MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Mar 30 2017, 8:11 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Amanda O. Blackketter Curtis T. Hill, Jr.
Blackketter Law, LLC Attorney General of Indiana
Shelbyville, Indiana
Chandra K. Hein
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Yvonne Howery, March 30, 2017
Appellant-Defendant, Court of Appeals Case No.
70A01-1609-CR-2127
v. Appeal from the Rush Superior
Court
State of Indiana, The Honorable Brian D. Hill,
Appellee-Plaintiff. Judge
Trial Court Cause No.
70D01-1506-F5-336
Najam, Judge.
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Statement of the Case
[1] Yvonne Howery appeals her convictions for possession of cocaine, as a Level 5
felony; maintaining a common nuisance, a Level 6 felony; neglect of a
dependent, as a Level 6 felony; and dealing in marijuana, as a Class A
misdemeanor, following a jury trial. Howery presents three issues for our
review, which we consolidate and restate as the following issues:
1. Whether the trial court abused its discretion when it
denied her motion to continue the trial.
2. Whether the trial court abused its discretion when it
admitted certain evidence over her objections.
We affirm.
Facts and Procedural History
[2] In June 2015, after receiving complaints about a large number of people coming
and going and spending short periods of time at Howery’s residence, officers
with the Rushville Police Department began an investigation. At that time,
Howery shared the residence with her husband, Darrell Howery (“Darrell”),
and their children. As part of the investigation, officers surveilled the residence
and observed activity consistent with the complaints, including “multiple
vehicles where there would be multiple occupants in the vehicle. The vehicle
would pull up. One person [would] get out, go in the residence for a short
period of time. That person would walk back out[,] and the vehicle would pull
away.” Tr. at 63-64. As a result, officers expanded their investigation.
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[3] At that point, a confidential informant (“CI”) contacted the police and told
them that Howery, also known as “Big Mama[,] . . . was using juveniles to sell
marijuana,” and the CI told them that Howery and her husband “were also
selling a large amount of drugs to juveniles” and adults. Id. at 66-67. Then, on
June 20, Rushville Police Officer Alan Wombold was driving an unmarked
police vehicle past the Rush County Fair when he saw two men and a woman
behind a trailer conduct a “hand-to-hand exchange.” Id. at 67. Officer
Wombold then followed the two men, Loren Collins and Brandon Moon, who
walked to Howery’s residence and went inside. Approximately ten minutes
later, Collins and Moon left Howery’s residence, and Officer Wombold
followed them in his car as they walked back to the fairgrounds. Once back at
the Fair, Officer Wombold exited his vehicle and watched as Collins and Moon
approached two men, one at a time, behind the trailers. After the second man
walked away from Collins and Moon, Officer Wombold approached him,
identified himself as an officer, and asked the man what Collins and Moon
were doing. The man responded that one of the men had attempted to sell him
marijuana.
[4] Officer Wombold then approached Collins and Moon, stopped them, and
conducted a pat-down search of their persons. Officer Wombold found a
baggie containing marijuana in Collins’ pants pocket. Officer Wombold and
another officer who had arrived at the scene arrested Collins and Moon and
transported them to the police station. During an interview, Collins denied
having bought marijuana from Howery, but, after Officer Wombold explained
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that Howery’s residence had been under surveillance and that he had seen
Collins go to the residence, Collins responded, “Then, you must know then.”
Id. at 70. Collins told Officer Wombold that, while he had not bought
marijuana from Howery, “he knew she sold to a lot of . . . younger kids.” Id. at
71.
[5] On June 24, unrelated to the Howery investigation, Officer Wombold
conducted a controlled drug buy for cocaine targeting Robert Koohns. The CI
went to Koohns’ residence and gave him the buy money, and then, while the CI
waited, Koohns rode his bicycle to Howery’s residence. After a short time,
Koohns left Howery’s residence, rode his bicycle back to his own residence, and
gave cocaine to the CI.
[6] That night, Rushville Police Officers obtained and executed a search warrant
for Howery’s residence. Both Howery and Darrell were home, as well as their
children. Howery agreed to talk to Officer Wombold, and she told him that
there was a bag of marijuana in a dresser in her bedroom, but she denied using
“any hard drugs.” Id. at 77. In the course of the ensuing search, officers found:
marijuana and cocaine in Howery’s bedroom; a glass pipe with
methamphetamine residue in it; a digital scale in Howery’s purse; multiple
unsecured firearms and ammunition; and a surveillance system. The officers
observed deplorable living conditions in the residence, including dog feces on
the floor. Accordingly, Officer Wombold advised Howery that she and Darrell
were being arrested and that he was contacting the Department of Child
Services. In response, Howery asked to speak with Officer Wombold privately.
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[7] Howery denied selling marijuana to young children. Howery stated that “85%”
of her drug sales were to adults, and she did not know the ages of the children
she sold drugs to. Id. at 78. Howery insisted that she and Darrell sold only
marijuana. Officer Wombold asked Howery whether “she was using juveniles
to sell narcotics for her,” and she responded that, “when the juveniles leave the
residence, she doesn’t know what they do with the drugs.” Id. at 79. Howery
admitted that she “had been selling narcotics for, roughly, about two
months[.]” Id. The day after her arrest, a drug test revealed that Howery had
ingested cocaine.
[8] The State charged Howery with possession of cocaine, as a Level 5 felony;
maintaining a common nuisance, a Level 6 felony; neglect of a dependent, as a
Level 6 felony; dealing in marijuana, as a Class A misdemeanor; and possession
of marijuana, as a Class B misdemeanor. A jury found Howery guilty as
charged. The trial court entered judgment of conviction on all but the Class B
misdemeanor charge and sentenced Howery to an aggregate term of four years,
with one year suspended to probation. This appeal ensued.
Discussion and Decision
Issue One: Motion to Continue
[9] Howery first contends that the trial court abused its discretion when it denied
her motion to continue her trial. In particular, Howery maintains that the State
denied her access to the surveillance equipment confiscated from her residence
to review the recordings until four days before trial. Howery asserts that that
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was not enough time to review the many hours of recordings in order to prepare
her defense.
[10] Courts are generally reluctant to grant continuances in criminal cases merely to
allow for additional preparation. Gibson v. State, 43 N.E.3d 231, 235-36 (Ind.
2015). “But a defendant is statutorily entitled to a continuance where there is
an ‘absence of material evidence, absence of a material witness, or illness of the
defendant, and the specially enumerated statutory criteria are satisfied.’” Id. at
236 (quoting Elmore v. State, 657 N.E.2d 1216, 1218 (Ind. 1995) (citing Ind.
Code § 35-36-7-1). If none of those conditions are present, however, a trial
court has wide discretion to deny a motion to continue. Id. We will only find
an abuse of that discretion where a defendant was prejudiced as a result of not
getting a continuance. Id. “To demonstrate such prejudice, a party must make
a ‘specific showing as to how the additional time requested would have aided
counsel.’” Id. (quoting Carter v. State, 686 N.E.2d 1254, 1261 (Ind. 1997)).
[11] Howery contends that she was entitled to a continuance of her trial due to
“newly discovered evidence,” namely, the “DVR recording device which
contained video taken by a security camera at the front entrance to [her]
home.” Appellant’s Br. at 8-9. Howery maintains that her counsel “was made
aware of the possible existence of the DVR recording device on August 9th”
and “the State offered to turn it over to defense counsel for viewing on August
12th,” four days before her scheduled trial. Id. at 9. Howery asserts that “the
location of that DVR . . . was unknown [prior to that date] because it was not in
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Howery’s residence and it was not listed on the inventory Return from
execution of the search warrant.” Id.
[12] The State points out, and Howery does not deny, that she knew the night of her
arrest that officers took the surveillance equipment, but she had told the officers
that the equipment was inoperable. It was only after Howery, through her
newly-hired counsel, informed the prosecutor that the DVR was functional and
contained recordings that the State learned about the possible evidence, and it
immediately made the recordings available to Howery. In any event, the State
did not include the recordings in its exhibits list and did not intend to use them
at trial.
[13] In her motion to continue the trial, Howery alleged that,
upon reviewing the contents of the DVR recording device,
evidence may reveal that the search warrant issued by this court
was based upon inaccurate information and that as such, the
defense may properly file a motion asking that the search
warrant—and the fruits of that warrant—be suppressed and
excluded from the evidentiary presentation to a jury. Defense
already has a good faith belief based upon independent evidence
that may be corroborated by the video that the police have not been
accurate in their police reports.
***
For example, if certain people appear on the video that would be
characterized by the police or prosecutor as purchaser[s] of drugs,
or might be inaccurately believed by a jury to be purchasers of
drugs, the defense simply will have no time to conduct an
investigation as to who these people are and to question these
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people as to what they were doing at the house, which could be
completely harmless.
Appellant’s App. at 96-97 (emphases added).
[14] On appeal, Howery contends that she “was prejudiced here because the video
recording discovered just days before trial was so substantial that it could not be
viewed in that timeframe, let alone assessed and investigated.” Appellant’s Br.
at 10. But, having had unfettered access to the recordings in preparation for this
appeal, Howery does not state what, if any, exculpatory evidence those
recordings contain and how that evidence would have been used in her defense
at trial had she had adequate time to review the recordings. In other words,
Howery has not made a “specific showing as to how the additional time
requested would have aided counsel.” See Carter, 686 N.E.2d at 1261. We
cannot say that the trial court abused its discretion when it denied Howery’s
motion to continue her trial.
Issue Two: Admission of Evidence
[15] Howery next contends that the trial court abused its discretion when it allowed
the State to present alleged hearsay evidence and evidence of Howery’s prior
bad acts. In particular, the trial court admitted over Howery’s objections the
following evidence: Officer Wombold’s testimony that a CI had told him that
Howery was “known as ‘Big Mama’ [and] was using juveniles to sell marijuana
outside of her home”; Officer Wombold’s testimony that Collins told him that
“he knew Yvonne Howery sold a lot of marijuana to younger kids”; and
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Koohns’ testimony that Darrell had sold him cocaine from Howery’s residence
the night of Howery’s arrest. Appellant’s Br. at 11, 14.
[16] Generally, a trial court’s ruling on the admission of evidence is accorded “a
great deal of deference” on appeal. Hall v. State, 36 N.E.3d 459, 466 (Ind. 2015)
(quoting Tynes v. State, 650 N.E.2d 685, 687 (Ind. 1995)).
“Because the trial court is best able to weigh the evidence and
assess witness credibility, we review its rulings on admissibility for
abuse of discretion’ and only reverse ‘if a ruling is clearly against
the logic and effect of the facts and circumstances and the error
affects a party’s substantial rights.”
Id. (quoting Carpenter v. State, 18 N.E.3d 998, 1001 (Ind. 2014)).
[17] We need not decide whether the trial court abused its discretion when it
permitted the challenged evidence because any error was harmless. As our
supreme court has held,
not every trial error requires reversal. Errors in the admission or
exclusion of evidence are to be disregarded as harmless error
unless they affect the substantial rights of the party. Fleener v. State,
656 N.E.2d 1140, 1141 (Ind. 1995); Ind. Trial Rule 61. To
determine whether an error in the introduction of evidence
affected the appellant’s substantial rights, this Court must assess
the probable impact of that evidence upon the jury.
The evidence that Howery possessed cocaine, dealt marijuana, maintained a
common nuisance at her residence, and neglected her children was
overwhelming. Officers found cocaine in plain view in Howery’s bedroom; it
was on top of the dresser where Howery had told officers they could find
marijuana. Further, Howery tested positive for cocaine the day after her arrest.
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Howery admitted to Officer Wombold that she had sold marijuana and that she
had been doing so, out of her home, for approximately two months prior to her
arrest. Howery had a digital scale in her purse. And, finally, the State
presented ample photographic evidence and testimony regarding the deplorable
conditions of Howery’s home, including dog feces on the floor and unsecured
firearms. In light of the substantial independent evidence of Howery’s guilt, we
conclude that any error in the admission of the alleged hearsay testimony,
evidence of Howery’s prior bad acts, and Koohn’s testimony regarding Darrell’s
cocaine dealing was harmless.
[18] Affirmed.
Riley, J., and Bradford, J., concur.
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