MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any
Nov 17 2016, 7:38 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Matthew J. McGovern Gregory F. Zoeller
Anderson, Indiana Attorney General of Indiana
George P. Sherman
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Kenneth W. Kee, November 17, 2016
Appellant-Defendant, Court of Appeals Case No.
22A05-1512-CR-2151
v. Appeal from the Floyd Superior
Court
State of Indiana, The Honorable Maria D. Granger,
Appellee-Plaintiff Judge
Trial Court Cause No.
22D03-1503-F4-496
Mathias, Judge.
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[1] Kenneth Kee was convicted in Floyd Superior Court of two counts of Level 4
dealing in methamphetamine. He was also adjudicated a habitual offender.
Kee appeals his conviction and raises three issues, which we restate as:
I. Whether Kee’s right to a speedy trial was violated;
II. Whether Kee was prejudiced when a police officer was allowed to testify
that he knew Kee prior to his arrest because of other narcotic
investigations; and
III. Whether the State presented sufficient evidence to prove the weight of
the methamphetamine.
We affirm.
Facts and Procedural History
[2] In February 2015, Devan Philpott (“Philpott”) was arrested for possession of
methamphetamine by the Clarksville Police Department. Philpott asked to
become a confidential informant, and he was released from custody. On
February 23, 2015, he was interviewed by Indiana State Police Detective Barry
Brown (“Detective Brown”). Philpott identified Kee as his dealer, and
Detective Brown arranged a controlled buy between Philpott and Kee.
[3] Philpott and Kee agreed to meet at a Meijer store in New Albany. Philpott was
given $500 in buy money and told to make the exchange in the Meijer parking
lot. Philpott’s person and vehicle were searched, and he was equipped with a
recording device.
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[4] When Kee arrived, Philpott went inside the Meijer store with him. Eventually,
they went into a store bathroom where Kee left two baggies of
methamphetamine in a stall. Philpott retrieved the baggies as directed. He then
gave Kee $500: $240 for the two baggies of methamphetamine and $260 for a
prior debt.
[5] Next, Kee instructed Philpott to meet him at a gas station in New Albany
where he would give him more methamphetamine. At the gas station, Kee
threw another baggie into Phipott’s vehicle. Later testing revealed that the
combined weight of the three baggies of methamphetamine was 1.94 grams.
[6] Law enforcement officers arranged a second controlled buy on February 27,
2015. Once again, before the buy, the officers searched Philpott’s person and
vehicle. Philpott was given $260, and he was equipped with a recording device.
This time, Philpott met Kee in the driveway of Kee’s residence. Kee gave
Philpott three baggies containing methamphetamine in exchange for $260.
Later testing revealed the baggies contained a total of 1.59 grams of
methamphetamine.
[7] Kee was subsequently charged with two counts of Level 4 felony dealing in
methamphetamine. The State also alleged that Kee was a habitual offender.
Kee filed a speedy trial request, which was granted and trial was set for May 26,
2015. The State later requested a continuance under Criminal Rule 4(D) and
argued that certain evidence from the State Police Lab could not be obtained
before the trial date. Kee objected to the continuance. After a hearing was held
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on the motion, the trial court granted the motion and continued the trial to
August 25, 2015.
[8] Prior to trial, Kee again filed a motion for discharge arguing that he had been
denied his right to a speedy trial. The court denied the motion, and Kee’s four-
day jury trial commenced on August 25, 2015. He was found guilty as charged
on the dealing counts. On August 31, 2015, the habitual offender phase of trial
was held, and the jury determined that Kee was a habitual offender. At the
sentencing hearing held on November 6, 2015, the trial court ordered Kee to
serve an aggregate twenty-year sentence. Kee now appeals. Additional facts
will be provided as necessary.
I. Speedy Trial
[9] Kee moved for a speedy trial pursuant to Criminal Rule 4(B). This rule provides
in relevant part that:
If any defendant held in jail on an indictment or an affidavit shall
move for an early trial, he shall be discharged if not brought to
trial within seventy (70) calendar days from the date of such
motion, except where a continuance within said period is had on
his motion, or the delay is otherwise caused by his act, or where
there was not sufficient time to try him during such seventy (70)
calendar days because of the congestion of the court calendar.
Ind. Crim. R. 4(B).
[10] However, Criminal Rule 4(D) permits the State to request a continuance of the
70-day rule. Specifically, Criminal Rule 4(D) provides that a trial court may
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grant the State a continuance when it is satisfied that: (1) there is evidence for
the State that cannot then be had, (2) reasonable effort has been made by the
State to procure the evidence, and (3) there is just ground to believe that such
evidence can be had within ninety days. Chambers v. State, 848 N.E.2d 298, 303-
04 (Ind. Ct. App. 2006). Any exigent circumstances may warrant a reasonable
delay beyond the limitations of Criminal Rule 4. Id. at 304. The reasonableness
of such delay should be judged in the context of the particular case, and the
decision of the trial judge will not be disturbed except for an abuse of discretion.
Id. “‘Rule 4(D) does not mandate the evidence be essential or unique, only that
it be unavailable and that the State be entitled to present it.’” Wilhelmus v. State,
824 N.E.2d 405, 413 (Ind. Ct. App. 2005) (quoting Smith v. State, 502 N.E.2d
485, 488 (Ind. 1987)). The purpose of Criminal Rule 4(B) is to assure criminal
defendants speedy trials, not to provide them with a technical means of
avoiding trial. Id. at 412.
[11] The State requested a continuance of the May 2015 trial date because the
Indiana State Police Laboratory wanted additional DNA samples from the
possible participants of the controlled buy to conduct further analysis of the
baggies. The State was attempting to obtain the additional, requested DNA
samples when it filed its May 8 motion to continue the May 26 trial date. The
State also stated that the State Police Lab would need additional time to
conduct its DNA analysis. The State hoped the evidence would establish that
Kee handled the baggies because the video evidence did not establish that he
actually possessed them. Tr. p. 21.
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[12] It was within the trial court’s discretion to determine whether the State had
attempted to procure the evidence at issue but had not been able to do because
of time constraints. The State Police Lab was unable to perform the requested
analysis without additional DNA samples that the State needed time to
procure. The State Police Lab performed the additional analysis once the
samples were obtained. The State established that it did not have an
opportunity to obtain the evidence within the parameters established by
Criminal Rule 4(B). For these reasons, we conclude that the trial court properly
continued Kee’s trial pursuant to Criminal Rule 4(D).
II. Character Evidence
[13] Next, we address Kee’s claims that he was denied a fair trial because Detective
Brown testified that Kee was known to law enforcement officers prior to the
events that occurred in this case. Specifically, during Kee’s re-cross examination
of Detective Brown, Kee referenced the detective’s earlier testimony that he was
familiar with Kee before Philpott asked to be a confidential informant.
KEE: [H]ow did you become familiar with Kenny?
DETECTIVE: I knew him before. Once . . . the CI told me his
name, I can go into that if you wish.
KEE: I would like that because you said earlier that you didn’t
know anything about Kenny but . . . the confidential informant
brought him to you.
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DETECTIVE: I knew who Kenny Kee was . . . from past, uh,
knowing other narcotics officers and their dealings with Mr. Kee,
that’s how I was familiar with him.
KEE: But you never tried to arrest him in the past?
DETECTIVE: No, I did not.
Tr. pp. 457-58.
[14] After Detective Brown’s testimony, Kee asked for a mistrial. The State argued
that Kee was not entitled to a mistrial because he elicited the testimony. The
trial court denied the motion for a mistrial but did admonish the jury that the
jurors should not consider Detective Brown’s testimony concerning how he
knew Kee and struck the testimony from the record. Tr. pp. 463-64.
[15] It is well-settled that a defendant may “open the door” to the admission of
evidence otherwise inadmissible under the rules of evidence. See Jackson v. State,
728 N.E.2d 147, 152 (Ind. 2000). Grounded in estoppel, the doctrine of invited
error provides “a party may not take advantage of an error that she commits,
invites, or which is the natural consequence of her own neglect or misconduct.”
Wright v. State, 828 N.E.2d 904, 907 (Ind. 2005). In other words, “[d]efendants
cannot complain of errors that they induced the trial court to make; a party may
not invite error and then rely on such error as a reason for reversal, because
error invited by the complaining party is not reversible error.” Berry v. State, 574
N.E.2d 960, 963 (Ind. Ct. App. 1991), trans. denied; see also Cole v. State, 970
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N.E.2d 779, 783 (Ind. Ct. App. 2012) (stating that we will not reverse a
conviction on the basis of invited error).
[16] Kee invited error by eliciting the testimony at issue, and then requested a
mistrial after he introduced the error into the proceedings. The trial court
appropriately denied Kee’s motion. Also, recognizing the potentially prejudicial
nature of the detective’s testimony, the trial court admonished the jury and
struck the testimony from the record.1 A timely and accurate admonition is
presumed to cure any error in the admission of evidence. Banks v. State, 761
N.E.2d 403, 405 (Ind. 2002).
[17] Kee also failed to object to Detective Brown’s testimony during direct
examination that he was familiar with Kee. Tr. pp. 134, 292, 302. Specifically,
Detective Brown stated that when Philpott approached him about becoming a
confidential informant, Philpott “mentioned the name Kenneth Kee, who I was
familiar with” and that he was “familiar with Mr. Kee prior to the drug
transaction.” Tr. pp. 134, 292. Because Kee failed to object to these statements,
he did not preserve this issue for appeal. However, a claim waived by a
defendant's failure to object can be reviewed on appeal under the fundamental
error doctrine. See Delarosa v. State, 938 N.E.2d 690, 694 (Ind. 2010).
1
When the court admonished the jury, it mistakenly referred to Detective Brown’s testimony concerning
how he knew “Philpott.” The reference to Philpott was a simple misstatement, and in the context in which
the admonition was given, we are confident the jury knew the trial court meant to refer to Kee.
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[18] “Fundamental error is an extremely narrow exception to the waiver rule where
the defendant faces the heavy burden of showing that the alleged errors are so
prejudicial to the defendant's rights as to make a fair trial impossible.” Ryan v.
State, 9 N.E.3d 663, 668 (Ind. 2014) (citation and internal quotation marks
omitted). The error must be “so egregious and abhorrent to fundamental due
process” that the trial judge should have acted, “irrespective of the parties’
failure to object or otherwise preserve the error for appeal.” Whiting v. State, 969
N.E.2d 24, 34 (Ind. 2012).
[19] Detective Brown’s vague testimony that he was familiar with Kee did not
prejudice Kee to the extent to deny him a fair trial, particularly when this
testimony is considered against the weight of the evidence that Kee committed
dealing in methamphetamine. For all of these reasons, we conclude that Kee
has not established reversible error concerning Detective Brown’s challenged
testimony that he knew Kee prior to the commission of these offenses.
III. Weight of the Methamphetamine
[20] Finally, Kee argues that the State failed to present sufficient evidence that Kee
committing dealing in methamphetamine weighing at least one gram but less
than five grams because the State failed to prove that the scale used to weigh the
drug was tested for accuracy. When reviewing the sufficiency of the evidence to
support a conviction, appellate courts are “markedly deferential to the outcome
below.” Bowman v. State, 51 N.E.3d 1174, 1181 (Ind. 2016). Our court neither
reweighs the evidence nor judges the credibility of the witnesses, and we
consider only the evidence most favorable to the verdict and the reasonable
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inferences that can be drawn from this evidence. Knight v. State, 42 N.E.3d 990,
993 (Ind. Ct. App. 2015). We will not disturb the jury’s verdict if substantial
evidence of probative value supports it. Id. As an appellate court, we respect the
jury’s exclusive province to weigh conflicting evidence. Id.
[21] Although the State bears the burden to establish that the scale used to measure
the weight of the methamphetamine was properly calibrated, the accuracy of
the scale used to weigh the methamphetamine is foundational evidence. See
Turner v. State, 878 N.E.2d 286, 294 (Ind. Ct. App. 2007), trans. denied; Guadian
v. State, 743 N.E.2d 1251. 1255 (Ind. Ct. App. 2001), trans. denied (explaining
“in other words, the scale’s accuracy is foundational evidence; it is not an
element of the crime”).
[22] “When the foundation for the admission of evidence is at issue, this court has
determined that before the prosecution has any responsibility to establish the
foundation, the defense must object that the prosecution has not laid the proper
foundation.” Turner, 878 N.E.2d at 294.
“[A] defendant may not sit idly by while error is committed and
later take advantage of it, where a proper objection made at trial
could have corrected the error. . . . Had objection been made to
the lack of a proper foundation in this case, such foundation
could then have been supplied.”
Guadian,743 N.E.2d at 1254 (quoting Mullins v. State, 646 N.E.2d 40, 48 (Ind.
1995)).
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[23] Because Kee failed to object to admission of the evidence establishing the
weight of the methamphetamine, the trial court properly admitted the evidence
even though the State failed to elicit testimony about the calibration of the
scale. See Turner, 878 N.E.2d at 294.
[24] The weight of the methamphetamine at issue in this case is important because
Kee was charged with two counts of Level 4 felony dealing in
methamphetamine in a weight between one gram but less than five grams. See
Ind. Code 35-48-4-1.1; Appellant’s App. pp. 27. The weight of the baggies was
1.94 grams of methamphetamine and 1.59 grams of methamphetamine,
respectively.
[25] The weight of the methamphetamine would not have been readily apparent to
the jury, and specifically that the weight was between one gram and five grams.
Therefore, the only evidence to establish the weight of the methamphetamine
was the testimony and certificate of analysis admitted during the State Police’s
forensic scientist’s testimony. However, Kee only speculates that the weight of
the methamphetamine might not have been at least one gram. Also, the forensic
scientist, who has over thirty years of experience, explained how the
methamphetamine was weighed. Tr. pp. 577-82. For these reasons, we
conclude that the jury could reasonably infer that the State presented sufficient
evidence to prove that the weight of the methamphetamine for both offenses
was over one gram.
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Conclusion
[26] Kee has not established any reversible error concerning his right to a speedy
trial, Detective Brown’s testimony, and his claim that the State failed to prove
the weight of the methamphetamine at issue. We therefore affirm his two Level
4 felony dealing in methamphetamine convictions.
[27] Affirmed.
Robb, J., and Brown, J., concur.
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