Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of                    Dec 29 2014, 6:29 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT:                                ATTORNEY FOR APPELLEE:

MARK SMALL                                             GREGORY F. ZOELLER
Indianapolis, Indiana                                  Attorney General of Indiana

                                                       MICHAEL GENE WORDEN
                                                       Deputy Attorney General
                                                       Indianapolis, Indiana



                               IN THE
                     COURT OF APPEALS OF INDIANA


                                                  )
FRANK R. LEMPERA, III,                            )
                                                  )
       Appellant-Defendant,                       )
                                                  )
               vs.                                )   No. 56A05-1404-CR-167
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee-Plaintiff.                        )


                     APPEAL FROM THE NEWTON SUPERIOR COURT
                          The Honorable Daniel J. Molter, Judge
                              Cause No. 56D01-1303-FB-6
                                       December 29, 2014

                 MEMORANDUM DECISION - NOT FOR PUBLICATION



BAILEY, Judge
                                              Case Summary

          Frank R. Lempera III (“Lempera”) was convicted of Dealing in a Schedule I, II, or

III Controlled Substance, as a Class B felony,1 and Dealing in a Schedule IV Controlled

Substance, as a Class C felony.2 Lempera was also adjudicated to be a Habitual Substance

Offender.3 Lempera appeals. We affirm the convictions, but reverse in part the trial court’s

sentencing order and remand with instructions to correct it.

                                                    Issues

          Lempera presents two issues on appeal, which we restate as:

          I.       Whether the trial court erred when it denied Lempera’s motion for a
                   continuance and motion to exclude evidence related to a State’s
                   witness that was disclosed shortly before trial; and

          II.      Whether there was sufficient evidence to support his convictions.

In addition, we address an issue first raised in the State’s brief:

          III.     Whether the trial court’s sentencing order is erroneous.

                                     Facts and Procedural History

          In October 2012, Newton County Sheriff’s Department Deputy Sheriff David Rowe

(“Deputy Rowe”) enlisted Michael Harris (“Harris”) as a confidential informant to assist

with investigations into illegal sales of prescription drugs in Newton County. Harris




1
 Ind. Code § 35-48-4-2(a)(1). Due to substantial revisions to the Indiana Code effective July 1, 2014, this
offense is now a Level 6 felony. We refer to the version of the statute in effect at the time of Lempera’s
offense.
2
    I.C. § 35-48-4-3(a)(1). This offense is now a Class A misdemeanor.
3
    I.C. § 35-50-2-10(b). This statute was repealed effective July 1, 2014.

                                                       2
identified Lempera as a person from whom he could illegally buy drugs and agreed to

participate in a controlled buy of prescription pills from Lempera.

          On November 9, 2012, during a controlled buy supervised by Deputy Rowe,

Lempera sold Harris six pills of Xanax, a brand name of the controlled substance

alprazolam,4 for twenty dollars. On December 16, 2012, Deputy Rowe facilitated a second

controlled buy in which Lempera sold Harris pills containing acetaminophen and the

controlled substance hydrocodone,5 also known by the common brand name Vicodin.

Deputy Rowe made audio recordings of both buys using recording equipment attached to

Harris and Harris’s car.

          On March 1, 2013, Lempera was arrested and charged with one count of Dealing in

a Schedule I, II, or III Controlled Substance, as a Class B felony, for the December 16,

2012 sale of hydrocodone (“Count I”), and one count of Dealing in a Schedule IV

Controlled Substance, as a Class C felony, for the November 9, 2012 sale of alprazolam

(“Count II”). The State also alleged Lempera to be a habitual substance offender because

Lempera had two prior, unrelated substance offense convictions.

          On March 4, 2013, Lempera filed a motion to produce evidence that requested:

          2.      A copy of all written or recorded statements, memoranda, and
                  summaries of oral statements of persons whom the Prosecuting
                  Attorney intends to call as witnesses in the prosecution of this cause
                  of action . . . .
                  [. . . .]




4
    Alprazolam is schedule IV controlled substance. I.C. § 35-48-2-10.
5
    Hydrocodone is a schedule II controlled substance. I.C. § 35-48-2-6.
                                                      3
(App. at 23-25.) That same day, the court ordered the State to provide Lempera with

discovery.

       On February 14, 2014, the trial court held a pretrial hearing on various motions filed

by the parties. At the hearing, the parties discussed the State’s witness list, which the State

filed on February 12, 2014. The list included Amy Jarrell (“Jarrell”) and listed her address

as “512 E. Seymour Street, Kentland, IN 47951.” (App. at 94.) The address was the same

as a local CVS Pharmacy, but the business name was not disclosed and Jarrell was not

identified as an employee.

       On Friday, February 28, 2014, with the trial scheduled to begin on Monday, March

3, 2014, the court held a second pretrial hearing. During the hearing, the State revealed

that Jarrell was a CVS pharmacist who would testify about the identity of the pills Lempera

sold to Harris. Lempera did not move for a continuance or to exclude Jarrell’s testimony.

       On March 4, 2014, during phase one of his bifurcated trial, Lempera orally moved

to exclude Jarrell, citing the State’s failure to timely disclose her as an expert witness in

accordance with his 2013 motion to produce evidence and the court’s discovery order. In

ruling on the motion, the court gave the following instructions:

       Prior to her introduction or her testimony to be introduced, we will take a
       recess to permit the Defendant an opportunity to converse with her and see
       if any other action needs to be taken other than her background or curriculum
       vitae or whatever you want to say. But I do want [Lempera] to have an
       opportunity to talk to her before her testimony is offered. We’ll go from
       there. And if [Lempera] can show a prejudice, then of course we are forced
       to take a continuance. Otherwise, there is no prejudice and we will hear her
       testimony.

(Tr. at 50.)


                                              4
       On March 4, 2014, the trial court heard the testimony of the pharmacist outside the

presence of the jury, at which time Lempera’s counsel questioned her. Before and after his

cross-examination, Lempera moved for a continuance.            The court found that “the

Defendant has effectively completed a cross examination of the witness and is not

prejudiced by the introduction of the limited testimony of Amy Jarrell as to the

identification of the controlled substances introduced into evidence in this cause.” (App.

at 123.) Over Lempera’s continuing objection, the court permitted Jarrell to testify in front

of the jury that the pills Lempera sold Harris contained the controlled substances

alprazolam and hydrocodone. (Tr. at 164-66.)

       At the conclusion of the trial’s first phase, Lempera was found guilty of and the

court entered judgments of conviction on Counts I and II. In phase two, by agreement with

the State, Lempera admitted to being a habitual substance offender in exchange for a

maximum enhancement of four years on his convictions in phase one.                The court

adjudicated Lempera a habitual substance offender.

       On March 19, 2014, the court sentenced Lempera to fifteen years imprisonment on

Count I, enhanced by four years as a result of his habitual substance offender status, for an

aggregate term of nineteen years. The court sentenced Lempera to four years imprisonment

on Count II, to be served concurrently with his sentence in Count I. The court also ordered

that Lempera’s sentence in Count I be served concurrently with his sentence in a separate

case, 56D01-1108-FA-6 (“FA-6”), in which Lempera was on probation when he committed

the offenses in this case.

       Lempera now appeals.

                                             5
                                 Discussion and Decision

                              Motions to Exclude and Continue

       Lempera first contends that the trial court erred by failing to exclude Jarrell’s

testimony or grant Lempera a continuance after the State, in an alleged violation of the

discovery order, failed to disclose Jarrell’s occupation or the substance of her testimony

until shortly before trial. Trial courts are granted wide latitude in matters concerning

discovery, and it is within the trial court’s discretion to determine whether there has been

substantial discovery noncompliance. Mers v. State, 496 N.E.2d 75, 83 (Ind. 1986).

Absent clear error and resulting prejudice, a trial court’s discovery ruling will not be

overturned. Id.

       When discoverable evidence is withheld in violation of a discovery order, generally

the proper remedy is a continuance or exclusion of the evidence. Id. A continuance sought

on non-statutory grounds is within the discretion of the trial court, and we will not disturb

the court’s decision absent a clear demonstration of an abuse of that discretion. Elmore v.

State, 657 N.E.2d 1216, 1218 (Ind. 1995). A continuance is the proper remedy for a

discovery violation “unless the State’s action is so misleading as to demonstrate such bad

faith that exclusion of the evidence is necessary to protect the defendant’s fair trial rights.”

Mers, 496 N.E.2d at 83. “Exclusion is usually granted only if the State has blatantly and

intentionally failed to provide discovery or if the exclusion is necessary to avoid substantial

prejudice to the defendant.” Id.

       In this case, the State disclosed Jarrell as a witness on February 12, 2014. Although

the State did not identify Jarrell as a CVS pharmacist, her address on the witness list was

                                               6
the local CVS store. At the first pretrial hearing, the parties discussed the witness list, but

neither party mentioned or inquired about Jarrell. On Friday, February 28, 2014, with the

trial scheduled to begin on Monday, the State revealed during the pretrial hearing that

Jarrell was a pharmacist and that she would identify the pills Lempera sold as controlled

substances. Lempera did not object to the State’s disclosure at that time, nor did he move

for a continuance or to exclude the testimony. He also did not seek to depose Jarrell over

the weekend.

        Rather, on the second day of trial, Lempera orally moved to exclude Jarrell as a

witness. In response to his motion, the court permitted Lempera to question Jarrell prior

to her formal testimony and outside the presence of the jury. The court stated that if

Lempera could show he would be prejudiced by Jarrell’s testimony, the court would grant

a continuance as the proper remedy. After Lempera’s examination, the court found that

Lempera would not be prejudiced by Jarrell’s testimony, but limited her testimony to

identification of the pills. During his cross-examination, Lempera questioned Jarrell about

her methodology for identification and familiarity with certain pill characteristics.

        Lempera has not alleged or shown that the State blatantly or intentionally failed to

disclose a witness.6 Instead, he argues that the State was noncompliant with the discovery

order by failing to identify Jarrell as a pharmacist on the witness list and to provide him

with the substance of her testimony. Although perhaps the better practice would have been


6
  Although Lempera alleges in passing that the special prosecuting attorney appointed in this case violated
Indiana Professional Conduct Rule 3.8(d) by failing to disclose evidence “that tends to negate the guilt of
the accused or mitigates the offense,” Lempera does not provide a cogent argument to support this assertion.
Accordingly, this argument is waived. See Ind. Appellate Rule 46(A)(8)(a); Moore v. State, 869 N.E.2d
489, 491-92 (Ind. Ct. App. 2007).
                                                     7
for the State to disclose Jarrell’s occupational title and the business name on the witness

list, the State did disclose her as a witness on February 12, 2014. Lempera did not object

to the disclosure at that time, and he apparently failed to investigate her identity or the

substance of her testimony in the weeks leading up to trial. Moreover, during a hearing on

the Friday before trial, Lempera received advance notice from the State that Jarrell was a

pharmacist, but did not at that time inquire about her experience or expected testimony.

On these facts, we cannot say that Lempera has shown that the State’s witness list was so

misleading as to demonstrate bad faith or so prejudicial such that exclusion of Jarrell’s

testimony was necessary to protect his rights to a fair trial. See Lindsay v. State, 877

N.E.2d 190, 196 (Ind. Ct. App. 2007) (holding that where the prosecution did not

deliberately withhold evidence that the defendant, through the exercise of due diligence,

could have discovered, the defendant could not show that he was prejudiced by its

admission), trans. denied.

       Lempera also argues that, as a result of the State’s late disclosure of Jarrell’s

occupation and testimony, he “was prejudiced by his inability to adequately prepare for

cross-examination of [Jarrell].” (Appellant’s Br. at 17.) During trial, the court afforded

Lempera the opportunity to question Jarrell prior to her testimony to determine whether a

continuance was necessary to protect his rights. Based on this examination, the court found

that Lempera “had adequate time to cross-examine and in fact has very effectively cross-

examined [Jarrell] with regard to [her testimony].” (Tr. at 162.) The court then limited her

testimony to identification of the pills. On appeal, Lempera does not point to any specific

deficiencies in his cross-examination that lead us to conclude that the court abused its

                                             8
discretion in finding that a continuance was unnecessary. We therefore cannot conclude

that Lempera was prejudiced when the court permitted him advance opportunity to

question Jarrell and, based on his “very effective[]” cross-examination, denied his motion

for a continuance. (Tr. at 162.)

       Lempera also argues that any error the trial court made by admitting Jarrell’s

testimony “was compounded by the pharmacist’s testimony that chain of custody was

interrupted.” (Appellant’s Br. at 19.) Here, Lempera seems to argue that the pills should

not have been introduced into evidence because Jarrell’s testimony suggests that the chain

of custody was broken. He further argues that the alleged chain of custody violation,

coupled with the court’s orders on the discovery motions, constitute fundamental error.

       Because Lempera did not make a chain of custody objection at trial, his argument

is waived unless he can establish fundamental error. See Troxell v. State, 778 N.E.2d 811,

814 (Ind. 2002) (“Because there was no chain of custody objection to this evidence [at

trial], this claim is not available on appeal unless it constituted fundamental error.”).

“Fundamental error is extremely narrow and available only when the record reveals a

clearly blatant violation of basic and elementary principles, where the harm or potential for

harm cannot be denied, and which violation is so prejudicial to the rights of the defendant

as to make a fair trial impossible.” Jewell v. State, 887 N.E.2d 939, 942 (Ind. 2008).

Moreover, to successfully challenge the chain of custody at this stage, “one must present

evidence that does more than raise a mere possibility that the evidence may have been

tampered with.” Troxell, 778 N.E.2d at 814.



                                             9
       Here, Jarrell’s testimony establishes that the police officers brought the pills to her

and she identified them in the presence of a police officer. Lempera does no more than

raise the mere possibility of tampering, and therefore has not established error, let alone

the type of prejudice necessary to support a claim of fundamental error. And because we

find no error in the trial court’s rulings, we also find no basis to reverse on Lempera’s claim

that the court’s orders on the motions and the alleged tampering together constitute

fundamental error.

       The trial court did not err in denying Lempera’s motions to continue and to exclude

Jarrell’s limited testimony.

                                            Sufficiency

       Lempera also contends there was insufficient evidence to support his conviction.

Specifically, he argues that the State failed to prove that the pills Lempera sold were

controlled substances because “[t]he only testimony or evidence that tended to establish

the pills . . . were contraband was the testimony of [Jarrell]” and “her testimony should

have been excluded.” (Appellant’s Br. at 24.) Because we hold that the trial court did not

err in denying Lempera’s motion to exclude Jarrell’s testimony, we cannot conclude that

there was insufficient evidence to support his conviction.7

                                            Sentencing

       Although not raised by Lempera, we address the State’s argument that the trial

court’s sentencing order is erroneous.          “[S]ound policy and judicial economy favor



7
  Because we affirm his convictions, the trial court did not err in adjudicating Lempera as a habitual
substance offender.
                                                 10
permitting the State to present claims of illegal sentence on appeal when the issue is a pure

question of law that does not require resort to any evidence outside the appellate record.”

Hardley v. State, 905 N.E.2d 399, 403 (Ind. 2009).

       The State argues that in both the Abstract of Judgment (the “Abstract”) and the trial

court’s oral statements at sentencing, the court improperly applied the habitual substance

offender enhancement to Lempera’s sentence. The court’s written sentencing order, filed

March 19, 2014, clearly states that Lempera’s fifteen years sentence on Count I “is

enhanced by a term of four (4) years.” (App. at 5.) On the other hand, the Abstract shows

that Lempera was sentenced to fifteen years on Count I, but under a Count III, identified

as “Habitual Substance Offender,” the Abstract lists a four year sentence to be served

consecutively to Count I. (App. at 127.) We see no error in the court’s order, but to the

extent that the Abstract conflicts, we clarify that the term of years imposed as a result of

Lempera’s habitual substance offender adjudication is an enhancement to his sentence in

Count I, not a separate conviction. See I.C. § 35-50-2-10(f). We therefore remand with

instructions to correct the Abstract in this regard.

       The State also contends that the trial court improperly ordered that Lempera’s

sentence in this case be served concurrently with a sentence in a separate case. Under

Indiana Code section 35-50-1-2(d), if a person commits another crime while on probation

for a previous crime, the terms of imprisonment must be served consecutively. I.C. § 35-

50-1-2(d). At the sentencing hearing in this case, the court also heard testimony on the

State’s petition to revoke Lempera’s probation in FA-6. Lempera was on probation in FA-

6 when he committed the offenses in this case. (Tr. at 217.) As a result, the court ordered

                                              11
Lempera’s probation revoked and his remaining sentence in FA-6 executed. However, the

court ordered his sentence on Count I in this case “served concurrently with the two (2)

year sentence imposed under cause 56D01-1108-FA-6.” (App. at 5.) The Abstract also

clearly states that his sentence in Count I is “Concurrent: 56D01-1108-FA-6.” (App. at

127.) In light of Indiana Code section 35-50-1-2(d), the trial court erred in ordering

concurrent sentences. We therefore remand with instructions that the court order the

sentences in this case and FA-6 be served consecutively.

                                       Conclusion

       The trial court did not err when it denied Lempera’s motion to exclude evidence and

motion to continue. Moreover, because the evidence was properly admitted, there was

sufficient evidence to support his convictions. To ensure accuracy, we remand with

instructions to correct the Abstract of Judgment to properly reflect that the term of years

imposed as a result of Lempera’s habitual substance offender adjudication is an

enhancement to his sentence in Count I, not a separate conviction. In addition, because

Lempera was on probation when he committed the offenses in this case, we remand with

instructions that the trial court order Lempera’s sentence in this case to be served

consecutively to his sentence in 56D01-1108-FA-6.

       Affirmed in part, reversed in part, and remanded with instructions.

ROBB, J., and BROWN, J., concur.




                                            12
