      MEMORANDUM DECISION
                                                                             Dec 09 2015, 7:13 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
      Patricia Caress McMath                                  Gregory F. Zoeller
      Indianapolis, Indiana                                   Attorney General of Indiana
                                                              Michael Gene Worden
                                                              Deputy Attorney General
                                                              Indianapolis, Indiana


                                                IN THE
          COURT OF APPEALS OF INDIANA

      Trenton B. Holcomb,                                     December 9, 2015
      Appellant-Defendant,                                    Court of Appeals Case No.
                                                              52A02-1505-CR-290
              v.                                              Appeal from the Miami Circuit
                                                              Court
      State of Indiana,                                       The Honorable Timothy P. Spahr,
      Appellee-Plaintiff.                                     Judge
                                                              Trial Court Cause No.
                                                              52C01-1407-FB-31



      Mathias, Judge.


[1]   Trenton Holcomb (“Holcomb”) was convicted in Miami Circuit Court of Class

      B felony dealing in methamphetamine and Class D felony possession of


      Court of Appeals of Indiana | Memorandum Decision 52A02-1505-CR-290 | December 9, 2015        Page 1 of 8
      methamphetamine. Holcomb appeals and claims that the trial court abused its

      discretion by admitting into evidence a chain-of-custody report and the

      methamphetamine forming the basis of Holcomb’s convictions. Concluding

      that the trial court properly admitted the chain-of-custody report and that this

      report adequately established the chain of custody of the methamphetamine, we

      affirm. However, we note sua sponte that the trial court improperly entered

      judgments of conviction on both counts without vacating the lesser count. We

      therefore remand for correction of this sentencing error.

                                    Facts and Procedural History

[2]   On June 25, 2014, a confidential informant (“CI”) working with officers of the

      Peru Police Department participated in a controlled buy of methamphetamine.

      The CI made plans to meet with Kenny Howell to purchase the

      methamphetamine. When the CI went to the location for the buy, he saw two

      other individuals in addition to Howell, one of whom was the defendant in this

      case, Holcomb. The CI gave Holcomb $50 he had been given by the police to

      buy the methamphetamine. In return, Holcomb gave the CI a small, tied baggie

      containing a white, powdery substance later determined to be

      methamphetamine.


[3]   The CI gave the baggie to Detective Jeff Grant (“Detective Grant”), who in

      turn gave the baggie to Officer Mike Stuber (“Officer Stuber”). Officer Stuber

      then returned to the police department and gave the baggie to Captain Mike

      Vinopal (“Capt. Vinopal”), who put the baggie in an evidence locker. Captain

      Vinopal later took the baggie to Fort Wayne to be tested, where he gave the
      Court of Appeals of Indiana | Memorandum Decision 52A02-1505-CR-290 | December 9, 2015   Page 2 of 8
      baggie to lab technician Sheila Romano (“Romano”). After the testing was

      complete, Capt. Vinopal retrieved the evidence from the lab and returned it to

      the evidence locker at the Peru Police Department.


[4]   On July 3, 2014, the State charged Holcomb with Class B felony dealing in

      methamphetamine and Class D felony possession of methamphetamine. A jury

      trial was held on March 9 – 10, 2015. At trial, Holcomb objected to the

      admission of State’s Exhibit 6, which is a chain-of-custody report of the Peru

      Police Department. Holcomb’s counsel noted that she had not been provided

      with a copy of the report prior to trial and requested exclusion as the remedy for

      this discovery violation. The prosecuting attorney acknowledged that the State

      had not provided the report to Holcomb prior to trial but claimed that he had

      just received it himself. The trial court offered Holcomb’s counsel the

      opportunity to question the witness about the report, but she declined. The trial

      court then overruled Holcomb’s objection and admitted the report into

      evidence. Holcomb also objected to the admission of the methamphetamine,

      arguing that the State had failed to adequately establish the chain of custody.

      The trial court overruled this objection, and the jury subsequently found

      Holcomb guilty as charged. The trial court then entered judgments of

      conviction on both counts.

[5]   At a sentencing hearing held on April 9, 2015, the trial court “merged” the two

      convictions and sentenced Holcomb on the Class B felony to fourteen years,

      with twelve years executed and two years suspended to probation. Holcomb

      now appeals.

      Court of Appeals of Indiana | Memorandum Decision 52A02-1505-CR-290 | December 9, 2015   Page 3 of 8
                                      I. Admission of Evidence

[6]   Holcomb argues that the trial court abused its discretion in admitting into

      evidence the methamphetamine the CI gave to the police.


      A. Standard of Review

[7]   The trial court has discretion in matters regarding the admission and exclusion

      of evidence, and we review the court’s decision only for an abuse of that

      discretion. Wells v. State, 904 N.E.2d 265, 269 (Ind. Ct. App. 2009), trans. denied.

      The trial court abuses its discretion only if its decision is clearly against the logic

      and effect of the facts and circumstances before it, or if the court has

      misinterpreted the law. Id.


      B. Chain of Custody

[8]   According to Holcomb, the State failed to establish a sufficient chain of custody

      for the methamphetamine. To establish a proper chain of custody, the State

      must give reasonable assurances that the evidence at issue remained in an

      undisturbed condition. Troxell v. State, 778 N.E.2d 811, 814 (Ind. 2002). The

      State bears a higher burden to establish the chain of custody of fungible

      evidence whose appearance is indistinguishable to the naked eye. Id. However,

      the State need not establish a perfect chain of custody, and once the State

      strongly suggests the exact whereabouts of the evidence, any gaps in the chain

      of custody go to the weight of the evidence, not its admissibility. Id. Officer

      handling of evidence has a presumption of regularity; it is also presumed that

      officers exercise due care in handling their duties. Id. To mount a successful


      Court of Appeals of Indiana | Memorandum Decision 52A02-1505-CR-290 | December 9, 2015   Page 4 of 8
       challenge to the chain of custody, the defendant must present evidence that

       does more than raise a mere possibility that someone tampered with the

       evidence. Id.


[9]    In the present case, Holcomb claims a lack of testimony regarding how the

       methamphetamine got from the laboratory in Fort Wayne to a laboratory in

       Lowell and back again. This argument wholly disregards State’s Exhibit 6,

       which was the chain-of-custody report. As acknowledged by Holcomb, this

       report shows the transfer of the methamphetamine from the laboratory in Fort

       Wayne to the laboratory in Lowell and back again. See Appellant’s Br. p. 4.

       Holcomb claims that the State cannot rely on State’s Exhibit 6 because it, too,

       was improperly admitted.

[10]   As noted above, Holcomb objected to the admission of State’s Exhibit 6 on

       grounds that the report had not been previously disclosed to him during

       discovery. That is, Holcomb claims that State’s Exhibit 6 should have been

       excluded as a discovery sanction.


       C. Discovery Violations

[11]   A trial court has broad discretion in dealing with discovery violations and may

       be reversed only for an abuse of that discretion. Berry v. State, 715 N.E.2d 864,

       866 (Ind. 1999). Generally, the proper remedy for a discovery violation is a

       continuance. Id. Exclusion of the evidence is an extreme remedy to be used

       only if the State’s actions were deliberate and the conduct prevented a fair trial.

       Id.


       Court of Appeals of Indiana | Memorandum Decision 52A02-1505-CR-290 | December 9, 2015   Page 5 of 8
[12]   Here, nothing in the record indicates that Holcomb requested a continuance to

       remedy any discovery violation by the State. Indeed, his counsel rejected the

       trial court’s offer to question the sponsoring witness regarding the chain-of-

       custody report. Although he now claims that a continuance would have been of

       no use because the sponsoring witness did not make the entries on the report,

       nothing prevented Holcomb from requesting permission to question whomever

       made the entries. This is precisely the sort of discovery violation that could have

       been remedied by a request for a continuance.


[13]   Moreover, Holcomb’s request for exclusion is an extreme remedy warranted

       only if the State’s actions were deliberate. See id. Nothing in the record for this

       case indicates that the failure to disclose the chain-of-custody report was

       deliberate. Indeed, the trial court seemed to credit the prosecuting attorney’s

       explanation that the report had just been provided to him that day.

       Accordingly, the trial court’s decision to admit State’s Exhibit 6 into evidence

       was within the court’s broad discretion regarding both the admission of

       evidence and dealing with discovery violations. Because State’s Exhibit 6 was

       properly admitted, Holcomb’s claim of an inadequate chain of custody for the

       admission of the methamphetamine fails.


                                           II. Sentencing Error

[14]   As noted above, the trial court here specifically entered judgments of conviction

       on both of the guilty verdicts. When sentencing Holcomb, the trial court

       correctly noted that Holcomb could not properly be convicted of both dealing in


       Court of Appeals of Indiana | Memorandum Decision 52A02-1505-CR-290 | December 9, 2015   Page 6 of 8
       methamphetamine and possession of that same methamphetamine.1 Therefore,

       the trial court “merged” the convictions and imposed sentence only on the

       Class B felony dealing conviction. This was insufficient.


[15]   As we explained in Kovats v. State:


                If a trial court does not formally enter a judgment of conviction
                on a jury verdict of guilty, then there is no requirement that the
                trial court vacate the conviction, and merger is appropriate.
                However, if the trial court does enter judgment of conviction on a
                jury’s guilty verdict, then simply merging the offenses is
                insufficient and vacation of the offense is required.

       982 N.E.2d 409, 414-15 (Ind. Ct. App. 2013) (citations omitted).

[16]   We therefore remand with instructions that the trial court vacate the judgment

       of conviction entered on the verdict finding Holcomb guilty of Class D felony

       possession of methamphetamine.


                                                      Conclusion

[17]   The trial court did not abuse its discretion by admitting into evidence the chain-

       of-custody report. Because this report was properly admitted, the State

       sufficiently established the chain of custody of the methamphetamine admitted

       into evidence. Accordingly, we affirm Holcomb’s conviction for Class B felony

       dealing in methamphetamine. However, we remand with instructions that the



       1
         See Bookwalter v. State, 22 N.E.3d 735, 742 (Ind. Ct. App. 2014) (noting that possession of a controlled
       substance is an inherently-included lesser offense of dealing that substance, and a defendant may not
       generally be convicted and sentenced for dealing and possession of the same substance), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 52A02-1505-CR-290 | December 9, 2015              Page 7 of 8
       trial court vacate Holcomb’s conviction for Class D felony possession of

       methamphetamine.

[18]   Affirmed and remanded.


       Baker, J., and Bailey, J., concur.




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