MEMORANDUM DECISION
                                                                May 26 2015, 8:26 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Kimberly A. Jackson                                      Gregory F. Zoeller
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         Michael Gene Worden
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Emmanuel Joseph Cain,                                    May 26, 2015

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         53A01-1406-CR-242
        v.                                               Appeal from the Monroe Circuit
                                                         Court
State of Indiana,                                        The Honorable Marc R. Kellams,
Appellee-Plaintiff.                                      Judge

                                                         Cause No. 53C02-1308-FB-797




Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 53A01-1406-CR-242 | May 26, 2015     Page 1 of 10
                                       Statement of the Case
[1]   Emmanuel Joseph Cain appeals his convictions for two counts of Dealing in

      Cocaine, each as a Class B felony,1 following a jury trial. Cain presents three

      issues for our review:

                 1.       Whether the trial court committed fundamental error
                          when it admitted recordings of Cain’s drug transactions
                          and testimony regarding those recordings;


                 2.       Whether the State presented sufficient evidence to support
                          Cain’s convictions; and


                 3.       Whether Cain’s twenty-year sentence is inappropriate
                          under Indiana Appellate Rule 7(B).


[2]   We affirm.


                                   Facts and Procedural History
[3]   On July 18, 2013, confidential informant C.H. contacted Bloomington Police

      Department Detective Erich Teuton. Detective Teuton arranged to have C.H.

      buy drugs from Cain at a hotel in Bloomington and met her there at 8:30 p.m.

      Detective Teuton searched C.H. for drugs and money, and he provided her

      with a video recording device and money to buy drugs. C.H. then bought two




      1
          Ind. Code § 35-48-4-1.


      Court of Appeals of Indiana | Memorandum Decision 53A01-1406-CR-242 | May 26, 2015   Page 2 of 10
      half-gram bags of crack cocaine from Cain. The resulting buy video was of

      poor quality, and C.H. had entered another room before locating Cain.


[4]   In order to obtain better quality, recorded evidence, C.H. and Detective Teuton

      conducted two similar controlled buys from Cain the following day, this time

      using a different recording device. The first buy on July 19 yielded two bags

      containing .27 grams and .19 grams of crack cocaine, and the second buy

      yielded two more bags containing .27 and .23 grams of crack cocaine. The

      Indiana State Crime Lab tested the larger bags from each buy and confirmed

      that both contained a cocaine base.


[5]   On August 15, 2013, the State charged Cain with three counts of dealing in

      cocaine, all as Class B felonies, each of which related to one of the three sales of

      crack cocaine that transpired on July 18 and 19. At his ensuing jury trial on

      April 14, 2014, the trial court admitted into evidence the video recordings of

      Cain’s sales to C.H. and Detective Teuton’s related testimony. Cain did not

      object to the admission of this evidence. However, after the jury had returned

      its verdicts, Cain for the first time complained that the State’s video evidence

      violated his Sixth Amendment rights.


[6]   The jury found Cain not guilty as to Count I, the alleged July 18 sale of crack

      cocaine to C.H., but found him guilty as to Counts II and III, which related to

      the two sales that took place on July 19. The court sentenced Cain to twenty

      years executed for each of his two convictions, which the court ordered to run

      concurrently. The court ordered Cain’s twenty-year sentence to be served


      Court of Appeals of Indiana | Memorandum Decision 53A01-1406-CR-242 | May 26, 2015   Page 3 of 10
      consecutively to a prior ten-year sentence on another offense. This appeal

      ensued.


                                     Discussion and Decision
                     Issue One: Admission of the Recordings and Testimony

[7]   Cain first contends that the trial court violated his Sixth Amendment right to

      confront the witnesses against him by allowing the State to submit the buy

      videos into evidence without presenting C.H. for cross-examination. He also

      argues that the court admitted testimony by Detective Teuton in violation of

      Indiana Evidence Rule 701.


[8]   We generally review a trial court’s decision to admit evidence for an abuse of

      discretion, and we will not disturb that decision unless it is “clearly against the

      logic and effect of the facts and circumstances before it.” Hoglund v. State, 962

      N.E.2d 1230, 1237 (Ind. 2012). However, where, as here, no contemporaneous

      objection is made to the admission of evidence, any error in that admission is

      waived unless the error constitutes fundamental error. Fundamental error

      requires “a substantial, blatant violation of due process that must be so

      prejudicial to the rights of a defendant as to make a fair trial impossible.”

      Rosales v. State, 23 N.E.3d 8, 11 (Ind. 2015) (quotations omitted).


                                    A. Admission of the Buy Videos


[9]   Cain first asserts that the admission of the buy videos violated his Sixth

      Amendment right to confront C.H.. In Crawford v. Washington, 541 U.S. 36, 59


      Court of Appeals of Indiana | Memorandum Decision 53A01-1406-CR-242 | May 26, 2015   Page 4 of 10
       (2004), the Supreme Court of the United States held that out-of-court,

       testimonial statements are admissible at trial only if the declarant is unavailable

       to testify and the defendant has had a prior opportunity to cross examine the

       declarant. “However, the Confrontation Clause ‘does not bar the use of

       testimonial statements for purposes other than establishing the truth of the

       matter asserted.’ Thus, if a statement is either nontestimonial or nonhearsay,

       the federal Confrontation Clause will not bar its admissibility at trial.” Williams

       v. State, 930 N.E.2d 602, 607-08 (Ind. Ct. App. 2010) (quoting Crawford, 541

       U.S. at 59 n.9), trans. denied.


[10]   Statements are hearsay under Indiana Evidence Rule 801 if they were made out

       of court and are offered to prove the truth of the matter asserted. But this Court

       has held that a confidential informant’s statements recorded in the course of a

       controlled drug buy are not offered by the State for the truth of those

       statements, but merely to prompt responses from the defendant being recorded,

       and, therefore, those statements are not hearsay. Lehman v. State, 926 N.E.2d

       35, 38 (Ind. Ct. App. 2010), trans. denied. See also Vaughn v. State, 13 N.E.3d

       873, 880 (Ind. Ct. App. 2014) (concluding that videos of drug transactions

       merely showed the conduct of the CI and defendant and that a detective’s

       testimony regarding the videos was not hearsay because it was based on the

       detective’s personal observation and did not relay an out-of-court statement),

       trans. denied. Therefore, despite Cain’s assertions to the contrary, C.H.’s

       statements were not inadmissible hearsay and were not subject to the




       Court of Appeals of Indiana | Memorandum Decision 53A01-1406-CR-242 | May 26, 2015   Page 5 of 10
       Confrontation clause. Thus, the trial court did not commit fundamental error

       when it admitted C.H.’s statements at Cain’s trial.


                           B. Admission of Detective Teuton’s Testimony


[11]   Cain next asserts that Detective Teuton gave a lay opinion as to what the video

       recordings demonstrated in violation of Indiana Evidence Rule 701. In Groves

       v. State, 456 N.E.2d 720, 723 (Ind. 1983), our supreme court held that, because

       photographs and videos admitted as substantive evidence speak for themselves,

       lay witnesses’ opinions of that evidence invade the province of the jury.

       However, Groves predated the adoption of Evidence Rule 701. As we have

       explained:


               More recently, however, this court has held that the lay opinion
               of a police officer familiar with the defendant was admissible
               under Indiana Evidence Rule 701 as being helpful to the jury in
               reaching a decision about the identification of the person
               depicted in a videotape admitted as a silent witness. See Gibson v.
               State, 709 N.E.2d 11, 15 (Ind. Ct. App. 1999) (citing United States
               v. Stormer, 938 F.2d 759, 762 (7th Cir. 1991)), trans. denied. At
               first blush, the holding in Gibson seems inconsistent with the
               above-quoted portion of Groves. However, Groves was decided
               before the adoption of Evidence Rule 701, upon which Gibson
               relied. Furthermore, the holding of Groves was that the State had
               failed to lay a sufficient evidentiary foundation for the
               photograph. 456 N.E.2d at 723.


       Goodson v. State, 747 N.E.2d 1181, 1184 (Ind. Ct. App. 2001), trans. denied; see

       also Keller v. State, 25 N.E.3d 807, 814 (Ind. Ct. App. 2015) (recognizing that a



       Court of Appeals of Indiana | Memorandum Decision 53A01-1406-CR-242 | May 26, 2015   Page 6 of 10
       police officer’s identification of a defendant, with whom the officer is familiar,

       in a video can be helpful to the jury and is admissible), trans. pending.


[12]   Here, Detective Teuton’s descriptions of the videos helped the jury identify

       Cain in the videos and understand the language used in the videos with respect

       to the transaction. Thus, Cain cannot demonstrate fundamental error on this

       issue.2


                          Issue Two: Sufficiency of the Evidence
[13]   Cain also contends that the State presented insufficient evidence to support his

       convictions. Our supreme court has held that, when there is substantial

       evidence of probative value to support a conviction, it will not be set aside.

       Jones v. State, 783 N.E.2d 1132, 1139 (Ind. 2003). When reviewing the

       sufficiency of the evidence to support a conviction, we must consider only the

       probative evidence and reasonable inferences supporting the conviction. See

       Dallaly v. State, 916 N.E.2d 945, 950 (Ind. Ct. App. 2009). We do not assess

       witness credibility or reweigh the evidence. Id. We consider conflicting

       evidence most favorably to the trial court’s ruling. Id. We affirm the conviction

       unless “no reasonable fact finder could find the elements of the crime proven

       beyond a reasonable doubt.” Id. (quoting Jenkins v. State, 726 N.E.2d 268, 270




       2
         We note that pages 99-120 are missing from the trial transcript, which contain portions of Detective
       Teuton’s testimony on cross-examination on redirect. Regardless, their absence does not affect the outcome
       here.

       Court of Appeals of Indiana | Memorandum Decision 53A01-1406-CR-242 | May 26, 2015             Page 7 of 10
       (Ind. 2000)). Evidence is sufficient if an inference may reasonably be drawn

       from it to support the conviction. Id.


[14]   To prove Dealing in Cocaine under Indiana Code Section 35-48-4-1(a)(1), the

       State was required to show that Cain knowingly or intentionally delivered

       cocaine to C.H.. Cain contends that he was not identified by any admissible

       evidence, that no hand-to-hand delivery from Cain to C.H. was recorded, and

       that the State did not prove that the drugs C.H. turned over to Detective Teuton

       for testing were the same ones sold to her by Cain.


[15]   As was discussed above, the trial court did not err by admitting either the

       recordings or the testimony of Detective Teuton. Thus, insofar as Cain’s

       argument here is premised on the exclusion of this evidence, Cain’s argument

       must fail. In light of that evidence, the State presented sufficient evidence to

       support the jury’s finding that Cain sold crack cocaine to C.H. We affirm

       Cain’s convictions.


                                      Issue Three: Sentencing
[16]   Finally, Cain contends that his aggregate sentence of twenty years executed is

       inappropriate in light of the nature of the offense and his character, and he

       instead requests that we impose an aggregate term of thirteen years executed.

       Article 7, Sections 4 and 6 of the Indiana Constitution “authorize[] independent

       appellate review and revision of a sentence imposed by the trial court.” Roush v.

       State, 875 N.E.2d 801, 812 (Ind. Ct. App. 2007) (alteration original). This

       appellate authority is implemented through Indiana Appellate Rule 7(B). Id.

       Court of Appeals of Indiana | Memorandum Decision 53A01-1406-CR-242 | May 26, 2015   Page 8 of 10
       Revision of a sentence under Rule 7(B) requires the appellant to demonstrate

       that his sentence is inappropriate in light of the nature of his offense and his

       character. See Ind. Appellate Rule 7(B); Rutherford v. State, 866 N.E.2d 867, 873

       (Ind. Ct. App. 2007). We assess the trial court’s recognition or non-recognition

       of aggravators and mitigators as an initial guide to determining whether the

       sentence imposed was inappropriate. Gibson v. State, 856 N.E.2d 142, 147 (Ind.

       Ct. App. 2006). “[A] defendant must persuade the appellate court that his or

       her sentence has met th[e] inappropriateness standard of review,” Roush, 875

       N.E.2d at 812, and we recognize the special expertise of the trial court in

       making sentencing decisions, Davis v. State, 851 N.E.2d 1264, 1267 (Ind. Ct.

       App. 2006).


[17]   Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate

       sentence to the circumstances presented, and the trial court’s judgment “should

       receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222, 1224

       (Ind. 2008). The principal role of appellate review is to attempt to “leaven the

       outliers.” Id. at 1225. Whether we regard a sentence as inappropriate at the

       end of the day turns on “our sense of the culpability of the defendant, the

       severity of the crime, the damage done to others, and myriad other facts that

       come to light in a given case.” Id. at 1224.


[18]   Cain asserts that his sentence is inappropriate in light of the nature of the

       offenses and his character because he earned his GED while incarcerated in

       2011, he is writing and hopes to publish a book, he has struggled with a drug

       problem, and he would like to return to Michigan to be with his family. But the

       Court of Appeals of Indiana | Memorandum Decision 53A01-1406-CR-242 | May 26, 2015   Page 9 of 10
       trial court accounted for those facts and found them to be insignificant.

       Moreover, Cain committed the instant offenses while on probation for another

       crime, just three months after he had been placed on that probation. Further,

       Cain has four prior convictions, including three felonies, two of which were for

       dealing in cocaine. Thus, we cannot say that Cain’s sentence is inappropriate.


[19]   Affirmed.


       Riley, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 53A01-1406-CR-242 | May 26, 2015   Page 10 of 10
