MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                    Jun 11 2015, 8:29 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



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


                                             IN THE
    COURT OF APPEALS OF INDIANA

Ian James Dutton,                                        June 11, 2015

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         42A01-1407-CR-325
        v.                                               Appeal from the Knox Circuit Court.
                                                         The Honorable Sherry B. Gregg
                                                         Gilmore, Judge.
State of Indiana,                                        Cause No. 42C01-0908-FB-64
Appellee-Plaintiff.




Garrard, Senior Judge




Court of Appeals of Indiana | Memorandum Decision 42A01-1407-CR-325 | June 11, 2015     Page 1 of 14
[1]   Ian James Dutton appeals his convictions by jury of dealing in a Schedule II
                                                                         1
      controlled substance (OxyContin), a Class B felony, and maintaining a
                                                     2
      common nuisance, a Class D felony. We affirm.


                                                    Issues
[2]   Dutton raises three issues, which we restate as:

                 I.       Whether there is sufficient evidence to sustain Dutton’s
                          convictions.
                 II.      Whether the trial court committed fundamental error in
                          admitting evidence.
                 III.     Whether the prosecutor’s comments to the jury during
                          closing arguments were misconduct that amounted to
                          fundamental error.

                                   Facts and Procedural History
[3]   During the period of time relevant to this case, Dutton lived with Laura Fleenor

      in Vincennes, Indiana. Fleenor had prescriptions for OxyContin and Adipex,

      which are medicines that contain controlled substances. Dutton told Fleenor

      that he could make money for them by selling her pills. She agreed to his plan.


[4]   Meanwhile, Casey Luttrell, who was an informant for the Indiana State Police,

      moved to Vincennes. He met Dutton through a mutual acquaintance. After




      1
          Ind. Code § 35-48-4-2(a)(1) (2001).
      2
          Ind. Code § 35-48-4-13(b)(2) (2001).


      Court of Appeals of Indiana | Memorandum Decision 42A01-1407-CR-325 | June 11, 2015   Page 2 of 14
      talking with Dutton, Luttrell told Trooper Chad Woodburn that he could buy

      controlled substances from Dutton and Fleenor.


[5]   On May 20, 2009, Luttrell set up a buy with Dutton via an Xbox online

      communication, in Trooper Woodburn’s presence. Prior to the buy, Trooper

      Woodburn interviewed Luttrell and searched him for weapons and contraband.

      Finding none, Trooper Woodburn gave Luttrell $125 in buy money and an

      audio recording device. The device was activated and secured so that Luttrell

      could not turn it off. Next, Trooper Woodburn drove Luttrell to Dutton and

      Fleenor’s house in an unmarked car and dropped him off.


[6]   Dutton answered the door and let Luttrell enter. Luttrell gave the buy money

      to Dutton, and Dutton gave pills to Luttrell after obtaining them from Fleenor.

      Once Luttrell returned to Trooper Woodburn’s car, they drove to a prearranged

      debriefing location, where Luttrell gave the officer pills that were later identified

      as OxyContin and Adipex. During the debriefing, Luttrell told Trooper

      Woodburn that Dutton said he was not supposed to smoke marijuana because

      he was on house arrest.


[7]   On May 22, 2009, and June 2, 2009, Luttrell, working with Trooper

      Woodburn, purchased controlled substances from Dutton and Fleenor,

      following the same protocols that were used during the May 20, 2009 buy. On

      both occasions, Luttrell made the arrangements with Dutton in advance and

      went to Dutton and Fleenor’s house. Once there, Luttrell handed Dutton the

      buy money, and Fleenor gave Luttrell the pills.


      Court of Appeals of Indiana | Memorandum Decision 42A01-1407-CR-325 | June 11, 2015   Page 3 of 14
[8]    On June 19, 2009, Luttrell advised State Trooper Robert Hornbrook that he

       could purchase more OxyContin from Dutton. Luttrell called Dutton to make

       arrangements. Trooper Hornbrook overheard and recorded the call.


[9]    After Luttrell and Dutton agreed upon the terms of the sale, Trooper

       Hornbrook searched Luttrell for contraband and money. Finding no

       contraband, Trooper Hornbrook gave Luttrell $40.00 in buy money and an

       audio recording device. Trooper Hornbrook then drove Luttrell to Dutton and

       Fleenor’s home in an unmarked car. Trooper Hornbrook instructed Luttrell to

       go in, exchange the buy money for controlled substances, and return

       immediately to Trooper Hornbrook’s vehicle without meeting anyone else.


[10]   Once inside the house, Luttrell gave the money to Dutton, who turned it over

       to Fleenor. In exchange, Fleenor gave Luttrell four pills that were later

       identified as OxyContin. During the transaction, Luttrell asked Dutton about

       two individuals named “Pooter” and “Big Folk.” Luttrell had seen those

       individuals participate in transactions with Dutton involving controlled

       substances. Luttrell left the house and returned directly to Trooper

       Hornbrook’s car. Luttrell gave Trooper Hornbrook the OxyContin during a

       subsequent debriefing session.


[11]   The State charged Dutton with four counts of dealing in a Schedule II

       controlled substance, all Class B felonies, two counts of dealing in a Schedule

       IV controlled substance, both Class C felonies, and one count of maintaining a

       common nuisance, a Class D felony.


       Court of Appeals of Indiana | Memorandum Decision 42A01-1407-CR-325 | June 11, 2015   Page 4 of 14
[12]   During trial, Dutton did not object to evidence that he was on home detention

       during at least one of the transactions and had used marijuana. Dutton further

       failed to object to evidence that he had engaged in transactions with “Pooter”

       and “Big Folk” involving controlled substances. Instead, well after that

       evidence was admitted and the jury was excused from the courtroom for the

       evening, Dutton moved for a mistrial. He alleged that the evidence was unduly

       prejudicial. The trial court denied Dutton’s motion.


[13]   The jury determined that Dutton was guilty of one count of dealing in a

       Schedule II controlled substance and of maintaining a common nuisance. The

       jury failed to return verdicts on the other five charges. Dutton filed a motion to

       correct error, claiming that the prosecutor engaged in misconduct during

       closing argument. The trial court denied the motion and sentenced Dutton

       according to the jury’s verdict. This appeal followed.


                                    Discussion and Decision
                                  I. Sufficiency of the Evidence
[14]   Dutton argues that there is insufficient evidence to support his convictions for

       dealing in a schedule II controlled substance and maintaining a common

       nuisance. In considering challenges to the sufficiency of the evidence, we

       neither reweigh the evidence nor judge witness credibility. Kiplinger v. State, 922

       N.E.2d 1261, 1266 (Ind. 2010). Instead, we consider only the evidence

       supporting the judgment and any reasonable inferences drawn from that

       evidence. Tin Thang v. State, 10 N.E.3d 1256, 1258 (Ind. 2014). We affirm a


       Court of Appeals of Indiana | Memorandum Decision 42A01-1407-CR-325 | June 11, 2015   Page 5 of 14
       conviction unless no reasonable trier of fact could find every element proved

       beyond a reasonable doubt. Blount v. State, 22 N.E.3d 559, 565 (Ind. 2014).


                          A. Dealing in a Schedule II Controlled Substance

[15]   Dutton claims that Fleenor, not him, sold controlled substances to Luttrell. In

       order to convict Dutton for dealing in a schedule II controlled substance as

       charged, the State was required to prove beyond a reasonable doubt: (1) on

       June 19, 2009 (2) Dutton knowingly or intentionally (3) delivered (4)

       OxyContin, a Schedule II controlled substance. Ind. Code § 35-48-4-2;

       Appellant’s App. p. 37. “Delivery” is defined as:


               (1) an actual or constructive transfer from one (1) person to
               another of a controlled substance, whether or not there is an
               agency relationship; or
               (2) the organizing or supervising of an activity described in
               subdivision (1).
       Ind. Code § 35-48-1-11 (1990).


[16]   Dutton told Fleenor he could make money by selling her OxyContin and

       Adipex pills. Fleenor agreed to Dutton’s plan. On June 19, 2009, Luttrell

       notified Trooper Hornbrook that he could arrange a deal with Dutton and

       Fleenor to purchase OxyContin. Luttrell called Dutton, with Trooper

       Hornbrook listening to the call, and made arrangements to purchase four

       OxyContin pills.


[17]   Next, Trooper Hornbrook searched Luttrell for guns, contraband, or currency

       other than the buy money he planned to give Luttrell. Finding none, he gave

       Court of Appeals of Indiana | Memorandum Decision 42A01-1407-CR-325 | June 11, 2015   Page 6 of 14
       Luttrell forty dollars and a concealed recording device. Next, Trooper

       Hornbrook drove Luttrell to Dutton and Fleenor’s house. He instructed

       Luttrell to go in, exchange the buy money for controlled substances, and return

       immediately to his vehicle without meeting anyone else.


[18]   Luttrell went inside the house, where Dutton and Fleenor were present.

       Luttrell gave the buy money to Dutton in Fleenor’s presence, and Fleenor gave

       four pills to Luttrell in Dutton’s presence. When Luttrell returned to Trooper

       Hornbrook’s car, he gave Hornbrook the four pills, which were later identified

       as OxyContin.


[19]   A jury could have reasonably determined from this evidence that Dutton

       constructively transferred the OxyContin to Luttrell or, in the alternative,

       organized and supervised the delivery of the OxyContin to Luttrell. See Laird v.

       State, 483 N.E.2d 68, 70 (Ind. 1985) (defendant constructively delivered

       controlled substances by having his girlfriend carry a bag of pills to another

       person). Dutton’s arguments to the contrary are requests to reweigh the

       evidence, which our standard of review forbids.


[20]   The parties dispute whether Dutton’s conviction can be upheld under a theory

       of accomplice liability. It is unnecessary for us to address this issue because the

       evidence establishes that he delivered the OxyContin to Luttrell.


                                  B. Maintaining a Common Nuisance

[21]   In order to obtain a conviction for maintaining a common nuisance as charged,

       the State was required to prove beyond a reasonable doubt: (1) from May 20,

       Court of Appeals of Indiana | Memorandum Decision 42A01-1407-CR-325 | June 11, 2015   Page 7 of 14
       2009 through June 19, 2009 (2) Dutton (3) knowingly or intentionally (4)

       maintained a place (5) for unlawfully delivering (6) controlled substances. Ind.

       Code § 35-48-4-13; Appellant’s App. p. 38.


[22]   Dutton argues that this conviction must be reversed because there is insufficient

       evidence that he delivered controlled substances to Luttrell or anyone else. We

       have determined that there is sufficient evidence to sustain his conviction for

       dealing in controlled substances by delivering pills to Luttrell. As a result,

       Dutton’s argument fails, and there is sufficient evidence to sustain his

       conviction for maintaining a common nuisance. See Vaughn v. State, 13 N.E.3d

       873, 889 (Ind. Ct. App. 2014) (sufficient evidence supported conviction for

       maintaining a common nuisance where defendant delivered cocaine to

       confidential informant from his apartment), trans. denied.


                 II. Admission of Evidence and Fundamental Error
[23]   Dutton argues that the trial court erred by admitting testimony that he: (1) had

       smoked marijuana in the past; (2) was on house arrest when one of the

       transactions with Luttrell occurred; and (3) had engaged in other controlled

       substance transactions with individuals known to Luttrell as “Pooter” and “Big

       Folk.”


[24]   Dutton did not present contemporaneous objections to any of this evidence.

       Therefore, his claims are waived for appellate review. See Brown v. State, 929

       N.E.2d 204, 207 (Ind. 2010) (evidentiary claim waived when appellant did not

       object to evidence but later made a statement outside the presence of the jury).

       Court of Appeals of Indiana | Memorandum Decision 42A01-1407-CR-325 | June 11, 2015   Page 8 of 14
[25]   Dutton argues that his motion for mistrial, which he raised after the evidence

       had been presented to the jury, was sufficient to preserve this claim. He cites

       Pavey v. State, 764 N.E.2d 692 (Ind. Ct. App. 2002), trans. denied, in support of

       his argument. In that case, the trial court granted the State’s motion for mistrial

       after opening statements. After a retrial was held, the defendant appealed,

       challenging the trial court’s grant of a mistrial. A panel of this Court concluded

       that the State’s motion for a mistrial was a timely challenge to statements in the

       defendant’s opening statement, despite the State’s failure to present a

       contemporaneous objection. Id. at 699. The Court noted that because the

       defendant was the appealing party, the question of whether the State had

       preserved error for appellate review was not at issue. Id.


[26]   By contrast, in this case, Dutton claims that the State presented unduly

       prejudicial evidence. He, not the State, bore the burden of presenting timely

       objections to preserve his claims for appellate review. Pavey is inapplicable

       here, and Dutton’s failure to object resulted in waiver despite his belated

       motion for mistrial. See Brown, 929 N.E.2d at 207 (stating a party may not

       “resurrect an objection after the evidence has been admitted”).


[27]   Dutton argues that this Court may review his waived evidentiary claims

       because the admission of the evidence resulted in fundamental error.

       Fundamental error is an extremely narrow exception to the rule that failure to

       object at trial results in waiver of an issue on appeal. Knapp v. State, 9 N.E.3d

       1274, 1281 (Ind. 2014), cert. denied, 135 S. Ct. 978, 190 L. Ed. 2d 862 (2015). It



       Court of Appeals of Indiana | Memorandum Decision 42A01-1407-CR-325 | June 11, 2015   Page 9 of 14
       applies only in egregious circumstances, where an error is so blatant that the

       trial court should have taken action sua sponte. Id.


[28]   To establish fundamental error, an appellant must demonstrate that the error

       made a fair trial impossible or constituted a clearly blatant violation of basic

       and elementary principles of due process presenting an undeniable and

       substantial potential for harm. Id.


[29]   Dutton says that admission of evidence about his past marijuana use, being on

       home detention, and engaging in controlled substances transactions with

       persons other than Luttrell violated Indiana Evidence Rule 404(b). That rule

       provides, in relevant part: “Evidence of a crime, wrong, or other act is not

       admissible to prove a person’s character in order to show that on a particular

       occasion the person acted in accordance with the character.” Id.


[30]   It appears that the evidence Dutton challenges is indicative of prior crimes,

       wrongs, or acts. Even if this evidence was erroneously admitted, we cannot

       conclude that its admission amounts to fundamental error. The witnesses’

       references to Dutton’s past marijuana use, being on home detention, and

       engaging in other illegal transactions were limited in nature and made in

       passing. Furthermore, as noted above, the evidence supporting Dutton’s

       convictions is substantial. With respect to Dutton being on home detention,

       Dutton submitted to the jury a copy of the State’s probable cause affidavit,

       which referred to Dutton as being on home detention. Thus, the jury heard

       additional evidence from Dutton regarding his home detention status.


       Court of Appeals of Indiana | Memorandum Decision 42A01-1407-CR-325 | June 11, 2015   Page 10 of 14
[31]   Finally, despite hearing evidence of other crimes, wrongs, or acts, the jury did

       not return verdicts on five of the seven charges against Dutton. This outcome

       indicates that the challenged evidence did not have a substantial impact on the

       jury’s decision and did not inflame the jury against Dutton. We cannot

       conclude that the admission of the evidence of other alleged crimes, wrongs or

       acts made a fair trial impossible or constituted a clearly blatant violation of

       basic and elementary principles of due process presenting an undeniable and

       substantial potential for harm. See Vermillion v. State, 978 N.E.2d 459, 464 (Ind.

       Ct. App. 2012) (no fundamental error from the admission of evidence of other

       crimes where the jury heard “unequivocal evidence” supporting the

       convictions). Dutton has failed to establish fundamental error.


                   III. Closing Arguments and Fundamental Error
[32]   Dutton claims that during closing arguments, the State presented arguments

       that amounted to misconduct. He concedes that he did not object at trial to the

       prosecutor’s comments. A defendant waives a claim of prosecutorial

       misconduct for appellate review by failing to object in the trial court. Ryan v.

       State, 9 N.E.3d 663, 667 (Ind. 2014). When a claim of prosecutorial

       misconduct is waived but the defendant intends to present it on appeal despite

       waiver, the defendant must establish not only the grounds for prosecutorial

       misconduct but also that the misconduct constituted fundamental error. Id. at

       667-68.




       Court of Appeals of Indiana | Memorandum Decision 42A01-1407-CR-325 | June 11, 2015   Page 11 of 14
[33]   In reviewing a claim of prosecutorial misconduct, we determine (1) whether the

       prosecutor engaged in misconduct, and if so, (2) whether the misconduct, under

       all of the circumstances, placed the defendant in a position of grave peril to

       which he or she would not have been subjected. Booher v. State, 773 N.E.2d

       814, 817 (Ind. 2002). The gravity of peril is measured by the probable

       persuasive effect of the misconduct on the jury’s decision rather than the degree

       of impropriety of the conduct. Id.


[34]   As noted above, fundamental error is an extremely narrow exception to the

       waiver rule. Ryan, 9 N.E.3d at 668. Fundamental error is meant to permit

       appellate courts a means to correct the most egregious and blatant trial errors

       that otherwise would have been procedurally barred, not to provide second

       bites at the apple for defense counsel who ignorantly, carelessly, or strategically

       fails to preserve an error. Id.


[35]   To establish fundamental error, the defendant must show that, under the

       circumstances, the trial judge erred by not raising the issue sua sponte because

       alleged errors (a) constitute clearly blatant violations of basic and elementary

       principles of due process and (b) present an undeniable and substantial potential

       for harm. Id. In evaluating the issue of fundamental error, our task in this case

       is to look at the alleged prosecutorial misconduct in the context of all that

       happened and all relevant information given to the jury—including evidence

       admitted at trial, closing argument, and jury instructions—to determine

       whether the alleged misconduct had such an undeniable and substantial effect

       on the jury’s decision that a fair trial was impossible. Id.

       Court of Appeals of Indiana | Memorandum Decision 42A01-1407-CR-325 | June 11, 2015   Page 12 of 14
[36]   Dutton points to sixteen separate comments by the prosecutor that he claims

       amount to prosecutorial misconduct and fundamental error. Appellant’s Br.

       pp. 22-24. The comments include discussion on the credibility of the State’s

       witnesses that could amount to vouching for their testimony. Tr. p. 282 (telling

       the jury “you can be certain [the evidence] was properly handled by the Indiana

       State Police and properly presented by the analysts”). There were also remarks

       that could be construed as disparaging defense counsel’s arguments and

       burnishing his own credibility. Tr. pp. 317-18 (characterizing defense counsel’s

       arguments as “childish” and stating that, as a Marine, he was “a little tougher”

       than defense counsel). Finally, among other comments, the prosecutor accused

       Dutton of “pump[ing] poison into the streets of our community” and stated that

       a not guilty verdict would be “a stench in the nostrils of justice,” statements that

       could be interpreted as encouraging the jury to convict for reasons other than

       Dutton’s guilt. Tr. p. 327.


[37]   Even if the sixteen comments identified by Dutton, taken individually or

       cumulatively, amounted to misconduct, we cannot conclude that he was placed

       in great peril or that the comments amounted to clearly blatant violations of

       basic and elementary principles of due process. The evidence against Dutton

       was very strong. Testimony by Trooper Hornbrook, Luttrell, and Fleenor

       established that Dutton organized an OxyContin transaction with Luttrell and

       took the buy money from Luttrell, after which Fleenor gave Luttrell the agreed-

       upon amount of pills in Dutton’s presence. There is no dispute that the pills in

       question were OxyContin, a controlled substance.


       Court of Appeals of Indiana | Memorandum Decision 42A01-1407-CR-325 | June 11, 2015   Page 13 of 14
[38]   In addition, the jury’s verdict was much more favorable to Dutton than to the

       State because the jury did not return a verdict on five of the seven charges

       against him. The verdict demonstrates that the jury was not unfairly biased in

       favor of the State nor unfairly inflamed against Dutton by the prosecutor’s

       remarks. See Phillips v. State, 22 N.E.3d 749, 761 (Ind. Ct. App. 2014)

       (prosecutor’s remarks did not amount to fundamental error because the

       evidence against defendant was strong, so the probable persuasive effect of the

       remarks was minimal), trans. denied; Neville v. State, 976 N.E.2d 1252, 1265 (Ind.

       Ct. App. 2012) (prosecutor’s remarks did not place defendant in grave peril or

       amount to fundamental error because the evidence against the defendant was

       strong), trans. denied.


[39]   For the reasons stated above, we affirm the judgment of the trial court.


[40]   Affirmed-Garrard, Senior Judge


       Bailey, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 42A01-1407-CR-325 | June 11, 2015   Page 14 of 14
