Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                            Apr 30 2014, 10:07 am
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.


ATTORNEY FOR APPELLANT:                             ATTORNEYS FOR APPELLEE:

STACY R. ULIANA                                     GREGORY F. ZOELLER
Bargersville, Indiana                               Attorney General of Indiana

                                                    CHANDRA K. HEIN
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

KRISTIN A. HOUSSAIN,                                )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )      No. 89A04-1307-CR-330
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                     APPEAL FROM THE WAYNE SUPERIOR COURT
                          The Honorable Charles K. Todd, Judge
                              Cause No. 89D01-1105-FC-30


                                          April 30, 2014

                MEMORANDUM DECISION - NOT FOR PUBLICATION

PYLE, Judge
                                     STATEMENT OF THE CASE

          In this interlocutory appeal, Kristin Houssain (“Houssain”) appeals the trial court’s

denial of her motion to dismiss her charges of forgery1 and attempting to obtain a

controlled substance by fraud.2

          We affirm.

                                             ISSUE

              Whether the trial court erred in denying Houssain’s motion to dismiss.

                                             FACTS

          On March 10, 2011, Lori Hamilton (“Hamilton”), a pharmacy technician at a

Kroger Pharmacy in Richmond, Indiana, received a prescription that appeared to be

altered. Nurse practitioner Debbie Sexton (“Sexton”) wrote the prescription for Houssain

for 2.5 milligrams of hydrocodone.           Hamilton noticed that prescription had been

vigorously underlined so that dosage would appear as 7.5 milligrams of hydrocodone.

Hamilton asked her colleague, Valerie Napier (“Napier”), to look at the prescription, and

Napier agreed that the prescription appeared to be altered. Hamilton and Napier testified

that they had never seen Sexton draw dark underlines on previous prescriptions.

Hamilton then contacted Sexton, who in turn contacted Detective Jon Chilcoate

(“Detective Chilcoate”), an investigator with the Richmond Police Department. Sexton

asked Detective Chilcoate to investigate the prescription submitted to the Kroger

Pharmacy.


1
    Ind. Code § 35-43-5-2(b)(3).
2
    I. C. §§ 35-41-5-1; 35-48-4-14(c).
                                                2
        Detective Chilcoate immediately went to the Kroger Pharmacy and spoke with

Tom Payton (“Payton”), the pharmacist on duty. Payton showed Detective Chilcoate the

original prescription with the questioned alterations. Detective Chilcoate made a copy of

the prescription, leaving the original at the pharmacy. Detective Chilcoate then went to

Sexton’s office to speak with her.

        Detective Chilcoate showed Sexton the prescription submitted to the pharmacy

and asked her if she had made the markings in question. Sexton replied no and showed

Detective Chilcoate the prescription she had written for Houssain. Sexton keeps copies

of all prescriptions that she writes. Detective Chilcoate made a copy of the unaltered

prescription for his file.

        On May 16, 2011, the State charged Houssain with forgery, a Class C felony, and

attempting to obtain a controlled substance by fraud, a Class D felony. On November 8,

2012, Houssain filed a motion to dismiss the charges. Alternatively, Houssain’s motion

requested that the trial court preclude the State from introducing testimony or evidence

relating to lost or destroyed evidence. Houssain filed her motion because the Kroger

pharmacy lost or destroyed the original prescription submitted.3

        On February 13, 2013, the trial court held a hearing on the motion to dismiss.

Houssain presented testimony from Jim Steffen (“Steffen”), a forensic document

examiner. Steffen testified that there was clearly an alteration between the prescription

Sexton wrote and the prescription submitted to Kroger. However, he stated that had he

had access to the original prescription, he would have been able to conduct additional
3
  Payton died during the pendency of this case. In a letter to Houssain’s attorney, the deputy prosecutor
stated that Kroger may have purged many documents retained by Payton after his death.
                                                   3
tests to determine whether the alterations were purposeful or accidental. In addition,

Steffen testified that it was entirely possible that the original prescription had been

purposefully altered and the original could be inculpatory of Houssain’s guilt. He also

stated that even if he were able to determine whether the alterations were purposeful or

accidental, he would have no way of determining who actually altered the original

prescription.

       On May 8, 2013, the trial court entered an order denying Houssain’s motion to

dismiss. Houssain filed a motion to certify the trial court’s order for interlocutory appeal

on July 10, 2013. The trial court granted the motion and certified its order. Thereafter,

we accepted jurisdiction.

                                           DECISION

       Houssain claims that the trial court erred in denying her motion to dismiss.

Specifically, she argues that she was entitled to dismissal because the lost or destroyed

evidence in question is materially exculpatory and that the State failed to preserve it. The

State counters that the original prescription was potentially useful, rather than materially

exculpatory, evidence.

       We review a trial court’s denial of a motion to dismiss for an abuse of discretion.

Filice v. State, 886 N.E.2d 24, 32 (Ind. Ct. App. 2008), trans. denied. An abuse of

discretion occurs where the trial court’s decision is clearly against the logic and effect of

the facts and circumstances or when the trial court has misinterpreted the law. Id.4


4
 Houssain, relying on our Indiana Supreme Court’s decision in Austin v. State, 997 N.E.2d 1027 (Ind.
2013), claims that our standard of review should be de novo. Even if we reviewed Houssain’s claim de
novo, we would have reached the same conclusion.
                                                 4
       The defendant in a criminal case has the right to examine physical evidence

possessed by the State. Roberson v. State, 766 N.E.2d 1185, 1187 (Ind. Ct. App. 2002),

trans. denied. The failure of the State to preserve such evidence may present grounds for

dismissal of charges based on the denial of due process of law. Id.

       Whether a defendant’s due process rights have been violated by the State’s failure

to preserve evidence depends on whether the evidence in question was “potentially useful

evidence” or “material exculpatory evidence.” Samek v. State, 688 N.E.2d 1286, 1288

(Ind. Ct. App. 1997) (citing Arizona v. Youngblood, 488 U.S. 51, 57, (1988)), reh’g

denied, trans. denied. When claiming that a due process violation has occurred when the

evidence in question is “potentially useful evidence,” a defendant must show that the

State’s failure to preserve the evidence was committed in bad faith. Id. When the

evidence in question is “material exculpatory evidence,” the State’s good or bad faith

actions are irrelevant. Id.

       Potentially useful evidence has been described as “evidentiary material of which

no more can be said that it could have been subjected to tests, the results of which might

have exonerated the defendant.” Youngblood, 488 U.S. at 57. Material exculpatory

evidence “must possess an exculpatory value that was apparent before the evidence was

destroyed, and be of a nature that the defendant would be unable to obtain comparable

evidence by other reasonably available means.” California v. Trombetta, 467 U.S. 479,

489 (1984).

       Houssain urges us to reverse the trial court by comparing the facts in her case to

our decision in Roberson. In Roberson, Madison County jail officers confiscated a

                                            5
wooden food spreader available to prisoners through the jail’s commissary. Roberson,

766 N.E.2d at 1186. The spreader, similar to a tongue depressor, had been split long-

ways, exposing rough edges. Id. The jail officers stated that the edges appeared to have

been shaped to a point. Id. Roberson was disciplined internally by the jail, and the State

charged Roberson with possession of a dangerous device by a prisoner. Id. During the

pendency of the case, the spreader confiscated from Roberson was destroyed by jail

officials. Id. Only a blurry photograph of the spreader remained. Id.

       After finding out that the spreader had been destroyed, Roberson made an oral

motion to dismiss the charges, claiming that he could not prepare a defense because the

condition of the spreader was crucial to his case. Id. The trial court held a hearing and,

after acknowledging that it was a “close case” and that the issue was “ripe for appellate

review,” denied Roberson’s motion to dismiss. Id. at 1187.

       Upon interlocutory review, we reversed the trial court and held that the evidence

in question was materially exculpatory because (1) the spreader was Roberson’s sole

basis of his defense, and he could not secure comparable evidence; and (2) under the

specific circumstances of that case, a trier-of-fact could have examined the spreader and

reached a different conclusion regarding its intended use, giving it an exculpatory value,

albeit tenuous. Id. at 1189-90.

       However, our decision in Roberson is distinguishable from Houssain’s case.

Unlike Roberson, the prescription submitted is not the sole basis of Houssain’s defense.

For example, Houssain claims that “[f]rom the original prescription, [she] could argue

that the markings were not made with the intent to change the dosage of the prescription,

                                            6
but rather were made innocently or not even by her.” (Houssain’s Br. 12). Yet, Steffen,

Houssain’s expert, made the same observations during his testimony having only

examined the copies of the prescription. In addition, Houssain states that “the pressure

applied[,] the color of the pen, the existence of other markings or writings on the original

all must be considered to determine the intent behind the markings. They would be

readily apparent before its destruction.” Id. However, Steffen testified that “if [he] had

had the original [prescription], [he] would have examined it more thoroughly

microscopically to determine if the paper had been tampered with.” (Tr. 83) (emphasis

added).    Given that Steffen articulated some of Houssain’s possible defenses using

photocopies of the prescription and the fact that he would have performed more testing,

the original prescription submitted is, at most, potentially useful evidence and not

materially exculpatory.

        As stated previously, the State’s failure to preserve potentially useful evidence

does not constitute a denial of due process of law unless a criminal defendant shows bad

faith on the part of the State. Samek, 688 N.E.2d at 1288. Houssain, however, does not

allege bad faith on the part of the State.5 Accordingly, Houssain’s right to due process of

law was not violated, and the trial court did not err in denying her motion to dismiss.

        Affirmed.

MATHIAS, J., and BRADFORD, J., concur.




5
  “Houssain has not raised on appeal that the State’s failure to preserve the original prescription rises to
the level of bad faith.” (Houssain’s Br. 7).
                                                     7
