MEMORANDUM DECISION
                                                                            FILED
Pursuant to Ind. Appellate Rule 65(D),                                  Feb 27 2017, 9:06 am
this Memorandum Decision shall not be                                       CLERK
regarded as precedent or cited before any                               Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court
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
Jennifer H. Culotta                                     Curtis T. Hill, Jr.
Clark County Public Defender Board                      Attorney General of Indiana
Jeffersonville, Indiana
                                                        Michael Gene Worden
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Kevin McLeod,                                           February 27, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        10A04-1603-CR-557
        v.                                              Appeal from the Clark Circuit
                                                        Court
State of Indiana,                                       The Honorable Vicki L.
Appellee-Plaintiff.                                     Carmichael, Judge
                                                        Trial Court Cause No.
                                                        10C04-1510-F2-26



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 10A04-1603-CR-557 | February 27, 2017         Page 1 of 9
                                       Statement of the Case
[1]   Kevin McLeod appeals his convictions for possession of methamphetamine, as

      a Level 3 felony; two counts of possession of a narcotic drug, one as a Level 4

      felony and one as a Level 5 felony; possession of a schedule IV controlled

      substance, as a Level 6 felony; resisting law enforcement, as a Class A

      misdemeanor; and his adjudication as a habitual offender following a jury trial.

      McLeod presents four issues for our review, which we consolidate and restate

      as the following two issues:

              1.      Whether the trial court abused its discretion when it
                      admitted into evidence certain text messages recovered
                      from his cell phone.

              2.      Whether the prosecutor committed misconduct in her
                      closing argument.


[2]   We affirm.


                                 Facts and Procedural History
[3]   On October 21, 2015, Clarksville police officers arrested McLeod on an

      outstanding warrant. McLeod resisted the officers as they attempted to perform

      a pat-down search of his person. After officers placed McLeod in handcuffs,

      they performed a pat-down search and recovered a cell phone and $560 in cash.

      Officers then transported McLeod to the Clark County Jail. At the jail,

      McLeod again resisted officers when they attempted to search him. Officers

      ultimately placed McLeod in handcuffs. During a search of McLeod’s person,

      officers found, “in his pants[,]” a sunglasses case containing methamphetamine,
      Court of Appeals of Indiana | Memorandum Decision 10A04-1603-CR-557 | February 27, 2017   Page 2 of 9
      heroin, hydrocodone, and Xanax. Tr. at 100. Officers later obtained a search

      warrant to access McLeod’s cell phone data, which resulted in the recovery of

      numerous text messages related to drug-dealing.


[4]   In an amended information filed on December 2, 2015, the State charged

      McLeod with dealing in methamphetamine, as a Level 2 felony; two counts of

      dealing in a narcotic drug, one as a Level 2 felony and one as a Level 3 felony;

      dealing in a schedule IV controlled substance, as a Level 5 felony; unlawful

      possession or use of a legend drug, as a Level 6 felony; three counts of resisting

      law enforcement, as Class A misdemeanors;1 possession of marijuana, as a

      Class B misdemeanor; and being a habitual offender. McLeod requested a

      speedy trial.


[5]   On December 28, the State filed a supplemental response to discovery

      disclosing text messages police had recovered from the cell phone they had

      taken from McLeod’s person upon his arrest. On December 31, McLeod filed a

      motion in limine seeking to exclude from evidence 1) any evidence regarding

      other crimes, wrongs, or acts by McLeod, and 2) the text messages. McLeod

      alleged in relevant part that the text messages should be excluded from evidence

      because the State had missed the discovery deadline in providing them to

      McLeod. The trial court granted the motion in limine with regard to evidence

      of other crimes, but denied the motion in limine with regard to the text



      1
        In his brief on appeal, McLeod refers to two counts of resisting law enforcement, but the charging
      information and abstract of judgment show that the State asserted three such counts.

      Court of Appeals of Indiana | Memorandum Decision 10A04-1603-CR-557 | February 27, 2017           Page 3 of 9
      messages. And the trial court denied McLeod’s motion to continue the trial to

      give him more time to review the text messages.


[6]   Trial began on January 4, 2016, and a jury found McLeod guilty of lesser-

      included offenses as follows: possession of methamphetamine, as a Level 3

      felony; two counts of possession of a narcotic drug, one as a Level 4 felony and

      one as a Level 5 felony; and possession of a schedule IV controlled substance,

      as a Level 6 felony. The jury also found McLeod guilty of one count of

      resisting law enforcement, as a Class A misdemeanor, but acquitted him of the

      other two counts of resisting law enforcement. McLeod then admitted to being

      a habitual offender. The trial court entered judgment of conviction accordingly

      and sentenced McLeod to an aggregate sentence of fifteen years, with three

      years suspended to probation. This appeal ensued.


                                     Discussion and Decision
                                  Issue One: Admission of Evidence

[7]   McLeod first contends that the trial court abused its discretion when it admitted

      into evidence text messages recovered from his cell phone. McLeod maintains

      that the trial court should have excluded that evidence from trial because 1) the

      State disclosed the text messages after the discovery deadline had passed and

      only a few business days prior to trial; 2) the admission of the text messages

      violated Evidence Rule 404(b); and 3) the State did not properly authenticate

      the text messages. We address each contention in turn.




      Court of Appeals of Indiana | Memorandum Decision 10A04-1603-CR-557 | February 27, 2017   Page 4 of 9
                                              Standard of Review


[8]    Generally, a trial court’s ruling on the admission of evidence is accorded “a

       great deal of deference” on appeal. Hall v. State, 36 N.E.3d 459, 466 (Ind. 2015)

       (quoting Tynes v. State, 650 N.E.2d 685, 687 (Ind. 1995)).


               “Because the trial court is best able to weigh the evidence and
               assess witness credibility, we review its rulings on admissibility for
               abuse of discretion’ and only reverse ‘if a ruling is clearly against
               the logic and effect of the facts and circumstances and the error
               affects a party’s substantial rights.”

       Id. (quoting Carpenter v. State, 18 N.E.3d 998, 1001 (Ind. 2014)).


                                              Discovery Deadline


[9]    McLeod asserts that, because the State provided him with copies of the text

       messages recovered from his cell phone after the discovery deadline and only a

       few business days prior to trial, the trial court should have excluded them from

       evidence at trial. In particular, McLeod maintains that the late discovery

       response “violates [his] right to due process as guaranteed by the Fourteenth

       Amendment to the Constitution of the United States.” Appellant’s Br. at 10.

       And McLeod contends that the trial court should have, at least, granted his

       motion to continue the trial to give him more time to review the text messages.


[10]   Trial courts have broad latitude with respect to discovery matters, and their

       rulings receive great deference on appeal. Cain v. State, 955 N.E.2d 714, 718

       (Ind. 2011). The primary factors that a trial court should consider when

       addressing a discovery violation are “whether the breach was intentional or in

       Court of Appeals of Indiana | Memorandum Decision 10A04-1603-CR-557 | February 27, 2017   Page 5 of 9
       bad faith and whether substantial prejudice has resulted.” Id. (quoting Wiseheart

       v. State, 491 N.E.2d 985, 988 (Ind. 1986)). We will affirm a trial court’s rulings

       absent clear error and resulting prejudice. Id.


[11]   First, McLeod has not shown that the State’s late disclosure was intentional or

       in bad faith. And second, McLeod does not explain how he was prejudiced by

       the late disclosure of the text messages. He does not state how, for example, his

       defense would have been different now that he has had time to review the text

       messages in detail. Nor does he state how much additional time would have

       been necessary and why. Because McLeod has not demonstrated either that the

       State’s late disclosure was intentional or in bad faith or that McLeod suffered

       substantial prejudice as a result of the late disclosure of the text messages, we

       hold that the trial court did not abuse its discretion when it admitted the text

       messages into evidence.


                                             Evidence Rule 404(b)


[12]   McLeod next contends that the trial court’s admission into evidence of certain

       text messages violated Indiana Evidence Rule 404(b) and the trial court’s order

       in limine regarding other crimes, wrongs, or acts. McLeod limits his challenge

       on appeal to State’s Exhibits thirteen through nineteen, which he describes as

       “thirteen sets of text messages sent to and from the cell phone between




       Court of Appeals of Indiana | Memorandum Decision 10A04-1603-CR-557 | February 27, 2017   Page 6 of 9
       September 29, 2015[,] and October 18, 2015[.]” Appellant’s Br. at 12.2

       McLeod maintains that, because those text messages were remote in time from

       his October 21, 2015, arrest, their admission into evidence was an abuse of

       discretion because they “are not intrinsic to the charged crimes” and are not

       “‘very near in time and place’ to the crimes.” Appellant’s Br. at 12 (quoting

       Bennett v. State, 5 N.E.3d 498, 510 (Ind. Ct. App. 2014)).


[13]   We need not decide whether the admission of the text messages violated Trial

       Rule 404(b) and/or the motion in limine because any error was harmless. As

       our supreme court has held,


                not every trial error requires reversal. Errors in the admission or
                exclusion of evidence are to be disregarded as harmless error
                unless they affect the substantial rights of the party. Fleener v. State,
                656 N.E.2d 1140, 1141 (Ind. 1995); Ind. Trial Rule 61. To
                determine whether an error in the introduction of evidence
                affected the appellant’s substantial rights, this Court must assess
                the probable impact of that evidence upon the jury.

       The evidence that McLeod possessed methamphetamine, heroin, hydrocodone,

       and Xanax was overwhelming, as police officers found those drugs in a

       sunglasses case in McLeod’s pants when they searched his person at the jail. In

       light of the substantial independent evidence of McLeod’s guilt, we conclude

       that any error in the admission of the challenged exhibits was harmless. See

       Buchanan v. State, 767 N.E.2d 967, 969-70 (Ind. 2002) (admission of sketches




       2
        The trial court was unable to provide this court with copies of those text messages because a former bailiff
       with the trial court inadvertently discarded several trial exhibits.

       Court of Appeals of Indiana | Memorandum Decision 10A04-1603-CR-557 | February 27, 2017            Page 7 of 9
       and photographs of nude young girls was harmless error given the amount of

       other evidence supporting the conviction for child molestation).

                                                 Authentication


[14]   McLeod contends that the State did not properly authenticate the text messages

       pursuant to Evidence Rule 901(a). However, while McLeod is correct that “the

       text messages required a separate authentication from the properly admitted

       cellular telephone[,]” Hape v. State, 903 N.E.2d 977, 990 (Ind. Ct. App. 2009),

       trans. denied, given the substantial evidence of McLeod’s guilt, any error was

       harmless. See id. at 991.


                                 Issue Two: Prosecutorial Misconduct

[15]   Finally, McLeod contends that the prosecutor committed misconduct during

       her closing argument. However, McLeod did not preserve this issue for our

       review. To preserve a claim of prosecutorial misconduct, a defendant must

       object and request an admonishment. Delarosa v. State, 938 N.E.2d 690, 696

       Ind. 2010). If the defendant is not satisfied with the admonishment, the

       defendant must move for a new trial. Id. Failure to comply waives the

       prosecutorial misconduct claim. Id. Where a claim of prosecutorial

       misconduct has not been properly preserved, the defendant must establish not

       only the grounds for the misconduct but also the additional grounds for

       fundamental error. Cooper v. State, 854 N.E.2d 831, 835 (Ind. 2006).

       Fundamental error is an extremely narrow exception that allows a defendant to

       avoid waiver of an issue. Id.


       Court of Appeals of Indiana | Memorandum Decision 10A04-1603-CR-557 | February 27, 2017   Page 8 of 9
[16]   Here, after he objected to the allegedly improper comments by the prosecutor,

       McLeod did not request an admonishment. The trial court, sua sponte,

       instructed the jury to “disregard” the comment. Tr. Vol. II at 313. If McLeod

       were dissatisfied with that admonishment, he should have moved for a mistrial,

       which he did not do. See Phillips v. State, 22 N.E.3d 749, 758 (Ind. Ct. App.

       2014) (stating that, if an admonishment is insufficient to cure the error, then the

       defendant must request a mistrial), trans. denied. And McLeod does not allege

       fundamental error on appeal. McLeod has waived this issue for our review.

       Cooper, 854 N.E.2d at 835.


[17]   Affirmed.


       Bailey, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 10A04-1603-CR-557 | February 27, 2017   Page 9 of 9
