      MEMORANDUM DECISION
                                                                           Jun 16 2015, 10:02 am

      Pursuant to Ind. Appellate Rule 65(D), this
      Memorandum Decision shall not be 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
      Ginny Maxwell                                             Gregory F. Zoeller
      Indianapolis, Indiana                                     Attorney General of Indiana
                                                                Chandra K. Hein
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana


                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Michael Shanklin,                                        June 16, 2015

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               49A02-1409-CR-601
              v.                                               Appeal from the Marion Superior
                                                               Court.
                                                               The Honorable Steven R. Eichholtz,
      State of Indiana,                                        Judge.
      Appellee-Plaintiff.                                      Cause No. 49G20-1210-FA-73615




      Darden, Senior Judge


                                       Statement of the Case
[1]   Michael Shanklin appeals from his conviction of five counts of dealing in

      cocaine or a narcotic drug, two counts as Class A felonies and three counts as

      Class B felonies, all pursuant to Indiana Code section 35-48-4-1 (2006), and one

      Court of Appeals of Indiana | Memorandum Decision 49A02-1409-CR-601 | June 16, 2015          Page 1 of 11
      count of possession of marijuana, hash oil, or hashish, a Class A misdemeanor,

      Indiana Code section 35-48-4-11(1) (2012). We affirm.


                                                    Issues
[2]   Shanklin presents two issues for our review, which we restate as:

              I.       Whether the trial court’s admission of audio recordings of
                       phone calls and conversations between Shanklin and a
                       confidential informant violated the Confrontation Clause.
              II.      Whether destroyed evidence was materially exculpatory
                       such that its absence from trial violated Shanklin’s due
                       process rights.


                               Facts and Procedural History
[3]   On three different occasions in October 2012, Shanklin sold cocaine to a

      confidential informant (CI) who was working with Detective Dings of the

      Metropolitan Drug Task Force. On October 2, 2012, Detective Dings made a

      photocopy of buy money and searched the CI and her vehicle for money, drugs,

      and weapons. Finding none of these things, Detective Dings equipped the CI

      with the buy money and an audio recording device. The device was activated,

      and the CI made a call on her cell phone to Shanklin to arrange a meeting.

      With Detective Dings following, the CI drove her vehicle to meet Shanklin.

      While Detective Dings watched from his vehicle, the CI exited her vehicle and

      entered Shanklin’s vehicle. The CI then returned to her vehicle and Detective

      Dings followed her to a meeting place. When they met, the CI gave Detective

      Dings a bag containing a substance that appeared to be and was later identified

      Court of Appeals of Indiana | Memorandum Decision 49A02-1409-CR-601 | June 16, 2015   Page 2 of 11
      as cocaine. Detective Dings then retrieved the audio recording device and

      again searched the CI.


[4]   On October 9 and October 23, 2012, Detective Dings, working with the same

      CI, followed the same protocols that were observed during the buy on October

      2. On both occasions, the CI called Shanklin and made arrangements to meet

      him while recording the phone call on the audio recording device. On October

      9, Detective Dings observed the CI park her vehicle directly behind the same

      vehicle that was involved in the buy on October 2. The CI exited her vehicle

      and went to stand next to Shanklin’s vehicle. Upon completing the buy, the CI

      met up with Detective Dings and produced a bag of a substance later identified

      as cocaine. On October 23, Detective Young rode with the CI, and Detective

      Dings followed and observed. Detective Dings observed Detective Young and

      the CI park behind a vehicle. The CI exited her vehicle and sat in the front

      passenger seat of the other vehicle. When the CI returned to her vehicle, she

      handed Detective Young a bag containing a substance later identified as

      cocaine. During the buys, additional officers performed surveillance and

      recorded video of Shanklin.


[5]   On October 24, 2012, Detective Dings again had the CI call Shanklin to make

      arrangements to buy cocaine. A location for the buy was arranged, but before

      the buy occurred, Shanklin drove away from the location. Officers assisting

      with surveillance of the buy stopped Shanklin’s vehicle because the license plate

      on the vehicle was registered to another car and the window tint was too dark.

      Upon stopping the vehicle and arresting Shanklin, the officers searched

      Court of Appeals of Indiana | Memorandum Decision 49A02-1409-CR-601 | June 16, 2015   Page 3 of 11
      Shanklin and found money from one of the previous controlled buys.

      Shanklin’s wife, who was also present in the car, was searched as well. From

      that search the police recovered from between her buttocks a bag that contained

      a substance later identified as cocaine.


[6]   A search warrant was then executed on Shanklin’s residence, and drugs and

      drug paraphernalia were found and seized. In addition, in the residence the

      officers located more of the buy money that was used in one of the controlled

      buys. Based upon these occurrences, Shanklin was charged with two counts of

      dealing in cocaine as Class A felonies, two counts of possession of cocaine as

      Class C felonies, three counts of dealing in cocaine as Class B felonies, three

      counts of possession of cocaine as Class D felonies, and one count of possession

      of marijuana as a Class A misdemeanor. At trial, the CI did not testify, but

      audio recordings of the phone calls and the controlled buys were introduced

      into evidence over defense counsel’s objection. In addition, although the State

      introduced photographs of the drugs and drug paraphernalia that were seized

      from Shanklin’s residence, it did not introduce the actual drugs and related

      items because they had been inadvertently destroyed prior to trial. Shanklin

      was found guilty on all eleven counts but, due to the merger of several of the

      counts, judgment of conviction was entered only on two counts of dealing in

      cocaine or a narcotic drug, as Class A felonies; three counts of dealing in

      cocaine or a narcotic drug, as Class B felonies; and one count of possession of

      marijuana, hash oil, or hashish, a Class A misdemeanor; and sentenced to an

      aggregate sentence of thirty years.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1409-CR-601 | June 16, 2015   Page 4 of 11
                                     Discussion and Decision
                                       I. Confrontation Clause
[7]   Shanklin first contends that his federal and state constitutional rights to

      confront and cross-examine the witnesses against him were violated when the
                                                                                                              1
      trial court admitted audio recordings of phone calls and controlled drug buys

      between himself and the CI because the CI did not testify at trial. The

      admissibility of evidence is within the sound discretion of the trial court, and we

      will not disturb the decision of the trial court absent a showing of abuse of that

      discretion. Gibson v. State, 733 N.E.2d 945, 951 (Ind. Ct. App. 2000). An abuse

      of discretion occurs when the trial court’s decision is clearly against the logic

      and effect of the facts and circumstances before the court. Id.


[8]   Here, we pause to note that although Shanklin claims a violation of his rights

      under both the Sixth Amendment of the United States Constitution and article

      I, section 13 of the Indiana Constitution, he presents no authority or

      independent analysis supporting a separate standard under the state

      constitution. Therefore, Shanklin has waived any state constitutional claim.

      See Abel v. State, 773 N.E.2d 276, 278 n.1 (Ind. 2002).




      1
       Exhibit 1 is a DVD containing the audio recordings of phone calls and conversations during drug buys
      between the CI and Shanklin. The DVD also contains video and still photographs taken by the officers
      performing surveillance. Shanklin only objected to and claims error with the admission of the portions of
      Exhibit 1 that contain the recorded phone calls and conversations between himself and the CI.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1409-CR-601 | June 16, 2015             Page 5 of 11
[9]    The Confrontation Clause of the Sixth Amendment to the United States

       Constitution prohibits the admission of an out-of-court statement if it is

       testimonial, the declarant is unavailable, and the defendant had no prior

       opportunity to cross-examine the declarant. Thornton v. State, 25 N.E.3d 800,

       803 (Ind. Ct. App. 2015). Testimonial statements include: (1) ex parte in-court

       testimony or its functional equivalent such as affidavits, custodial examinations,

       prior testimony that the defendant was unable to cross-examine, or similar pre-

       trial statements that declarants would reasonably expect to be used

       prosecutorially; (2) extra-judicial statements contained in formalized

       testimonial materials such as affidavits, depositions, prior testimony, or

       confessions; and (3) statements that were made under circumstances that would

       lead an objective witness reasonably to believe that the statement would be

       available for use at a later trial. Williams v. State, 930 N.E.2d 602, 607 (Ind. Ct.

       App. 2010), trans. denied. However, the Confrontation Clause does not bar the

       use of testimonial statements for non-hearsay purposes, i.e., for purposes other

       than establishing the truth of the matter asserted. Id. at 607-08, n.3; cf. Ind.

       Evidence Rule 801(c) (defining hearsay as an out-of-court statement offered to

       prove the truth of the matter asserted). In summary, if a statement is either

       non-testimonial or non-hearsay, the Confrontation Clause does not prohibit its

       admission at trial. Williams, 930 N.E.2d at 607-08.


[10]   Here, the trial court admitted the audio recordings of the phone calls and the

       conversations during the controlled drug buys between the CI and Shanklin.

       These recordings of the CI’s statements did not constitute hearsay because they


       Court of Appeals of Indiana | Memorandum Decision 49A02-1409-CR-601 | June 16, 2015   Page 6 of 11
were not offered for the truth of the matter asserted by the CI. The CI’s

recorded statements merely provided context for Shanklin’s statements and

involvement. Statements that provide context for other admissible statements

are not hearsay because they are not offered for their truth. Id. at 609 (quoting

U.S. v. Tolliver, 454 F.3d 660, 666 (7th Cir. 2006), cert. denied, 549 U.S. 1149, 127

S. Ct. 1019, 166 L. Ed. 2d 768 (2007)). Having determined that the CI’s

statements contained in the audio recordings were not hearsay, we hold that the

admission of the recordings was not barred by the Confrontation Clause, and

we thus conclude that the trial court did not abuse its discretion in admitting the

audio recordings at Shanklin’s trial. See, e.g., Vaughn v. State, 13 N.E.3d 873,

880 (Ind. Ct. App. 2014) (holding that trial court’s admission of audio

recordings of telephone calls between CI and defendant to discuss meeting

place for controlled drug buys did not violate defendant’s right to confront

witnesses because recordings were not offered for truth of matter asserted and

therefore did not constitute hearsay), trans. denied; Williams, 930 N.E.2d at 609

(holding that statements of CI, recorded in course of controlled drug buys, were

non-hearsay and thus trial court’s admission of statements did not violate

defendant’s right to confront witnesses because statements were not offered to

prove truth of CI’s statements but rather provided context for defendant’s

statements); and Lehman v. State, 926 N.E.2d 35, 38 (Ind. Ct. App. 2010)

(holding no error occurred in admission of audio recordings of conversations

between defendant and CI during drug transactions; conversations contained




Court of Appeals of Indiana | Memorandum Decision 49A02-1409-CR-601 | June 16, 2015   Page 7 of 11
       drug-dealing terminology and CI’s statements were not introduced for truth of
                                                                                            2
       matter asserted and therefore were not hearsay), trans. denied.


                                          II. Due Process Rights
[11]   Although Shanklin labels his second claim as a sufficiency of the evidence

       issue, his assertions demonstrate otherwise. First, Shanklin contends that his

       inability to confront and cross-examine the CI at trial caused the evidence

       against him to be insufficient. He provides no further argument to support this

       contention, and it appears that this is merely an attempt to relitigate the matter

       already determined in Issue I. Furthermore, Shanklin does not assert that he

       requested of the State or sought an order from the court that the CI be made

       available for an interview deposition. Having determined that the admission of

       the recordings of phone conversations and drug buys between Shanklin and the

       CI was not barred by the Confrontation Clause, we decline to address the issue

       any further.


[12]   With regard to Shanklin’s final contention, he seems to assert that he was

       harmed by the absence at trial of the drugs and drug paraphernalia that were

       seized from his residence during the execution of the search warrant on October

       24, 2012. Again, he provides no argument to support this allegation.




       2
        In his brief, Shanklin argues that his right to confront the witnesses against him was violated in part because
       he was improperly forced to choose between acquiring the identity of the CI and engaging in plea bargaining
       with the State. His argument fails. A criminal defendant has no constitutional right to engage in plea
       bargaining, and the State has no duty to plea bargain. Bethea v. State, 983 N.E.2d 1134, 1144 (Ind. 2013).

       Court of Appeals of Indiana | Memorandum Decision 49A02-1409-CR-601 | June 16, 2015                Page 8 of 11
[13]   To determine whether a defendant’s due process rights have been violated by

       the State’s failure to preserve evidence, we must first decide whether the

       evidence in question is potentially useful evidence or materially exculpatory

       evidence. State v. Durrett, 923 N.E.2d 449, 453 (Ind. Ct. App. 2010). Evidence

       is potentially useful if no more can be said than that it could have been

       subjected to testing, the results of which might have exonerated the defendant.

       Blanchard v. State, 802 N.E.2d 14, 26 (Ind. Ct. App. 2004). The State’s failure to

       preserve potentially useful evidence does not constitute a violation of due

       process rights unless the defendant shows bad faith on the part of law

       enforcement. Id. at 26-27. On the other hand, materially exculpatory evidence

       is that evidence which possesses an exculpatory value that was apparent before

       the evidence was destroyed and which is of such a nature that the defendant

       would be unable to obtain comparable evidence by other reasonably available

       means. Id. at 27. Failure to preserve materially exculpatory evidence violates

       due process regardless of whether the State acted in good or bad faith. Durrett,

       923 N.E.2d at 453.


[14]   At the time the search warrant was executed upon Shanklin’s residence on

       October 24, 2012, the officers seized substances they believed to be drugs in

       addition to drug paraphernalia. The items that were seized from Shanklin’s

       home were stored in the police evidence room to be kept until trial. At some

       point, the items that were seized from Shanklin’s home were mistakenly

       destroyed. However, prior to being destroyed, these items had been

       photographed and had undergone laboratory testing. At the final pre-trial


       Court of Appeals of Indiana | Memorandum Decision 49A02-1409-CR-601 | June 16, 2015   Page 9 of 11
       conference on July 14, 2014, the State informed the trial court that the items

       had been mistakenly destroyed and that it had informed defense counsel of this

       fact in January or February 2014. At the pre-trial conference, defense counsel

       sought exclusion of the photographs and lab reports concerning the destroyed

       items. After a hearing, the trial court denied defense counsel’s motion to

       exclude the photographs and lab reports because it determined the destruction

       of the items was “inadverten[t]” and “not by intentional acts or bad faith of the

       police department.” Tr. p. 22.


[15]   At trial, the State introduced the photographs of the destroyed items. The

       photographs depicted different substances alleged to be drugs as well as a

       marijuana pipe, rubber gloves, a pan, a Pyrex measuring cup containing white

       residue, and sandwich baggies. The trial court admitted the photographs over

       defense counsel’s objection. The State then presented testimony about the use

       of the kitchen items that were depicted in the photographs in the crack cocaine-

       making process. Additionally, the State presented testimony and introduced

       the lab report of a forensic drug chemist who tested the substances. The

       chemist testified that he performed the testing on the substances on October 25,

       2012, the day after the items were seized, and that the testing revealed the

       substances to be marijuana and cocaine, and the same was admitted as

       evidence.


[16]   As to whether the destroyed items were either materially exculpatory or

       potentially useful, Shanklin makes no assertion and provides no argument in

       support. Upon review, we find no exculpatory value in the destroyed items.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1409-CR-601 | June 16, 2015   Page 10 of 11
       Accordingly, at most, the items might have been potentially useful. However,

       Shanklin makes no showing of bad faith on the part of the State, and in fact

       states in his brief that “[t]here is no assertion by Michael Shanklin that the

       destruction by IMPD was in bad faith.” Appellant’s Br. p. 10. Thus, having

       found no bad faith on the part of the State, we conclude that the absence of the

       items did not violate Shanklin’s due process rights, and it was a matter of

       weight to be determined by the jury. See Durrett, 923 N.E.2d at 453-54 (finding

       no violation of defendant’s due process rights where there was no apparent

       exculpatory value to a van not preserved for trial, no evidence of State’s bad

       faith, and available photographs depicting damage to van were comparable

       evidence that defendant had failed to establish were insufficient).


                                                Conclusion
[17]   For the reasons stated, we conclude that the trial court’s admission of the audio

       recordings between Shanklin and the CI did not violate Shanklin’s rights under

       the Confrontation Clause. In addition, the absence of the destroyed items at

       trial did not violate Shanklin’s due process rights.


[18]   Affirmed.


[19]   Riley, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1409-CR-601 | June 16, 2015   Page 11 of 11
