MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Apr 30 2019, 10:29 am
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Anthony S. Churchward Curtis T. Hill, Jr.
Anthony S. Churchward, P.C. Attorney General of Indiana
Fort Wayne, Indiana Matthew A. Michaloski
Angela Sanchez
Deputy Attorneys General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Chadwick M. Childers, April 30, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-2765
v. Appeal from the Whitley Circuit
Court
State of Indiana, The Honorable Matthew J.
Appellee-Plaintiff. Rentschler, Judge
Trial Court Cause No.
92C01-1801-F5-11
Mathias, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2765 | April 30, 2019 Page 1 of 11
[1] Following a jury trial in Whitley Circuit Court, Chadwick M. Childers
(“Childers”) was convicted of Level 5 felony dealing in marijuana. Childers
appeals and presents one issue, which we restate as whether the trial court
abused its discretion by excluding evidence regarding a witness’s prior
convictions and a pending charge against the witness.
[2] We affirm.
Facts and Procedural History
[3] On November 8, 2017, the confidential informant (“C.I.”) in this case was
arrested on misdemeanor drug charges in Whitley County. While in jail the day
after his arrest, the C.I. contacted Columbia City Police Department Detective
Sergeant Robert Stephenson (“Detective Stephenson”) and stated that he had
purchased marijuana from Childers in the past and would be willing to act as an
informant in a controlled buy. The C.I. hoped to curry favor with the police and
prosecuting attorney by acting as an informant. Detective Stephenson made no
promises as to any benefits the C.I. might receive for cooperating, but the C.I.
understood that the more help he provided to the police, the more benefit he
would likely receive. Detective Stephenson took the information he had
received from the C.I. to the other members of the Whitley County Drug Task
Force, and they decided to use the C.I. in a controlled buy targeting Childers.
[4] Accordingly, on December 9, 2017, the C.I. contacted Childers and arranged a
sale of two ounces of marijuana for $400. Immediately before the controlled
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buy, Detective Stephenson met with the C.I. and searched his person and
vehicle. He then gave the C.I. $400 in buy money and placed an audiovisual
recording device on him. The C.I. then went to Childers’s residence in
Columbia City, with Detective Stephenson following and observing him.
Detective Stephenson parked in a gas station parking lot where he could
observe Childers’s home from across the street.
[5] Using binoculars, Detective Stephenson observed Childers get into the C.I.’s
vehicle. Inside the vehicle, the C.I. gave Childers the $400 in buy money, and in
exchange, Childers gave the C.I. marijuana. Childers then got out of the
vehicle, and the C.I. drove back to the police station, with Detective
Stephenson following him. Detective Stephenson searched the C.I. and found
only the marijuana that Childers had sold. Testing later confirmed that the
substance Childers sold the C.I. was 52.95 grams1 of marijuana.
[6] On January 30, 2018, the State charged Childers with Level 5 felony dealing in
marijuana.2 Prior to trial, the State filed a motion in limine seeking to exclude
certain evidence, including “any discussion of or reference to any criminal
record of any witness listed by the State of Indiana, unless specifically
authorized by the court in a hearing conducted outside the presence of the
1
This is just under two ounces, which is equivalent to 56.7 grams.
2
The offense was elevated to a Level 5 felony based on Childers’s 2016 conviction for Level 6 felony dealing
in marijuana.
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jury.” Appellant’s App. p. 31. The trial court granted the motion. A bifurcated
jury trial was held on October 2, 2018. At trial, Childers attempted to question
the C.I. regarding his prior convictions. The State objected, and the trial court
sustained the objection. In an offer of proof, the C.I. testified that his prior
convictions would have increased his sentence for the misdemeanor he was
charged with in November 2017. The C.I. also testified that the State had made
no promises to him, but he agreed when defense counsel stated that “if you
were to testify today inconsistent with your prior statements that it could be an
adverse effect for you in that case[.]” Tr. p. 87. The C.I. also stated that he had
additional charges pending against him at the time of his testimony.
[7] The trial court did, however, allow Childers to ask the C.I. about the charges he
faced as a result of his arrest in November 2017, his subsequent plea, and what
effect his cooperation in the Childers case may have had on the penalties the
C.I. faced in that case. The C.I. testified that he had been facing jail time for the
November 2017 case, but that as a result of his cooperation with the police, he
was able to avoid incarceration. Childers was also permitted to ask the C.I. to
speculate if his sentence could have been increased based on his prior
conviction for conversion,3 and the C.I. agreed that his sentence might have
been increased based on this prior conviction.
3
A prior conviction for criminal conversion may be used to impeach a witness, as it has been held to be a
crime of dishonesty. See Johnson v. State, 671 N.E.2d 1203, 1206 n.3 (Ind. Ct. App. 1996), trans. denied.
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[8] At the conclusion of the first phase of the trial, the jury found Childers guilty of
Level 6 felony dealing in marijuana in an amount greater than thirty grams. See
Ind. Code § 35-48-4-10(c)(2)(a). At the second phase of the trial, the jury found
that Childers had previously been convicted of dealing in marijuana, thereby
increasing his conviction to a Level 5 felony. See id. at § 10(d)(1). At a
sentencing hearing held on October 29, 2018, the trial court sentenced Childers
to four years of incarceration. Childers now appeals.
Standard of Review
[9] Decisions regarding the admission or exclusion of evidence are entrusted to the
sound discretion of the trial court. Laird v. State, 103 N.E.3d 1171, 1175 (Ind.
Ct. App. 2018), trans. denied (citing Harrison v. State, 32 N.E.3d 240, 250 (Ind.
Ct. App. 2015), trans. denied). On appeal, we review the trial court's decision for
an abuse of that discretion. Id. The trial court abuses its discretion only if its
decision regarding the admission of evidence is clearly against the logic and
effect of the facts and circumstances before it, or if the court has misinterpreted
the law. Id.
Discussion and Decision
[10] Childers contends that the trial court erred by preventing him from confronting
the C.I. with evidence that he had prior convictions for possession of
marijuana, possession of a controlled substance, possession of paraphernalia,
and criminal mischief and newer, pending charges at the time he testified.
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Childers argues that he should have been able to impeach the C.I.’s credibility
by referring to these prior and pending charges, especially as to how his prior
convictions could have affected the penalty he faced as a result of his arrest in
November 2017.
[11] This requires us to consider the interplay between several rules of evidence.
Generally, evidence that a witness is biased may be used to attack that witness’s
credibility. See Ind. Evidence Rule 616 (“Evidence that a witness has a bias,
prejudice, or interest for or against any party may be used to attack the
credibility of the witness.”). Indiana Evidence Rule 608(a) provides that a
witness’s credibility may be attacked (or supported) by testimony about the
witness’s reputation for having a truthful4 or untruthful character, or by
testimony in the form of an opinion about the witness’s character for
truthfulness or untruthfulness. Evidence Rule 608(b) provides, however, that
extrinsic evidence is not admissible to prove specific instances of a witness’s
conduct regarding the witness’s character for truthfulness, except as provided
under Evidence Rule 609.5
[12] Indiana Evidence Rule 609 in turn provides in relevant part:
4
Evidence of a witness’s truthful character is only admissible after the witness’s character for truthfulness has
been attacked. Evid. R. 608(a).
5
“But the court may, on cross-examination, allow them to be inquired into if they are probative of the
character for truthfulness or untruthfulness of another witness whose character the witness being cross-
examined has testified about.” Evid. R. 608(b).
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For the purpose of attacking the credibility of a witness, evidence
that the witness has been convicted of a crime or an attempt of a
crime must be admitted but only if the crime committed or
attempted is (1) murder, treason, rape, robbery, kidnapping,
burglary, arson, or criminal confinement; or (2) a crime involving
dishonesty or false statement, including perjury.
Evid. R. 609(a).
[13] The trial court permitted Childers to impeach the C.I.’s credibility using his
prior conviction for conversion and by noting the favorable treatment he
received in his November 2017 case in exchange for his cooperation in the
Childers case. The trial court, however, excluded evidence regarding the C.I.’s
prior convictions for possession of a controlled substance, criminal mischief,
possession of marijuana and paraphernalia, and possession of marijuana, and
additional charges that were pending against the C.I.
[14] Childers claims this was improper, arguing that he should have been permitted
to attack the C.I.’s credibility by showing that he was motivated to testify
against Childers in return for favorable treatment. Specifically, he claims that
the C.I.’s prior criminal history would have “significantly increased his criminal
penalties resulting from his November 8, 2017 arrest” and that he might receive
favorable treatment in the pending charges. Appellant’s Br. p. 13.
[15] With regard to the charges pending against the C.I. at the time of trial, it is well
settled that “a witness may not be impeached with evidence of crimes for which
charges are pending but which have not been reduced to convictions.” Becker v.
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State, 695 N.E.2d 968, 973 (Ind. Ct. App. 1998). Thus, references to the
pending charges were properly excluded.
[16] With regard to the C.I.’s prior convictions for possession of a controlled
substance, criminal mischief, possession of marijuana and paraphernalia, and
possession of marijuana, none of these convictions falls within the list of those
convictions admissible under Evidence Rule 609(a), i.e., none of the prior
convictions were for “murder, treason, rape, robbery, kidnapping, burglary,
arson, or criminal confinement,” or an attempt to commit those crimes, nor are
they crimes of dishonesty. See Pierce v. State, 640 N.E.2d 730, 732 (Ind. Ct. App.
1994) (holding a prior conviction of dealing cocaine could not be used to
impeach a witness because it is not one of the “infamous crimes” enumerated in
Evidence Rule 609(a) and was not a crime of dishonesty), trans. denied (citing
Johnston v. State, 517 N.E.2d 397 (Ind. 1988) (holding that drug offenses are not
included in the list of impeachable offenses)); Williams v. State, 724 N.E.2d
1070, 1082 (Ind. 2000) (holding that criminal mischief is not included among
the crimes admissible under Evidence Rule 609(a)). Accordingly, reference to
the C.I.’s prior convictions for possession of marijuana, possession of a
controlled substance, possession of paraphernalia, and criminal mischief was
clearly impermissible under Evidence Rule 609(a).
[17] Nevertheless, Childers argues that the trial court should have permitted him to
show bias on the part of the C.I. by using these prior convictions, claiming that
this prevented him from exercising his constitutional right to cross-examine the
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State’s witness. As our courts have repeatedly explained that although a
defendant has a constitutional right to confront and cross-examine witnesses:
[t]he right to cross examination . . . is not absolute. [T]he
Confrontation Clause guarantees an opportunity for effective
cross-examination, not cross-examination that is effective in
whatever way, and to whatever extent, the defense might wish.
Furthermore, the right to confront witnesses may, in appropriate
cases, bow to accommodate other legitimate interests in the
criminal trial process.
Alvarado v. State, 89 N.E.3d 442, 445–46 (Ind. Ct. App. 2017), trans. denied
(citations and internal quotation marks omitted).
[18] Here, even though he was not able to introduce evidence regarding all of the
C.I.’s prior convictions, Childers was nevertheless able to introduce evidence of
the C.I.’s prior conviction for conversion. Both rulings are consistent with the
Indiana Rules of Evidence. Childers was also able to establish the C.I.’s bias by
showing that the C.I. was cooperating in the present case in exchange for more
favorable treatment in the November 2017 charges against him. We therefore
reject Childers’s claim that he was denied the right to cross-examine the C.I.6
6
Even assuming arguendo that the trial court erred by excluding this evidence, Childers would not prevail.
Violations of the right of cross-examination do not require reversal if the State can show beyond a reasonable
doubt that the error did not contribute to the verdict. Hall v. State, 36 N.E.3d 459, 468 (Ind. 2015). When
determining whether an error is harmless beyond a reasonable doubt, we review the whole record and
consider factors such as: the importance of the witness’s testimony in the prosecution’s case, whether the
testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony
of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the
overall strength of the State’s case. Id. (citing Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986)). Here, the
C.I.’s testimony was important, but it was also somewhat cumulative, as Detective Stephenson witnessed
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See Stephenson v. State, 742 N.E.2d 463, 486–87 (Ind. 2001) (holding that trial
court’s exclusion of evidence regarding witness’s seventeen-year-old robbery
conviction pursuant to Evidence Rule 609(b) did not deny the defendant’s right
to cross-examination, where defendant was still able to thoroughly cross-
examine the witness and impeach his credibility in other ways); Beaty v. State,
856 N.E.2d 1264, 1270 (Ind. Ct. App. 2006), trans. denied (holding that trial
court did not abuse its discretion by excluding evidence of witness’s prior thefts
where jury was well aware of the witness’s bias and desire to curry favor with
the State because details of his plea agreement were admitted and some
evidence of the witness’s prior misconduct was placed before the jury).
Conclusion
[19] The trial court properly excluded evidence of the C.I.’s prior convictions for
possession of marijuana, possession of a controlled substance, possession of
paraphernalia, and criminal mischief. And the court’s limitation of Childers’s
cross-examination of the C.I. regarding these prior offenses did not
much of the controlled buy, and an audio recording of the controlled buy was admitted into evidence.
Moreover, the State’s case was particularly strong given the Detective’s eyewitness testimony, the audio
recording, and the marijuana found on the C.I. after the controlled buy. The trial court also allowed
extensive cross-examination of the C.I. regarding his deal with the State in exchange for his testimony and
even allowed evidence of his prior conviction for conversion. Thus, further impeaching the C.I.’s credibility
with evidence of his prior convictions would not have added much to the equation. We therefore conclude
that, even assuming error in the trial court’s decision, any error would be harmless beyond a reasonable
doubt.
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unconstitutionally impinge on Childers’s right to cross-examine the C.I. We
therefore affirm the judgment of the trial court.
[20] Affirmed.
May, J., and Brown, J., concur.
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