MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any                                Nov 07 2018, 8:59 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
Gregory Bowes                                           Curtis T. Hill, Jr.
Greg Bowes Legal Services, P.C.                         Attorney General
Nashville, Indiana
                                                        Matthew B. Mackenzie
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Alexander Zschunke,                                     November 7, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-902
        v.                                              Appeal from the Brown Circuit
                                                        Court
State of Indiana,                                       The Honorable Judith A. Stewart,
Appellee-Plaintiff                                      Judge
                                                        Trial Court Cause No.
                                                        07C01-1709-F5-578



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-902 | November 7, 2018                   Page 1 of 14
                                             Case Summary
[1]   Alexander Zschunke appeals his convictions for level 5 felony possession of

      methamphetamine, level 6 felony unlawful possession of a syringe, and class C

      misdemeanor possession of paraphernalia, and his adjudication as a habitual

      offender. He argues that the trial court’s denial of his motion to exclude

      evidence that the State disclosed the day before trial was improper because it

      forced him to choose between a speedy trial and a fair trial. He also challenges

      the sufficiency of the evidence supporting his convictions. We conclude that he

      abandoned his speedy trial request, he received a fair trial, and the evidence is

      sufficient to support his convictions. Therefore, we affirm.


                                 Facts and Procedural History
[2]   The facts supporting the verdicts show that on September 21, 2017, at

      approximately 8:07 a.m., Nashville Police Officer Tim True was dispatched to

      a private parking lot on Old School Way regarding a suspicious silver Blazer.

      Officer True, who was not in uniform, parked his car away from the lot and

      walked south on Old School Way. As he passed the parking lot, he observed a

      man, later identified as Zschunke leaning in the Blazer’s passenger-side front

      window. Zschunke was wearing a red hat, a red t-shirt, khaki pants, black

      shoes, and a black backpack. Officer True continued walking to a public

      restroom just south of the parking lot. He attempted to enter the restroom, but

      the door was locked. He walked back north on Old School Way and observed

      Zschunke talking to the driver of the Blazer. Officer True saw Nashville Police

      Chief Ben Seastrom pull up to the parking lot guard house. He also saw

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-902 | November 7, 2018   Page 2 of 14
      Zschunke, wearing the black backpack, walk south toward Pittman House

      Lane, which is across from the public restroom. Tr. Vol. 3 at 79.1 Chief

      Seastrom and Officer True spoke to two of the Blazer’s occupants, who

      provided information leading to Zschunke’s identification. Id. at 81.


[3]   After the Blazer departed, the officers remained in the parking lot, and Chief

      Seastrom saw a man wearing a red hat and red shirt, but without a black

      backpack, walk from Pittman House Lane toward the public restroom and go

      inside. Id. 154. Officer True walked toward Pittman House Lane. Chief

      Seastrom remained in the parking lot and while there did not see anyone else go

      in or out of the public restroom.


[4]   As Officer True walked toward Pittman Lane, he observed the restroom

      attendant, whom he knew, exit the mechanical room between the men’s and

      women’s restrooms, get in her car, and drive away. It was the attendant’s habit

      to clean the bathrooms, empty the trash cans, and replace the trash can liners in

      the evening, and open the restroom in the mornings between 8:15 and 9:00 a.m.

      Officer True also observed a truck pull in and “[s]omebody exit[] the truck,

      walk[] towards the restrooms and then moments later walk[] back and [leave] in

      the truck.” Id. at 106.2 Officer True did not see whether that individual went in

      the restroom. Id. at 115, 122. Officer True walked down Pittman House Lane



      1
        The transcript volumes are paginated separately as required by Indiana Appellate Rules Appendix A, but
      the table of contents does not reflect the separate pagination.
      2
       It is not clear from the transcript where the truck pulled in or where the individual walked because Officer
      True showed the jury these locations by pointing at a map. Tr. Vol. 3 at 107.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-902 | November 7, 2018                    Page 3 of 14
      away from the restroom and discovered a black backpack under a bench near

      the road. While on Pittman House Lane, Officer True estimated that he lost

      visual contact with the public restroom for two or three minutes. Id. at 87.


[5]   Chief Seastrom drove his vehicle to Pittman House Lane and met Officer True

      near the bench. Id. at 86. Brown County Sheriff’s Department Officer Andrew

      Eggebrecht also arrived to assist. Officer True walked to the restroom to verify

      whether Zschunke was inside. Chief Seastrom estimated that five or six

      minutes passed between the time he lost sight of the restroom and when Officer

      True walked back to the restroom. Id. at 156. Chief Seastrom and Officer

      Eggebrecht opened the black backpack and discovered a digital scale with a

      white powder on it, clothing, hygiene items, and sunglasses.3 Id. at 108, 156-7.

      Based on his training and experience, Officer Eggebrecht believed that the

      powder’s color and consistency were consistent with methamphetamine. Id. at

      200. They returned all the items to the backpack and took it to Chief

      Seastrom’s truck, from which they could observe the public restroom and wait

      for Officer True. Id. at 159. While waiting, they did not see anyone go in or

      out of the restroom. Id. at 160.


[6]   Meanwhile, Officer True entered the restroom and observed a person in the first

      stall wearing khaki pants and black tennis shoes. Officer True washed and

      dried his hands and returned to Chief Seastrom and Officer Eggebrecht. About



      3
       The State asserts that Zschunke’s ID was found in his black backpack, but the record does not support that
      assertion. Tr. Vol. 3 at 166-67, 168-70.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-902 | November 7, 2018                 Page 4 of 14
      eight to ten minutes later, they saw Zschunke come out of the bathroom

      wearing a black shirt and khaki pants and no hat.4 Id. at 106. Officer True

      called to Zschunke to come over to the officers, and he complied. Id. at 89.

      The officers observed that Zschunke was “sweating profusely,” and at

      Zschunke’s trial Officer True testified that increased body temperature is an

      early sign of methamphetamine use. Id. at 128, 161.


[7]   While Zschunke remained with Chief Seastrom, Officer True returned to the

      restroom and observed a red hat on the counter and a black and gray bandana

      on the toilet paper dispenser in the bathroom stall that had been previously

      occupied. Officer True testified that bandanas are often used as tourniquets to

      expose veins. Id. at 91. Officer True also discovered “an alcohol prep pad” and

      an orange syringe cap in the trash can and two bags of syringes and sharps

      (needles) containers underneath the trash can liner. Id. at 92-93. The single

      orange syringe cap matched the orange syringe caps in the bags. One of the

      bags of syringes was opened; it was missing some syringes and contained

      another clear plastic bag with a crystal. Testing revealed that the crystal was

      3.22 grams of methamphetamine. Id. at 96.


[8]   The State charged Zschunke with level 5 felony possession of

      methamphetamine, level 6 felony unlawful possession of a syringe, and class C

      misdemeanor possession of paraphernalia, and alleged that he was a habitual

      offender. On December 1, 2017, Zschunke filed a motion for an early trial


      4
          Officer True believed that the red shirt was in one of Zschunke’s pants pockets. Tr. Vol. 3 at 113.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-902 | November 7, 2018                     Page 5 of 14
      pursuant to Indiana Criminal Rule 4(B), and the trial court issued an order

      granting his motion and setting his trial for February 21, 2018. The date was

      outside the seventy-day period provided by Criminal Rule 4(B), but Zschunke

      did not object.


[9]   From February 21-23, 2018, Zschunke’s jury trial was held. The day before

      trial, the prosecutor became aware of 172 recordings of Zschunke’s jail

      conversations and notified Zschunke’s attorney. On the morning of trial,

      Zschunke filed a motion in limine to exclude the recorded conversations. The

      trial court held a preliminary hearing, at which Zschunke argued that the

      recordings should be excluded because he did not know what was in the

      recordings and had not had a chance to prepare any defense. Tr. Vol. 2 at 31.

      The prosecutor explained that he had not yet listened to the recordings, but that

      Brown County Sheriff’s Department Detective Paul Henderson had informed

      him that they revealed Zschunke taking ownership of the black backpack and

      attempting to coordinate the testimony of witnesses. The prosecutor argued

      that the recordings were newly discovered evidence and that, barring

      malfeasance, the appropriate remedy was a continuance rather than exclusion

      of the evidence. Id. at 33-34. The trial court offered either to continue the trial

      to allow Zschunke additional time to respond to the recordings, or if Zschunke

      was confident that he did not want a continuance, “they could get started and

      address admissibility of different aspects of it when it’s offered.” Id. at 65-66.

      Zschunke decided to go forward with trial. Id. at 66. He was afforded an




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-902 | November 7, 2018   Page 6 of 14
       opportunity to question Detective Henderson, listen to the recordings, and

       make objections. Only portions of two conversations were ultimately admitted.


[10]   The jury found Zschunke guilty as charged and that he was a habitual offender.

       The trial court sentenced him to an aggregate term of ten years. This appeal

       ensued.


                                      Discussion and Decision

           Section 1 – Zschunke was not forced to choose between a
                          speedy trial and a fair trial.
[11]   Zschunke contends that the trial court’s denial of his motion to exclude the

       evidence of his recorded jail conversations improperly forced him to choose

       between a speedy trial and a fair trial. As for any speedy trial rights, we note

       that Zschunke filed his motion for an early trial pursuant to Indiana Criminal

       Rule 4(B), which provides, “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.”

       Zschunke concedes that the seventy-day period ended February 9, 2018, and he

       did not object when the trial court set the trial date outside that period. It is

       well established that a defendant’s failure to object to a trial setting outside the

       seventy-day period constitutes an abandonment of the request for a speedy trial.

       See McKay v. State, 714 N.E.2d 1182, 1189 (Ind. Ct. App. 1999) (“McKay’s

       failure to object to the trial setting … ten days beyond the seventy-day period,

       … constituted an abandonment of his request for a speedy trial.”); Townsend v.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-902 | November 7, 2018   Page 7 of 14
       State, 673 N.E.2d 503, 506 (Ind. Ct. App. 1996) (defendant abandoned early

       trial motion by failing to object to trial setting scheduled just one day outside

       seventy-day period); James v. State, 622 N.E.2d 1303, 1306 (Ind. Ct. App. 1993)

       (same). Accordingly, we conclude that Zschunke abandoned his request for a

       speedy trial by acquiescing to the setting of the trial beyond the seventy-day

       limit.


[12]   Even if we were to conclude that Zschunke did not abandon his speedy trial

       request, we are unpersuaded that he was deprived of a fair trial. We observe

       that


                [t]rial courts have broad discretion in dealing with discovery
                violations by the State in the alleged late disclosure of evidence to
                the defense. We may reverse the manner in which the trial court
                deals with such an alleged violation only for an abuse of that
                discretion involving clear error and resulting prejudice.


       Alcantar v. State, 70 N.E.3d 353, 356 (Ind. Ct. App. 2016). Generally, “the

       proper remedy for a discovery violation is a continuance.” Warren v. State, 725

       N.E.2d 828, 832 (Ind. 2000). However, “exclusion of evidence may be

       appropriate where the violation ‘has been flagrant and deliberate, or so

       misleading or in such bad faith as to impair the right of fair trial.’” Dye v. State,

       717 N.E.2d 5, 11 (Ind. 1999) (quoting Kindred v. State, 524 N.E.2d 279, 287

       (Ind. 1988)), cert. denied (2000).


[13]   Zschunke did not argue to the trial court, nor does he argue on appeal, that the

       State flagrantly or deliberately violated the discovery rules. Further, Zschunke


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-902 | November 7, 2018   Page 8 of 14
       cannot show that his right to a fair trial was impaired. Out of the presence of

       the jury, Zschunke was given the opportunity to cross-examine Detective

       Henderson and listen to the recorded conversations. Ultimately, only portions

       of two conversations were admitted, and on appeal Zschunke draws our

       attention solely to the September 25, 2017 conversation, during which he states

       that his backpack was seized as evidence. However, the only objection to this

       evidence that Zschunke’s counsel raised at trial was that it was cumulative of

       other evidence. Tr. Vol. 3 at 246. Because the evidence was cumulative,

       Zschunke suffered no prejudice. See Iqbal v. State, 805 N.E.2d 401, 406 (Ind. Ct.

       App. 2004) (“Any error caused by the admission of evidence is harmless error

       for which we will not reverse a conviction if the erroneously admitted evidence

       was cumulative of other evidence appropriately admitted.”). We find no abuse

       of discretion in the trial court’s denial of Zschunke’s motion to exclude

       evidence regarding the recordings of his jail conversations.


         Section 2 – The evidence is sufficient to support Zschunke’s
                                convictions.
[14]   Zschunke challenges the sufficiency of the evidence supporting all three

       convictions. In reviewing a claim of insufficient evidence, we do not reweigh

       the evidence or judge the credibility of witnesses, and we consider only the

       evidence that supports the verdict and the reasonable inferences arising

       therefrom. Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009). “We will affirm

       if there is substantial evidence of probative value such that a reasonable trier of




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-902 | November 7, 2018   Page 9 of 14
       fact could have concluded the defendant was guilty beyond a reasonable

       doubt.” Id.


[15]   We begin by addressing Zschunke’s convictions for possession of

       methamphetamine and unlawful possession of a syringe because one of

       Zschunke’s sufficiency claims applies to both. To convict Zschunke of level 5

       felony possession of methamphetamine, the State was required to prove beyond

       a reasonable doubt that he knowingly or intentionally possessed

       methamphetamine within five hundred feet of school property. Ind. Code § 35-

       48-4-6.1(a), -(b)(2). To convict Zschunke of level 6 felony unlawful possession

       of a syringe, the State was required to prove beyond a reasonable doubt that he

       knowingly with intent to violate the Indiana Legend Drug Act or an offense

       described in Indiana Code Chapter 35-48-4 possessed or had under his control a

       hypodermic syringe. Ind. Code § 16-42-19-18(a), -(b). Zschunke argues that the

       State failed to prove the element of possession beyond a reasonable doubt.

       Specifically, he argues that the State failed to prove that he was the person who

       left the methamphetamine and syringes in the restroom.


[16]   The evidence shows that the restroom attendant cleaned the restrooms, emptied

       the trash cans, and replaced the trash can liner in the evening and unlocked the

       restrooms between 8:15 and 9:00 in the morning. When Officer True first went

       to the restroom, it was locked. Chief Seastrom saw Zschunke enter the

       restroom. Officer True saw the restroom attendant leave the janitor’s room, get

       in her car, and depart. This supports a reasonable inference that Zschunke

       entered the restroom shortly after it was opened and that the trash can was

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-902 | November 7, 2018   Page 10 of 14
       empty at that time. Chief Seastrom watched the restroom for two or three

       minutes and did not see anyone go in or out. Officer True returned to the

       restroom and observed a person wearing Zschunke’s tan pants and black shoes

       in the only occupied bathroom stall. Officer True then joined Chief Seastrom

       and Officer Eggebrecht, and they waited within clear view of the restroom,

       during which time no one entered or exited. Tr. Vol. 3 at 88, 159. When

       Zschunke did exit, he was antsy and “sweating profusely,” which Officer True

       recognized as a sign of methamphetamine use. Id. at 128. After Zschunke

       exited, Officer True discovered a gray and black bandana in the stall Zschunke

       had occupied, his red hat on the counter, and an alcohol swab, two packages of

       syringes, sharps containers, and methamphetamine in the trash can. From this

       evidence, a reasonable trier of fact could have concluded that Zschunke put the

       methamphetamine and syringes in the trash can.


[17]   Nevertheless, Zschunke directs us to evidence that the police did not have the

       restroom in sight from anywhere between two to six minutes and that Officer

       True at one point observed a man in a red pickup truck drive up to the restroom

       and walk toward the restroom. According to Zschunke, the State failed to

       exclude the reasonable hypothesis that the man in the red truck placed the

       contraband in the trash can. However, the jury was instructed, “In

       determining whether the guilt of the accused is proven beyond a reasonable

       doubt, you should require that the proof be so conclusive and sure as to exclude

       every reasonable theory of innocence.” Appellant’s App. Vol. 2 at 84. The jury

       heard the evidence and determined that Zschunke’s hypothesis was not


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-902 | November 7, 2018   Page 11 of 14
       reasonable. Zschunke conflates the standard that the jury is required to apply in

       determining guilt at trial with the standard this Court applies in determining the

       sufficiency of the evidence on appeal. See Drane v. State, 867 N.E.2d 144, 147

       (Ind. 2007) (In reviewing sufficiency of evidence to support conviction, “[i]t is

       … not necessary that the evidence ‘overcome every reasonable hypothesis of

       innocence.’”) (quoting Moore v. State, 652 N.E.2d 53, 55 (Ind. 1995)). His

       argument is merely a request to reweigh the evidence, which we must decline.


[18]   Regarding his unlawful possession of a syringe conviction, Zschunke also

       argues that the State failed to prove that he possessed the syringe with the intent

       to violate the Indiana Legend Drug Act or an offense described in Indiana Code

       Chapter 35-48-4. Zschunke contends that the State failed to determine whether

       he had track marks on his arms and used no fingerprint or DNA analysis to tie

       the syringes to him. In Berkhardt v. State, 82 N.E.3d 313, 317 (Ind. Ct. App.

       2017), another panel of this Court reviewed our case law regarding sufficient

       evidence of unlawful intent and observed, “Cases in which courts have found

       sufficient evidence of unlawful intent generally include evidence of prior

       narcotics convictions; admissions to drug use; the presence of illegal drugs or

       drug residue on the paraphernalia; track marks on the defendant’s arms or

       hands; or withdrawal symptoms showing recent drug use.” Here, there was an

       opened bag of syringes; syringes were missing from the bag, and there was

       methamphetamine in the bag. A single orange cap that matched that of the

       bagged syringes was found in the trash can, indicating that a syringe had been

       used and discarded. There was a bandana in the bathroom stall occupied by


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-902 | November 7, 2018   Page 12 of 14
       Zschunke, which could have been used as a tourniquet to inject drugs, and

       Zschunke exhibited signs of methamphetamine use when he exited the

       restroom. From this evidence, a reasonable jury could conclude that Zschunke

       possessed the syringes with the intent to use them unlawfully.


[19]   Last, we address Zschunke’s conviction for class C misdemeanor possession of

       paraphernalia. To convict Zschunke of that crime, the State was required to

       prove beyond a reasonable doubt that he knowingly or intentionally possessed

       an instrument, device, or object used for testing the strength, effectiveness, or

       purity of a controlled substance. Ind. Code § 35-48-4-8.3(b)(2); Appellant’s

       App. Vol. 2 at 47. The offense encompasses knowing or intentional possession

       of an instrument, device, or object used to measure the weight of a controlled

       substance for purchase. McIlquham v. State, 992 N.E.2d 904, 911 (Ind. Ct. App.

       2013), aff’d in relevant part, 10 N.E.3d 506, 510-11 (Ind. 2014). Zschunke

       contends that the State failed to identify the powder on the digital scale, and

       therefore failed to prove that the scale was intended to be used with a controlled

       substance. He notes that Chief Seastrom attempted to conduct a field test on

       the powder to determine whether it was methamphetamine but was unable to

       gather a sufficient sample. Tr. Vol. 3 at 179. He also asserts that the State may

       have contaminated the scale and confused the source of the powder because at

       some point Officer True used the scale to weigh the crystal from the open

       syringe bag recovered from the restroom trash can. Id. at 109.5 We easily



       5
           The record does not indicate exactly when Officer True used the digital scale.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-902 | November 7, 2018      Page 13 of 14
       dispense with his second assertion because the digital scale had white powder

       on it when Chief Seastrom and Officer Eggebrecht initially took it from the

       backpack, which was before Officer True even discovered the crystal. As to the

       identity of the white powder, Officer Eggebrecht testified that it had a texture

       and consistency that was consistent with methamphetamine, and significantly,

       Zschunke possessed methamphetamine and an open package of syringes and

       showed physical symptoms of methamphetamine use. Therefore, the State

       introduced evidence from which a reasonable jury could conclude that

       Zschunke used the digital scale to weigh his methamphetamine. Based on the

       foregoing, we conclude that Zschunke’s convictions are supported by sufficient

       evidence. Accordingly, we affirm.


[20]   Affirmed.


       Najam, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-902 | November 7, 2018   Page 14 of 14
