MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                             FILED
regarded as precedent or cited before any                    May 30 2017, 9:32 am

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


ATTORNEYS FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
Scott L. Barnhart                                       Curtis T. Hill, Jr.
Brooke Smith                                            Attorney General of Indiana
Keffer Barnhart, LLP
Indianapolis, Indiana                                   Justin F. Roebel
                                                        Supervising Deputy Attorney
                                                        General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Stacey Cabell,                                          May 30, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        82A01-1608-CR-1962
        v.                                              Appeal from the Vanderburgh
                                                        Circuit Court
State of Indiana,                                       The Honorable Michael J. Cox,
Appellee-Plaintiff                                      Magistrate
                                                        Trial Court Cause No.
                                                        82C01-1512-F2-7529



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 82A01-1608-CR-1962 | May 30, 2017   Page 1 of 15
                                       Statement of the Case
[1]   Stacey Cabell appeals his convictions following a jury trial for level 4 felony

      methamphetamine possession, level 6 felony maintaining a common nuisance,

      and class B misdemeanor marijuana possession. He asserts that the trial court

      abused its discretion in admitting certain deposition testimony at trial and in

      denying his pretrial motion to compel the State to disclose the identity of its

      confidential informant. He also claims that the State presented insufficient

      evidence to support his convictions. Finding no abuse of discretion and the

      evidence sufficient, we affirm.


                                 Facts and Procedural History
[2]   On December 7, 2015, Evansville police sought a search warrant for Cabell’s

      residence. According to the probable cause affidavit, a confidential informant

      approached Detective Cliff Simpson and advised him that Cabell “was

      obtaining ounce quantities of crystal methamphetamine” and distributing the

      drug from his residence. Appellant’s App. Vol. 2 at 58. The informant stated

      that he had seen Cabell inside the residence on numerous occasions with crystal

      methamphetamine and firearms. Within the prior forty-eight hours, the

      informant observed Cabell inside the residence with at least one ounce of

      crystal methamphetamine. Detective Simpson further averred that within the

      sixty days prior, he conducted a controlled purchase of methamphetamine from

      Cabell using the informant. Detective Simpson provided the informant with

      “prerecorded buy money and audio/video equipment.” Id. The informant

      went inside Cabell’s residence and purchased one gram of a white crystal

      Court of Appeals of Indiana | Memorandum Decision 82A01-1608-CR-1962 | May 30, 2017   Page 2 of 15
      substance that later field tested positive for methamphetamine. Detective

      Simpson personally reviewed the video of the controlled purchase and

      confirmed Cabell’s identity. Detective Simpson additionally stated that he had

      conducted approximately fifteen controlled purchases of illegal substances with

      this particular informant and that the detective knew him to be credible and

      reliable.


[3]   A judge approved the search warrant, and officers conducted surveillance of

      Cabell’s residence and waited for him to leave. During the surveillance, officers

      observed several vehicles come and go from the residence. After Cabell left the

      residence, officers knocked on the door to serve the warrant. Cabell’s girlfriend,

      LaChrista Cooper, who shared the residence with Cabell and her two children,

      answered the door and cooperated with the search. Officers found a bag of

      what appeared to be methamphetamine sitting on top of a digital scale in the

      kitchen. Subsequent testing confirmed the substance to be methamphetamine

      weighing 11.43 grams. Officers also found a substance that appeared to be

      marijuana as well as identification cards for Cabell and Cooper in the master

      bedroom. Testing confirmed that the substance was 1.87 grams of marijuana.

      A marijuana “roach” was located in an ashtray in the bedroom and $350 cash

      was found hidden under the mattress. Tr. Vol. 4 at 71. A K-9 officer indicated

      a small marijuana “grinder” with residue in it by the living room couch. Id. at

      94. Officers also found an empty “hide-a-can,” which is a can disguised to look

      like a drink can, but has a “void in the center of the can to hide something.” Id.

      at 124. A duffle bag containing forty-three .38 Special bullets and a notebook


      Court of Appeals of Indiana | Memorandum Decision 82A01-1608-CR-1962 | May 30, 2017   Page 3 of 15
      with Cabell’s name on it was found in a small room adjacent to the kitchen.

      Additional ammunition was found in a trash can near the back door, and a

      handgun was found in a closet.


[4]   The State charged Cabell with level 2 felony dealing in methamphetamine, level

      4 felony unlawful possession of a firearm by a serious violent felon, level 6

      felony maintaining a common nuisance, and class B misdemeanor possession

      of marijuana. The State further alleged that Cabell was a habitual offender. On

      February 22, 2016, Cabell requested a speedy trial, and the trial court set a trial

      date for April 27, 2016. The day before trial, Cabell moved for a continuance.

      The trial court granted Cabell’s motion for continuance over the State’s

      objection. Cabell again requested a speedy trial, and the trial court set a new

      trial date of June 29, 2016. Cabell also filed a discovery motion to compel the

      State to disclose the identity of its confidential informant. The State filed a

      response objecting to the disclosure. The trial court subsequently denied

      Cabell’s motion to compel.


[5]   A final pretrial conference was held five days before trial on June 24, 2016, to

      address the unavailability for trial of two of the State’s witnesses, Vanderburgh

      County Sheriff’s Office Lieutenant Jason Ashworth and Detective John

      Pieszchalski. The State explained to the trial court that the State had allowed

      Detective Pieszchalski to schedule a vacation out of the country because

      defense counsel had represented to the State that Cabell would stipulate to the

      admission of the officer’s evidence. Defense counsel acknowledged his

      representation that Cabell would stipulate to the evidence but indicated that he

      Court of Appeals of Indiana | Memorandum Decision 82A01-1608-CR-1962 | May 30, 2017   Page 4 of 15
      had failed to discuss the matter with his client until the current hearing and his

      client did not agree to the stipulation. As for Lieutenant Ashworth, despite

      being subpoenaed by the State, the officer informed the trial court that he had

      been unaware of the new trial date and had inadvertently scheduled a vacation

      during that date. Both officers were witnesses regarding the chain of custody of

      evidence obtained at Cabell’s residence. The State proposed that the parties

      take the depositions of the two witnesses in open court to allow Cabell the

      opportunity to confront and cross-examine them and then a record of the

      deposition would be submitted to the jury during trial. In the alternative, the

      State proposed setting a trial date of July 11, 2016, which would be six days

      beyond the seventy-day speedy trial period, so that the witnesses would be

      available for trial. Cabell objected to both the State’s proposals.


[6]   Acknowledging the State’s predicament as well as Cabell’s role in placing the

      State in a difficult position, the trial court urged a short continuance of the trial

      date so that both officers could appear at trial. Cabell rejected the court’s

      suggestion and stated that he wished to maintain his trial date. Thus, the trial

      court determined that the officers were unavailable for trial and permitted the

      State to take the officers’ depositions in open court at the hearing and to later

      submit a record of the depositions to the jury during trial.


[7]   A jury trial was held on June 29 and 30, 2016. During trial, the trial court

      admitted the officers’ deposition testimony into evidence over Cabell’s

      objection. The jury found Cabell guilty of level 4 felony possession of

      methamphetamine as a lesser included offense of the dealing charge, level 6

      Court of Appeals of Indiana | Memorandum Decision 82A01-1608-CR-1962 | May 30, 2017   Page 5 of 15
      felony maintaining a common nuisance, and class B misdemeanor possession

      of marijuana. The jury acquitted Cabell of the firearm charge, and the State

      dismissed the habitual offender allegation. The trial court sentenced Cabell to

      an executed sentence of ten years. This appeal ensued.


                                        Discussion and Decision

            Section 1 – The trial court did not abuse its discretion in
             admitting the deposition testimony of two unavailable
                                    witnesses.
[8]   We first address Cabell’s challenge to the trial court’s admission of evidence.

      The appellate court affords the trial court wide discretion in ruling on the

      admissibility of evidence. Nicholson v. State, 963 N.E.2d 1096, 1099 (Ind. 2012).

      “We review evidentiary decisions for abuse of discretion and reverse only when

      the decision is clearly against the logic and effect of the facts and

      circumstances.” Id.


[9]   Here, the trial court admitted the deposition testimony of two police officers

      who did not appear at trial due to scheduled vacations. Cabell argues that the

      trial court abused its discretion in doing so because the admission of the

      officers’ deposition testimony violated his right of confrontation under the Sixth

      Amendment to the United States Constitution. We disagree.1




      1
        As noted by the State, Cabell briefly mentions the Indiana Constitution but provides no separate or
      independent state constitutional analysis in his brief. Consequently, his state constitutional claim is waived.

      Court of Appeals of Indiana | Memorandum Decision 82A01-1608-CR-1962 | May 30, 2017                 Page 6 of 15
[10]   Addressing this issue, our supreme court has explained,


                Generally, deposition testimony of an absent witness offered in
                court to prove the truth of the matter asserted constitutes classic
                hearsay. Possible exceptions to the hearsay rule lie under both
                Indiana Trial Rule 32 and Indiana Evidence Rule 804, which
                allow the use of prior recorded testimony in lieu of live testimony
                in certain circumstances. The decision to invoke the rule allowing
                admission of prior recorded testimony such as a deposition, is
                within the sound discretion of the trial court.

                Nevertheless, the constitutional right of confrontation restricts
                the range of admissible hearsay by requiring (1) that the
                statements bear sufficient indicia of reliability and (2) that the
                prosecution either produce the declarant or demonstrate the
                unavailability of the declarant whose statement it wishes to use
                against the defendant. Depositions that comport with the
                principal purposes of cross-examination provide sufficient indicia
                of reliability.


       Garner v. State, 777 N.E.2d 721, 724 (Ind. 2002) (citations omitted).


[11]   Here, the depositions of the two officers were taken in open court, and both

       Cabell and his attorney were in attendance. Cabell’s attorney was able to

       extensively question and cross-examine the witnesses, and therefore there was

       ample opportunity to challenge the credibility of the witnesses. Accordingly,

       the depositions demonstrated sufficient indicia of reliability, and we now




       See Abel v. State, 773 N.E.2d 276, 278 n.1 (Ind. 2002) (failure to present authority or independent analysis
       supporting separate standard under state constitution results in waiver of state constitutional claim).

       Court of Appeals of Indiana | Memorandum Decision 82A01-1608-CR-1962 | May 30, 2017                 Page 7 of 15
       address the question of whether the two witnesses were unavailable for

       purposes of the constitutional right of confrontation.


               A witness is unavailable for purposes of the Confrontation
               Clause requirement only if the prosecution has made a good faith
               effort to obtain the witness’s presence at trial. Even though Trial
               Rule 32(A) permits use of an absent witness’s deposition
               testimony if the court finds that the “witness is outside the state,
               unless it appears that the absence of the witness was procured by
               the party offering the deposition,” we have previously
               determined that this trial rule is not applicable to claims
               involving a violation of the defendant’s Sixth Amendment right
               of confrontation. The issue is not whether the witnesses were out-
               of-state at the time of trial, but whether the State made a good
               faith effort to obtain the absent witnesses’ attendance at trial.
               Even if there is only a remote possibility that an affirmative
               measure might produce the declarant at trial, the good faith
               obligation may demand effectuation. Reasonableness is the test
               that limits the extent of alternatives the State must exhaust.


       Id. (citations and footnote omitted).


[12]   The record here reflects that the State made a reasonable effort to gain the

       attendance of the two officers at Cabell’s trial. Both officers were available and

       prepared to testify at the original trial date. However, that date was continued

       and reset the day before the scheduled date at the request of Cabell and over the

       objection of the State. Regarding Detective Pieszchalski, the State allowed him

       to schedule a vacation out of the country during the reset trial date because

       defense counsel represented to the State that Cabell would stipulate to the

       officer’s evidence. Defense counsel acknowledged that he indeed made this

       representation to the State. The State was not made aware that Detective
       Court of Appeals of Indiana | Memorandum Decision 82A01-1608-CR-1962 | May 30, 2017   Page 8 of 15
       Pieszchalski’s testimony would be necessary until five days before trial at the

       final pretrial hearing, when Cabell indicated that he would not stipulate to the

       officer’s evidence. Regarding Lieutenant Ashworth, the State served him with a

       subpoena for the reset trial date, but the officer stated that he was nonetheless

       unaware of the reset date and had scheduled an out-of-town vacation. To

       procure both officers’ attendance at trial, the State suggested a short

       continuance of two weeks so that both officers could appear and provide live

       testimony. The trial court agreed that this was the preferable solution in light of

       the State’s unwitting predicament as well as Cabell’s role in placing the State in

       that position. However, because a continuance would put his trial six days

       beyond the second seventy-day speedy trial setting, Cabell refused to agree to a

       postponement. The trial court recognized the State’s good faith efforts to

       obtain the officers’ attendance at trial and permitted the State to take the steps

       necessary to preserve both officers’ testimony by having the State take both their

       depositions in open court. See Tr. Vol. 3 at 15-16.


[13]   Indiana Criminal Rule 4(D) permits the trial court to extend a trial date beyond

       the seventy-day period, and “[t]he absence of a key witness through no fault of

       the State is good cause for extending the time period requirements.” Otte v.

       State, 967 N.E.2d 540, 546 (Ind. Ct. App. 2012). As noted above, this

       alternative was urged by the trial court but rejected by Cabell in favor of

       pushing his trial forward. While we agree with Cabell that “[a] mere vacation

       is not sufficient to circumvent the right of confrontation,” Garner, 777 N.E.2d at

       725, we also note that the test is one of good faith and reasonableness, and


       Court of Appeals of Indiana | Memorandum Decision 82A01-1608-CR-1962 | May 30, 2017   Page 9 of 15
       reasonableness does not require that the State make every possible effort to

       secure a witness’s attendance. Under the circumstances presented here, we

       agree with the trial court that the State undertook reasonable efforts to procure

       the officers’ presence at Cabell’s trial, and therefore the officers were

       unavailable for purposes of the constitutional right of confrontation.

       Accordingly, the trial court did not abuse its discretion when it admitted the

       officers’ deposition testimony into evidence.


            Section 2 – The trial court did not abuse its discretion in
             denying Cabell’s pretrial motion to compel the State to
               disclose the identity of its confidential informant.
[14]   We next address Cabell’s assertion that the trial court abused its discretion in

       denying his pretrial motion to compel the State to disclose the identity of its

       confidential informant. In Beville v. State, 71 N.E.3d 13, 19 (Ind. 2017), reh’g

       pending, our supreme court recently discussed the well-established “informer’s

       privilege.”

               Under this privilege, Indiana generally withholds the disclosure
               of evidence that reveals an informant’s identity for at least two
               important policy reasons—preventing retaliation against
               informants and ensuring individuals come forward with
               information to help law enforcement. The informer’s privilege,
               however, is not absolute: if the accused seeks disclosure, the
               burden is on him to demonstrate that disclosure is relevant and
               helpful to his defense or is necessary for a fair trial. To meet this
               burden, the defendant must also show that he is not merely
               speculating that the information may prove useful. If the
               defendant overcomes his burden, the burden shifts to the State to
               present evidence showing that disclosure is not necessary to the

       Court of Appeals of Indiana | Memorandum Decision 82A01-1608-CR-1962 | May 30, 2017   Page 10 of 15
               defendant’s case or that disclosure would threaten its ability to
               recruit or use CIs in the future. Then, with both sides’ evidence,
               the trial court must determine whether disclosure is appropriate
               by balancing the public interest in encouraging a free flow of
               information to the authorities with the defendant’s interest in
               obtaining disclosure to prepare his defense. The trial court
               should not disclose an informant’s identity to permit a mere
               fishing expedition.


       Id. (citations and quotation marks omitted).


[15]   Here, Cabell did not meet his burden to show how disclosure of the confidential

       informant’s identity would have been relevant and helpful to his defense, or was

       necessary for a fair trial. Cabell argues that the informant provided “material

       information” underlying the search warrant affidavit and that without the

       informant’s identity, he was unable to “challenge or confirm that what

       Detective Simpson alleged the C.I. told him was true.” Appellant’s Br. at 15.

       However, we agree with the State that the informant’s identity had little

       relevance because probable cause to search was not simply based on the

       uncorroborated statements or credibility of the confidential informant. Instead,

       Detective Simpson stated that he personally reviewed video from the controlled

       buy which provided him probable cause to search Cabell’s residence. Simply

       put, the confidential informant’s statements and/or credibility did not play a

       substantial role in the issuance of the search warrant. As such, Cabell’s request

       for disclosure appears to have been simply a fishing expedition, and that does

       not suffice. Cabell did not meet his burden, and therefore the trial court did not




       Court of Appeals of Indiana | Memorandum Decision 82A01-1608-CR-1962 | May 30, 2017   Page 11 of 15
       abuse its discretion in denying his pretrial motion to compel the State to

       disclose the identity of its confidential informant.


           Section 3 – The State presented sufficient evidence to support
                               Cabell’s convictions.
[16]   Cabell next contends that the State presented insufficient evidence to support

       his convictions. When reviewing a claim of insufficient evidence, we neither

       reweigh the evidence nor assess witness credibility. Bell v. State, 31 N.E.3d 495,

       499 (Ind. 2015). We look to the evidence and reasonable inferences drawn

       therefrom that support the conviction, and will affirm if there is probative

       evidence from which a reasonable factfinder could have found the defendant

       guilty beyond a reasonable doubt. Id. In short, if the testimony believed by the

       trier of fact is enough to support the conviction, then the reviewing court will

       not disturb it. Id. at 500.


[17]   To convict Cabell of possession of methamphetamine and possession of

       marijuana, the State was required to prove that he knowingly or intentionally

       possessed those drugs. See Ind. Code §§ 35-48-4-6.1(c)(2), 35-48-4-11.2

       Possession may be actual or constructive, see Gray v. State, 957 N.E.2d 171, 174

       (Ind. 2011), and here the State alleged constructive possession. Cabell’s sole

       assertion is that the State presented insufficient evidence that he constructively

       possessed the methamphetamine or marijuana found in his residence because


       2
        Cabell was convicted of level 4 felony possession of methamphetamine pursuant to Indiana Code Section
       35-48-4-6.1(c)(2) and class B misdemeanor possession of marijuana pursuant to Indiana Code Section 35-48-
       4-11.

       Court of Appeals of Indiana | Memorandum Decision 82A01-1608-CR-1962 | May 30, 2017          Page 12 of 15
       he did not have exclusive control over the premises where the drugs were found

       and he was not present when the drugs were found.


[18]   To prove constructive possession, the State was required to show that Cabell

       had both the intent and the capability to maintain dominion and control over

       the contraband. Thompson v. State, 966 N.E.2d 112, 122 (Ind. Ct. App. 2012).

       The jury may infer that a defendant had the capability to maintain dominion

       and control over contraband from the simple fact that the defendant had a

       possessory interest in the premises on which an officer found the item, even

       when that possessory interest is not exclusive. Gray, 957 N.E.2d at 174. When

       an individual does not have exclusive dominion over the premises, an inference

       indicating knowledge of and capability to maintain dominion and control over

       the contraband is permitted by showing additional circumstances. Griffin v.

       State, 945 N.E.2d 781, 784 (Ind. Ct. App. 2011). Recognized “additional

       circumstances” include: (1) incriminating statements by the defendant; (2)

       attempted flight or furtive gestures; (3) a drug manufacturing setting; (4)

       proximity of the defendant to the contraband; (5) the contraband is in plain

       view; and (6) the location of the contraband is in close proximity to items

       owned by the defendant. Id.


[19]   Here, the methamphetamine was found in plain view on top of a scale in the

       kitchen of the residence that Cabell shared with Cooper and her children. The

       marijuana was found in the master bedroom in close proximity to Cabell’s

       identification and a large amount of cash that belonged to him and not to

       Cooper. Surveillance indicated suspicious traffic in and out of the residence

       Court of Appeals of Indiana | Memorandum Decision 82A01-1608-CR-1962 | May 30, 2017   Page 13 of 15
       while Cabell was home alone, and the surveillance also indicated that Cabell

       had just left the residence and Cooper had just returned at the time of the

       search. Cabell further made several incriminating statements to Cooper

       regarding his knowledge of the contraband recovered from the residence. This

       evidence is sufficient to establish that Cabell had both the intent and the

       capability to maintain dominion and control over the contraband, and therefore

       that he constructively possessed the contraband. Sufficient evidence supports

       Cabell’s convictions for possession of methamphetamine and possession of

       marijuana.


[20]   Cabell also asserts that the State presented insufficient evidence to support his

       conviction for maintaining a common nuisance. To convict him of that crime,

       the State was required to prove that he knowingly or intentionally maintained a

       building, structure, vehicle, or other place for unlawfully manufacturing,

       keeping, offering for sale, selling, delivering, or financing the delivery of

       controlled substances or items of drug paraphernalia. See Ind. Code § 35-48-4-

       13(b)(2) (effective July 1, 2014 to June 30, 2016). The State presented evidence

       that officers found 11.43 grams of methamphetamine on top of a digital scale in

       Cabell’s residence, a handgun, ammunition, and $350 in cash hidden under a

       mattress. Surveillance of the residence showed several vehicles coming and

       going from the residence during the day, including “a few short term traffic

       visitors.” Tr. Vol. 5 at 46. The jury could reasonably infer from this evidence

       that Cabell knowingly maintained his residence for unlawfully manufacturing,




       Court of Appeals of Indiana | Memorandum Decision 82A01-1608-CR-1962 | May 30, 2017   Page 14 of 15
       keeping, offering for sale, selling, delivering, or financing the delivery of

       controlled substances.


[21]   Nevertheless, Cabell claims that “[b]ecause the State failed to show that [he]

       constructively possessed the contraband” inside the residence, the State failed to

       show that he knowingly maintained the residence with the intent that it be used

       for unlawful purposes. Appellant’s Br. at 18. As we already concluded, the

       State presented sufficient evidence that Cabell constructively possessed the

       contraband found inside his residence. Cabell further argues that the “jury

       expressly rejected the State’s belief that Cabell knowingly possess[ed] with the

       intent to deliver methamphetamine” because rather than convicting him of

       dealing that drug, it convicted him of the lesser included offense of possession.

       Id. Be that as it may, that does not render the evidence supporting his

       maintaining a common nuisance conviction insufficient. It is well settled that

       jury verdicts in criminal cases are not subject to appellate review on the grounds

       that they are inconsistent, contradictory, or irreconcilable. Beattie v. State, 924

       N.E.2d 643, 649 (Ind. 2010). And, an acquittal on one count does not indicate

       a jury’s conclusion about other counts. Id. at 648-49. The State presented

       sufficient evidence to support Cabell’s conviction for maintaining a common

       nuisance. Therefore, we affirm his convictions.


[22]   Affirmed.


       Barnes, J., and Robb, J., concur.



       Court of Appeals of Indiana | Memorandum Decision 82A01-1608-CR-1962 | May 30, 2017   Page 15 of 15
