                                                                         Apr 30 2015, 9:35 am




      ATTORNEY FOR APPELLANT                                     ATTORNEY FOR APPELLEE
      Clifford M. Davenport                                      Gregory F. Zoeller
      Davenport Law Offices                                      Attorney General of Indiana
      Anderson, Indiana
                                                                 Justin F. Roebel
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Bruce Angelo Evans,                                       April 30, 2015

      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                48A02-1407-CR-496
              v.                                                Appeal from the Madison County
                                                                Circuit Court

      State of Indiana,                                         The Honorable Judge Thomas
                                                                Newman, Jr.
      Appellee-Plaintiff
                                                                Case No. 48C03-1402-FB-298




      Vaidik, Chief Judge.



                                           Case Summary
[1]   A confidential informant performed a controlled buy of heroin from the

      defendant, Bruce Angelo Evans. At the jury trial, several witnesses who had

      been present in the house where the controlled buy occurred or who were

      otherwise associated with Evans and the confidential informant testified that

      Court of Appeals of Indiana | Opinion 48A02-1407-CR-496 | April 30, 2015                  Page 1 of 13
Evans had also sold them heroin on the day of the controlled buy. On appeal,

Evans argues first that in light of the evidence of multiple acts of dealing, the

trial court erred in failing to issue an instruction on jury unanimity, in order to

ensure that all of the jurors relied on the same act of dealing to support Evans’s

conviction. We find that Evans waived this alleged error by failing to object to

the jury instructions or offer one of his own. Moreover, we find that any error

does not rise to the level of fundamental error because given that the

overwhelming majority of evidence at trial was about the controlled buy, it is

clear that this was the act of dealing that supported the jury’s guilty verdict.

Second, Evans argues that the trial court abused its discretion in admitting

evidence of a large amount of cash – in addition to the buy money – found on

Evans when he was searched by law enforcement officers after the controlled

buy. But Evans failed to object when the evidence of this additional money was

first offered into evidence, and thus has waived this claim on appeal. Waiver

notwithstanding, we find that any error in the admission of this evidence was

harmless insofar as there was substantial evidence supporting Evans’s

conviction regardless of the evidence of additional money. Accordingly, we

affirm.



                       Facts and Procedural History




Court of Appeals of Indiana | Opinion 48A02-1407-CR-496 | April 30, 2015   Page 2 of 13
[2]   On the afternoon of February 18, 2014, Roberta Scherer1 overdosed at a house

      (the 28th Street house) in Anderson, Indiana, where Evans was living. Another

      resident of the 28th Street house went to Scherer’s mother’s house three or four

      blocks away to notify the family of Scherer’s condition, and Scherer’s niece

      Shyanne “ran straight to her.” Tr. p. 312. When Shyanne arrived, her aunt

      was “blue, not breathing, on the kitchen floor.” Id. An ambulance was

      summoned and within a few hours Scherer recovered.


[3]   Scherer’s brother-in-law (and Shyanne’s father), David Trueblood, who had

      served as a confidential informant before, contacted Lieutenant John Branson

      of the Anderson Police Department (APD) because of Scherer’s overdose and

      his concern over the amount of drugs his family members were using.

      Detective Ryan Geer of the APD and Madison County Drug Task Force (the

      Drug Task Force) contacted Trueblood to ask if he would be willing to do a

      controlled buy from Evans that same day – February 18 – and Trueblood

      agreed to do so. Sergeant Frank Sigler of the APD, who was also assigned to

      the Drug Task Force, and Detective Geer picked up Trueblood at 8:00 p.m. and

      performed all the steps necessary for a controlled buy. First they took

      Trueblood to a remote location to check whether he had any drugs, weapons,

      or money. Then Trueblood was given buy money – four twenty-dollar bills that

      had previously been photocopied – and was equipped with two recording




      1
       Roberta Scherer (called “Verna Scherer” by one witness, Tr. p. 311) also goes by the name of Bobby Gray,
      and is generally referred to in the transcript as Bobby.

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      devices and one device that enabled Detective Geer to monitor live feed

      throughout the transaction.


[4]   Trueblood was dropped off near the 28th Street house at 9:08 p.m. He knocked

      on the back door of the 28th Street house at 9:11 p.m., indicating to Evans that

      he was buying the heroin for someone named Ryan and giving Evans the $80 of

      buy money in exchange for heroin. The entire exchange was recorded, and

      Trueblood was picked up again by the police officers at 9:15 p.m.


[5]   After the buy, Trueblood was subjected to another search. He provided

      Detective Geer with a wrapper containing a substance that field-tested positive

      for heroin.2 Trueblood had no other drugs, weapons, or money.


[6]   The APD obtained a search warrant for the 28th Street house. Eight officers

      and detectives who were involved in executing the search warrant met to

      establish an action plan for announcing the search warrant and entering the

      house. The APD went to the 28th Street house, knocked repeatedly on the

      door, and announced for them to open the door for a police department search

      warrant, but nobody answered the door. Ultimately a “battering ram” was

      used to open the door. Evans was found cowering in the bathroom, attempting

      to hide in a space between the shower stall and the wall. Initially he refused to

      comply with repeated orders to come out and show his hands. Finally,




      2
       The Indiana State Police Laboratory later confirmed that the substance Trueblood purchased from Evans
      was .20 grams of “heroin and controlled substance.” See Tr. p. 441.

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      Lieutenant Branson used a taser on Evans and then “grabbed him out of there.”

      Tr. p. 247.


[7]   Evans was searched by the police, and in his pocket they found a brown leather

      wallet containing the $80 of buy money, an additional $1689 in cash, and the

      driver’s license of Robert Gray.3 Officers searched the house and discovered

      hypodermic syringes, spoons, a smoking pipe, a set of scales, and substances

      that could be used for diluting heroin. There were three other people in the

      house at the time of the search: Sheela Hall, Ashley Sparkman, and Hank

      Steffler, the teenage son of the homeowner. Hall observed the controlled buy –

      she saw Evans answer the back door and hand Trueblood something “kind of

      shiny.” Id. at 461.


[8]   Evans was charged with Count I, Class B felony dealing in a narcotic drug; and

      Count II, Class A misdemeanor false informing. Later an additional Count III

      was filed charging Evans with being a habitual substance offender. Before the

      trial, Evans filed a motion in limine stating that he had “reason to believe the

      State intend[ed] to introduce evidence of other crimes, wrongs, or acts to prove

      the character of the defendant . . . in violation of Indiana Rule of Evidence

      404(b).” Appellant’s App. p. 26. In particular, Evans’s motion requested the



      3
        Detective Geer testified that there was $1689 found in Evans’s wallet – including ten one-hundred dollar
      bills “just really neatly pressed together[,]” Tr. p. 268 – and approximately $30 in change found in Evans’s
      pocket. See Tr. p. 274 (“Well, I saw a pile, it looked like change . . . that they had taken out of his pocket. . . .
      I mean maybe thirty dollars.”). The total amount of money found on Evans, in addition to the $80 of buy
      money, was $1703. See Tr. p. 275.



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       exclusion of testimony from multiple witnesses as to other overdoses and drug

       transactions, other than the controlled buy; and the exclusion of evidence about

       the money seized from Evans other than the buy money. The trial court ruled

       that evidence of drug transactions that occurred on February 18 – the date of

       the controlled buy – was “intrinsic” to the charged offenses and therefore

       admissible. The trial court denied Evans’s motion with regard to the money.


[9]    On June 10 and 11, 2014, a jury trial was held. At the trial, Sergeant Sigler,

       Lieutenant Branson, Detective Geer, Detective Leann Dwiggins of the Drug

       Task Force, and Detective Keith Gaskill of the APD and the Drug Task Force

       all testified as to the role each played in Trueblood’s controlled buy. Brandy

       Cline, forensic scientist in the drug unit at the Indiana State Police laboratory,

       testified that the substance that Evans sold to Trueblood was .20 grams of

       heroin and controlled substance. See State’s Ex. 11.


[10]   In addition, numerous witnesses testified that they had also purchased heroin

       from Evans or at the 28th Street house on February 18. Scherer testified, “I

       went over there and bought some heroin off of him and winded up overdosing

       and going to the hospital.” Tr. p. 330. Sparkman testified that she had

       purchased $20 of heroin from Evans earlier that day and was in the bathroom

       injecting it when Scherer overdosed. Robert Gray, Scherer’s son, testified that

       he left the hospital after his mother was stable and went to Belmont Park to buy

       heroin from Evans. Trueblood testified that his daughter, Shyanne, purchased

       heroin from the 28th Street house after Scherer was released from the hospital.



       Court of Appeals of Indiana | Opinion 48A02-1407-CR-496 | April 30, 2015   Page 6 of 13
[11]   There was also testimony about the large sum of cash found in Evans’s wallet

       during the search. Specifically, Detective Geer testified that in addition to the

       $80 of buy money, there was $1703 in cash found on Evans. See Tr. p. 268,

       274-75. Evans did not object to Detective Geer’s testimony. Evans did,

       however, object later when the State offered into evidence State’s Exhibit 12, a

       photograph of the cash stacked and tagged as evidence. See State’s Ex. 12. The

       trial court denied Evans’s objection and admitted the exhibit into evidence.


[12]   In final argument and rebuttal, the State focused primarily on recounting at

       length the facts of the controlled buy, but the State also mentioned the heroin

       sales to other individuals. “Is [Evans] guilty? You bet you he’s guilty. He’s

       guilty of selling heroin to . . . [Trueblood], [Sparkman], [Scherer], [Gray], he’s

       guilty.” Tr. p. 559. In rebuttal, the State referred a couple more times to acts of

       dealing other than the controlled buy. For example:

               Listen to the charge. It says on February 18, 2014 in Madison County,
               State of Indiana, Bruce Angelo Evans did knowingly or intentionally
               deliver a narcotic drug, to wit: heroin. Period. To anybody that day.
               What you heard was overwhelming evidence that he sold heroin.
       Id. at 578.


       Later in rebuttal, the State argued as follows: “This is overwhelming evidence

       of guilt. You’ve got three [] separate people that told you they bought heroin

       from this guy. You’ve got three [] separate people.” Id. at 586.


[13]   Before giving final instructions to the jury, the trial court asked whether the

       State or Evans had any objections to the proposed jury instructions, and there


       Court of Appeals of Indiana | Opinion 48A02-1407-CR-496 | April 30, 2015   Page 7 of 13
       were none. Regarding jury unanimity, the trial court instructed the jury in part

       as follows:

               There should be no conviction of the defendant unless each and every
               member of the jury is convinced beyond a reasonable doubt, of the
               defendant’s guilt. The law contemplates and indeed demands the
               agreement of twelve minds in the conclusion that the defendant is
               guilty.
       Id. at 599.


[14]   The jury found Evans guilty of Count I, Class B felony dealing in a narcotic

       drug; and not guilty of Count II, Class A misdemeanor false informing. Evans

       pleaded guilty to Count III, habitual substance offender, and the trial court

       accepted his plea. The trial court then sentenced Evans to sixteen years for the

       Class B felony dealing in a narcotic drug and four years for habitual substance

       offender, for a total sentence of twenty years, all executed.


[15]   Evans now appeals.



                                   Discussion and Decision
                                           I. Jury Unanimity
[16]   On appeal, Evans argues first that the trial court erred by failing to instruct the

       jury that they needed to reach a unanimous decision as to which sale of heroin

       supported the guilty verdict. In other words, given that Evans was charged with

       a single count of dealing in a narcotic drug but there was testimonial evidence

       that Evans dealt heroin to multiple people on February 18 – including and in


       Court of Appeals of Indiana | Opinion 48A02-1407-CR-496 | April 30, 2015       Page 8 of 13
       addition to Trueblood’s controlled buy – there needed to be jury unanimity as

       to which specific sale of heroin supported Evans’s conviction.4


[17]   Here the trial court instructed the jury in part as follows:

               There should be no conviction of the defendant unless each and every
               member of the jury is convinced beyond a reasonable doubt, of the
               defendant’s guilt. The law contemplates and indeed demands the
               agreement of twelve minds in the conclusion that the defendant is
               guilty.
[18]   Id. at 599. Clearly this instruction did not address the issue of which Evans

       now complains – that because there was some evidence of other acts of dealing

       in addition to the controlled buy, it is possible that the jury did not unanimously

       find Evans guilty of the same act of dealing. However, Evans did not object to

       the jury instruction regarding unanimity nor offer an instruction of his own. It

       is well established that a defendant who fails to object to an instruction at trial

       waives any challenge to that instruction on appeal. Baker v. State, 948 N.E.2d

       1169, 1178 (Ind. 2011), reh’g denied. Likewise, the “[f]ailure to tender an

       instruction results in waiver of the issue for review.” Id. (quoting Ortiz v. State,

       766 N.E.2d 370, 375 (Ind. 2002)). Therefore we find that Evans has waived

       this claim of error unless fundamental error occurred.


[19]   The fundamental-error doctrine provides a vehicle for the review of error not

       properly preserved for appeal. Id. In order to be fundamental, however, the




       4
        Evans does not complain on appeal that these other acts were inadmissible under Indiana Rule Evidence
       404(b).

       Court of Appeals of Indiana | Opinion 48A02-1407-CR-496 | April 30, 2015                     Page 9 of 13
       error must represent a blatant violation of basic principles rendering the trial

       unfair to the defendant and thereby depriving the defendant of fundamental due

       process. Id. (citing Pope v. State, 737 N.E.2d 374, 380 (Ind. 2000)). In

       considering whether a claimed error denied the defendant a fair trial, we

       determine whether the resulting harm or potential for harm is substantial. Id. at

       1178-79. Harm is not shown by the fact that the defendant was ultimately

       convicted. Id. at 1179. Rather, harm is determined by whether the defendant’s

       right to a fair trial was detrimentally affected by the denial of procedural

       opportunities for the ascertainment of truth to which he would have been

       entitled. Id.


[20]   In this case, we acknowledge that there was some scattered testimonial

       evidence regarding other acts of dealing by Evans and a couple of questionable

       suggestions – in the State’s rebuttal argument in particular – that those other

       acts of dealing could have some influence on the jury’s guilty verdict.

       Nonetheless the overwhelming majority of evidence presented at Evans’s trial

       was about the controlled buy. Five law enforcement officers testified as to the

       specific facts and procedures surrounding Trueblood’s controlled buy. A

       forensic scientist from the Indiana State Police laboratory testified as to the lab

       results of the substance Evans sold to Trueblood in the controlled buy. And the

       State’s closing argument undeniably focused at length on the facts and

       procedures of the controlled buy. Given the amount of evidence and arguments

       centered around the controlled buy, it is evident that this was the act of dealing

       on which the jury relied in finding Evans guilty. Therefore, we cannot say the


       Court of Appeals of Indiana | Opinion 48A02-1407-CR-496 | April 30, 2015   Page 10 of 13
       potential harm that may have resulted from the trial court’s failure to issue an

       instruction on jury unanimity is so substantial that Evans was denied a fair trial

       or was deprived of fundamental due process as a result of the alleged error. See

       Baker, 948 N.E.2d at 1178-79. To avoid this issue in the future, however, we

       note that the better practice for the State is to be more specific in their charging

       information as to which act is the basis of the charge.


                     II. Evidence of Evans’s Additional Money
[21]   Next Evans argues that the trial court abused its discretion in allowing

       testimony as to the $1703 in cash found on Evans, in addition to the $80 of buy

       money. The admission of evidence is within the sound discretion of the trial

       court, and the decision whether to admit evidence will not be reversed absent a

       showing of manifest abuse of the trial court’s discretion resulting in the denial

       of a fair trial. Dixon v. State, 869 N.E.2d 516, 519 (Ind. Ct. App. 2007). An

       abuse of discretion involves a decision that is clearly against the logic and effect

       of the facts and circumstances before the court. Id. However, when a

       defendant fails to object to allegedly inadmissible evidence the first time it is

       offered, no error is preserved. Jenkins v. State, 627 N.E.2d 789, 797 (Ind. 1993).

       Further, in order to preserve the allegation of error, appellant must object each

       time the allegedly inadmissible evidence is offered. Id.


[22]   In this case, Evans objected in his motion in limine to the admission of

       evidence regarding “Money seized from the Defendant, other than the

       controlled buy money.” Appellant’s App. p. 27. The trial court denied this


       Court of Appeals of Indiana | Opinion 48A02-1407-CR-496 | April 30, 2015   Page 11 of 13
       motion. At trial, Detective Geer testified at some length about the additional

       money found in Evans’s wallet and pocket, and Evans failed to object to this

       testimony. Evans did object later, when the State offered into evidence State’s

       Exhibit 12, a photograph of the cash stacked and tagged as evidence. See State’s

       Ex. 12. At that point, the trial court denied Evans’s objection and admitted the

       exhibit into evidence. This later objection, however, is insufficient to preserve

       the error on appeal. This is so because when a defendant fails to object to

       allegedly inadmissible evidence the first time it is offered – and every time the

       allegedly inadmissible evidence is offered thereafter – no error is preserved. See

       Jenkins, 627 N.E.2d at 797. We find, therefore, that Evans has waived this

       issue.


[23]   Waiver notwithstanding, error, if any, in the admission of this evidence was

       harmless. We agree with Evans that “[t]he additional money was not necessary

       to prove that the controlled buy had been made.” Appellant’s Br. p. 20. But

       that is because there was such overwhelming evidence to support Evans’s

       conviction regardless of the evidence of the additional money. “The improper

       admission [of evidence] is harmless error if the conviction is supported by

       substantial independent evidence of guilt satisfying the reviewing court there is

       no substantial likelihood the challenged evidence contributed to the

       conviction.” Turner v. State, 953 N.E.2d 1039, 1059 (Ind. 2011). In light of the

       testimony of multiple law enforcement officers regarding the facts and

       procedures of the controlled buy, the recording of the transaction between

       Trueblood and Evans, the physical evidence recovered from the house, the buy


       Court of Appeals of Indiana | Opinion 48A02-1407-CR-496 | April 30, 2015   Page 12 of 13
money found in Evans’s wallet, and the laboratory results of the substance sold

to Trueblood by Evans in the controlled buy, we find that there was such

substantial independent evidence of Evans’s guilt that there is no substantial

likelihood the admission of evidence about additional money found on Evans

contributed to his conviction. See Turner, 953 N.E.2d at 1059.


Affirmed.


Kirsch, J., and Bradford, J., concur.




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