MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any                              Jun 04 2020, 9:24 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.


ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Ellen M. O’Connor                                        Josiah Swinney
Marion County Public Defender Agency                     Deputy Attorney General
Indianapolis, Indiana                                    Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Samtwan Hobby,                                           June 4, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-765
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Richard
Appellee-Plaintiff                                       Hagenmaier, Commissioner
                                                         Trial Court Cause No.
                                                         49G21-1709-F4-33069



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-765 | June 4, 2020                     Page 1 of 9
[1]   Samtwan Hobby appeals his convictions for one count of Level 4 felony dealing

      in cocaine 1 and two counts of Level 5 felony dealing in cocaine. 2 He raises one

      issue on appeal, which we restate as whether the trial court abused its discretion

      when it limited the questions Hobby could ask witnesses regarding a corrective

      action request and a forensic scientist’s resignation from the Indianapolis-

      Marion County Forensic Services Agency (“Crime Lab”). We affirm.



                                Facts and Procedural History
[2]   In the summer of 2017, Todd Bevington, a special agent with the United States

      Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”), was assigned

      to the Indianapolis field office. The Indianapolis Metropolitan Police

      Department (“IMPD”) asked Special Agent Bevington to assist them in a drug

      investigation. The IMPD wished to have a confidential informant conduct

      controlled buys of narcotics. However, the IMPD did not wish to use a local

      informant because of concern that the informant’s safety would be jeopardized.

      Bevington introduced the IMPD to R.E., 3 an informant from Virginia he had

      used in the past.




      1
          Ind. Code § 35-48-4-1(c).
      2
          Ind. Code § 35-48-4-1(a).
      3
       We refer to the confidential informant by her initials because the State indicated at trial that she could
      potentially be called as a witness in approximately ten open federal cases.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-765 | June 4, 2020                           Page 2 of 9
[3]   R.E. traveled to Indianapolis and participated in three controlled buy

      operations where Hobby was the target. The first occurred on August 3, 2017,

      the second on August 9, 2017, and the third on August 11, 2017. Each

      controlled buy followed the same procedure. Before the buy, IMPD Sergeant

      Gregory Kessie would search R.E. and her car to make sure R.E. did not have

      any illegal drugs in her possession. Sergeant Kessie would then give R.E.

      marked bills to use when she purchased narcotics. Sergeant Kessie also

      equipped R.E. with a recording device prior to each buy, and officers surveilled

      Hobby’s house during each buy. R.E. would drive to Hobby’s house. She

      would go inside Hobby’s house and purchase cocaine from Hobby. After each

      buy, R.E. would meet with Sergeant Kessie at a predetermined location, and

      she would turn over the drugs to him. He would also search her and her vehicle

      again. Sergeant Kessie would photograph the drugs and store them in heat-

      sealed plastic envelopes until the Crime Lab took possession of them. Forensic

      scientists at the Crime Lab tested the items, and their tests confirmed the

      substances were cocaine.


[4]   Police officers arrested Hobby on August 14, 2017. The State charged Hobby

      with one count of Level 4 felony dealing in cocaine, three counts of Level 5

      felony dealing in cocaine, three counts of Level 6 felony possession of cocaine, 4




      4
          Ind. Code § 35-48-4-6.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-765 | June 4, 2020   Page 3 of 9
      and one count of Class B misdemeanor possession of marijuana. 5 The State

      also alleged Hobby was eligible for an habitual offender enhancement. 6


[5]   In discovery, the State produced a corrective action request (“CAR”) dated

      November 2, 2017. The CAR stated that Matthew Whitt, a forensic scientist in

      the Crime Lab, routinely failed to follow proper procedures when he analyzed

      blood alcohol content samples. He adjusted an external control value by using

      a technique outside of the lab’s standard operating procedure and he did not

      document doing so in his lab reports. Whitt resigned from his position with the

      Crime Lab shortly before the CAR was issued. Whitt was also the forensic

      scientist who originally tested and confirmed that the substance R.E. bought in

      the second controlled buy was cocaine. On February 14, 2019, Ryan Farrell,

      another forensic scientist at the Crime Lab, retested the substance originally

      tested by Whitt. The retest indicated that the substance was cocaine.


[6]   Prior to trial, the State filed a motion in limine asking the court to prohibit

      Hobby from asking any questions regarding the details of Whitt’s employment

      with the Crime Lab and questions about the CAR. The trial court denied the

      State’s motion stating, “I’m gonna allow the defense to inquire about [the

      CAR]. If the [forensic scientists] don’t know about it, then they can just say I

      don’t know.” (Tr. Vol. II at 37.) The court held a jury trial on February 21 and




      5
          Ind. Code § 35-48-4-11.
      6
          Ind. Code § 35-50-2-8.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-765 | June 4, 2020   Page 4 of 9
      22, 2019. Prior to trial, the State dismissed the three possession of cocaine

      charges, one of the Level 5 dealing in cocaine charges, and the Class B

      misdemeanor possession of marijuana charge.


[7]   During trial, forensic scientist Dustin Crawford testified that the Crime Lab

      utilized a peer review process whereby a forensic scientist’s work was reviewed

      and approved by another chemist before a formal report was generated. On

      cross-examination, Hobby began to reference the CAR, and the State objected.

      The court held a sidebar conference. At the conclusion of the conference, the

      court stated, “Well, since it’s only an allegation (indiscernible) I’m going to

      limine that out. So, I don’t want that brought into this case.” (Id. at 231.)

      Hobby then requested to make an offer of proof outside the presence of the jury.

      During the offer of proof, Crawford testified that he was aware Whitt resigned,

      but he was not aware of the specifics surrounding his resignation.


[8]   Hobby then attempted to ask Crawford questions regarding the CAR, but

      Crawford indicated that he was not familiar with the CAR. The court

      designated the CAR as Court’s Exhibit A and explained to the parties that the

      jury would not be able to view the document:


              I am ruling right now that, uh, this witness has no personal
              knowledge of this from the, uh, Court’s Exhibit A . . . it does
              appear that this involved, uh, blood alcohol content and, uh, I
              just think it’s too remote. If you continue to question him and
              get, uh, I don’t know, answers and I’m not sure then you’re
              interjecting prejudicial evidence, uh, into the record through . . .
              your own questions. That is my ruling.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-765 | June 4, 2020    Page 5 of 9
       (Id. at 239.) The court further stated, “And my ruling right now is that you’re—

       as far as this witness you’re, uh, this line of questioning is not going to be

       allowed. It’s not relevant, it’s prejudicial (indiscernible).” (Id. at 240.) The

       jury returned to the courtroom, and Hobby’s trial resumed.


[9]    After Crawford finished testifying, Ryan Farrell testified that the substance R.E.

       bought in the second controlled buy was originally tested by another forensic

       scientist, and the forensic scientist who originally tested the substance no longer

       worked at the Crime Lab. Hobby then asked if the forensic scientist who

       originally tested the substance “resigned under suspicion[.]” (Tr. Vol. III at 2.)

       The State objected, and the trial court sustained the State’s objection.


[10]   The jury returned verdicts of guilty on the remaining charges against Hobby.

       Hobby admitted that he qualified for the habitual offender enhancement. The

       court imposed an enhanced sixteen-year sentence for the Level 4 felony dealing

       in cocaine conviction, with eight years ordered to be served in the Indiana

       Department of Correction, two years to be served in Community Corrections,

       and six years suspended. The court also imposed six-year sentences for each of

       the Level 5 felony dealing in cocaine convictions. The trial court ordered the

       sentences to be served concurrently.



                                  Discussion and Decision
[11]   Hobby argues the trial court abused its discretion by limiting his questioning of

       Crawford and Farrell about Whitt and the CAR. Hobby contends he should


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-765 | June 4, 2020   Page 6 of 9
       have been allowed to question the Crime Lab scientists about those topics

       because “a chemist who would alter data and work outside of established

       protocol on one type of testing could do the same on any category of analysis.”

       (Appellant’s Br. at 13-14.) Further, Hobby argues such questioning would have

       cast doubt on the effectiveness of the peer review process because the peer

       review process did not timely catch Whitt’s errors.


[12]   We review a trial court’s decision to admit or exclude evidence for an abuse of

       discretion. Blankenship v. State, 5 N.E.3d 779, 782 (Ind. Ct. App. 2014). “A

       trial court abuses its discretion only if its decision is clearly against the logic and

       effect of the facts and circumstances before the court.” Id. A criminal

       defendant enjoys “the right to ask pointed and relevant questions in an attempt

       to undermine the opposition’s case, as well as the opportunity to test a witness’

       memory, perception, and truthfulness.” Howard v. State, 853 N.E.2d 461, 465

       (Ind. 2006). Nonetheless, “[t]he trial judge has discretion to determine the

       scope of cross-examination and only a clear abuse of that discretion warrants

       reversal.” Carter v. State, 505 N.E.2d 798, 800 (Ind. 1987).


[13]   The State argues the trial court properly curtailed Hobby’s cross-examination

       related to Whitt and the CAR because such questions were not relevant and

       were unfairly prejudicial. As we have explained before:


               Evidence is relevant when it has any tendency to prove or
               disprove a consequential fact. This liberal standard for relevancy
               sets a low bar. The trial court enjoys wide discretion in deciding
               whether that bar is cleared. Relevant evidence is admissible
               unless any applicable rule or statute provides otherwise.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-765 | June 4, 2020   Page 7 of 9
       Poortenga v. State, 99 N.E.3d 691, 695 (Ind. Ct. App. 2018) (internal citations

       and quotation marks omitted). Additionally, Indiana Evidence Rule 403

       provides that relevant evidence may be excluded “if its probative value is

       substantially outweighed by a danger of one or more of the following: unfair

       prejudice, confusing the issues, misleading the jury, undue delay, or needlessly

       presenting cumulative evidence.” Whitt did not testify at trial, and he played a

       small role in the investigation. He tested only the substance R.E. bought in the

       second transaction, not the substances she bought in the first and third

       transactions.


[14]   While the CAR indicates Whitt resigned following revelations about how he

       analyzed blood alcohol content, the State did not present blood alcohol

       evidence in Hobby’s case. Rather, the State was required to prove the

       substance Hobby sold R.E. was cocaine. See Ind. Code § 35-48-4-1 (“A person

       who knowingly or intentionally . . . delivers . . . cocaine or a narcotic drug . . .

       commits dealing in cocaine or a narcotic drug[.]”). Farrell re-tested the

       substance Whitt originally tested. Farrell determined the substance was cocaine

       and testified at trial. The Crime Lab’s peer review process was only relevant to

       the extent it shed light on the tests conducted by Crawford and Farrell, and the

       court allowed Hobby to ask Farrell questions during cross-examination about

       the Crime Lab’s peer review process. The alleged failure of the peer review

       process to ferret out Whitt’s improper blood alcohol testing in other unrelated

       cases was too remote to be relevant. See Hicks v. State, 690 N.E.2d 215, 220

       (Ind. 1997) (“proffered evidence may be irrelevant because it is too remote”).


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-765 | June 4, 2020   Page 8 of 9
[15]   Also, Crawford testified during Hobby’s offer of proof that the instrument used

       to determine blood alcohol content was different from the instrument used to

       identify illicit substances and that the staff kept the instruments in separate parts

       of the Crime Lab. Therefore, it would have been unfairly prejudicial to the

       State if Hobby had asked questions implying Whitt did not follow proper

       procedure in testing the suspected cocaine because Whitt did not follow proper

       procedure in performing blood alcohol content tests. See Newland v. State, 126

       N.E.3d 928, 932 (Ind. Ct. App. 2019) (holding court did not abuse its discretion

       by not allowing defendant to cross-examine witness regarding the facts and

       circumstances surrounding witness’s prior theft convictions).



                                               Conclusion
[16]   The trial court did not abuse its discretion in limiting Hobby’s questions about

       Whitt and the CAR because such questions were not relevant to whether

       Hobby sold cocaine to a confidential informant and would have unfairly

       prejudiced the State. Therefore, we affirm.


[17]   Affirmed.


       Robb, J., and Vaidik, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-765 | June 4, 2020   Page 9 of 9
