibits 2 and 8
[6] The trial court is afforded wide discretion in ruling on the admissibility of
evidence. Nicholson v. State, 963 N.E.2d 1096, 1099 (Ind. 2012). On appeal,
evidentiary decisions are reviewed for abuse of discretion and are reversed only
when the decision is clearly against the logic and effect of the facts and
circumstances. Id. Where, as here, video recordings are sought to be admitted
as demonstrative evidence (i.e., “visual aids that assist in the presentation and
Court of Appeals of Indiana | Opinion 45A04-1605-CR-1015 | March 9, 2017 Page 3 of 14
interpretation of testimony”), an adequate foundation requires testimony that
the video recording accurately depicts the scene or occurrence as it appeared at
the time in question. Knapp v. State, 9 N.E.3d 1274, 1282 (Ind. 2014).
[7] Hunter argues that the video recordings were improperly admitted at trial
because the CI did not testify they were true and accurate representations of the
scene or occurrence at the time of the buys. Our review of the transcript shows
that defense counsel objected at trial as to lack of foundation only on the bases
that there was confusion as to the date the CI marked on the exhibits when she
viewed them and that she had used only her CI number, without her signature,
as her identifying mark.
[8] Litigants may not object in general terms but must state their objections with
specificity. Espinoza v. State, 859 N.E.2d 375, 384 (Ind. Ct. App. 2006). Any
grounds for objections not raised at trial are not available on appeal, and a party
may not add to or change his grounds in the reviewing court. Treadway v. State,
924 N.E.2d 621, 631 (Ind. 2010). A claim of evidentiary error may not be
raised for the first time on appeal but rather must first be presented at trial in
order to permit consideration of the objection and appropriate corrective action
by the trial court. Stephenson v. State, 29 N.E.3d 111, 121 (Ind. 2015). The
argument Hunter makes on appeal is independent of and outside the specific
subject matter of the objection that was before the trial court. Although Hunter
objected as to lack of foundation both at trial and on appeal, the trial court
never had an opportunity to consider the argument Hunter now makes to this
Court of Appeals of Indiana | Opinion 45A04-1605-CR-1015 | March 9, 2017 Page 4 of 14
Court. Therefore, Hunter has waived this issue for appeal by not raising it at
trial.
[9] Waiver notwithstanding, even if the trial court erred in admitting Exhibits 2 and
8, the error was harmless. The improper admission of evidence is harmless
error when the erroneously admitted evidence is merely cumulative of other
evidence before the trier of fact. Purvis v. State, 829 N.E.2d 572, 585 (Ind. Ct.
App. 2005), trans. denied. Exhibits 2 and 8 are video recordings of the first and
third drug buys, the details of which the CI, Sergeant Darnell, and Detective
Gonzalez testified to at trial. The CI testified about the drug buys and
identified Hunter as the person who sold her the drugs in each instance.
Additionally, the testimony of both Sergeant Darnell and Detective Gonzalez
consisted of detailed recitations of the process of each of the three drug buys,
including how and why they contacted the CI to participate in the controlled
buys, the process of going to her house and having her contact Hunter by phone
to arrange the buys, the recording of the phone calls, the amount of money they
gave the CI to purchase the cocaine on each occasion, the searches they
conducted of the CI before she was given the money, the process of equipping
the CI with a hidden camera and audio device, and the process of her turning
over the cocaine immediately upon returning to the house and being searched
again.
[10] Sergeant Darnell further testified that he listened to the buys as they were
occurring, and, when asked if he could definitively say that he heard the same
voices in all three transactions, he responded, “Yes.” Tr. Vol. I, pp. 206-07.
Court of Appeals of Indiana | Opinion 45A04-1605-CR-1015 | March 9, 2017 Page 5 of 14
Detective Gonzalez also testified that the officers working surveillance during
the buys obtained the plate numbers for the cars Hunter drove to the buys, and
record searches revealed those plates were registered to Hunter. Furthermore,
State’s Exhibit 12, a still photo of Hunter derived from the video of Exhibit 2,
was admitted into evidence and published to the jury without any objection by
Hunter. Once the photo was admitted, Detective Gonzalez identified Hunter
as the person in the photo. Thus, even if we were to determine that the trial
court erred by admitting Exhibits 2 and 8, the error would be harmless because
the content of the video recordings was merely cumulative of the testimony at
trial.
[11] Moreover, any error in the admission of Exhibits 2 and 8 was rendered
harmless or further waived by Hunter when he deliberately replayed both
exhibits during his cross-examination of the CI, followed by thorough
questioning of the CI regarding what occurred in the videos. See Reaves v. State,
586 N.E.2d 847, 853 (Ind. 1992) (citing U.S. v. Silvers, 374 F.2d 828, 832 (7th
Cir. 1967) (stating that defendant’s reference to or use of erroneously admitted
line of evidence cures or waives any error); see also Sevener v. Nw. Tractor &
Equip. Corp., 41 Wash. 2d 1, 247 P.2d 237, 245 (1952) (stating that while party
does not waive his objection to admission of incompetent evidence by
introducing evidence to explain or rebut incompetent evidence, he may, by
subsequently using it for his own purposes or by introducing evidence similar to
that already objected to, waive his objection). The harm to Hunter, if the
admission of Exhibits 2 and 8 was error, is that the videos were played for the
Court of Appeals of Indiana | Opinion 45A04-1605-CR-1015 | March 9, 2017 Page 6 of 14
jury. Thus, Hunter’s replaying of State’s Exhibits 2 and 8 waived his earlier
objections to their admission and any harm therefrom.
Audio Recording – Exhibit 4
[12] The trial court is afforded wide discretion in ruling on the admissibility of audio
recordings. Dearman v. State, 743 N.E.2d 757, 762 (Ind. 2001). We will reverse
the trial court’s decision only when it represents a manifest abuse of discretion
that denied the defendant a fair trial. Hall v. State, 897 N.E.2d 979, 981 (Ind.
Ct. App. 2008).
[13] The foundational requirements for admission of an audio recording made in a
noncustodial setting are: (1) the recording is authentic and correct, (2) the
recording does not contain evidence otherwise inadmissible, and (3) the
recording is of such clarity as to be intelligible and enlightening to the jury.
Lehman v. State, 730 N.E.2d 701, 703 (Ind. 2000). The trial court has broad
discretion in determining whether these criteria have been met. Id.
[14] Hunter challenges the admission of Exhibit 4 based upon none of these factors.
Rather, he argues that the audio recording was improperly admitted because the
CI did not testify that the recording truly and accurately represented the
occurrence. However, that is the standard for admitting video recordings, see
Court of Appeals of Indiana | Opinion 45A04-1605-CR-1015 | March 9, 2017 Page 7 of 14
4
Knapp, supra, and Exhibit 4 is an audio recording. At trial, defense counsel
objected to the lack of foundation of Exhibit 4 solely with regard to the alleged
date the CI marked on the disc when she listened to it. Because Hunter raises a
different, and inapplicable, argument on appeal than he presented to the trial
court, he waives this issue. See Treadway, 924 N.E.2d at 631.
[15] Nevertheless, error, if any, was harmless. With regard to the admission of
evidence, only error that affects the substantial rights of a party prevails on
appeal. Nicholson, 963 N.E.2d at 1099. Here, the CI testified that she was
asked by the police to participate in another buy from Hunter and that phone
calls were exchanged with Hunter. When shown the disc, the CI stated that she
saw her markings on the disc and that she had listened to the recording. The
Prosecutor then asked the CI whose voices were on the recording and the CI
responded that they were hers and Hunter’s. This is adequate foundational
testimony to support the trial court's determination on admissibility. Hunter’s
substantial rights were not affected by the admission of Exhibit 4.
[16] Additionally, the CI and Sergeant Darnell testified to the CI placing a call to
arrange the second buy using the number that the CI identified as Hunter’s
number and to the recording of that call. Any error in the admission of Exhibit
4 is harmless error because the content of the recording was cumulative of other
4
Although in his brief Hunter treats Exhibit 4 as if it is a video recording of the second controlled buy, it is
the audio recording of the phone call between the CI and Hunter arranging the second buy. Exhibit 5, whose
admission is not challenged on appeal by Hunter, is the video recording of the second buy.
Court of Appeals of Indiana | Opinion 45A04-1605-CR-1015 | March 9, 2017 Page 8 of 14
evidence at trial. See Purvis, 829 N.E.2d at 585 (harmless error results when
erroneously admitted evidence is cumulative of other evidence).
II. Double Jeopardy
[17] For his second claim of error, Hunter asserts that his conviction for maintaining
a common nuisance violates the double jeopardy provision of the Indiana
Constitution. Specifically, he argues that the jury relied upon the same
evidence in finding him guilty of maintaining a common nuisance as it did in
finding him guilty of both dealing in cocaine and possession of cocaine.
[18] The Indiana Constitution provides in part that “[n]o person shall be put in
jeopardy twice for the same offense.” IND. CONST. art. I, § 14. Two or more
offenses are the same offense in violation of the double jeopardy clause of the
Indiana Constitution if, with respect to either the statutory elements of the
challenged crimes or the actual evidence used to convict, the essential elements
of one challenged offense also establish the essential elements of another
challenged offense. Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999). In the
present case, Hunter claims a violation only under the actual evidence test.
[19] With regard to the actual evidence test, we examine the actual evidence
presented at trial in order to determine whether each challenged offense was
established by separate and distinct facts. Id. at 53. To show that two
challenged offenses constitute the same offense under the actual evidence test, a
defendant must demonstrate a reasonable possibility that the evidentiary facts
used by the factfinder to establish the essential elements of one offense may also
Court of Appeals of Indiana | Opinion 45A04-1605-CR-1015 | March 9, 2017 Page 9 of 14
have been used to establish the essential elements of a second offense. Id. A
“reasonable possibility” requires “substantially more than a logical possibility”
and involves a practical assessment of whether the factfinder “may have latched
on to exactly the same facts for both convictions.” Lee v. State, 892 N.E.2d
1231, 1236 (Ind. 2008). Further, our State’s double jeopardy clause is not
violated when the evidentiary facts establishing the essential elements of one
offense also establish only one, or even several, but not all, of the essential
elements of a second offense. Spivey v. State, 761 N.E.2d 831, 833 (Ind. 2002).
In applying the actual evidence test, we evaluate the evidence from the
factfinder’s perspective, and we may consider the charging information, jury
instructions, and arguments of counsel. Newgent v. State, 897 N.E.2d 520, 525
(Ind. Ct. App. 2008).
[20] Here, Hunter was convicted of three counts of dealing in cocaine, one count of
possession of cocaine, and maintaining a common nuisance. The elements of
dealing in cocaine that the State was required to prove beyond a reasonable
doubt are that Hunter (1) knowingly or intentionally (2) delivered (3) cocaine
(4) within 1,000 feet of school property. Appellant’s App. Vol. II, p. 16; see Ind.
Code § 35-48-4-1. The essential elements to be proved by the State beyond a
reasonable doubt for the charge of possession of cocaine are that Hunter (1)
knowingly or intentionally (2) possessed (3) cocaine (4) within 1,000 feet of
school property. Appellant’s App. Vol. II, p. 16; see Ind. Code § 35-48-4-6.
And finally, as to the charge of maintaining a common nuisance, the State was
required to prove beyond a reasonable doubt that Hunter (1) knowingly or
Court of Appeals of Indiana | Opinion 45A04-1605-CR-1015 | March 9, 2017 Page 10 of 14
intentionally (2) maintained a vehicle (3) used for manufacturing, keeping,
offering for sale, selling, or delivering (4) controlled substances. Appellant’s
App. Vol. II, p. 16; see Ind. Code § 35-48-4-13.
[21] The evidence presented at trial showed that on November 20, 21, and 25, 2013,
Hunter drove his car to the CI’s house, which was within 1,000 feet of an
elementary school, and sold crack cocaine to the CI. In addition, the evidence
demonstrated that on January 15, 2014, police stopped Hunter on school
property as he was picking up his child from school and found crack cocaine in
his vehicle. No separate conduct of maintaining a common nuisance was
alleged in the charging information, presented to the jury through evidence or
the court’s instructions, or offered by the State in closing argument. Thus, there
is more than a reasonable possibility that the jury used the same evidentiary
facts to establish the essential elements of the three counts of dealing in cocaine
and the single count of possession of cocaine as it used to establish the essential
elements of the offense of maintaining a common nuisance. Accordingly, we
conclude that Hunter’s convictions for dealing in cocaine and possession of
cocaine together with his conviction of maintaining a common nuisance
constitute a double jeopardy violation. Because all of these convictions “cannot
stand, we vacate the conviction with the less severe penal consequences.”
Richardson, 717 N.E.2d at 55. Therefore, Hunter’s conviction of maintaining a
common nuisance is ordered vacated. In light of this, the trial court need not
undertake a full sentencing reevaluation, however, as vacation of this
conviction leaves in place the trial court’s aggregate twenty-seven-year sentence.
Court of Appeals of Indiana | Opinion 45A04-1605-CR-1015 | March 9, 2017 Page 11 of 14
See Bookwalter v. State, 22 N.E.3d 735, 742 (Ind. Ct. App. 2014) (citing
Richardson, 717 N.E.2d at 54-55), trans. denied.
III. Sentencing
[22] Finally, Hunter claims the trial court erred in sentencing him by failing to find
as a mitigating circumstance that his incarceration would impose a hardship on
his children. 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 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.
[23] The finding of mitigating circumstances is not mandatory but is within the
discretion of the trial court. Page v. State, 878 N.E.2d 404, 408 (Ind. Ct. App.
2007), trans. denied. Further, the court is neither obligated to accept the
defendant’s arguments as to what constitutes a mitigating factor nor required to
give the same weight to a proposed mitigating factor as does the defendant. Id.
An allegation that the trial court failed to find a mitigating factor requires the
defendant on appeal to establish that the mitigating evidence is both significant
and clearly supported by the record. Id. Specifically, a trial court is not
required to find that a defendant’s incarceration would result in undue hardship
on his dependents. Benefield v. State, 904 N.E.2d 239, 247 (Ind. Ct. App. 2009),
trans. denied. “Many persons convicted of crimes have dependents and, absent
Court of Appeals of Indiana | Opinion 45A04-1605-CR-1015 | March 9, 2017 Page 12 of 14
special circumstances showing that the hardship to them is ‘undue,’ a trial court
does not abuse its discretion by not finding this to be a mitigating factor.” Id.
[24] Although the trial court did not afford this mitigating factor the weight Hunter
believes it deserves, it is clear from the transcript of the sentencing hearing that
the trial court considered his claimed concern for the impact that his
incarceration would have on his children. Both of the mothers of Hunter’s
three children testified that Hunter supports the children financially and that the
children would miss him. However, Hunter has not been court-ordered to pay
child support, and both mothers testified that they are employed and have been
employed in their respective positions for six years. While Hunter’s children
may suffer some hardship, both financially and emotionally, due to his
imprisonment, this is true of most, if not all, dependents of incarcerated
persons. See Vazquez v. State, 839 N.E.2d 1229, 1234 (Ind. Ct. App. 2005)
(stating that, “jail is always a hardship on dependents”), trans. denied. The
materials available on appeal do not indicate any special circumstances
demonstrating that the hardship to Hunter’s children will be unusual. Thus, the
trial court did not abuse its discretion by failing to find this as a mitigating
circumstance.
Conclusion
[25] For the reasons stated, we conclude Hunter waived the issue of the trial court’s
admission of Exhibits 2, 4, and 8, and, waiver notwithstanding, any resulting
error was harmless. Further, Hunter’s conviction of maintaining a common
Court of Appeals of Indiana | Opinion 45A04-1605-CR-1015 | March 9, 2017 Page 13 of 14
nuisance violates our state’s double jeopardy clause and must be vacated.
Finally, the trial court did not err by determining the hardship to Hunter’s
dependents did not qualify as a mitigating circumstance.
[26] Affirmed in part and reversed and remanded in part with instructions to the trial
court to vacate Hunter’s conviction of maintaining a common nuisance.
Pyle, J., and Altice, J., concur.
Court of Appeals of Indiana | Opinion 45A04-1605-CR-1015 | March 9, 2017 Page 14 of 14