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.




Court of Appeals of Indiana | Memorandum Decision 16A01-1707-CR-1525 | December 27, 2017       Page 1 of 15
                                              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.


      Court of Appeals of Indiana | Memorandum Decision 16A01-1707-CR-1525 | December 27, 2017           Page 2 of 15
      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


      Court of Appeals of Indiana | Memorandum Decision 16A01-1707-CR-1525 | December 27, 2017   Page 3 of 15
      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.

      Court of Appeals of Indiana | Memorandum Decision 16A01-1707-CR-1525 | December 27, 2017      Page 4 of 15
       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.


       Court of Appeals of Indiana | Memorandum Decision 16A01-1707-CR-1525 | December 27, 2017   Page 5 of 15
[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.

       Court of Appeals of Indiana | Memorandum Decision 16A01-1707-CR-1525 | December 27, 2017        Page 6 of 15
       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.

       Court of Appeals of Indiana | Memorandum Decision 16A01-1707-CR-1525 | December 27, 2017   Page 7 of 15
                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)).

       Court of Appeals of Indiana | Memorandum Decision 16A01-1707-CR-1525 | December 27, 2017            Page 8 of 15
               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
       Court of Appeals of Indiana | Memorandum Decision 16A01-1707-CR-1525 | December 27, 2017   Page 9 of 15
       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

       Court of Appeals of Indiana | Memorandum Decision 16A01-1707-CR-1525 | December 27, 2017         Page 10 of 15
       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.

       Court of Appeals of Indiana | Memorandum Decision 16A01-1707-CR-1525 | December 27, 2017        Page 11 of 15
       [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.


       Court of Appeals of Indiana | Memorandum Decision 16A01-1707-CR-1525 | December 27, 2017   Page 12 of 15
        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).




Court of Appeals of Indiana | Memorandum Decision 16A01-1707-CR-1525 | December 27, 2017   Page 13 of 15
[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



       Court of Appeals of Indiana | Memorandum Decision 16A01-1707-CR-1525 | December 27, 2017   Page 14 of 15
       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.




       Court of Appeals of Indiana | Memorandum Decision 16A01-1707-CR-1525 | December 27, 2017   Page 15 of 15
