MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be                                  Oct 24 2019, 10:10 am
regarded as precedent or cited before any
                                                                            CLERK
court except for the purpose of establishing                            Indiana Supreme Court
                                                                           Court of Appeals
the defense of res judicata, collateral                                      and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Steven E. Ripstra                                        Curtis T. Hill, Jr.
Jasper, Indiana                                          Attorney General of Indiana
                                                         Lauren A. Jacobsen
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jason McMickle,                                          October 24, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-676
        v.                                               Appeal from the Pike Circuit Court
                                                         The Honorable Jeffrey L.
State of Indiana,                                        Biesterveld, Judge
Appellee-Plaintiff.                                      Trial Court Cause No.
                                                         63C01-1803-F4-172



Tavitas, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-676 | October 24, 2019                 Page 1 of 11
                                             Case Summary
[1]   Jason McMickle appeals his conviction for dealing in methamphetamine, a

      Level 4 felony. We affirm.


                                                     Issues
[2]   McMickle raises two issues, which we restate as:


            I.    Whether the trial court properly admitted the
                  methamphetamine into evidence at trial.

           II.    Whether the trial court properly allowed testimony by an
                  officer regarding fingerprinting and DNA evidence.


                                                     Facts
[3]   On March 10, 2018, Corporal Jared Simmons of the Petersburg Police

      Department was informed by a confidential informant (“CI”) that the CI could

      purchase methamphetamine that evening from Jason Atkins. The CI faced a

      pending petition to revoke probation, and, as a result of her cooperation, the

      petition to revoke probation was withdrawn. A controlled buy was arranged,

      and Corporal Simmons met with the CI at a little league field to search her and

      give her the buy money. Corporal Simmons searched the CI’s pockets and had

      the CI “shake . . . out” her bra with two hands. Tr. Vol. II p. 48. Corporal

      Simmons did not “go towards the crotch area” due to privacy issues. Id. The

      CI, however, was wearing tight “jeggings,” and Corporal Simmons was

      “confident” that the CI did not have drugs on her person. Id.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-676 | October 24, 2019   Page 2 of 11
[4]   Corporal Simmons gave the CI $200.00 in twenty-dollar bills to purchase two

      grams of methamphetamine. Corporal Simmons also gave the CI a key fob

      recording device. Several other officers, including Sergeant Dallas Killian with

      the Pike County Sheriff’s Department, were nearby during the transaction to

      provide surveillance. Sergeant Killian was observing from a nearby parking lot

      with binoculars. A white van arrived with Atkins in the passenger seat and

      McMickle driving. The CI got into the van. Corporal Simmons was able to see

      the CI’s outline, and Sergeant Killian was able to clearly observe the CI while

      she was waiting on the white van, as she entered the van, and after she got out

      of the van. After a few minutes, the CI exited the van and gave the signal that

      the transaction was complete.


[5]   The officers stopped the white van and arrested Atkins and McMickle.

      McMickle had $100.00 of the buy money in his hand, and Atkins had the other

      $100.00 of the buy money in his jacket pocket. Two “corner baggies”

      containing a substance were recovered from the CI’s hand. Id. at 62. Corporal

      Simmons weighed the substance with “a standard set of digital scales,” which

      were not calibrated and indicated a weight of 1.9 grams. Id. at 90. Corporal

      Simmons field tested the substance, put it in packaging, sealed the packaging,

      and logged it into evidence at the police department. After the controlled buy,

      Corporal Simmons discovered that the key fob recording device failed to record

      due to human error. The laboratory later identified the substance as 1.51 grams

      of methamphetamine.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-676 | October 24, 2019   Page 3 of 11
[6]   The State charged McMickle with dealing in methamphetamine, a Level 4

      felony, and McMickle’s jury trial was held in December 2018. The CI did not

      testify because she died in September 2018 as a result of complications of

      childbirth. During the first day of the State’s case-in-chief, Corporal Simmons

      and Sergeant Killian testified. On the second day of the State’s case-in-chief,

      the State recalled Corporal Simmons. Part of Corporal Simmons’ testimony on

      the second day pertained to fingerprinting and DNA testing and inaccurate

      expectations caused by television programs that depict such forensic testing.

      McMickle objected, and the trial court overruled the objection. McMickle also

      objected to the admission of the methamphetamine on chain of custody

      grounds; the trial court, however, overruled the objection.


[7]   Atkins also testified during the State’s case-in-chief that the CI asked to buy two

      grams of methamphetamine, but Atkins did not have the requisite amount of

      methamphetamine available. Atkins obtained half of the requested

      methamphetamine from McMickle, and Atkins then sold the

      methamphetamine to the CI and gave half of the money to McMickle.


[8]   The jury found McMickle guilty of dealing in methamphetamine, a Level 4

      felony. The trial court sentenced McMickle to ten years in the Department of




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-676 | October 24, 2019   Page 4 of 11
       Correction. McMickle then filed a motion to correct error, which the trial court

       denied. 1 McMickle now appeals.


                                                          Analysis
                                       I. Admission of Methamphetamine

[9]    McMickle first challenges the admissibility of the methamphetamine based on

       chain of custody grounds. In reviewing the admission or exclusion of evidence,

       we determine whether the trial court abused its discretion. McCallister v. State,

       91 N.E.3d 554, 561 (Ind. 2018). We will reverse only if the trial court’s ruling

       was clearly against the logic and effect of the facts and circumstances before it.

       Id.


[10]   An exhibit is admissible “if the evidence regarding its chain of custody strongly

       suggests the exact whereabouts of the evidence at all times.” Culver v. State, 727

       N.E.2d 1062, 1067 (Ind. 2000). The State must give “reasonable assurances

       that the property passed through various hands in an undisturbed condition.”




       1
         The State argues that McMickle’s appeal was not timely filed because his motion to correct error was filed
       one day late. McMickle contends that his motion to correct error was timely filed by certified mail but that
       the CCS does not reflect the correct filing date. We direct McMickle’s attention to Indiana Appellate Rule
       32, which provides a procedure for correcting the Clerk’s Record. Regardless, we decline to dismiss this
       appeal based on McKnight v. State, 1 N.E.3d 193 (Ind. Ct. App. 2013). There, we dismissed an appeal due to
       an untimely motion to correct error. Our Supreme Court, however, granted transfer and vacated our
       opinion. “In its order declaring that our appellate jurisdiction has, in fact, been invoked, our supreme court
       stated that the timeliness of the motion to correct error had not been raised prior to the State’s appellee’s
       brief.” McKnight, 1 N.E.3d at 199 n.2. As such, we addressed the defendant’s arguments on appeal.
       Similarly, here, the State failed to raise the timeliness of the motion to correct error until it filed its appellee’s
       brief. Based on McKnight, we will address McMickle’s arguments.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-676 | October 24, 2019                          Page 5 of 11
       Id. “[T]he State need not establish a perfect chain of custody whereby any gaps

       go to the weight of the evidence and not to admissibility.” Id. There is a

       presumption of regularity in the handling of exhibits by public officers. Id.

       Merely raising the possibility of tampering is insufficient to make a successful

       challenge to the chain of custody. Bell v. State, 881 N.E.2d 1080, 1084 (Ind. Ct.

       App. 2008), trans. denied.


[11]   At the trial, McMickle objected to the admission of the methamphetamine

       because the CI was unavailable to testify regarding the chain of custody. 2 On

       appeal, McMickle argues that the State failed to establish a proper chain of

       custody for the methamphetamine because: (1) the officers failed to completely

       search the CI prior to the controlled buy; (2) the officers lost visual contact with

       the CI when she was in the van with McMickle and Atkins; (3) the CI was

       unable to testify regarding the chain of custody due to her death; (4) the weight

       of the methamphetamine was different when the officer weighed it versus when

       the laboratory weighed it; and (5) the key fob device did not record the CI’s

       interaction with McMickle and Atkins.


[12]   The State properly notes that McMickle’s “true argument is that the absence of

       [the CI’s] testimony results in a break [in the chain of custody] between




       2
        The State argues that McMickle waived this issue by failing to object; however, we conclude that McMickle
       objected and preserved the issue.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-676 | October 24, 2019               Page 6 of 11
       Defendant and [the CI] rather than any law enforcement official.” 3 Appellee’s

       Br. p. 17. The State points out that the purpose of the chain of custody rule is

       to “ensure that during the time the evidence is in the possession of the law

       enforcement authorities, there is not a substitution or alteration of the evidence.”

       Morse v. State, 593 N.E.2d 194, 197 (Ind. 1992).


[13]   We have held that “[a] properly conducted controlled buy will permit an

       inference the defendant had prior possession of a controlled substance.” Watson

       v. State, 839 N.E.2d 1291, 1293 (Ind. Ct. App. 2005). McMickle relies on

       Watson, 839 N.E.2d at 1293, which held: “Because the CI was not searched

       prior to the buy and the CI did not testify about receiving the cocaine from

       Watson, we must agree with Watson that no reasonable fact-finder, based on

       this evidence alone, could have found beyond a reasonable doubt he originally

       possessed the cocaine found on the CI after the buy.”


[14]   Watson is distinguishable from this case. Here, the police searched the CI prior

       to the controlled buy. Corporal Simmons searched the CI’s pockets and had

       the CI “shake . . . out” her bra with two hands. Tr. Vol. II p. 48. Corporal

       Simmons did not “go towards the crotch area” due to privacy issues. Id. The

       CI, however, was wearing tight “jeggings,” and Corporal Simmons was

       “confident” that the CI did not have drugs on her person. Id. Officers then




       3
        The State contends that McMickle’s argument is more of a sufficiency of the evidence argument, but
       McMickle specifically states that he is not making a sufficiency of the evidence argument. See Appellant’s Br.
       p. 14.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-676 | October 24, 2019                  Page 7 of 11
       observed the CI as she waited for Atkins and McMickle, as she entered the van,

       and as she exited the van and walked away.


[15]   McMickle also implies that the chain of custody fails because the weight of the

       substance differed when the officer weighed it at the scene and when the

       laboratory later weighed it. Corporal Simmons weighed the substance with “a

       standard set of digital scales” and found a weight of 1.9 grams. Id. at 90. The

       scales, however, were not calibrated. Corporal Simmons then field tested the

       substance, put it in packaging, sealed the packaging, and logged it into evidence

       at the police department. The laboratory identified the substance as 1.51 grams

       of methamphetamine. Although Corporal Simmons was not using calibrated

       scales to weigh the substance, the laboratory’s scales were calibrated. Any

       difference goes to the weight of the evidence, not its admissibility.


[16]   Finally, the CI was in the van with McMickle and Atkins for only a couple of

       minutes, and except for her time in the van, she was continuously observed

       between the time of the search and the time the methamphetamine was

       removed from her hand. At the time of their arrests, McMickle and Atkins

       possessed the buy money, and Atkins testified at the trial that he and McMickle

       sold methamphetamine to the CI. Although a recording of the transaction

       would have been preferable here, especially since the CI was unable to testify in

       this case, the lack of a recording is not fatal to the State’s case.


[17]   The State presented evidence regarding the methamphetamine’s chain of

       custody that strongly suggests the exact whereabouts of the evidence at all


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-676 | October 24, 2019   Page 8 of 11
       times. Each of McMickle’s arguments merely goes to the weight of the

       evidence, not its admissibility. His implication of the possibility of tampering is

       insufficient to challenge the chain of custody of the methamphetamine. The

       trial court properly admitted the methamphetamine.


                                   II. Corporal Simmons’s Testimony

[18]   Next, McMickle argues that the trial court abused its discretion by allowing

       Corporal Simmons to testify a second time during its case-in-chief. In

       reviewing the admission or exclusion of evidence, we determine whether the

       trial court abused its discretion. McCallister, 91 N.E.3d at 561. We will reverse

       only if the trial court’s ruling was clearly against the logic and effect of the facts

       and circumstances before it. Id.


[19]   On appeal, McMickle argues that the trial court abused its discretion by

       allowing the State to recall Corporal Simmons on the second day of its case-in-

       chief. McMickle, however, did not object during the trial on these grounds, and

       accordingly, the argument is waived. See Treadway v. State, 924 N.E.2d 621,

       631 (Ind. 2010) (Generally speaking, “[a] party may not add to or change his

       grounds for objections in the reviewing court. . . . Any ground not raised at

       trial is not available on appeal.”) (internal citations omitted).


[20]   McMickle also contends that Corporal Simmons was not qualified as an expert

       witness and that Corporal Simmons speculated on the impact of fingerprinting

       and DNA evidence in Pike County cases. During McMickle’s opening

       statement, McMickle noted that no fingerprints or DNA connected McMickle


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-676 | October 24, 2019   Page 9 of 11
       to the methamphetamine. During McMickle’s cross-examination of Corporal

       Simmons on the first day of the trial, McMickle questioned Corporal Simmons

       regarding the lack of fingerprint or DNA testing on the baggies that contained

       the methamphetamine. Our Supreme Court has held that, “when a party raises

       a subject on cross-examination, it is permissible for the opposing party to pursue

       that subject on re-direct examination.” Meagher v. State, 726 N.E.2d 260, 266

       (Ind. 2000). McMickle opened the door by raising the issues on cross-

       examination, and therefore, we cannot say the trial court abused its discretion

       by allowing the State to address the issues during Corporal Simmons’s

       testimony on the second day of the trial.


[21]   Even if the trial court abused its discretion by allowing the testimony, any error

       was harmless. An error is harmless when it results in no prejudice to the

       substantial rights of a party. Durden v. State, 99 N.E.3d 645, 652 (Ind. 2018);

       Ind. Trial Rule 61. “When a conviction is supported by substantial evidence of

       guilt sufficient to satisfy this Court that there is no substantial likelihood that

       the questioned evidence contributed to the conviction, the error is harmless.”

       Weedman v. State, 21 N.E.3d 873, 890 (Ind. Ct. App. 2014), trans. denied.

       Immediately following the controlled buy, $100.00 of the buy money was

       recovered from McMickle’s hand and the remaining $100.00 of the buy money

       was recovered from Atkins’s pocket. Two baggies of methamphetamine were

       recovered from the CI’s hand. Atkins testified at the trial that the CI asked to

       buy two grams of methamphetamine, but that Atkins did not have enough

       methamphetamine available. Atkins obtained half of the requested


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-676 | October 24, 2019   Page 10 of 11
       methamphetamine from McMickle. Atkins then gave the methamphetamine to

       the CI and gave half of the money to McMickle. Given the overwhelming

       evidence, any error in the trial court’s admission of Corporal Simmons’s

       testimony was harmless.


                                                 Conclusion
[22]   The trial court did not abuse its discretion by admitting the methamphetamine

       or by admitting Corporal Simmons’s testimony. Even if the trial court erred by

       admitting Corporal Simmons’s testimony, any error was harmless. We affirm.


[23]   Affirmed.


       Brown, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-676 | October 24, 2019   Page 11 of 11
