MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                             FILED
this Memorandum Decision shall not be                         Apr 15 2020, 8:21 am

regarded as precedent or cited before any                          CLERK
court except for the purpose of establishing                   Indiana Supreme Court
                                                                  Court of Appeals
                                                                    and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Kay A. Beehler                                            Curtis T. Hill, Jr.
Terre Haute, Indiana                                      Attorney General of Indiana

                                                          Caroline G. Templeton
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Michael A. Huff,                                          April 15, 2020
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          19A-CR-2028
        v.
                                                          Appeal from the Pulaski Superior
                                                          Court
State of Indiana,
                                                          The Honorable Crystal A. Kocher,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause No.
                                                          66D01-1901-F5-1



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2028 | April 15, 2020          Page 1 of 16
[1]   Michael A. Huff appeals his conviction for possessing material capable of

      causing bodily injury by an inmate as a level 5 felony and claims the trial court

      abused its discretion in admitting evidence and the evidence is insufficient to

      sustain his conviction. We affirm.


                                      Facts and Procedural History

[2]   In January 2019, Huff was an inmate in the Pulaski County Jail. On January

      14 or 15, 2019, Pulaski County Sheriff’s Sergeant of Corrections Christopher

      McAninch conducted a C.A.B. hearing, which is “basically just a committee

      hearing board for disciplinary,” with Huff in a cell for attorney visitation.

      Transcript Volume II at 141. Sergeant McAninch wore a body camera during

      the hearing in order to record Huff’s “testimony and everything else for [the]

      C.A.B. hearing.” Id. at 144.


[3]   After concluding the hearing, Sergeant McAninch called the pod control officer

      to unlock the door. The locking mechanism for the door slid open, and Huff

      proceeded to open the door quickly and then closed the door quickly in front of

      Sergeant McAninch, locking him inside the visitation room.


[4]   Huff moved down the hallway past the dispatch center. Sergeant McAninch

      tried to radio to unlock the door and observed an officer hurry to the control

      panel to unlock the door. He walked out of the room and yelled Huff’s name.

      Huff stopped, hesitated for a second, and then started walking towards him.

      Sergeant McAninch placed Huff into a holding cell, and Huff kicked the door




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2028 | April 15, 2020   Page 2 of 16
      after being placed inside. Huff “started to attempt to tear his mat apart” and

      “stuff things in the toilet.” Id. at 148.


[5]   Sergeant McAninch went to Huff’s old cell and noticed his sleeping mat was

      “very heavy.” Id. at 149. After a metal detector alerted on the mat, Sergeant

      McAninch noticed the mat was hand sewn with white string material, cut open

      the mat, and discovered what looked like the blackened end of a paperclip. The

      officers decided to use a metal detector on the remainder of Huff’s belongings.

      Sergeant McAninch discovered an envelope that was “sealed pretty tight” with

      the name Braden Huff on it and felt a stiff object in the envelope that would not

      bend as easily as paper. Id. at 152. He opened the envelope and discovered

      handwritten letters dated November 2018 from a female inmate located in the

      facility, a piece of toilet paper, and a razor blade. Sergeant McAninch

      completed a contraband confiscation form and reviewed the form with Huff.


[6]   On January 17, 2019, the State charged Huff with possessing material capable

      of causing bodily injury by an inmate as a level 5 felony. Huff waived his right

      to counsel. At the jury trial, when asked how he was acquainted with Huff,

      Sergeant McAninch answered without objection: “[T]hrough several incidences

      inside the jail . . . . From when I first started here, um, several incidences in

      which I was personally involved in, um, through physical incidences with him,

      um, dealing with his C.A.B. hearings from other staff in which he has had

      disciplinary problems with.” Id. at 140. Sergeant McAninch also testified

      without objection: “At the time, he was actually serving a disciplinary sanction

      in our disciplinary block.” Id. at 143.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2028 | April 15, 2020   Page 3 of 16
[7]   During Sergeant McAninch’s testimony, the prosecutor asked to display the

      first video from the bodycam. Huff objected and asserted the video was not

      relevant to the facts of the charge. The court overruled the objection, found that

      “it is relevant based on the fact that it is foundation for the offense that

      occurred,” and marked the disc containing the bodycam footage as State’s

      Exhibit 1. Id. at 146. The first video consisted of a seventy-three second clip

      showing the end of the C.A.B. hearing in which Huff exited the room, closed

      the door, walked away from Sergeant McAninch, and stated he was going back

      to the block in a reasonable manner. The video includes an abrupt sound after

      Huff was placed in a holding cell and a statement by Sergeant McAninch telling

      him to quit hitting the door.


[8]   The prosecutor later asked to publish the second video showing the search of

      the envelope. When the court asked Huff if he had any objection to the

      publication of the second video, Huff answered in the negative. The court

      published the second video on State’s Exhibit 1 to the jury. This 125-second

      video showed the wanding of the envelope by a metal detector and Sergeant

      McAninch feeling and opening the envelope.


[9]   Sergeant McAninch testified that possessing razors constitutes a “very high

      security risk, as well as a safety concern for both inmates and staff.” Id. at 157.

      When asked the reason, he answered:


              There is [sic] multiple concerns when it comes into it, whether it
              be dangerous because it could be easily affixed to a handle,
              whether you take a toothbrush, get it hot enough to where the

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2028 | April 15, 2020   Page 4 of 16
               plastic becomes moldy, it can be affixed in there. It can be
               attached to pencils, and the blade is, now has a longer handle on
               it. It could be used more as a slashing tool, um, as well as some
               inmates could potentially use it for a suicide attempt.


       Id. at 158.


[10]   Without objection, the court admitted a third video on State’s Exhibit 1

       containing the video of the review of the contraband confiscation form. In the

       five-minute video, Sergeant McAninch reviewed the form with Huff and

       indicated he found a paperclip in the sleeping mat and a razor blade in an

       envelope. Huff asked about his pillow, and Sergeant McAninch indicated it

       was destroyed because it was handsewn on the top and was alerting on the

       metal detector and stated, “I already found a paperclip in the mat and then I’m

       finding razorblades in the other stuff.” State’s Exhibit 1. Huff stated: “There

       shouldn’t have been no razorblades in no other stuff.” Id. Huff also stated that

       the envelope had been sealed for months. The video revealed Huff stating there

       was no reason to take the mail and the envelope and Sergeant McAninch

       stating it was all seized for evidence and this was going to be an ongoing

       investigation.


[11]   On cross-examination, Huff asked if there had ever been a report of him

       intimidating someone with a razor blade, and Sergeant McAninch answered

       that he believed so and stated “there was a jury trial with intimidation in which

       it was actually mentioned to the jail commander about causing harm to him of

       cutting something up.” Transcript Volume II at 167. When later asked by Huff


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2028 | April 15, 2020   Page 5 of 16
       if he had ever intimidated somebody with a razor blade threatening to cut them

       or harm them, Sergeant McAninch answered: “Not with a razorblade, but

       finding them in the cell, and the intimidation of harming staff or anything like

       that, it’s, it’s not going to be a, a bridge that I want to cross.” Id. at 168.


[12]   On redirect examination, the following exchange occurred without objection:


               Q You said that uh, you were asked about whether or not, in
               addition to the intimidation question, that was asked repeatedly,
               there was, was [Huff] ever found with a razorblade, and you
               started to answer that in the affirmative. What were you talking
               about?

               A As far as being found with a razorblade?

               Q Uh huh.

               A Multiple times.


       Id. at 170. On recross examination by Huff, the following exchange occurred:


               Q So you said the Defendant has been found multiple times in
               possession of a razorblade, and you have never heard of him
               threatening anyone or using it to harm anyone with it?

               A No.

               Q On these multiple times he has been found in possession of a
               razorblade,

               A Yes.

               Q Yeah, none of these times there has ever been any reports of
               him harming anyone with a razorblade or threatening anyone
               with a razorblade?


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2028 | April 15, 2020   Page 6 of 16
               A Because the officers would discover them in time.


       Id. at 170-171.


[13]   Without objection, Pulaski County Sheriff’s Corrections Officer Isaiah Hilt

       testified Huff kicked the door after being placed inside the holding cell. The

       court also admitted photos of the razor blade found in the envelope.


[14]   Corey Scott McKinney, the investigations supervisor assigned to the Westville

       Correctional Facility, testified that he received specialized training concerning

       inmates and the potential use of weapons and developed an expertise in the

       area of weapons used by inmates. He testified that inmates use a razor blade

       for anything from “a tool for like arts and crafts, things to send out to their

       families, to cutting tools for, for weapons.” Id. at 205. When asked how

       inmates modify a disposable razor so it can be used as a weapon, McKinney

       answered that “the razors that our facility use have a plastic safety shroud

       around them that is not meant to be disassembled, so it has to physically by, the

       plastic has to physically be broken off in order to gain access to the metal strip

       of razor inside of it” and that “[t]hey are referred to commonly as like a safety

       razor.” Id.


[15]   He indicated the blades are dangers to others for “any number of reasons”

       including by coming into contact with staff during the search of an offender’s

       property. Id. at 206. He stated that the Department of Correction has

       restrictions on the use of razors because they can be used as a dangerous

       instrumentality and are classified as dangerous weapons. He testified that a

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2028 | April 15, 2020   Page 7 of 16
       great number of cases he had investigated or supervised involved razor blades

       and that injuries involved slicing injuries, cutting major veins and arteries,

       serious injury to the limbs, permanent disfigurement, or death. When asked to

       review the photos of the razor blade found in this case and whether it could

       cause bodily injury, he answered, “Yes. Absolutely.” Id. at 212. He testified

       he had seen cases where “they are used as they are in that, in that photo, where

       no extra preparation has been done, other than removing it from the plastic

       shroud.” Id. at 213. The following exchange then occurred:


               Q So, the mere fact of having a razor or part of a razor as
               depicted in those photos, would be classified by the Department
               of Corrections as a dangerous instrumentality. Is that correct?

               A As soon as it is modified from its intended purpose, which is a
               shaving razor for the Department of Correction. As soon as it is
               modified in its, and it’s placed in a manner like what the photos
               are there, they are dangerous weapons, yes.


       Id. He also indicated he did not conduct any portion of the investigation in this

       particular case and was present in court only in capacity as an expert witness on

       razor weapons in prisons.


[16]   After the State rested, Huff testified that he was a little upset with the outcome

       of the C.A.B. hearing and walked out “letting the door shut behind me out of

       spite, because I was upset.” Id. at 222. He testified that Sergeant McAninch

       placed him in a holding cell and gave him new property to hold him over until

       his property was searched. He stated the officers brought him out sometime

       later to read him a confiscation sheet and advised him they found a razor in an

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2028 | April 15, 2020   Page 8 of 16
       envelope addressed to his father, Brandon Huff. He testified he did not

       remember ever putting a razor in the envelope. He stated that, while the letters

       were dated from November, he could not send the envelope to his father until

       he received the address of his father’s new house. He stated it was common for

       inmates to have razor blades and that they are used for cutting hair and

       pictures, arts and crafts, and sharpening pencils.


[17]   On cross-examination, Huff acknowledged he had multiple convictions of theft.

       He also indicated that he let the door slam to lock Sergeant McAninch in the

       room. He testified that a broken razor from a shaving kit could be used to cut

       pictures and sharpen pencils, and when asked if razor blades are passed out for

       those purposes, he answered in the negative. He also indicated that he pops

       razors open to remove the blades. The jury found Huff guilty as charged, and

       the court sentenced him to sixty months incarceration.


                                                    Discussion

                                                          I.


[18]   The first issue is whether the trial court abused its discretion by admitting

       certain evidence. Huff challenges the admission of the video evidence as well

       as the testimony of Sergeant McAninch and McKinney. He mentions Ind.

       Evidence Rules 401, 402, 403, and 404, and argues that “[m]uch of the evidence

       presented at the trial in this matter was not relevant and therefore not

       admissible.” Appellant’s Brief at 7. He asserts that State’s Exhibit 1 was

       prejudicial to his right to a fair trial because the video clip in which Sergeant


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2028 | April 15, 2020   Page 9 of 16
       McAninch reviewed the confiscation form contained allegations regarding

       other jail infractions and refers to an “ongoing investigation.” Id. at 9. He

       contends the first video clip played for the jury referred to a disciplinary hearing

       and a sentence of “30 days” after which the officer accused Huff of “not going

       back to [his cellblock] in a reasonable manner.” Id. He argues the segment

       involving the search of the envelope may arguably be relevant, but its probable

       effect on the jury pales in comparison to the rest of the video evidence. 1 Id. He

       also points to the testimony of Sergeant McAninch that he “kicked the door” of

       a holding cell and testimony regarding uncharged allegations that he had been

       in possession of razor blades on other occasions. Id. at 10 (quoting Transcript

       Volume II at 175). He asserts that he objected to the admission of the video

       evidence on the proper grounds that it was irrelevant, prejudicial, and confusing

       and that his failure to object to specific additional testimony was not fatal to his

       claim because it constituted fundamental error.


[19]   The trial court has broad discretion to rule on the admissibility of evidence.

       Bradley v. State, 54 N.E.3d 996, 999 (Ind. 2016). A trial court’s ruling on the




       1
        Huff contends State’s Exhibit 1 contains five separate segments, four of which are irrelevant. He also asserts
       without citation to the transcript that “[t]he segments [of State’s Exhibit 1] titled ‘Altered Mattress’ and ‘Mat
       With Paperclip’ depicts [sic] officers discussing a mattress containing ‘other stuff’ and the alert of a metal
       detector on what officers identified as a piece of paperclip embedded in the interior padding of a mattress.”
       Appellant’s Brief at 9. As pointed out by the State, State’s Exhibit 1 is a DVD containing five video clips.
       The State asserts the titles were not relayed to the jury, the DVD was not sent to the jury during its
       deliberations, and the three clips played for the jury included the clips titled “Huff door slam and kick,”
       “metal detector and discovery of razor,” and “Huff statement about razor.” Appellee’s Brief at 10 n.4.
       Based upon the transcript, it does not appear that the clips titled “altered mattress” or “Mat with paperclip”
       were played for the jury.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2028 | April 15, 2020                     Page 10 of 16
       admission of evidence is generally accorded a great deal of deference on appeal.

       Hall v. State, 36 N.E.3d 459, 466 (Ind. 2015), reh’g denied. We will not reverse

       an error in the admission of evidence if the error was harmless. Turner v. State,

       953 N.E.2d 1039, 1058 (Ind. 2011). In determining the effect of the evidentiary

       ruling on a defendant’s substantial rights, we look to the probable effect on the

       fact finder. Id. at 1059. An improper admission is harmless if the conviction is

       supported by substantial independent evidence of guilt satisfying the reviewing

       court that there is no substantial likelihood the challenged evidence contributed

       to the conviction. Id.


[20]   Failure to timely object to the erroneous admission of evidence at trial will

       procedurally foreclose the raising of such error on appeal unless the admission

       constitutes fundamental error. Stephenson v. State, 29 N.E.3d 111, 118 (Ind.

       2015). The fundamental error exception to the contemporaneous objection

       requirement is “extremely narrow, and applies only when the error constitutes a

       blatant violation of basic principles, the harm or potential for harm is

       substantial, and the resulting error denies the defendant fundamental due

       process.” Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010) (quoting Mathews v.

       State, 849 N.E.2d 578, 587 (Ind. 2006)), reh’g denied. To be considered

       fundamental, the claimed error must make a fair trial impossible. Id. (citing

       Clark v. State, 915 N.E.2d 126, 131 (Ind. 2009), reh’g denied). Thus, this

       exception is available only in “egregious circumstances.” Id. (citing Brown v.

       State, 799 N.E.2d 1064, 1068 (Ind. 2003)).




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2028 | April 15, 2020   Page 11 of 16
[21]   Ind. Evidence Rule 401 provides that evidence is relevant if it has any tendency

       to make a fact more or less probable than it would be without the evidence and

       the fact is of consequence in determining the action. Ind. Evidence Rule 402

       provides in part that irrelevant evidence is not admissible. Ind. Evidence Rule

       403 provides that the court may exclude relevant evidence if its probative value

       is substantially outweighed by a danger of unfair prejudice, confusing the issues,

       misleading the jury, undue delay, or needlessly presenting cumulative evidence.

       Ind. Evidence Rule 404(b) provides that 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. Rule

       404(b)(2) provides that “[t]his evidence may be admissible for another purpose,

       such as proving motive, opportunity, intent, preparation, plan, knowledge,

       identity, absence of mistake, or lack of accident.”


[22]   Huff did not object to the playing of the second and third video clips and does

       not point to any objection to McKinney’s testimony. To the extent he cites

       Rule 404(b) on appeal, his objection to the first video clip played to the jury was

       based on relevance and not Ind. Evidence Rule 404(b). Accordingly, these

       arguments are waived. See Halliburton v. State, 1 N.E.3d 670, 683 (Ind. 2013)

       (observing that the law is well settled that a defendant may not argue one

       ground for objection at trial and then raise new grounds on appeal, the

       defendant made no claim at trial that evidence of the burglary did not fit any of

       the 404(b) exceptions, nor did he contend at trial that evidence of the burglary




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2028 | April 15, 2020   Page 12 of 16
       was bad character evidence prohibited by Rule 404(b), and holding that the

       defendant waived the claim of error for appellate review).


[23]   To the extent Huff points to the first video played for the jury showing the end

       of the C.A.B. hearing, we note the video does not reveal what offense Huff

       committed and showed Sergeant McAninch stating only that the “thirty days

       will stand.” State’s Exhibit 1. To the extent Huff points to the first video clip in

       which a loud sound can be heard after he was placed in a holding cell, the

       record reveals that Officer Hilt testified, without objection, that Huff kicked the

       door after being placed inside the holding cell. Further, Huff testified he let the

       door slam to lock Sergeant McAninch in the room because he was upset with

       the outcome of the C.A.B. hearing, and he walked out “letting the door shut

       behind me out of spite, because I was upset.” Transcript Volume II at 222.

       With respect to the reference to an ongoing investigation mentioned in the third

       video clip played for the jury, Huff does not develop an argument that the

       ongoing investigation related to an offense other than the conviction from

       which he appeals. As for his contention that certain “testimony regarding

       uncharged allegations that [he] has been in possession of razor blades on other

       occasions was admitted,” he does not cite to the record. Appellant’s Brief at 10.

       Further, Sergeant McAninch testified on cross-examination and re-cross-

       examination by Huff regarding razor blades found in his possession. We

       cannot say that the trial court abused its discretion or committed fundamental

       error.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2028 | April 15, 2020   Page 13 of 16
                                                         II.


[24]   The next issue is whether the evidence is sufficient to sustain Huff’s conviction.

       Huff does not assert that he did not possess the razor blade. Rather, he argues

       that the condition of the metal item found was likely sealed in an envelope for

       months and had not been altered or affixed to any object which could have

       rendered it a ready weapon.


[25]   When reviewing claims of insufficiency of the evidence, we do not reweigh the

       evidence or judge the credibility of witnesses. Jordan v. State, 656 N.E.2d 816,

       817 (Ind. 1995), reh’g denied. We look to the evidence and the reasonable

       inferences therefrom that support the verdict. Id. The conviction will be

       affirmed if there exists evidence of probative value from which a reasonable jury

       could find the defendant guilty beyond a reasonable doubt. Id.


[26]   Ind. Code § 35-44.1-3-7 provides:


               A person who knowingly or intentionally while incarcerated in a
               penal facility possesses a device, equipment, a chemical
               substance, or other material that:

                        (1) is used; or

                        (2) is intended to be used;

               in a manner that is readily capable of causing bodily injury
               commits a Level 5 felony.


[27]   In Abney v. State, 822 N.E.2d 260, 264 (Ind. Ct. App. 2005), trans. denied, the

       court interpreted a former version of the statute, Ind. Code § 35-44-3-9.5, which

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2028 | April 15, 2020   Page 14 of 16
       similarly provided: “A person who knowingly or intentionally while

       incarcerated in a penal facility possesses a device, . . . that: (1) is used; or (2)

       intended to be used; in a manner that is readily capable of causing bodily injury

       commits a Class C felony.” In addressing the defendant’s assertion that the

       State failed to prove beyond a reasonable doubt that the device was used or

       intended to be used in a manner readily capable of causing bodily injury, the

       Court held:


               We agree with Abney that the phrase “intended to be used” is
               part of the relative clause, modifying the antecedents “in a
               manner that is readily capable of causing bodily injury” and is
               not indicative of his level of culpability. See Hevenor v. State, 784
               N.E.2d 937, 941 (Ind. Ct. App. 2003). Rather, the culpability
               level for I.C. § 35-44-3-9.5 is clearly defined in the opening
               sentence as “a person who knowingly or intentionally . . .
               possesses.”


       Abney, 822 N.E.2d at 265.


[28]   The record reveals Sergeant McAninch discovered an envelope that was “sealed

       pretty tight” with the name of Huff’s father on it. Transcript Volume II at 152.

       The envelope contained letters from a female inmate, a piece of toilet paper,

       and a razor blade. Sergeant McAninch testified that inmates possessing razors

       constitutes a “very high security risk, as well as a safety concern for both

       inmates and staff.” Id. at 157. McKinney testified that the blades are dangers

       to others for “any number of reasons” including by coming into contact with

       staff during the search of an offender’s property. Id. at 206. When asked to

       review the photos of the razor blade found in this case and whether it could

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2028 | April 15, 2020   Page 15 of 16
       cause bodily injury, he answered, “Yes. Absolutely.” Id. at 212. He also

       testified: “As soon as it is modified in its, and it’s placed in a manner like what

       the photos are there, they are dangerous weapons, yes.” Id. at 213. Huff

       indicated he popped the razors open to remove the blades.


[29]   Based upon the record, we conclude that the State presented evidence of

       probative value from which the jury could have found Huff guilty beyond a

       reasonable doubt of possessing material capable of causing bodily injury by an

       inmate as a level 5 felony. See Abney, 822 N.E.2d at 265 (concluding that the

       State presented sufficient evidence to support Abney’s conviction and observing

       that the jail commander described a device as a hardened piece of steel

       sharpened to a point, elaborated on its usage, and stated it was easily capable of

       causing bodily injury to guards, other inmates, and the public in general); see

       also Phillips v. State, 875 N.E.2d 480, 482 (Ind. Ct. App. 2007) (citing Abney and

       holding that “‘intended to be used’ describes the device, not the intent required

       for a conviction”), trans. denied.


[30]   For the foregoing reasons, we affirm Huff’s convictions.


[31]   Affirmed.


       Najam, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2028 | April 15, 2020   Page 16 of 16
