MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                          Sep 08 2015, 8:21 am
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
John P. Brinson                                          Gregory F. Zoeller
Evansville, Indiana                                      Attorney General of Indiana
                                                         Ian McLean
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Deonte R. Hester,                                        September 8, 2015
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         82A01-1411-CR-515
        v.                                               Appeal from the
                                                         Vanderburgh Superior Court
State of Indiana,                                        The Honorable Robert J. Pigman,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         82D02-1303-FA-372



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-515 | September 8, 2015   Page 1 of 26
[1]   Deonte R. Hester was found guilty after a jury trial of possession of cocaine1 as

      a Class A felony, operating a vehicle while privileges are forfeited for life 2 as a

      Class C felony, resisting law enforcement 3 as a Class A misdemeanor, and

      possession of marijuana4 as a Class A misdemeanor and was given a thirty-year

      aggregate sentence. He appeals and raises the following restated issues for our

      review:


                 I. Whether the trial court erred in denying Hester’s objection to
                 the State’s use of a peremptory challenge to strike an African-
                 American juror from the jury venire;


                 II. Whether the trial court abused its discretion in allowing
                 State’s Exhibit 2, the cocaine, to be admitted into evidence
                 because the initial stop of his automobile was unlawful and the
                 State failed to establish an adequate chain of custody;


                 III. Whether the trial court abused its discretion and denied
                 Hester’s right to present a defense when it refused to allow him to
                 admit into evidence statements or testimony of the deputy
                 prosecuting attorney; and




      1
       See Ind. Code § 35-48-4-6(a), (b)(3). We note that, effective July 1, 2014, a new version of this and other
      applicable statutes to this case were enacted. Because Hester committed his crimes prior to July 1, 2014, we
      will apply the statutes in effect at the time he committed his crimes.
      2
          See Ind. Code § 9-30-10-17.
      3
          See Ind. Code § 35-44.1-3-1(a)(3).
      4
          See Ind. Code § 35-48-4-11.


      Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-515 | September 8, 2015          Page 2 of 26
              IV. Whether Hester’s sentence is inappropriate in light of the
              nature of the offense and the character of the offender.


[2]   We affirm.


                                 Facts and Procedural History
[3]   On Saturday, March 9, 2013, at approximately 8:00 a.m., Evansville Police

      Department Officer Kacey Ross (“Officer Ross”) was on routine patrol and

      supervising the field training of probationary officer Michael Ramirez (“Officer

      Ramirez”). The officers turned into the parking lot of Sunburst-Woodland Park

      Apartments. When they entered the parking lot, Officer Ross observed a

      maroon Yukon parked in an area where vehicles were not supposed to park and

      in a manner that blocked several cars from moving. The officers could not see

      anyone inside the Yukon due to the darkly-tinted windows. Officer Ross

      decided that they should attempt to locate the owner of the Yukon and tell the

      owner to move the car rather than ignore the Yukon and risk getting called back

      later about the Yukon blocking people’s cars.


[4]   The officers parked their patrol car approximately twelve feet behind the

      Yukon, and Officer Ross began to show Officer Ramirez how to run the license

      plate of the Yukon on the car’s computer to determine the registered owner. As

      Officer Ross was showing Officer Ramirez the results on the computer, the

      Yukon started to back up toward the patrol car. Officer Ross exited the car and

      approached the driver’s side of the Yukon in order to make contact with the

      driver. The Yukon continued to move in reverse as Officer Ross was still


      Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-515 | September 8, 2015   Page 3 of 26
      approaching. When Officer Ross made contact with the driver, the driver’s

      window was partially open, and Officer Ross could smell the odor of burnt

      marijuana coming from the Yukon. Officer Ross instructed the driver, later

      identified as Hester, to put the Yukon in park. Instead, Hester began to drive

      forward. Officer Ross asked Hester for identification, and Hester asked “why.”

      Tr. at 303. Officer Ross again asked Hester for his identification, and Hester,

      who had moved the Yukon approximately ninety degrees from its original

      position, put the vehicle in park and again asked why. Officer Ross could not

      see what Hester was doing inside of the Yukon, so he tried to open the driver’s

      side door, but it was locked. The officer asked Hester to exit the vehicle, and

      Hester rolled up the window.


[5]   Because Officer Ross was not able to see Hester through the tinted window, the

      officer moved to the front of the vehicle to look through the windshield. Officer

      Ross called for backup and could see Hester “moving around inside the vehicle

      . . . quite a bit within his area below what would be the dashboard.” Id. at 14.

      Officer Ross told Hester to show his hands, and when he did not comply,

      Officer Ross drew his gun and pointed it in the direction of Hester, but not

      directly at him. Hester brought his hands up over the dashboard, and Officer

      Ross could see that Hester had a phone in one hand. He asked Hester what he

      was doing, to which Hester replied, “I’m calling my mom.” Id. at 305. Ross

      went to the passenger side door and attempted to open it, but it was also locked,

      so Officer Ross returned to the front of the Yukon. In the meantime, Officer




      Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-515 | September 8, 2015   Page 4 of 26
      Ramirez had also approached the Yukon with his gun drawn and saw Hester

      using his phone inside the vehicle.


[6]   At that time, a group of people came out of the apartment building, and three or

      four of them identified themselves as family members of Hester. Officer Ross

      stated that these people, “were unruly at best,” and Officer Ramirez went to the

      group to try to de-escalate the situation. Id. at 307. Meanwhile, Officer Ross

      saw Hester lower the window just enough to slide his identification outside of

      the vehicle and then close the window again. Officer Ross did not go toward

      the Yukon to retrieve the identification at that time. Shortly thereafter, Hester

      began to open the door and exit the Yukon. As Hester exited, Officer Ross

      could see that Hester did not have a weapon in his hands, so the officer

      holstered his gun. Officer Ross told Hester to turn around and put his hands on

      the side of the Yukon, and Hester showed his hands, but refused to comply with

      the officer’s request. Instead, Hester began shuffling down the side of the

      vehicle and yelling to his family members. He then began to flee around the

      back of the Yukon.


[7]   Officer Ross chased after Hester and attempted to employ his taser to stop

      Hester; however, the taser did not fire. A short time later, Hester slipped and

      fell in the grass, and Officer Ross was able to tackle him. Hester struggled with

      Officer Ross and resisted the officer’s attempt to handcuff him. Hester also

      reached into his pants, and Officer Ross tried to gain control of the arm Hester

      had thrust down his pants. The officer was able to force Hester to remove his

      arm, and he observed that Hester was holding a plastic baggie that he tried to

      Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-515 | September 8, 2015   Page 5 of 26
      throw. Officer Ross took the baggie from Hester’s hand and handed it to

      Officer R.M. “Mike” Winters (“Officer Winters”), who had arrived on the

      scene as backup. Immediately after Officer Ross was able to get Hester

      handcuffed, Officer Winters returned the baggie to Officer Ross. At that time,

      Officer Ross noticed that the baggie taken from Hester contained two smaller

      baggies, which contained a white-colored powdery substance.


[8]   Officer Ramirez searched Hester incident to his arrest and found a second

      plastic baggie, which contained a green, leafy substance, suspected to be

      marijuana, and approximately $1,000 in cash. Officer Ross field tested the

      white powdery substance and recorded that it tested positive for cocaine salts.

      He placed the baggies of suspected cocaine into an evidence bag, marked it,

      sealed it, and placed it, along with another evidence bag containing the

      suspected marijuana, into the evidence drop box at the Vanderburgh County

      Jail. Only Evidence Technician Stacy Lutz (“Lutz”) and a lieutenant had

      access to the locked drop box. The evidence that Officer Ross placed into the

      drop box were retrieved on Monday, March 11, 2013 by Lutz and processed

      and placed in a secure evidence room.


[9]   On March 12, 2013, the State charged Hester with Class A felony possession of

      cocaine, Class C felony operating a vehicle while privileges are forfeited for life,

      Class D felony battery, Class D felony resisting law enforcement, and Class A

      misdemeanor possession of marijuana, which was enhanced to a Class D felony

      due to a prior conviction. Hester was also alleged to be a habitual substance

      offender. On October 24, 2013, a hearing was held on Hester’s motion to

      Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-515 | September 8, 2015   Page 6 of 26
       continue his trial based on the fact that Hester had not received discovery

       regarding the forensic analysis of the substance taken from him during his

       arrest. During the hearing, the deputy prosecutor stated to the trial court:


               With respect to the Defendant’s Motion for Continuance. Briefly
               on point three with regards to our lab report. A substance for
               another defendant was sent to the lab with reference to this case.
               That has been corrected. On Tuesday our Evidence Custodian
               delivered the appropriate substance, i.e. the substance related to
               Mr. Hester’s case to the lab. They rushed. I talked to Kim Early
               who is an I.S.P. lab chemist this morning. She reported that
               yesterday they ran the substance on the mass spectrometer. The
               I.S.P. lab report will be available on Tuesday.


       Appellant’s App. at 183-84. Hester’s counsel expressed his concern that the State

       “sent another sample of drugs to the lab under [Hester’s] name.” Id. at 184.

       The deputy prosecutor explained, “It wasn’t sent with Mr. Hester’s name. It

       was a different case sent up by accident because of a typo related to a number.”

       Id. at 184-85. Hester’s motion for a continuance was granted.


[10]   A jury trial began on October 6, 2014. During voir dire, both Hester and the

       State exercised peremptory challenges to various potential jurors. In the first

       round of voir dire, the State peremptorily challenged N.P., and both the State

       and Hester peremptorily challenged K.G. Both of these jurors were African-

       American, as is Hester. In the second round of voir dire, potential juror S.T.

       was called, and both Hester and the State questioned her regarding the burden

       of proof and her ability to judge the case without bias or sympathy and without

       subjective determinations of a defendant’s character. At the conclusion of the

       Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-515 | September 8, 2015   Page 7 of 26
       questioning, the State peremptorily challenged S.T., who was also African-

       American. Hester objected and requested the trial court to take judicial notice

       that the State had used peremptory strikes against the only three African-

       American jurors and that Hester was also African-American. The State

       responded that although juror S.T. was “the perfect juror on paper,” she lacked

       “the ability to understand anything we were going over,” and the State wanted

       jurors that were “competent enough to wrap their heads around legal principals

       [sic].” Id. at 248-49. The trial court overruled Hester’s objection to the State’s

       use of a peremptory strike against S.T.


[11]   The jury was selected, and the trial was held. During Officer Ross’s testimony,

       he identified State’s Exhibits 2 and 3 as the items taken from Hester during his

       arrest that he had sealed in evidence bags and placed in the evidence drop box.

       Evidence technician Lutz testified that she had taken the evidence bags

       containing the white, powdery substance and the green, leafy substance from

       the secure evidence room on October 21, 2013 and personally delivered them to

       the Indiana State Police (“ISP”) lab. She specifically testified that State’s

       Exhibit 2, the suspected cocaine, had been sealed in a bag with brown tape, and

       a red tape seal was placed on the evidence by the ISP lab. Lutz further stated

       that she personally picked up State’s Exhibits 2 and 3 from the ISP lab on

       November 5, 2013 and placed them in the secure evidence room, where they

       were kept until the first day of trial, when they were signed out to Officer Ross.


[12]   ISP chemist Kimberly Early testified that, on October 21, 2013, she received the

       suspected drug evidence seized from Hester, and the evidence was securely kept

       Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-515 | September 8, 2015   Page 8 of 26
       in the ISP lab. Early’s analysis determined State’s Exhibit 2 to contain 8.56

       grams of cocaine base and State’s Exhibit 3 to contain 0.91 grams of marijuana.

       Hester objected to the admission of State’s Exhibits 2 and 3 into evidence,

       alleging they were illegally seized and that a proper chain of custody had not

       been proven for the evidence. The trial court overruled the objection. At the

       conclusion of the trial, the jury found Hester guilty of Class A felony possession

       of cocaine, Class C felony operating a vehicle while privileges are forfeited for

       life, Class A misdemeanor resisting law enforcement, and Class A

       misdemeanor possession of marijuana. Prior to trial, the State had dismissed

       the charge of Class D felony battery, and subsequent to the trial, the State

       dismissed the habitual substance offender allegation. At sentencing, the trial

       court imposed an aggregate thirty-year executed sentence. Hester now appeals.


                                           Discussion and Decision

                                               I. Batson5 Challenge
[13]   Hester argues that the State exercised its peremptory challenge to remove an

       African-American juror from the jury venire in violation of his rights to equal

       protection guaranteed by the Fourteenth Amendment to the United States

       Constitution. “The use of a peremptory challenge to strike a potential juror

       solely on the basis of race violates the Equal Protection Clause of the




       5
           Batson v. Kentucky, 476 U.S. 79 (1986).



       Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-515 | September 8, 2015   Page 9 of 26
       Fourteenth Amendment to the United States Constitution.” Killebrew v. State,

       925 N.E.2d 399, 401 (Ind. Ct. App. 2010) (citing Jeter v. State, 888 N.E.2d 1257,

       1262 (Ind. 2008), cert. denied 555 U.S. 1055 (2008)), trans. denied. On appeal, a

       trial court’s decision concerning whether a peremptory challenge is

       discriminatory is given great deference and will be set aside only if found to be

       clearly erroneous. Id. When a party raises a Batson challenge, the trial court

       must undertake a three-step test. Jeter, 888 N.E.2d at 1263. First, it must

       determine whether the party making the Batson objection has made a prima facie

       showing that a peremptory challenge was exercised on the basis of race. Id.

       Second, after the contesting party makes a prima facie showing of

       discrimination, the burden shifts to the party exercising its peremptory

       challenge to present a race-neutral explanation for striking the juror. Id. Third,

       if a race-neutral explanation is proffered, the trial court must then determine if

       the challenger has carried its burden of proving purposeful discrimination. Id.


[14]   Generally, if the State’s reason for the challenge is facially based on something

       other than race, it is deemed race-neutral. Collier v. State, 959 N.E.2d 326, 328

       (Ind. Ct. App. 2011). “‘Unless a discriminatory intent is inherent in the

       prosecutor’s explanation, the reason offered will be deemed race neutral.’”

       Addison v. State, 962 N.E.2d 1202, 1209 (Ind. 2012) (quoting Purkett v. Elem, 514

       U.S. 765, 768 (1995) (per curiam)). “Although the race-neutral reason must be

       more than a mere denial of improper motive, the reason need not be

       particularly ‘persuasive, or even plausible.’” Id.



       Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-515 | September 8, 2015   Page 10 of 26
[15]   In the present case, the record shows that the State used its peremptory

       challenges to strike the only three African-American jurors on the venire panel.

       Hester objected specifically to the striking of juror S.T., noting that she was the

       third African-American juror the State had stricken. The State explained that it

       exercised its peremptory challenge to strike S.T. because she lacked “the ability

       to understand anything we were going over and in a case where the State has a

       burden of proof the State has to know that jurors are competent enough to wrap

       their heads around legal principals [sic].” Tr. at 248-49. The State further

       stated, “Even though she was great on paper, she wasn’t able to wrap her head

       around anything [Hester’s counsel] or I was saying. That is why I struck her.”

       Id. at 249. In response, Hester’s counsel disagreed, stating that, he believed she

       answered his questions “quite coherently” and that “she seems to be

       competent.” Id. at 249-50. The trial court then overruled Hester’s objection

       and allowed the State’s request to strike S.T.


[16]   In our review of the State’s explanation and the questioning of S.T., we do not

       find any racial motivation on the State’s part in striking S.T. The reason given

       by the State was that S.T. lacked the ability to understand the concepts about

       which the attorneys had questioned her. From her answers to the questions

       posed to her, S.T. appeared hesitant and unable to accept that her decision

       should be based on the evidence presented and not on her desire to know more

       information. When asked by the State in a hypothetical of the prosecutor being

       charged with dropping a pen and whether S.T. would be comfortable only

       hearing evidence as to whether or not the prosecutor had dropped the pen, S.T.


       Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-515 | September 8, 2015   Page 11 of 26
       said no and that she would want to know something else, “some of the small

       things.” Id. at 239. The State provided a race-neutral explanation for using its

       peremptory challenge to strike S.T. from the jury. We conclude that the trial

       court did not err in denying Hester’s Batson challenge.


                                    II. Admission of Evidence
[17]   Although Hester originally challenged the admission of the evidence through a

       pre-trial motion to suppress, he appeals following a completed jury trial and

       thus challenges the admission of such evidence at trial. The admission or

       exclusion of evidence is entrusted to the discretion of the trial court. Collins v.

       State, 966 N.E.2d 96, 104 (Ind. Ct. App. 2012) (citing Farris v. State, 818 N.E.2d

       63, 67 (Ind. Ct. App. 2004), trans. denied). We will reverse a trial court’s

       decision only for an abuse of discretion. Id. We will consider the conflicting

       evidence most favorable to the trial court’s ruling and any uncontested evidence

       favorable to the defendant. Id. (citing Taylor v. State, 891 N.E.2d 155, 158 (Ind.

       Ct. App. 2008), trans. denied, cert. denied 555 U.S. 1142 (2009)). An abuse of

       discretion occurs when the trial court’s decision is clearly against the logic and

       effect of the facts and circumstances before the court or it misinterprets the law.

       Id. In determining whether an error in the introduction of evidence affected an

       appellant’s substantial rights, we assess the probable impact of the evidence on

       the jury. Id. (citing Oldham v. State, 779 N.E.2d 1162, 1170 (Ind. Ct. App.

       2002), trans. denied).




       Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-515 | September 8, 2015   Page 12 of 26
                                              A. Legality of Stop

[18]   Hester argues that the trial court abused its discretion in admitting State’s

       Exhibit 2, the cocaine, into evidence because it was seized illegally and without

       a warrant. He contends that the evidence was obtained in violation of the

       Fourth Amendment as the stop of the Yukon was unlawful because the officers

       lacked reasonable suspicion to stop the vehicle. Hester also asserts that the

       evidence was obtained in violation of Article 1, section 11 of the Indiana

       Constitution because the stop of the Yukon was not reasonable under the

       totality of the circumstances.


[19]   The Fourth Amendment to the United States Constitution protects an

       individual’s privacy and possessory interests by prohibiting unreasonable

       searches and seizures. Sugg v. State, 991 N.E.2d 601, 607 (Ind. Ct. App. 2013)

       (citing Washington v. State, 922 N.E.2d 109, 111 (Ind. Ct. App. 2010)), trans.

       denied. Generally, a search warrant is a prerequisite to a constitutionally proper

       search and seizure. Id. When a search is conducted without a warrant, the

       State has the burden of proving that an exception to the warrant requirement

       existed at the time of the search. Id. The propriety of a warrantless search is

       subject to de novo review. Montgomery v. State, 904 N.E.2d 374, 378 (Ind. Ct.

       App. 2009) (citing Engram v. State, 893 N.E.2d 744, 748 (Ind. Ct. App. 2008),

       trans. denied), trans. denied.


[20]   There are three levels of police investigation, two of which implicate the Fourth

       Amendment and one of which does not. First, the Fourth Amendment requires

       that an arrest or detention for more than a short period be justified by probable
       Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-515 | September 8, 2015   Page 13 of 26
       cause. Powell v. State, 912 N.E.2d 853, 859 (Ind. Ct. App. 2009) (citing

       Overstreet v. State, 724 N.E.2d 661, 663 (Ind. Ct. App. 2000), trans. denied).

       Second, it is well-settled under the Fourth Amendment that the police may,

       without a warrant or probable cause, briefly detain an individual for

       investigatory purposes if, based on specific and articulable facts, the officer has

       a reasonable suspicion that criminal activity has or is about to occur. Id. The

       third level of investigation occurs when a law enforcement officer makes a

       casual and brief inquiry of a citizen which involves neither an arrest nor a stop.

       Id. In this type of consensual encounter no Fourth Amendment interest is

       implicated. Id.


[21]   “Not every encounter between a police officer and a citizen amounts to a

       seizure requiring objective justification.” Overstreet, 724 N.E.2d at 663. A

       person is seized only when his or her freedom of movement is restrained by

       means of physical force or a show of authority. Powell, 912 N.E.2d at 859. It is

       not the purpose of the Fourth Amendment to eliminate all contact between

       police and the citizenry, and what constitutes a restraint on liberty prompting a

       person to conclude that he is not free to leave will vary depending upon the

       particular police conduct at issue and the setting in which the conduct occurs.

       Id. at 860 (citing Michigan v. Chesternut, 486 U.S. 567, 573 (1988)). Further, the

       test for existence of a show of authority is an objective one: not whether the

       citizen perceived that he was being ordered to restrict his movement, but

       whether the officer’s words and actions would have conveyed that to a

       reasonable person. Id. (citing California v. Hodari D., 499 U.S. 621, 628 (1991)).

       Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-515 | September 8, 2015   Page 14 of 26
[22]   In this case, the record shows that the Yukon that Hester was driving was

       parked in an area of the apartment complex parking lot where vehicles were not

       supposed to park and in a manner that it was blocking several cars from

       moving. When the officers entered the parking lot, they noticed the Yukon and

       decided that they should attempt to locate the owner and tell the owner to move

       the car rather than ignore the Yukon and risk getting called back later about the

       Yukon blocking people’s cars. The officers parked their patrol car

       approximately twelve feet behind the Yukon and did not activate the car’s lights

       or siren. The officers could not see anyone inside the Yukon due to the darkly-

       tinted windows. After they parked behind the Yukon, Officer Ross began to

       show Officer Ramirez how to run the license plate of the Yukon on the car’s

       computer to determine the registered owner. As Officer Ross was doing this,

       the Yukon started to back up toward the patrol car. At that time, Officer Ross

       exited the car and approached the driver’s side of the Yukon in order to make

       contact with the driver and inform the driver that the vehicle was illegally

       parked and not to park there in the future. The Yukon continued to move in

       reverse as Officer Ross was still approaching. When Officer Ross made contact

       with the driver, the driver’s window was partially open, and Officer Ross could

       immediately smell the odor of burnt marijuana coming from the Yukon.


[23]   Given these facts, we conclude that the officers’ actions of parking behind the

       Yukon and approaching the vehicle did not constitute an investigatory stop or

       seizure under the Fourth Amendment. Instead, the evidence supports the

       conclusion that the initial encounter between Officer Ross and Hester in the


       Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-515 | September 8, 2015   Page 15 of 26
       present case was consensual and, therefore, did not implicate the Fourth

       Amendment’s protections against unreasonable searches and seizures. Thus,

       under the circumstances, Officer Ross did not need to possess reasonable

       suspicion of wrongdoing in order to park behind or approach the Yukon to

       identify the owner of the vehicle and inform him that his vehicle was parked

       illegally and not to park there in the future. As soon as Officer Ross smelled the

       odor of burnt marijuana coming from the inside of the Yukon, he then

       possessed reasonable suspicion that a crime was being committed. See State v.

       Hawkins, 766 N.E.2d 749, 752 (Ind. Ct. App. 2002) (finding that the odor of

       burnt marijuana coming from a vehicle establishes probable cause to search the

       vehicle under the Fourth Amendment), trans. denied. The trial court did not

       abuse its discretion in overruling Hester’s objection to the admission of the

       cocaine evidence based upon the Fourth Amendment.


[24]   Hester also argues that the trial court abused its discretion in admitting the

       cocaine because the officers’ actions of parking behind his vehicle and

       approaching it violated the Indiana Constitution. Article I, Section 11 of the

       Indiana Constitution provides that “[t]he right of the people to be secure in their

       persons, houses, papers, and effects, against unreasonable search or seizure,

       shall not be violated . . . .” Although virtually identical to the wording of the

       search and seizure provision in the federal constitution, Indiana’s search and

       seizure clause is independently interpreted and applied. Danner v. State, 931

       N.E.2d 421, 431 (Ind. Ct. App. 2010), trans. denied. Under the Indiana

       Constitution, the legality of a governmental search turns on an evaluation of the


       Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-515 | September 8, 2015   Page 16 of 26
       reasonableness of the police conduct under the totality of the circumstances. Id.

       (citing Myers v. State, 839 N.E.2d 1146, 1153 (Ind. 2005)). The burden is on the

       State to show that under the totality of the circumstances, the intrusion was

       reasonable. Id. (citing State v. Bulington, 802 N.E.2d 435, 438 (Ind. 2004)).

       Generally, the reasonableness of a search or seizure under the Indiana

       Constitution turns on the balance of: (1) the degree of concern, suspicion, or

       knowledge that a violation has occurred; (2) the degree of intrusion the method

       of the search or seizure imposes on the citizen’s ordinary activities; and (3) the

       extent of law enforcement needs. Id. (citing Litchfield v. State, 824 N.E.2d 356,

       361 (Ind. 2005)).


[25]   Here, the record reveals that Officers Ross and Ramirez parked their patrol car

       behind the Yukon in which Hester was seated. The Yukon was parked illegally

       and was blocking several vehicles. The officers parked behind the Yukon with

       the intention of running the vehicle’s license plate to determine the identity of

       the owner and inform the owner to move the vehicle. The officers did not

       activate the patrol car’s lights or sirens. As the officers were running the license

       plate, the Yukon began to back up toward the patrol car. At that time, Officer

       Ross exited and approached the driver’s side door to make contact with the

       driver and inform him that he needed to move the Yukon and not to park there

       in the future. Officer Ross did not have his weapon displayed as he initially

       approached the Yukon. As soon as he made contact with the driver, Officer

       Ross smelled the odor of burnt marijuana coming from the partially-open

       window of the Yukon. Under these circumstances, we conclude that the


       Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-515 | September 8, 2015   Page 17 of 26
       officers’ action of parking behind the Yukon and Officer Ross’s approach and

       initial contact with Hester constituted a consensual encounter, which did not

       violate Hester’s rights against unreasonable search and seizure under Article 1,

       section 11 of the Indiana Constitution. The trial court did not abuse its

       discretion in overruling Hester’s objection to the admission of the cocaine

       evidence based upon Article 1, section 11 of the Indiana Constitution.


                                             B. Chain of Custody

[26]   Hester next argues that the trial court abused its discretion in admitting State’s

       Exhibit 2 at trial because the State failed to prove an adequate chain of custody

       for the cocaine evidence. He contends that “the evidence does not show that

       the exhibit passed through various hands undisturbed.” Appellant’s Br. at 23.

       Hester specifically alleges that, because Officer Winters did not testify at trial,

       the evidence did not show what he did with the cocaine while he held it for

       Officer Ross while Officer Ross was handcuffing Hester. Hester also asserts

       that no evidence was presented to explain the discrepancies in description of the

       evidence between Officer Ross’s report and the lab analysis done by the ISP lab.

       Hester further claims that no evidence explained the circumstances of how

       another defendant’s evidence was sent to the ISP lab in reference to Hester’s

       case. He, therefore, contends that, based on these circumstances, a proper

       chain of custody was not established, and the cocaine evidence should not have

       been admitted at trial.


[27]   In order for physical evidence to be admissible the evidence regarding its chain

       of custody must strongly suggest the exact whereabouts of the evidence at all
       Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-515 | September 8, 2015   Page 18 of 26
       times. Filice v. State, 886 N.E.2d 24, 34 (Ind. Ct. App. 2008) (citing Culver v.

       State, 727 N.E.2d 1062, 1067 (Ind. 2000)), trans. denied. The State must provide

       “reasonable assurances that the property passed through various hands in an

       undisturbed condition.” Id. (quoting Culver, 727 N.E.2d at 1067). Because the

       State need not establish a perfect chain of custody, slight gaps go to the weight,

       not the admissibility, of the evidence. Id. There is a presumption of regularity

       in the handling of exhibits by public officers. Id. (citing Murrell v. State, 747

       N.E.2d 567, 572 (Ind. Ct. App. 2001), trans. denied). Therefore, merely raising

       the possibility of tampering is insufficient to make a successful challenge to the

       chain of custody. Id. (citing Cockrell v. State, 743 N.E.2d 799, 809 (Ind. Ct. App.

       2001)).


[28]   In the present case, the evidence showed that Officer Ross seized the cocaine

       from Hester during his arrest and briefly handed the baggie to Officer Winters

       to hold while Officer Ross struggled to get Hester handcuffed. Once Hester was

       handcuffed, Officer Ross again took possession of the cocaine and placed it in

       an evidence bag, which he sealed and placed into the secure evidence drop box

       on the day of the arrest, March 9, 2013. The cocaine remained in the drop box

       until it was retrieved by evidence technician Lutz on Monday, March 11, 2013

       and processed and placed in a secure evidence room until Lutz personally

       transported the cocaine to the ISP lab for analysis. The evidence had been

       sealed with brown tape by Officer Ross, who marked the seals with the case

       number and his badge number. Tr. at 313. This seal was broken by chemist

       Early at the ISP lab, who analyzed the drugs, and when she was finished, she

       Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-515 | September 8, 2015   Page 19 of 26
       re-sealed the cocaine with red tape and placed her own identifying information

       on the seal. Id. at 397, 429. This evidence was sufficient to establish a proper

       chain of custody and to permit the cocaine to be admitted into evidence.


[29]   Hester contends that the cocaine was handled by another officer at the scene,

       “whose identity was murky.” Appellant’s Br. at 26. However, the officer to

       whom Officer Ross handed the cocaine for the brief time it took him to

       handcuff the struggling Hester was identified as Officer Winters, who returned

       the cocaine to Officer Ross as soon as Hester had been subdued. Hester also

       claims that the cocaine analyzed by Early did not match the description of the

       cocaine seized by Officer Ross. Officer Ross’s report described the cocaine as a

       “white powdery substance” that field tested “positive for cocaine salts,” Exhibit

       D, but Early’s analysis described the cocaine as an “off white powdery

       substance” that was determined to contain cocaine base. State’s Ex. 5. Early

       testified at trial that descriptions of cocaine vary depending on the environment

       in which it is viewed and the viewer’s subjective judgment call. Tr. at 458-59.

       Further, although the field test stated that the evidence tested positive for

       cocaine salts and the lab analysis determined it contained cocaine base, there is

       no differentiation in the statute between types of cocaine, so such evidence

       merely suggests possibility of tampering and is insufficient to make a successful

       challenge to the chain of custody. Filice, 886 N.E.2d at 34.


[30]   As to Hester’s contention that no evidence was presented to explain how

       another defendant’s evidence was sent to the ISP lab in reference to Hester’s

       case, the State explained to the trial court that, although evidence from another

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       case was originally sent to the ISP lab in reference to Hester’s case, the actual

       evidence for Hester’s case was in the secure evidence room and did not leave

       until the mistake was discovered and resolved. See Espinoza v. State, 859 N.E.2d

       375, 382 (Ind. Ct. App. 2006) (“An adequate foundation establishing a

       continuous chain of custody is established if the State accounts for the evidence

       at each stage from its acquisition, to its testing, and to its introduction at trial.”).

       We, therefore, find that the State presented evidence to “strongly suggest the

       exact whereabouts of the evidence at all times” and to establish a sufficient

       chain of custody. Filice, 886 N.E.2d at 34.


                                    III. Exclusion of Evidence
[31]   Criminal defendants are guaranteed a meaningful opportunity to present a

       complete defense. Hyser v. State, 996 N.E.2d 443, 447 (Ind. Ct. App. 2013).

       “Although a defendant’s right to present a defense is of the utmost importance,

       it is not absolute.” Manuel v. State, 971 N.E.2d 1262, 1266 (Ind. Ct. App. 2012).

       Both the accused and the State are required to comply with established rules of

       procedure and evidence designed to assure both fairness and reliability in the

       ascertainment of guilt and innocence. Id.


[32]   Hester argues that the trial court abused its discretion when it did not allow him

       to admit Defendant’s Exhibit C into evidence, the transcript from the October

       24, 2013 hearing on his motion to continue, and to elicit testimony from the

       prosecutor regarding the same subject matter. He contends that the transcript,

       which contained the prosecutor’s statement about how evidence from another


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       defendant’s case was sent to the ISP lab in reference to this case, should have

       been admitted because it was relevant to his defense that the substance taken

       from him was not the same substance sent to the ISP lab for testing. In the

       alternative, he alleges he should have been allowed to elicit testimony from the

       prosecutor regarding the evidence being sent to the lab. Hester asserts that the

       imperfections in the chain of custody supported his theory, and the jury should

       have been allowed to know that the State had originally sent another

       defendant’s evidence in reference to Hester’s case.


[33]   The standard of review for admissibility of evidence issues is whether the trial

       court’s decision was an abuse of discretion. Hyser, 996 N.E.2d at 448.

       Generally, errors in the admission or exclusion of evidence are to be

       disregarded as harmless unless they affect the substantial rights of a party. Id.

       In determining whether an evidentiary ruling affected a party’s substantial

       rights, the court assesses the probable impact of the evidence on the trier of fact.

       Id.


[34]   Hester asserts that, because the trial court admitted the cocaine into evidence,

       all of his contentions regarding imperfections in the chain of custody go to the

       weight of the evidence, and therefore, the transcript should have been admitted

       as well. See Filice, 886 N.E.2d at 34. (“Because the State need not establish a

       perfect chain of custody, slight gaps go to the weight, not the admissibility, of

       the evidence.”). Assuming without deciding that the trial court abused its

       discretion in excluding the evidence, we find the error to be harmless. At the

       October 24, 2013 hearing on Hester’s motion to continue, the prosecutor stated

       Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-515 | September 8, 2015   Page 22 of 26
       that, due to a typographical error, another defendant’s evidence was sent to the

       ISP lab in reference to Hester’s case. Appellant’s App. at 183. The prosecutor

       further explained that, once the error was detected, the evidence seized from

       Hester was submitted to the ISP lab for analysis on an expedited basis. Id.

       When Hester attempted to have the transcript admitted at trial, the prosecutor

       explained that, although evidence from another case had been sent to the ISP

       lab in reference to Hester’s case, the actual evidence seized from Hester

       remained in the secure evidence room until after the error was detected and the

       evidence was then sent to the lab on an expedited basis. Tr. at 499. Both

       evidence technician Lutz and ISP chemist Early testified that they had no

       information regarding any other evidence being taken to the lab in reference to

       Hester’s case and that the evidence seized from Hester was taken to the lab on

       October 21, 2013. Id. at 398-400, 410.


[35]   Additionally, the State submitted evidence that after Officer Ross seized the

       cocaine from Hester, he placed it in an evidence bag, which he sealed with

       brown tape, marked with the case number and his badge number, and placed

       into the secure evidence drop box on the day of the arrest. The cocaine

       remained in the drop box until it was retrieved by evidence technician Lutz two

       days later and then processed and placed in a secure evidence room until Lutz

       personally transported the cocaine to the ISP lab for analysis on October 21,

       2013. The seal placed on the evidence by Officer Ross was broken by chemist

       Early at the ISP lab, who analyzed the drugs, and Early re-sealed the cocaine

       with red tape and placed her own identifying information on the seal after she


       Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-515 | September 8, 2015   Page 23 of 26
       concluded her analysis. Id. at 397, 429. We conclude that any error in

       excluding the challenged evidence was outweighed by the substantial evidence

       establishing a proper chain of custody for the cocaine evidence and was

       harmless.


                                    IV. Inappropriate Sentence
[36]   Hester contends that his thirty-year aggregate sentence is inappropriate in light

       of the nature of the offense and character of the offender. Under Indiana

       Appellate Rule 7(B), “we may revise any sentence authorized by statute if we

       deem it to be inappropriate in light of the nature of the offense and the character

       of the offender.” Corbally v. State, 5 N.E.3d 463, 471 (Ind. Ct. App. 2014). The

       question under Appellate Rule 7(B) is not whether another sentence is more

       appropriate; rather, the question is whether the sentence imposed is

       inappropriate. King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008). It is the

       defendant’s burden on appeal to persuade the reviewing court that the sentence

       imposed by the trial court is inappropriate. Chappell v. State, 966 N.E.2d 124,

       133 (Ind. Ct. App. 2012), trans. denied.


[37]   A person who commits a Class A felony shall be imprisoned for a fixed term of

       between twenty and fifty years, with the advisory sentence being thirty years.

       Ind. Code § 35-50-2-4. A person who commits a Class C felony shall be

       imprisoned for a fixed term of between two and eight years, with the advisory

       sentence being four years. Ind. Code § 35-50-2-6. A person who commits a

       Class A misdemeanor shall be imprisoned for a fixed term of not more than one


       Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-515 | September 8, 2015   Page 24 of 26
       year. Ind. Code § 35-50-3-2. In the present case, Hester was sentenced to thirty

       years for his Class A felony conviction for possession of cocaine, four years for

       his Class C felony conviction for operating a vehicle while privileges are

       forfeited for life, one year for his Class A misdemeanor conviction for resisting

       law enforcement, and one year for his conviction for Class A misdemeanor

       conviction for possession of marijuana. The trial court ordered the sentences to

       be served concurrent with each other, resulting in a thirty-year aggregate

       sentence. He is, therefore, essentially arguing that his thirty-year advisory

       sentence for a Class A felony conviction is inappropriate.


[38]   As for the nature of the offense, Hester was found in possession of almost three

       times the amount of cocaine required to commit the offense for which he was

       convicted. He also fled the police when they initially attempted to handcuff

       him and continued to struggle once Officer Ross caught him. He also tried to

       toss the baggie of cocaine and distance himself from it as he struggled with the

       officer. Additionally, at the time the police encountered Hester he was

       operating a vehicle when he was aware that his driving privileges had been

       forfeited for life.


[39]   As to Hester’s character, he had a lengthy criminal history dating back to 1996

       when he was a juvenile. As a juvenile, Hester had adjudications for resisting

       law enforcement, battery, possession of marijuana, and possession of cocaine.

       As an adult, Hester had two Class D felony convictions for operating a vehicle

       after being adjudged a habitual traffic offender, a Class A misdemeanor

       conviction for possession of marijuana, a Class A misdemeanor conviction for

       Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-515 | September 8, 2015   Page 25 of 26
       carrying a handgun without a license, a Class D felony conviction for

       possession of marijuana, a Class C felony conviction for operating a vehicle

       while privileges are forfeited for life, and a Class A misdemeanor conviction for

       resisting law enforcement. At the time he was arrested in the instant case, he

       had pending charges for possession of marijuana and operating a vehicle while

       privileges are forfeited for life. Additionally, while out on bond for the present

       case, Hester was charged in Marion County, Indiana with operating a vehicle

       while privileges are forfeited for life and was also cited for driving without a

       valid license in Cook County, Georgia. This lengthy criminal history shows a

       disregard for the law and disrespect for the authority of the courts. In light of

       the nature of the offense and the character of the offender, we do not find that

       Hester’s advisory sentence of thirty years was inappropriate.


[40]   Affirmed.


       Najam, J., and Barnes, J., concur.




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