                                                                                      FILED
                                                                                  Aug 01 2017, 8:57 am

                                                                                      CLERK
                                                                                  Indiana Supreme Court
                                                                                     Court of Appeals
                                                                                       and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Evan K. Hammond                                            Curtis T. Hill, Jr.
      Office of the Grant County Public                          Attorney General of Indiana
      Defender                                                   Eric P. Babbs
      Marion, Indiana                                            Angela Sanchez
                                                                 Deputy Attorneys General
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Aaron L. Fansler,                                          August 1, 2017
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 27A02-1610-CR-2325
              v.                                                 Appeal from the Grant Circuit
                                                                 Court
      State of Indiana,                                          The Honorable Mark E. Spitzer,
      Appellee-Plaintiff                                         Judge
                                                                 Trial Court Cause No.
                                                                 27C01-1506-F3-15



      Mathias, Judge.


[1]   Aaron L. Fansler (“Fansler”) was convicted after a jury trial in Grant Circuit

      Court of dealing heroin and other drug crimes, and was sentenced to ten years

      in the Department of Correction. Fansler now appeals the admission of two



      Court of Appeals of Indiana | Opinion 27A02-1610-CR-2325 | August 1, 2017                           Page 1 of 14
      self-incriminating statements and the exercise of the court’s sentencing

      discretion.


[2]   We affirm.


                                  Facts and Procedural Posture
[3]   On June 18, 2015, Fansler received a request over a social media network to

      connect with a user who appeared to be a twenty-one-year-old woman named

      “Kenzie Allen.” “Kenzie Allen” was in fact an unsworn member of a local law-

      enforcement drug-crime task force conducting an undercover investigation.

      Fansler accepted the request. By private messages exchanged over the network,

      and then by text messages over their cell phones, “Kenzie” invited Fansler to a

      room at a local hotel. The hotel owner was friendly with police and would

      allow them the use of a room for undercover operations without charge.

      “Kenzie” wanted to buy two “points,” or tenths of a gram, of heroin from

      Fansler.


[4]   On the evening of June 19, 2015, lured by the prospects of sex, companionship,

      and a drug sale, Fansler went to the hotel room indicated by “Kenzie.” There,

      he found “Kenzie’s brother,” a Grant County sheriff’s deputy and a member of

      the same drug-crime task force. “Kenzie” was not in the hotel room, but

      Fansler was assured she would arrive soon. As Fansler stepped outside the

      hotel to wait, he was arrested by waiting law enforcement officers and taken

      back to “Kenzie’s” hotel room. Once inside, Fansler was interrogated and

      searched. Fansler had brought with him more than seven grams net weight of

      Court of Appeals of Indiana | Opinion 27A02-1610-CR-2325 | August 1, 2017   Page 2 of 14
      heroin, more than a dozen clonazepam and oxycodone pills, numerous empty

      plastic bags, a digital scale, a hypodermic syringe, a tourniquet, and more than

      two hundred dollars cash.


[5]   On June 24, 2015, Fansler was charged by information in Grant Circuit Court

      with Level 3 possession of heroin with intent to deliver, Level 6 felony

      possession of heroin, Class A misdemeanor possession of a controlled

      substance, and Class A misdemeanor possession of paraphernalia. Fansler’s

      case was tried to a Grant County jury over two days, August 1 and August 2,

      2016. Fansler admitted the possession but denied the intent to deliver, and

      raised the affirmative defense of entrapment. However, the jury was not

      persuaded and found him guilty as charged on all four counts.


[6]   At a sentencing hearing on September 9, 2016, Fansler was sentenced to a

      thirteen-year term on the dealing charge, ten years executed in the Department

      of Correction and three years suspended. Fansler was further sentenced to

      concurrent terms of two years executed for possession of heroin, one year

      executed for possession of a controlled substance, and one year executed for

      possession of paraphernalia. This appeal timely followed.


                                      Discussion and Decision
[7]   Fansler presents two issues for our review: whether the trial court abused its

      discretion by admitting two self-incriminating statements made by Fansler to

      law enforcement officers after being Mirandized in the hotel room, over

      Fansler’s objection on the basis of Indiana Evidence Rule 617; and whether the

      Court of Appeals of Indiana | Opinion 27A02-1610-CR-2325 | August 1, 2017   Page 3 of 14
      sentencing court abused its discretion by failing to find a significant mitigating

      circumstance clearly supported by the record and advanced for consideration.


               I. Admission of Fansler’s Statements Was Harmless Error

[8]   At trial, a witness for the State testified to two self-incriminating statements

      made by Fansler in the hotel room. The first was related as follows:


              [State:]          What questions were asked of [Fansler] after [the
                                warning required by] Miranda [v. Arizona, 384 U.S.
                                436 (1966)] was read to him?

              [Defense objection overruled.]

              [Witness:]        I asked him where the two points of heroin were. 1

              [State:]          And what was his response?

              [Witness:]        Stated that they should be in the baggies.


      Tr. Vol. I, p. 147. Two packages of heroin weighing two tenths of a gram net

      each were recovered from a cigarette pack carried by Fansler.


[9]   From the same cigarette pack, law enforcement recovered “another clear plastic

      baggy that contained a large amount of gray compressed powder[,]” eventually

      determined to be more heroin. Id. at 149. In connection with this larger

      package, Fansler’s second statement was related by the same witness as follows:




      1
       Two tenths of a gram, or “a couple points,” was the amount of heroin Fansler had agreed to sell “Kenzie.”
      Ex. Vol., State’s Ex. 2 (text messages); Tr. Vol. I, pp. 73, 77-78, 211-12.

      Court of Appeals of Indiana | Opinion 27A02-1610-CR-2325 | August 1, 2017                      Page 4 of 14
               [State:]          Did you ask [Fansler] about the large compressed
                                 powder when you found it?

               [Witness:]        I did.

               [State:]          What did you ask him?

               [Witness:]        I asked him why he didn’t tell us about that item
                                 being in the cigarettes in his possession.

               [State:]          And what did he say?

               [Witness:]        He didn’t want to get caught with it. He didn’t want
                                 to go jail for it.


       Id. at 152.


[10]   On appeal, Fansler claims the trial court reversibly erred by admitting these

       statements contrary to the mandate of Indiana Evidence Rule 617. We review

       challenges to admission of evidence at trial for prejudicial abuse of the trial

       court’s discretion. Williams v. State, 43 N.E.3d 578, 581 (Ind. 2015). A trial

       court abuses its discretion by ruling in a way clearly against the logic and effect

       of the facts and circumstances before it, or by misinterpreting the law. Id. In

       reviewing whether an abuse of discretion was prejudicial, we assess the

       probable impact of the improperly admitted evidence on the jury in light of the

       properly admitted evidence. Id. If the conviction is supported by independent,

       properly admitted evidence of guilt such that there is little likelihood the

       improperly admitted evidence contributed to the verdict, the error is harmless.

       Blount v. State, 22 N.E.3d 559, 564 (Ind. 2014).




       Court of Appeals of Indiana | Opinion 27A02-1610-CR-2325 | August 1, 2017     Page 5 of 14
[11]   Indiana Evidence Rule 617 provides that, “[i]n a felony criminal prosecution,

       evidence of a statement made by a person during a Custodial Interrogation in a

       Place of Detention shall not be admitted against the person unless an Electronic

       Recording of the statement was made, preserved, and is available at trial, except

       upon clear and convincing proof” that one of several exceptions applies. Ind.

       Evidence Rule 617(a). One such exception is for statements made as “part of a

       routine processing or ‘booking’ of the person[.]” Id. at (a)(1). A “Place of

       Detention” is “a jail, law enforcement agency station house, or any other

       stationary or mobile building owned or operated by a law enforcement agency

       at which persons are detained in connection with criminal investigations.” Id. at

       (b).


[12]   Here, no electronic recording of Fansler’s interrogation in the hotel was

       available at trial. Fansler argues that the two self-incriminating statements were

       made in the course of a custodial interrogation, that they were not made in the

       course of routine booking or processing, that the hotel room was a place of

       detention, and that therefore the rule required exclusion of the statements. The

       State concedes that the statements were made in the course of a custodial

       interrogation, but argues that they were made in the course of routine booking

       and that the hotel room was not a place of detention. The trial court ruled that

       the hotel room was not a place of detention because it was “operat[ed]” by the

       hotel, and that the statements were admissible in any event under the booking

       exception, analogizing the questioning of Fansler to a search incident to arrest.

       Appellant’s App. p. 62.


       Court of Appeals of Indiana | Opinion 27A02-1610-CR-2325 | August 1, 2017   Page 6 of 14
[13]   We are not inclined to read the booking exception as broadly, nor the place-of-

       detention requirement as narrowly, as the State urges. Rule 617 is of recent

       vintage and has never been construed by our supreme court. Only one

       published decision of this court has interpreted the “place of detention”

       requirement, Steele v. State, 975 N.E.2d 430, 431 (Ind. Ct. App. 2012), trans.

       denied, and none of our published decisions have construed the booking

       exception. In Steele, without exhaustive analysis, we held that a gas station to

       which a police officer had transported a drunk-driving arrestee for field sobriety

       testing was not a place of detention. Id. at 432.


[14]   In this case, the hotel room was operated by the police and was used to detain

       Fansler in connection with a criminal investigation. The drug-crime task force

       investigating Fansler had used the hotel “a couple times” for other

       investigations in the year preceding Fansler’s arrest. Tr. p. 49. The owner of the

       hotel was “police friendly” and allowed police use of his rooms without charge.

       Id. The police had the opportunity to set up the location and prepare it for

       Fansler’s arrival, and lay in wait for him there. The police thus had possession

       and control over the room, plus ample opportunity to prepare the room for the

       custodial interrogation police knew or anticipated would result from Fansler’s

       arrest there. Under these circumstances, the hotel room was a place of

       detention.


[15]   As for the booking exception, the trial court analogized it to searches incident

       to arrest, an exception to the Fourth Amendment’s warrant requirement, but we

       think the language of Rule 617 plainly evokes the formal, administrative setting

       Court of Appeals of Indiana | Opinion 27A02-1610-CR-2325 | August 1, 2017   Page 7 of 14
       of the routine-booking exception to the warning requirement of Miranda v.

       Arizona, 384 U.S. 436 (1966), and related Fourth Amendment contexts. See, e.g.,

       Maryland v. King, 133 S.Ct. 1958, 1971 (2013) (holding buccal DNA swabs for

       felony arrestees reasonable as part of routine booking procedure); Pennsylvania

       v. Muniz, 496 U.S. 582, 600–02 (1990) (plur.) (holding admission of suspect’s

       unwarned statements giving biographical information not in violation of

       Miranda because within a “routine booking question” exception for answers to

       questions reasonably related to administrative, record-keeping purposes and to

       completion of booking or pretrial services). These doctrines contemplate

       “routine administrative procedures at a police station house incident to booking

       and jailing the suspect” and “formal[] process[ing] into police custody.” King,

       133 S.Ct. at 1971. The same setting is contemplated by, for example, “the

       public records exception [to the rule against hearsay] permit[ting] admission of

       police records created in connection with routine booking procedures.” Fowler v.

       State, 929 N.E.2d 875, 879 (Ind. Ct. App. 2010) (noting as examples fingerprint

       cards, mugshots, and booking cards recording biographical information), trans.

       denied.


[16]   In this light, we conclude that, irrespective of whether the precise focus should

       be on the nature of the questions asked (administrative or investigative) or on

       the character of the setting (formal or informal), Fansler’s answers given

       minutes after his arrest in an undercover drug operation to questions of the type

       “Where is the heroin?” were not statements made in the course of routine

       processing or booking.

       Court of Appeals of Indiana | Opinion 27A02-1610-CR-2325 | August 1, 2017   Page 8 of 14
[17]   We agree with the State, however, that admission of the challenged statements

       was entirely harmless. We note that Fansler has not undertaken to demonstrate

       prejudice from admission of the statements; his brief argues only that admission

       was erroneous. See Ind. Appellate Rule 66(A) (harmless error no basis for relief

       on appeal).


[18]   The challenged statements were self-incriminating only to the extent that, by

       them, Fansler admitted to possessing the heroin. Neither statement was more

       than minimally probative of Fansler’s intent to deliver the heroin, nor of his

       predisposition to deliver the heroin, the State’s rebuttal to his entrapment

       defense. See Scott v. State, 772 N.E.2d 473, 474–75 (Ind. Ct. App. 2002), trans.

       denied. However, Fansler himself admitted possessing the heroin in open court

       before the jury (and, indeed, could have hardly denied it):


               [Counsel:]        No doubt about it though, you possessed those
                                 items [recovered by law enforcement at the hotel
                                 room] on your person, correct?

               [Fansler:]        Yes I did.

               [Counsel:]        And you’re freely admitting that here today with
                                 this jury?

               [Fansler:]        Yes I am.

               [Counsel:]        But absolutely your intent was not to give or sell
                                 [“Kenzie”] anything?

               [Fansler:]        No it was not.




       Court of Appeals of Indiana | Opinion 27A02-1610-CR-2325 | August 1, 2017      Page 9 of 14
       Tr. Vol. I, p. 205; see also id. at 224-25 (Fansler under cross-examination

       admitting possession but denying intent to deliver).


[19]   To the minimal extent that the challenged statements may have been probative

       of Fansler’s intent or predisposition to deliver the heroin, those facts were so

       clearly proved by Fansler’s and “Kenzie’s” text messages, and Fansler’s

       execution of the arrangements made thereby, that there is no likelihood the

       challenged statements contributed to the jury’s verdict as to these issues:


               [“Kenzie”:] Tomorrow I’m trying to get to Indy to get
                           something but not sure it’s gonna happen 😞 But
                           maybe Saturday if I don’t have to work [. . .]

               [Fansler:]        but whats up wit indy y u going there???

               [“Kenzie”:] I got a guy I’m suppose to get some shit from but he
                           will probably try to screw me over again lol [. . .]

               [Fansler:]        what u going up there ta grab[?] might b able ta help
                                 u out nstead wasting gas time n money going all
                                 way up there

               [“Kenzie”:] I need to get a couple points

               [Fansler:]        A cpl points . . . . all way ta indy for that . . . . thats
                                 crazy what u paying for em up there[?]

               [“Kenzie”:] Yeah tell me I hate driving all the way up there I
                           pay dude 35 but he cut me a deal

               [Fansler:]        35 a p . . . . . geeeez that’s crazy i let mine go for 30
                                 [. . .]

               [“Kenzie”:] I’ll pay 30 easy is it good shit?



       Court of Appeals of Indiana | Opinion 27A02-1610-CR-2325 | August 1, 2017           Page 10 of 14
               [Fansler:]        Yea gotta give me a min ta get going but yea uts
                                 good

               [“Kenzie”:] Yeah cool I’m running errands I’ll hit u up in a few
                           maybe an hour if that’s good with you?

               [Fansler:]        Yea just lmk [“let me know”] when,ever ur done


       Ex. Vol., State’s Ex. 2 (sic passim). This exchange unambiguously showed both

       Fansler’s predisposition (“i let mine go for 30”) and intent (“Yea gotta give me

       a min ta get going but yea uts good”) to deliver the heroin from Fansler’s own

       mouth. Id. The two challenged statements, to the extent they speak to these

       issues at all, cannot have contributed to the jury’s decision.


[20]   Though the challenged statements were improperly admitted, in light of

       Fansler’s admissions at trial, the generally uncontested nature of his possessing

       the heroin, and the wealth of direct and circumstantial evidence from which the

       jury could infer intent and predisposition to deliver, there is no likelihood that

       the challenged statements contributed to the verdict. The error was therefore

       harmless and does not entitle Fansler to relief on appeal.


                  II. The Sentencing Court Did Not Abuse Its Discretion

[21]   At Fansler’s September 9, 2016, sentencing hearing, the court found as follows:


               Certainly the aggravating circumstance of your criminal history .
               . . is a big one, Mr. Fansler. As well as the fact that you were on
               probation at the time the crime was . . . committed. I’ll accept the
               mitigator that incarceration would be a hardship on your family.
               I’ll accept the mitigator that . . . the offense didn’t cause serious
               harm to another person given the fact that it was a sting

       Court of Appeals of Indiana | Opinion 27A02-1610-CR-2325 | August 1, 2017    Page 11 of 14
                operation . . . . [I]f the victim causing the offense is a mitigator,
                it’s a mild one, . . . at best. . . . Perhaps you had . . . a substance .
                . . dependency, but . . . you also were a dealer and . . . I think all
                the circumstances indicate that. . . . So I feel that the aggravating
                factors do outweigh the mitigating factors . . . .


       Tr. Vol. II, pp. 6-7.


[22]   In its judgment order, the court restated its findings as follows:


                For its sentencing statement, the court [sic] finds the following
                aggravating circumstances:

                         1. The Defendant has a lengthy history of criminal and juvenile
                            offenses.
                         2. The Defendant was on probation for a felony offense when he
                            committed this offense.

                The Court [sic] finds the following mitigating factors:

                         1. Incarceration may be a hardship on the dependents of the
                            Defendant.
                         2. The crime in question did not cause serious harm.

                In considering the aggravating and mitigating circumstances, the
                Court [sic] determines the circumstances justify the imposition of
                an enhanced sentence.2


       Appellant’s App. p. 98.




       2
        That is, a sentence higher than the nine-year advisory sentence for Level 3 felonies. Ind. Code § 35-50-2-
       5(b).

       Court of Appeals of Indiana | Opinion 27A02-1610-CR-2325 | August 1, 2017                        Page 12 of 14
[23]   On appeal, Fansler claims the court “failed to consider that the victim of the

       crime induced or facilitated the offense” in mitigation of his sentence.

       Appellant’s Br. at 12; see Ind. Code § 35-38-1-7.1(b)(3) (court may weigh same

       in mitigation). We may review a sentence for abuse of the sentencing court’s

       discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007). “An abuse of

       discretion occurs if the decision is clearly against the logic and effect of the facts

       and circumstances before the court or the reasonable, probable, and actual

       deductions drawn therefrom.” Baumholser v. State, 62 N.E.3d 411, 416 (Ind. Ct.

       App. 2016), trans. denied.


[24]   Claims for “failure to ‘properly weigh’” aggravating and mitigating factors lie

       beyond such review, Anglemyer, 868 N.E.2d at 491, but the court abuses its

       discretion by failing to find “significant” mitigators, id. at 493, that are “clearly

       supported by the record and advanced for consideration[.]” Id. at 491. It was

       Fansler’s burden to establish that the mitigating evidence was both significant

       and clearly supported by the record. Id. at 493. Remand for resentencing is an

       appropriate remedy if “we cannot say with confidence that the trial court would

       have imposed the same sentence had it properly considered reasons that enjoy

       support in the record.” Id. at 491. However, “the relative weight or value

       assignable to [mitigators] properly found, or [to] those that should have been

       found, is not subject” to our review. Green v. State, 65 N.E.3d 620, 636 (Ind. Ct.

       App. 2016).


[25]   Here, the court noted from the bench its view of Fansler’s proffered mitigator:

       “[I]f the victim causing the offense is a mitigator, it’s a mild one, . . . at best.”

       Court of Appeals of Indiana | Opinion 27A02-1610-CR-2325 | August 1, 2017    Page 13 of 14
       Tr. Vol. II, p. 6. Though the court’s judgment order did not refer to this

       mitigator in terms, it was apparently given consideration under the rubric of

       “not caus[ing] serious harm.” Appellant’s App. p. 98; see Tr. Vol. II, p. 6 (trial

       court “accept[ed] the mitigator that . . . the offense didn’t cause serious harm to

       another person given the fact that it was a sting operation” (emphasis added) and

       fact that investigation was “sting operation” identical to Fansler’s proffered

       mitigator). In any event, the trial court clearly heard and considered Fansler’s

       proffered mitigator, as Fansler himself concedes. Appellant’s Br. at 12. The

       court simply did not think the mitigator was entitled to any great weight. Tr.

       Vol. II, p. 6 (“[I]t’s a mild one, . . . at best.”). We will not revisit that

       determination here. There was no abuse of discretion.


                                                  Conclusion
[26]   Though admission at trial of Fansler’s two self-incriminating statements was

       error, it was harmless. The sentencing court did not abuse its discretion by

       failing to find Fansler’s proffered mitigator. The judgment against Fansler is

       therefore affirmed.


[27]   Affirmed.


       Kirsch, J., and Altice, J., concur.




       Court of Appeals of Indiana | Opinion 27A02-1610-CR-2325 | August 1, 2017       Page 14 of 14
