MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
FILED
court except for the purpose of establishing
the defense of res judicata, collateral Dec 27 2017, 9:05 am
estoppel, or the law of the case. CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Leanna Weissmann Curtis T. Hill, Jr.
Lawrenceburg, Indiana Attorney General of Indiana
Tyler G. Banks
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Gregory S. Powers, December 27, 2017
Appellant-Defendant, Court of Appeals Case No.
16A01-1707-CR-1525
v. Appeal from the Decatur Superior
Court
State of Indiana, The Honorable Matthew D.
Appellee-Plaintiff. Bailey, Judge
Trial Court Cause No.
16D01-1605-F4-404
Bradford, Judge.
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Case Summary
[1] In September of 2014, Appellee-Plaintiff the State of Indiana (“the State”)
charged Appellant-Defendant Gregory S. Powers in connection to an alleged
burglary and trespass under Cause Number 16D01-1409-F5-662 (“Cause No.
F5-662”). The charges were dismissed on May 15, 2015. Pursuant to the
standard operating procedures of the Greensburg Police Department (“GPD”),
certain physical evidence relating to Powers’s case was destroyed on February
2, 2016.1 Approximately four months later, on May 23, 2016, the State re-filed
charges against Powers under Cause Number 16D01-1605-F4-404. In doing so,
the State alleged that Powers had committed Level 4 felony attempted burglary,
Level 5 felony burglary, and Class A misdemeanor criminal trespass. The State
also alleged the Powers was a habitual offender.2
[2] Prior to the start of trial, Powers moved to dismiss the charges, claiming that
State’s destruction of certain physical evidence resulted in a violation of his due
process rights. The trial court denied Powers’s motion and the matter
proceeded to trial. After the parties had presented their evidence, Powers
requested that the trial court instruct the jury on the alleged lesser-included
offense of Class B misdemeanor criminal mischief. The trial court determined
that, in this case, Class B misdemeanor criminal mischief did not qualify as a
1
GPD’s standard operating procedure is to destroy or discard evidence six months after a case is closed.
2
The State subsequently dismissed the Level 4 felony attempted burglary charge.
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lesser-included offense of the Level 5 burglary charge. The trial court,
therefore, did not include Powers’s proffered instruction in its final instructions
to the jury.
[3] The jury subsequently found Powers guilty of both Level 5 felony burglary and
Class A misdemeanor criminal trespass. After receiving the jury’s verdict, the
State moved to dismiss the habitual-offender allegation. The trial court granted
the State’s motion and sentenced Powers to an aggregate executed term of 1980
days.
[4] On appeal, Powers contends that the trial court abused its discretion in denying
his motion to dismiss. Powers alternatively contends that the trial court abused
its discretion in instructing the jury. Because we disagree with both
contentions, we affirm.
Facts and Procedural History
[5] At approximately 1:00 a.m. on September 23, 2014, Greensburg police officers
were dispatched to Hoeing Supply. After arriving at Hoeing Supply, officers
found that a hole had been cut in the metal siding on the southwest part of
Hoeing’s building. Upon further inspection, officers discovered that some of
the screws that had been holding the siding in place had been removed. In the
grass immediately next to the hole, officers found a socket. The socket still
contained the head of a screw. The screw head was consistent with the screws
attached to the building’s siding. One of the responding officers described the
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socket as a “bite-down socket[,]” i.e., “a socket that goes onto a nut driver or
socket set.” Tr. Vol. II, p. 137. The next morning, an employee of Hoeing
Supply discovered that someone had entered the building and moved copper
tubing and boxes of lights from an area near where the hole was discovered.
[6] As officers were investigating the scene at Hoeing Supply, Officer Jordan Craig
patrolled the surrounding area. At some point, he was alerted to an individual
walking within a locked gate at a nearby business called American Lift.
American Lift had a wire fence that encircled its entire property, a yellow metal
gate blocking the road into the business’s property, and a posted “No
Trespassing” sign. State’s Ex. 14. Officer Craig watched as Powers climbed
over the wire fence and exited American Lift’s property. When Powers noticed
Officer Craig, he took off a pair of gloves that he had been wearing and threw
the gloves away from him. Powers then started to place his hands in his
pockets. After Officer Craig ordered Powers to not place his hands in his
pockets, Powers fell to the ground.
[7] Powers gave Officer Craig permission to search his jeans pockets. Officer Craig
subsequently found a pair of metal pliers and a “nut driver” in Powers’s jean
pockets.3 Tr. Vol II, p. 155. Officer Craig described the “nut driver” as “a
handled stud, and on the end of it, you know, you can put a – put a socket on it
3
Officer Craig also observed that Powers was wearing a backpack “turned around backwards[.]” Tr. Vol. II,
p. 156.
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or, you know, whatever tools. It’s the male end that would go into the – you
know, whatever tool you’re placing on the other.” Tr. Vol. II, p. 156.
[8] Shortly after completing his search, Officer Craig learned that the officers
investigating the scene at Hoeing Supply had found marks around the hole in
the metal siding that appeared to be left by a tool. The marks suggested that a
tool, consistent with pliers, had been used to cut through the siding. Upon
recovering the gloves that Powers had thrown, Officer Craig discovered that the
gloves had paint dust on them consistent with the color of the metal siding at
Hoeing Supply. While Officer Craig was collecting the gloves and talking with
other officers, Powers threw a set of pliers into nearby tall grass. Officer Craig’s
K9 companion subsequently recovered the pliers. When asked, Powers
indicated that he did not know why he threw the pliers.
[9] In September of 2014, the State charged Powers in connection to the alleged
burglary and trespass under Cause No. F5-662. The charges were dismissed on
May 15, 2015.
[10] Occasionally, the GPD conducts audits during which investigators “would
check cause numbers, case numbers, to see if the cases had been disposed of or
dismissed.” Tr. Vol. III, p. 8. As “a matter of practice, anything held over 60
days that is no longer evidentiary, we destroy or get rid of it.” Tr. Vol. III, p. 7.
On February 2, 2016, investigators destroyed certain physical evidence,
including the pliers, collected in connection to Cause No. F5-662 because the
case had been dismissed for more than sixty days.
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[11] Approximately four months later, on May 23, 2016, the State re-filed charges
against Powers under Cause Number 16D01-1605-F4-404. In doing so, the
State alleged that Powers had committed Level 4 felony attempted burglary,
Level 5 felony burglary, and Class A misdemeanor criminal trespass.4 The
State also alleged the Powers was a habitual offender. Powers filed a motion to
preserve evidence on November 7, 2016.
[12] On the morning that trial was scheduled to begin, Powers moved to dismiss the
charges, claiming that the State’s destruction of certain physical evidence
resulted in a violation of his due process rights. The trial court conducted a
hearing on Powers’s motion. At the conclusion of this hearing, the trial court
stated the following:
Very well. We certainly have destruction of evidence here that is
negligent. No indicia of any kind of bad faith. I think this
evidence that we’re talking about today is at best – will be called
potentially useful evidence rather than being materially
exculpatory evidence. I’m going to deny the motion filed by the
Defense on today’s date.
Tr. Vol. II, p. 95. The matter then proceeded to trial.
[13] At the close of evidence, Powers requested that the trial court instruct the jury
on the alleged lesser-included offense of Class B misdemeanor criminal
4
As is mentioned in footnote 2, the State subsequently dismissed the Level 4 felony attempted burglary
charge.
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mischief. The trial court determined that under the facts and circumstances of
this case, Class B misdemeanor criminal mischief did not qualify as a lesser-
included offense of the Level 5 burglary charge. The trial court, therefore, did
not include Powers’s proffered instruction in its final instructions to the jury.
[14] The jury subsequently found Powers guilty of both Level 5 felony burglary and
Class A misdemeanor criminal trespass. After receiving the jury’s verdict, the
State moved to dismiss the habitual-offender allegation. The trial court granted
the State’s motion and sentenced Powers to an aggregate executed term of 1980
days. This appeal follows.
Discussion and Decision
[15] Powers contends that the trial court abused its discretion in denying his motion
to dismiss. “We review a trial court’s ruling granting a motion to dismiss for an
abuse of discretion.” State v. Durrett, 923 N.E.2d 449, 453 (Ind. Ct. App. 2010)
(citing State v. Fettig, 884 N.E.2d 341, 343 (Ind. Ct. App. 2008)). “We therefore
reverse only where the decision is clearly against the logic and effect of the facts
and circumstances.” Id. (citing Fettig, 884 N.E.2d at 343). Powers alternatively
contends that the trial court abused its discretion in instructing the jury.
I. Destruction of Evidence
[16] Powers argues that the charges against him should have been dismissed because
State’s destruction of certain physical evidence resulted in a violation of his due
process rights.
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Criminal defendants have the right to examine physical evidence
in the hands of the State under the Fourteenth Amendment to the
United States Constitution and Article One, Section Twelve of
the Indiana Constitution.[5] Smith v. State, 586 N.E.2d 890, 893
(Ind. Ct. App. 1992). However, the State does not have “an
undifferentiated and absolute duty to retain and preserve all
material that might be of conceivable evidentiary significance in a
particular prosecution.” Arizona v. Youngblood, 488 U.S. 51, 58,
109 S.Ct. 333, 102 L.Ed.2d 281 (1988).
Terry v. State, 857 N.E.2d 396, 406 (Ind. Ct. App. 2006).
[17] When determining whether a defendant’s due process rights have been violated
by the State’s failure to preserve evidence, we must first determine whether the
evidence is material exculpatory evidence or potentially useful evidence.
Durrett, 923 N.E.2d at 453 (citing Land v. State, 802 N.E.2d 45, 49 (Ind. Ct.
App. 2004), trans. denied).
Evidence is materially exculpatory if it “possess[es] an
exculpatory value that was apparent before the evidence was
destroyed, and [is] of such a nature that the defendant would be
unable to obtain comparable evidence by other reasonably
available means.” Noojin v. State, 730 N.E.2d 672, 675–76 (Ind.
2000) (quoting California v. Trombetta, 467 U.S. 479, 489, 104
S.Ct. 2528, 81 L.Ed.2d 413 (1984)). Exculpatory evidence is
defined as “[e]vidence tending to establish a criminal defendant’s
innocence.” Black’s Law Dictionary 597 (8th ed. 2004). A
prosecutor’s duty to preserve exculpatory evidence is [“]limited
to evidence that might be expected to play a significant role in the
5
As footnote 8 in Terry indicated, the analysis under the Indiana Constitution is identical to the federal
analysis. 857 N.E.2d at 406 n.8 (citing Stoker v. State, 692 N.E.2d 1386, 1390 (Ind. Ct. App. 1998)).
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defendant’s defense.[”] Noojin, 730 N.E.2d at 675 (quoting
Trombetta, 467 U.S. at 488, 104 S.Ct. 2528). Failure to preserve
material exculpatory evidence violates due process regardless of
whether the State acted in good or bad faith. Blanchard v. State,
802 N.E.2d 14, 27 (Ind. Ct. App. 2004) (citing [Youngblood, 488
U.S. at 57]).
Id. (first two sets of brackets in original, third through fifth sets of brackets
added).
[18] Evidence is merely potentially useful if “no more can be said
than that it could have been subjected to tests, the results of
which might have exonerated the defendant.” [Blanchard, 802
N.E.2d] at 26 (citing Youngblood, 488 U.S. at 57, 109 S.Ct. 333).
The State’s failure to preserve potentially useful evidence does
not constitute a violation of due process rights unless the
defendant shows bad faith on the part of the police. Id. at 26–27.
Id. (brackets added). “Bad faith is defined as being not simply bad judgment or
negligence, but rather implies the conscious doing of wrong because of
dishonest purpose or moral obliquity.” Land, 802 N.E.2d at 49 (internal
quotations omitted).
[19] Powers argues that the pliers were materially exculpatory evidence. Again,
evidence is materially exculpatory if it (1) possesses exculpatory value that is
apparent before the evidence was destroyed and (2) is of such a nature that the
defendant would be unable to obtain comparable evidence by other reasonably
available means. See Durrett, 923 N.E.2d at 453. Powers does not argue that
the pliers at issue in this case were rare or distinctive. Rather the pliers seem to
have been similar to, if not the same as, other pliers that are readily available for
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purchase at any number of home improvement stores. In fact, during trial,
Powers’s counsel provided one of the investigating officers with a pair of pliers.
Powers’s counsel asserted and the officer agreed that the pliers were similar to
those found at the crime scene on the night in question. Powers’s counsel then
asked the officer to use the supplied pliers to try to cut a piece of metal siding,
like that cut on the night in question. The officer was able to cut through the
piece of metal siding.
[20] Further, despite Powers’s claim to the contrary, we do not believe that all of the
pictures of the pliers were of such poor quality that the trier-of-fact was unable
to discern the size and condition of the pliers. While some of the pictures of the
pliers are slightly blurry, others are not and clearly depict the size and condition
of the pliers. These pictures show that the pliers appeared to be in a relatively
normal condition for pliers. Nothing about these pictures would support an
inference that the pliers, unlike the ones presented during trial, could not be
used to cut through metal siding.
[21] Exculpatory evidence is evidence which tends to establish a criminal
defendant’s innocence. Id. The record reveals that Powers was able to obtain
comparable evidence by other reasonably available means.6 In addition, there
6
This fact distinguishes the instant matter from Roberson v. State, 766 N.E.2d 1185 (Ind. Ct. App. 2002). In
Roberson, the evidence in question was a handmade allegedly dangerous device that had been fashioned out
of two wooden sticks, which were described as being “similar to a tongue depressor[.]” 766 N.E.2d at 1186.
The only photograph of the allegedly dangerous device was “of poor quality.” Id. Noting the critical
importance of the evidence in question, this court concluded that “[t]he testimony regarding the device is
absolutely crucial and determinative, as there is no independent evidence except for one blurry photograph”
and “the character of the device is the sole basis of Roberson’s defense.” Id. at 1188. The court further
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was nothing specific about the pliers themselves that, without more, would tend
to establish Powers’s guilt or innocence. At most, the pliers could have been
subjected to testing which might have exonerated Powers. In fact, Powers’s
counsel was able to perform such a test with the similar replacement pliers
during trial. The result of that test did not exonerate Powers, as it was revealed
that the pliers were capable of cutting through the metal siding. We therefore
conclude that the pliers were not materially exculpatory.
[22] Given our conclusion that the pliers were not materially exculpatory, Powers
must demonstrate that the State’s failure to preserve the evidence was in in bad
faith. We have held that “[t]he mere assertion that the circumstances suggest
bad faith is not sufficient to establish that the State acted in bad faith.” Terry,
857 N.E.2d at 408. “Instead, a defendant must show that the State failed to
preserve the evidence pursuant to a ‘conscious doing of wrong because of
dishonest purpose or moral obliquity.’” Id. (quoting Land, 802 N.E.2d at 51).
[23] The circumstances here do not point to bad faith on the part of the State. The
pliers were destroyed pursuant to the established procedures of the GPD.
William Meyerrose assisted with the audit which led to the destruction of the
pliers. As part of the audit, Meyerrose “would check cause numbers, case
numbers, to see if the cases had been disposed of or dismissed. Specifically, this
cause number when it was originally filed was [Cause No. F5-662], and
concluded that “[u]nder the specific circumstances of this case, we hold that it would be fundamentally unfair
and a violation of due process to allow the State to proceed in this manner.” Id. at 1190.
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[Meyerrose] found that it had been dismissed on May 15th, 2015.” Tr. Vol. III,
p. 8. Meyerrose testified that as “a matter of practice, anything held over 60
days that is no longer evidentiary, we destroy or get rid of it.” Tr. Vol. III, p. 7.
Meyerrose further testified that this practice is in compliance with “the statutes
regarding the retention of evidence[.]” Tr. Vol. III, p. 8. Because the case had
been dismissed for more than sixty days, the pliers were destroyed on February
2, 2016.7 Powers has not presented any evidence indicating that, as of the date
of the destruction of the pliers, Meyerrose knew that the State would
subsequently re-file the criminal charges. Powers, therefore, has not
demonstrated that the pliers were destroyed in bad faith. Because Powers has
not demonstrated that the State destroyed the pliers in bad faith, he has not
demonstrated a violation of his due process rights. As such, the trial court did
not abuse its discretion in denying Powers’s motion to dismiss.
II. Jury Instructions
[24] Powers alternatively claims that the trial court should have included an
instruction relating to the alleged lesser-included crime of criminal mischief in
its instructions to the jury.
When a party requests a trial court to instruct a jury on a lesser
included offense of a charged crime, the court must perform a
three part analysis. Wright v. State, 658 N.E.2d 563, 566 (Ind.
1995). First, it must determine whether the alleged lesser
included offense is inherently included in the greater offense. Id.
7
The State did not re-file charges against Powers until May 23, 2016.
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An offense is inherently included if (a) the alleged lesser included
offense may be established by proof of the same material
elements or less than all the material elements defining the crime
charged, or (b) the only feature distinguishing the alleged lesser
included offense from the crime charged is that a lesser
culpability is required to establish the commission of the lesser
offense. Id. Second, if an offense is not inherently included, then
the court must determine whether the offense is factually
included by comparing the charging instrument to the statute
defining the alleged lesser included offense. Id. at 567.
Third, if an offense is either inherently or factually included
within a greater offense, then the court must look at the evidence
presented in the case by both parties and determine whether there
is a serious evidentiary dispute about the element or elements
distinguishing the greater from the lesser offense. Id. If there is
such a dispute, such that a jury could conclude that the lesser
offense was committed but not the greater, then it is reversible
error for a trial court not to give an instruction, when requested,
on the inherently or factually included lesser offense. Id. “If the
evidence does not so support the giving of a requested instruction
on an inherently or factually included lesser offense, then a trial
court should not give the requested instruction.” Id. When the
propriety of giving a lesser included offense instruction turns on
the existence or not of a serious evidentiary dispute, and the trial
court has made an express finding on the existence or lack of
such a dispute, our standard of review for a lesser included
offense instruction is abuse of discretion. Charlton v. State, 702
N.E.2d 1045, 1048 (Ind. 1998). If a trial court makes no explicit
finding regarding a serious evidentiary dispute, we review the
ruling de novo. Wilkins v. State, 716 N.E.2d 955, 957 (Ind. 1999).
True v. State, 954 N.E.2d 1105, 1108 (Ind. Ct. App. 2011).
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[25] Powers does not argue that the crime of criminal mischief is inherently included
in the crime of burglary. Instead, he argues that the crime of criminal mischief
is factually included in the crime of burglary. In support, Powers cites to our
opinion in Moore v. State, 427 N.E.2d 1135, 1140 (Ind. Ct. App. 1981), in which
we noted the following:
While under the circumstances of a particular case criminal
mischief may constitute a lesser included offense to the acts
constituting a burglary, it does not necessarily do so. The
elements of burglary are breaking and entering with intent to
commit a felony. The essence of criminal mischief is the
reckless, or perhaps knowing or intentional … damaging of
another’s property. Burglary may or may not involve such
damage.
(internal citations omitted).
[26] The Indiana Supreme Court has held that the State may foreclose instruction on
a factually included offense by omitting from the charging information factual
allegations necessary to charge the lesser offense. See Wright, 658 N.E.2d at 570
(providing that “the State may only foreclose instruction on a lesser offense that
is not inherently included in the crime charged by omitting from a charging
instrument factual allegations sufficient to charge the lesser offense.”). The
Indiana Supreme Court has explained that “[d]etermining whether a charging
information fairly encompasses a particular lesser offense is vital to both sides
of a criminal case because it affects ‘both how prosecutors draft indictments and
informations and what notice defendants ... will have of the charges brought
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against them.’” Young v. State, 30 N.E.3d 719, 723 (Ind. 2015) (quoting Wright,
658 N.E.2d at 565).
[27] In this case, criminal mischief was not factually included in the burglary
allegation as drafted. Indiana Code section 35-43-1-2(a) provides that “[a]
person who recklessly, knowingly, or intentionally damages or defaces property
of another person without the other person’s consent commits criminal
mischief, a Class B misdemeanor.” The charging information alleged that
Powers “[b]roke and entered break and enter [sic] Hoeing Supply, with the
intent to commit theft in it[.]” Appellant’s App. Vol. II–Confidential, p. 13.
The charging information made no mention of any damage to Hoeing Supply’s
property. Thus, the State omitted from the charging information factual
allegations sufficient to charge the crime of Class B misdemeanor criminal
mischief. Given the fact that the State omitted any factual allegations
“sufficient to charge” the crime of Class B misdemeanor criminal mischief from
the charging information, the crime did not qualify as a factually included
offense in this matter. See Wright, 658 N.E.2d at 570. The trial court, therefore,
did not abuse its discretion in excluding an instruction relating to criminal
mischief from its final instructions to the jury.
[28] The judgment of the trial court is affirmed.
Robb, J., and Crone, J., concur.
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