ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JEFFREY H. FRANDSEN KAREN FREEMAN-WILSON
Zionsville, Indiana Attorney General of Indiana
TIMOTHY W. BEAM
Deputy Attorney General
COURT OF APPEALS OF INDIANA
JASON E. DOTY, )
vs. ) No. 06A01-9909-CR-308
STATE OF INDIANA, )
APPEAL FROM THE BOONE SUPERIOR COURT
The Honorable Ora A. Kincaid, III, Judge
Cause No. 06D01-9810-CF-100
June 22, 2000
OPINION - FOR PUBLICATION
Appellant-Defendant Jason E. Doty (Doty) was convicted after a trial by jury of
Dealing in Cocaine within 1,000 feet of school property, a class A felony.
Doty now appeals his conviction.See footnote We reverse and remand with instructions.
Doty raises four issues on appeal, of which we find the following three
I. Whether the State established a proper chain of custody for the admission of
States Exhibit Two (cocaine) into evidence.
II. Whether the trial court erred when it excluded testimony on the ground it
III. Whether there was sufficient evidence to determine beyond a reasonable doubt that Doty
dealt cocaine within 1,000 feet of school property.See footnote
Facts and Procedural History
The facts most favorable to the verdict indicate that Scott Muncie (Muncie) approached
Boone County Deputy Sheriff Albert Hendrix (Officer Hendrix) about becoming a confidential informant.
Officer Hendrix gave Muncies name to Indiana State Police Detective Troy Knorr
(Detective Knorr) as a person who could conduct controlled narcotics buys. On June 16,
1998, Officer Hendrix and Detective Knorr picked up Muncie to attempt a controlled
buy of narcotics. Detective Knorr searched Muncie for contraband, supplied him with
a wire transmitter, and gave Muncie purchase money. Detective Knorr then drove
Muncie to Dotys house. Muncie walked up to Dotys house and knocked
on the door, but no one responded. As Muncie was walking away,
Doty approached the house. Muncie asked Doty if he knew where he
could get some cocaine or marijuana. Doty explained that he had some
cocaine, but did not have any marijuana. Doty then said, lets take
a walk. Doty and Muncie walked to a nearby trailer park.
At the trailer park, Muncie purchased a quarter of an ounce of marijuana
from Jay Alford (Alford). Doty and Muncie then walked back to Dotys
Upon entering Dotys house, Muncie told Doty that he wanted to purchase a
gram of cocaine, but would take half of a gram if that was
all Muncie had. Doty retrieved cocaine from a bedroom dresser and eyeballed
half of a gram. Wendall Iddings (Iddings) then knocked on Dotys front
door. While Iddings waited on the couch, Muncie went back into the
bedroom and paid Doty fifty dollars for the cocaine.
Muncie then left Dotys residence and walked back to meet Detective Knorr.
Muncie handed the marijuana and cocaine to Detective Knorr and explained that he
had purchased the cocaine from Doty, and the marijuana from Alford. Detective
Knorr searched Muncie for additional contraband. Detective Knorr placed the cocaine (catalogued
at trial as States Exhibit Two) in a plastic bag bearing his name,
the case number, the date, and Dotys name. Detective Knorr kept the
cocaine in a locked drawer at his office until he turned the cocaine
over to the Indiana State Police Lab (Police Lab) for testing and storage.
Detective Knorr checked out States Exhibit Two on the day prior to
trial. At trial, Doty objected to States Exhibit Two being admitted into
evidence, asserting that the State had failed to establish the proper chain of
custody. The trial court overruled Dotys objection and admitted the cocaine into
evidence. Indiana State Crime Lab chemist Donna Raskowski testified that States Exhibit
Two contained .26 grams of cocaine.
At trial, the director of Pixie Playhouse Day Care Center (Pixie Playhouse), Rebecca
Miller (Miller), testified that Pixie Playhouse was a licensed childcare center. Additionally,
Miller testified that Pixie Playhouses play area was enclosed by a fence.
Officer Campbell testified that the distance from the outside corner of Dotys residence
to within the property line of Pixie Playhouse was 987 feet. Officer
Campbell used a measuring wheel to establish this distance. Officer Campbell periodically
checked the accuracy of this measuring wheel.
Iddings testified that he saw Muncie using cocaine in Dotys house and had
asked if he could purchase some. Thereafter, the testimony proceeded as follows:
Q: [Counsel for Doty] Whatd he [Muncie] tell you?
[Counsel for State]: Objection to what Muncie told him. Hes not a party
and its hearsay.
The Court: All right, sustained.
Q: Did someone say something about where the cocaine had been purchased?
A: Yes, they did.
Q: What was said?
[Counsel for State]: Objection again. Thats just hearsay with an unidentified component.
[The Court]: Sustained.
Discussion and Decision
Doty responded that the statement was not being used to prove the truth
of the matter asserted and made an offer to prove. Outside the
presence of the jury, Iddings testified that Muncie had said the cocaine was
for personal use. Iddings further testified that Doty stated Jay is the
ones that gots it and Muncie nodded his head. Doty explained to
the court that he was only presenting Iddingss testimony to establish that Muncie
heard the statement and to show Muncies response. The trial court maintained
its previous rulings.
Following the jurys guilty verdict, the trial court entered final judgment against Doty
for Dealing in Cocaine within 1,000 feet of school property as a class
A felony. The trial court sentenced Doty to forty years in the
Department of Corrections, with twenty years executed and twenty years suspended on probation.
This appeal followed.
I. Whether the State established a proper chain of custody for the
admission of States Exhibit Two (cocaine) into evidence
At trial, Doty objected to the admission of States Exhibit Two stating that
the State had failed to provide a sufficient chain of custody. The
trial court overruled Dotys objection and admitted the evidence. On appeal, Doty
argues that the admission of the cocaine was erroneous because there was no
testimony from Muncie that the cocaine he delivered to Detective Knorr was in
the same unadulterated condition as when it came into Muncies possession.
A. Standard of Review - Chain of Custody
The admission or exclusion of evidence is within the sound discretion of the
trial court. Strangeway v. State, 720 N.E.2d 724, 726 (Ind. Ct. App.
1999). When considering the proper chain of custody for physical evidence, the
State must provide reasonable assurances that an exhibit, which has passed through various
hands, has remained undisturbed. Lee v. State, 689 N.E.2d 435, 439 (Ind.
1997). It is sufficient if the State presents evidence which strongly suggests
the exact whereabouts of the evidence at all times. Id. (quoting Bell
v. State, 610 N.E.2d 229, 233 (Ind. 1993)). When dealing with fungible
items, the State has an enhanced burden of demonstrating a sufficient chain of
custody. Robinson v. State, 724 N.E.2d 628, 640 (Ind. Ct. App. 2000)
trans. denied. A defendant who challenges the chain of custody must present
evidence which does more than raise a mere possibility that the evidence could
have been tampered with. McCotry v. State, 722 N.E. 2d 1265, 1267
(Ind. Ct. App. 2000) trans. denied. Any gaps in the chain of
custody go to the weight of the evidence and not to the admissibility
of the evidence. Id. Moreover, when the evidence is handled by
public officers, there is a presumption that they used due care and that
the evidence was handled with regularity. Id.
B. Analysis - Chain of Custody Regarding States Exhibit Two (Cocaine)
Here, the facts most favorable to the verdict reveal that on June 16,
1998, Detective Knorr searched Muncie for contraband, supplied him with a wire transmitter,
and gave him purchase money to attempt a controlled narcotics purchase. Thereafter,
Muncie met Doty outside of Dotys house, and they both proceeded to walk
to a nearby trailer park. At the trailer park, which was outside
the range of the wire transmitter and the sight of Detective Knorr, Muncie
purchased marijuana from Alford. However, both Muncie and Alford testified regarding this
marijuana transaction and denied that any cocaine was exchanged. Muncie and Doty
then returned to Dotys house, which was within the range of the wire
transmitter. Upon entering Dotys house, Muncie told Doty that he wanted to
purchase a gram of cocaine, but would take half of a gram if
that was all Muncie had. Doty retrieved cocaine from a bedroom dresser
and eyeballed half of a gram. (R. 214.) Muncie paid Doty
fifty dollars for the cocaine. Muncie then walked back to meet Detective
Knorr. Muncie handed the marijuana and cocaine to detective Knorr and explained
that the cocaine came from Doty, and the marijuana came from Alford.
Upon searching Muncie, Detective Knorr found no additional contraband.
Detective Knorr placed the cocaine in a plastic bag bearing his name, the
case number, the date, and Dotys name. Detective Knorr kept the cocaine
in a locked drawer at his office until he turned the cocaine over
to the Police Lab for testing and storage. The chemist for the
Police Lab testified to the manner in which she received the cocaine and
how it was handled, stored and returned to Detective Knorr. Detective Knorr
checked out States Exhibit Two on the day prior to trial. At
trial, Detective Knorr identified States Exhibit Two as the same plastic baggie he
had received from Muncie on June 16, 1998.
The above-recited evidence provides reasonable assurance that the cocaine remained undisturbed as it
passed from Doty to Muncie and then to Detective Knorr. Moreover, the
evidence strongly suggests the exact whereabouts of the cocaine from the time it
came into Detective Knorrs possession until it was admitted at trial. Doty
seeks to have this Court reweigh the evidence, such as Detective Knorrs inability
to constantly monitor Muncie and the weight of the cocaine delivered by Muncie,
which we will not do. Doty has failed to establish that the
State laid an inadequate foundation for the admission of States Exhibit Two.
II. Whether the trial court abused its discretion when it excluded testimony
on the grounds of hearsay
Doty next contends that the trial court committed reversible error when it disallowed
testimony from Iddings regarding statements made by Muncie. Specifically, Doty argues that
the excluded testimony was not hearsay, as it was not offered to prove
the truth of the matter asserted.
The decision to admit or exclude evidence is within the sound discretion of
the trial court, and we will not reverse absent an abuse of that
discretion. Maslin v. State, 718 N.E.2d 1230, 1234 (Ind. Ct. App. 1999)
trans. denied. Hearsay is a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in evidence to prove
the truth of the matter asserted. Ind. Evidence Rule 801(c); Smith v.
State, 721 N.E.2d 213, 216 (Ind. 1999). A statement is not hearsay
if it is not used to prove the matter asserted. Id. at
216. If challenged evidence is hearsay and does not fall within one
of the exceptions to the hearsay rule, then it is inadmissible. Whited
v. State, 645 N.E.2d 1138, 1139 (Ind. Ct. App. 1995).
Doty complains that the trial court improperly refused to let Iddings testify that
he heard Doty say, Jay is the ones [sic] that gots [sic] it
and that he saw Muncie nod his head. (R. 444.) Doty
argues that he was only presenting Iddingss testimony to establish that Muncie heard
the statement and to show its effect upon Muncie, and, as such the
elicited testimony was not hearsay. Doty fails to cite caselaw, nor do
we find any, which would support this contention. The only reasonable interpretation
of the disallowed testimony is that it was proffered to prove the truth
of the matter asserted, namely that Muncie obtained the cocaine from Jay Alford,
not Doty. Accordingly, the trial court did not abuse its discretion in
excluding Iddingss testimony.
III. Whether there was sufficient evidence to determine beyond a reasonable doubt
that Doty dealt cocaine within 1,000 feet of school property
A. Standard of Review - Sufficiency of the Evidence
Our standard of review for challenging the sufficiency of evidence claims is firmly
established. This Court does not reweigh the evidence or judge the credibility
of witnesses, rather we look to the evidence most favorable to the verdict
and to all reasonable inferences to be drawn therefrom. Toney v. State,
715 N.E.2d 367, 368 (Ind. 1999). We will affirm a conviction if
the admitted evidence contains adequate probative value from which the jury could infer
guilt beyond a reasonable doubt. Id. at 368-69. It is the
function of the fact-finder to resolve conflicts in the testimony and to determine
the weight of the evidence and the credibility of the witnesses. Krise
v. State, 718 N.E.2d 1136, 1144 (Ind. Ct. App. 1999), trans. denied.
B. Analysis - Dealing in Cocaine Within 1,000 Feet of School Property
In the instant case, Doty argues that there was inadequate evidence of the
distance from the site of the alleged offenses to school property[.] (Appellants
brief at 10.) We agree.
The States evidence reveals that the distance from Pixie Playhouse to the edge
of Dotys residence is 987 feet. However, the cocaine transaction took place
inside Dotys residence. Indiana Code section 35-48-4-1(b)(3)(B)(i) provides, in part, that when
a person delivers cocaine in, on, or within one thousand (1,000) feet of:
. . . school property the offense is a class A felony.
Therefore, the appropriate points of measurement needed to determine whether Dotys delivery of
cocaine to Muncie took place in, on, or within one thousand (1,000) feet
of school property are: (1) the specific site of the cocaine delivery, and
(2) the edge of Pixie Playhouses property. Moreover, we reject the States
argument that it may be inferred from Indiana caselaw interpreting Indiana Code section
35-48-4-1(b)(3)(B)(i) that the State needed only to establish the distance from Dotys residence,
as opposed to the location of the cocaine sale, to the school property.
There is no evidence in the record that Officer Campbells measurement of 987
feet contained the site of the cocaine delivery, and as such the State
has failed to present sufficient evidence from which the jury could find beyond
a reasonable doubt that Doty dealt cocaine within 1,000 feet of Pixie Playhouse.
Consequently, we reverse Dotys conviction for Dealing in Cocaine within 1,000 feet
of school property as a class A felony, and remand with instructions that
the trial court enter judgment on the lesser included offense of Dealing in
Cocaine as a class B felony, and sentence him accordingly.
Affirmed in part, reversed in part, and remanded with instructions.
SULLIVAN, J., and VAIDIK, J., concur.
See Ind. Code § 35-48-4-1(b)(3)(B)(i).
Doty was charged with both Dealing in Cocaine within 1,000 feet
of school property and Possession of Cocaine within 1,000 feet of school property.
The jury returned a verdict of guilty on both charges. However,
the trial court entered judgment solely on the Dealing in Cocaine charge.
Additionally, Doty raises the issue of whether the trial court improperly
instructed the jury that it was not necessary for the State to prove
knew he was within 1,000 feet of school property. However,
because we reverse Dotys conviction for Dealing in Cocaine as a class A
felony on other grounds we need not address this issue.
Doty makes much of the fact that Muncie testified to requesting
and purchasing one-half of a gram of cocaine yet the weight of the
cocaine at trial was .26 grams. However, given both the imprecise process
of eyeballing one half of a gram and our restraint on appeal from
reweighing the evidence, we decline Dotys invitation to reassess Muncies credibility and reweigh
the States evidence. Moreover, any discrepancy between the amount of cocaine purchased
from Doty and the amount presented at trial is a factor that does
no more than raise the possibility of tampering and, accordingly, fails.
Footnote: Moreover, we summarily reject Dotys additional contentions that the proffered testimony
was not hearsay because it was being offered for impeachment purposes, was made
by a party opponent, or that it was excepted from the hearsay rule
because it was a present sense impression. None of these arguments were
presented to the trial court and as such were not preserved for appeal.
Doty is limited to the specific grounds argued at the trial court
and cannot assert new bases for admissibility for the first time on appeal.
See Taylor v. State, 710 N.E.2d 921, 923 (Ind. 1999).
Specifically, we reject the States reliance on Krise, 718 N.E.2d at
1145 and Dixon v. State, 712 N.E.2d 1086, 1093 (Ind. Ct. App. 1999)
for the proposition that the State need only measure to the property site
of the drug delivery. In Krise, the appellant argued that the States
evidence was insufficient to sustain her conviction of possession of a schedule II
controlled substance within 1,000 feet of a public park. However, Krises specific
contention was that the surveyor lacked personal knowledge of the distance between Krises
home and the park, not that the surveyor failed to measure from the
site of her possession of the controlled substance. Moreover, Krises home, as
measured with a plat map, was 870 feet from the park and accordingly
did not present the same concerns as the case before us. Similarly,
in Dixon, 712 N.E.2d at 1093, we simply held that a surveyors testimony
that a middle school was located approximately 650 feet from appellants residence (the
site of the drug transaction), based on his measurements from a tax map,
was sufficient evidence to support the dealing in cocaine conviction because there, the
State presented evidence that the drug transaction took place within 1,000 feet of
school property. Accordingly, we find the States reliance on Krise and Dixon