MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                  FILED
regarded as precedent or cited before any                         Jul 31 2017, 7:34 am
court except for the purpose of establishing
                                                                       CLERK
the defense of res judicata, collateral                            Indiana Supreme Court
                                                                      Court of Appeals
estoppel, or the law of the case.                                       and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Mark K. Leeman                                           Curtis T. Hill, Jr.
Leeman Law Office and Cass County                        Attorney General
Public Defender
Logansport, Indiana                                      Katherine Cooper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Ronnell Roberts,                                         July 31, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         09A05-1702-CR-283
        v.                                               Appeal from the Cass Superior
                                                         Court
State of Indiana,                                        The Honorable Richard
Appellee-Plaintiff                                       Maughmer, Judge
                                                         Trial Court Cause No.
                                                         09D02-1605-F2-8



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 09A05-1702-CR-283 | July 31, 2017        Page 1 of 16
                                             Case Summary
[1]   A jury convicted Ronnell Roberts of level 2 felony dealing in cocaine and class

      A misdemeanor dealing in marijuana. Roberts now appeals, challenging the

      admission of certain evidence at trial as well as the sufficiency of the evidence

      to support his convictions. Concluding that he has failed to establish an abuse

      of discretion in the trial court’s admission of evidence and finding the evidence

      sufficient to support his convictions, we affirm.


                                  Facts and Procedural History
[2]   The facts most favorable to the verdicts are as follows. In May 2016, Roberts

      and his wife Hollie rented a room in a single-family residence owned by Paula

      Lamb. Two weeks later, Logansport police received an anonymous complaint

      concerning drug activity and suspicious odors emanating from the house.

      Officers James Klepinger and Jason Shideler went to the house and spoke with

      Lamb, who invited them in and informed them that she lived there with her

      daughter and her daughter’s fiancé and that she had rented a room to “Nello”

      and Hollie. Tr. at 33, 38-39, 57-58, 135, 142. Per the officers’ request, Lamb

      escorted them to the rented room upstairs. As they approached the room, they

      detected the odor of marijuana. When Lamb opened the door, the odor was

      significantly stronger. Burnt marijuana cigarette butts were on a plate on the

      headboard of the bed, and Roberts and Hollie were sitting on the bed. Roberts

      reported that he had been renting the room for about two weeks.




      Court of Appeals of Indiana | Memorandum Decision 09A05-1702-CR-283 | July 31, 2017   Page 2 of 16
[3]   Police searched the room and found several personal items, including clothing,

      identification, a handbag, and two cell phones. They also discovered two velvet

      bags inside a dresser drawer. Inside the purple bag, they found nine

      individually knotted baggies, four of which were later found to contain an

      equally sized off-white rock substance, and five of which contained even

      smaller portions of the same substance. In the same purple bag, police found a

      separate baggie containing a large rock of the same substance. Subsequent

      testing showed the rocks to be cocaine. Also inside the purple bag were a

      digital scale, razor blades, and several empty baggies. Inside the green velvet

      bag, police discovered a plastic bag containing twenty-four individually

      wrapped bags of a green substance determined to be marijuana.


[4]   Officers obtained a search warrant for the two phones and determined which

      phone was Roberts’s by using contact information and a reference to the user as

      “Nello.” Id. at 134-35, 140, 142. The phone determined to be Roberts’s

      contained a close-up photo of Roberts as well as photos of marijuana.


[5]   The State charged Roberts with level 2 felony dealing in cocaine (at least ten

      grams); level 4 felony cocaine possession (at least ten grams); and class A

      misdemeanor dealing in marijuana. The State requested permission to conduct

      a videotaped deposition of forensic scientist Kimberly Ivanyo, who had

      conducted the lab tests on the suspected illegal substances, to be used at trial.

      The trial court granted the State’s request, and Roberts appeared in person and

      by counsel at the deposition. During his subsequent jury trial, Roberts objected

      to the admission of Ivanyo’s deposition, as well as her certificate of analysis

      Court of Appeals of Indiana | Memorandum Decision 09A05-1702-CR-283 | July 31, 2017   Page 3 of 16
      regarding the weight and composition of the substances tested. He also

      objected to the admission of text messages extracted from his cell phone. The

      jury convicted him as charged, and the trial court vacated his conviction for

      level 4 felony cocaine possession. The trial court sentenced him to an aggregate

      thirty-one-year term.


[6]   Roberts now appeals. Additional facts will be provided as necessary.


                                     Discussion and Decision

            Section 1 – Roberts has failed to establish an abuse of
          discretion in the trial court’s admission of the challenged
                                    evidence.
[7]   Roberts challenges the admission of certain evidence during his jury trial. We

      review rulings on the admission or exclusion of evidence for an abuse of

      discretion resulting in prejudicial error. Williams v. State, 43 N.E.3d 578, 581

      (Ind. 2015). An abuse of discretion occurs when the trial court’s decision is

      clearly against the logic and effect of the facts and circumstances before it or

      where the trial court misinterprets the law. Id.


[8]   Particularly, Roberts challenges the trial court’s admission of certain text

      messages extracted from his cell phone as well as Ivanyo’s deposition testimony

      concerning the weight of the cocaine seized from his rented room. We address

      each separately.




      Court of Appeals of Indiana | Memorandum Decision 09A05-1702-CR-283 | July 31, 2017   Page 4 of 16
                                               A. Text messages

[9]    Roberts objected to the admission of the extracted text messages on grounds of

       authenticity, relevance, and hearsay. To lay a foundation for admission,

       writings and recordings must be authenticated pursuant to Indiana Evidence

       Rule 901(a). Hape v. State, 903 N.E.2d 977, 990 (Ind. Ct. App. 2009), trans.

       denied. Evidence Rule 901(a) reads, “To satisfy the requirement of

       authenticating or identifying an item of evidence, the proponent must produce

       evidence sufficient to support a finding that the item is what the proponent

       claims it is.” Absolute proof of authenticity is not required, but rather only a

       reasonable probability that the document is what it purports to be. Fry v. State,

       885 N.E.2d 742, 748 (Ind. Ct. App. 2008), trans. denied. Once a reasonable

       probability is shown, any inconclusiveness concerning the exhibit’s connection

       to the events at issue goes to the exhibit’s weight, not its admissibility. Pavlovich

       v. State, 6 N.E.3d 969, 976 (Ind. Ct. App. 2014), trans. denied.


[10]   Roberts claims that the State failed to establish that he was the sender of the

       extracted messages. We disagree. Police recovered two cell phones from the

       room that Roberts rented with Hollie. Because one of the phones listed Hollie

       as a frequent contact, police determined that it was Roberts’s phone and sought

       to extract information from it. They obtained a search warrant and extracted

       several text message conversations purportedly between Roberts and others. In

       one of the extracted messages, the sender referred to himself as “Nello.” See

       State’s Ex. 44k (“Well if this mike its nello i was wondering if you still have lab

       t op”). This nickname is consistent with Roberts’s first name “Ronnell” as well

       Court of Appeals of Indiana | Memorandum Decision 09A05-1702-CR-283 | July 31, 2017   Page 5 of 16
       as with the nickname by which his landlady referenced him to police. The cell

       phone also contained what appeared to be a close-up “selfie” photograph of

       Roberts. State’s Ex. 46. The trial court properly found the cell phone and text

       messages to be authenticated as Roberts’s.


[11]   Roberts also contends that the extracted text messages lacked relevance and

       were highly prejudicial. In general, all relevant evidence is admissible. Ind.

       Evidence Rule 402; Wilson v. State, 4 N.E.3d 670, 675 (Ind. Ct. App. 2014),

       opinion on reh’g, trans. denied. Indiana Evidence Rule 401 provides that evidence

       is relevant if it has any tendency to make a fact more or less probable than it

       would be without the evidence and the fact is of consequence in determining

       the action. The trial court has the discretion to admit even marginally relevant

       evidence. Wilson, 4 N.E.3d at 675. Notwithstanding, Indiana Evidence Rule

       403 allows the trial court to “exclude relevant evidence if its probative value is

       substantially outweighed by a danger of … unfair prejudice.”


[12]   Excerpts from the extracted text messages sent from Roberts’s phone include

       the following:



               Sent: Hey its some decent sh*t G cause im out of state so I got
               distinguish myself from the rest in town so I can get the bread

               ….

               Sent: Im coming thru east chicago now and I was wondering if
               its good sh*t cause im coming from out of state and got to
               distinguish myself with better sh*t then the town


       Court of Appeals of Indiana | Memorandum Decision 09A05-1702-CR-283 | July 31, 2017   Page 6 of 16
               Sent: to make bread

               ….

               Sent: You think dude rock be having some hood sh*t

               ….

               Sent: Im on the highway now ill hustle and make due with
               whatever you hook me up with

               ….

               Sent: Im going back to Chicago its there today I cant keep sitting
               dry aint making no money and I want to still be sitting on
               something when I pay you back or it will defeat the purpose of
               ever borrowing anything to come up you know

               ….

               Sent: My guy aint coming back I got to take the cash to them
               and its mids

               ….

               Sent: Mothers day weekend deal before I go until I come back


       State’s Exs. 44a, 44f, 44h, 44i, 44j.


[13]   These excerpts from Roberts’s text messages are highly probative of Roberts’s

       intent to deal (not merely use) cocaine and marijuana. This is especially true

       when the messages are considered in conjunction with the quantity of the drugs

       recovered, their packaging, and the presence of paraphernalia such as razor

       blades and a digital scale. As for Roberts’s claims of unfair prejudice, we

       Court of Appeals of Indiana | Memorandum Decision 09A05-1702-CR-283 | July 31, 2017   Page 7 of 16
       observe that, except as previously referenced, the messages are largely

       mundane, sometimes in code,1 and sometimes speaking merely to his

       whereabouts. The relevancy of the text messages was not substantially

       outweighed by any danger of prejudice, and Roberts has failed to establish an

       abuse of discretion for the admission of the messages on this basis.


[14]   Roberts also asserts that the text messages were inadmissible on hearsay

       grounds. Hearsay is a statement not made by the declarant while testifying at

       the trial or hearing and offered in evidence to prove the truth of the matter

       asserted. Ind. Evidence Rule 801(c). Hearsay is generally inadmissible under

       Indiana Evidence Rule 802. Harrison v. State, 32 N.E.3d 240, 254 (Ind. Ct. App.

       2015), trans. denied. Indiana Evidence Rule 801(d)(2)(A) provides that an

       opposing party’s out-of-court statement offered in evidence to prove the truth of

       the matter asserted is not hearsay if it is offered against the opposing party and

       was made by the party in an individual or representative capacity. Having

       authenticated the cell phone and its contents as belonging to Roberts, the State

       properly offered the statements contained in the extracted text messages as

       statements of a party opponent. That said, we also note that neither Roberts’s

       “sent” messages nor the messages in his inbox were offered to prove the truth of

       the matters asserted in each of the statements, i.e., not offered to establish that

       out-of-state drugs are “better sh*t” that would distinguish Roberts from other

       dealers in town. State’s Ex. 44a. Instead, the mere fact that Roberts sent the



       1
           To alleviate potential jury confusion, Officer Klepinger provided clarifying testimony.

       Court of Appeals of Indiana | Memorandum Decision 09A05-1702-CR-283 | July 31, 2017           Page 8 of 16
       messages was relevant to the issue of his being a drug dealer. We therefore

       conclude that the challenged text messages were properly admitted as non-

       hearsay.


                                           B. Ivanyo’s Deposition

[15]   Roberts also submits that the trial court abused its discretion in admitting

       Ivanyo’s deposition. Essentially, he claims that the State failed to lay a

       foundation as to Ivanyo’s competency to testify regarding the weight of the

       marijuana and cocaine and the accuracy of the scale used to weigh the cocaine

       seized from his rented room. Having reviewed Ivanyo’s deposition, we observe

       that the State elicited extensive testimony from Ivanyo concerning her

       educational and occupational credentials, i.e., a bachelor’s degree in chemistry

       from Purdue University, fifteen years’ experience as a forensic scientist with the

       State Police laboratory (having tested over 27,000 items), and testimony in

       ninety-five previous cases. Ivanyo explained the nuances of analyzing plant

       matter versus powder or rock substances. State’s Ex. 8. The State established

       that Ivanyo was an experienced chemist, qualified to test the substances and

       testify concerning her findings.


[16]   As for the accuracy of the scale that Ivanyo used in her testing, the State made

       only a passing reference to calibration but elicited her explanation concerning

       the margin of error of her results. We addressed the issue of scale calibration in

       Turner v. State, 878 N.E.2d 286, 294 (Ind. Ct. App. 2007), trans. denied (2008).

       There, as here, the trial court granted the State’s request to depose its forensic

       scientist on videotape due to her unavailability to testify at trial. Id. In Turner,
       Court of Appeals of Indiana | Memorandum Decision 09A05-1702-CR-283 | July 31, 2017   Page 9 of 16
       the State elicited no testimony from its scientist during her deposition

       concerning the calibration of the scale, and the defendant did not object or

       question her concerning the scale’s calibration but later objected at trial. Id. In

       affirming the trial court’s admission of the forensic scientist’s deposition, the

       Turner court reasoned,


               We acknowledge that the State bears the burden to show that the
               scale used to measure the weight of the cocaine was properly
               calibrated. However, such is a foundational requirement and not
               an element of the controlled substance offense itself. When the
               foundation for the admission of evidence is at issue, this court
               has determined that before the prosecution has any responsibility
               to establish the foundation, the defense must object that the
               prosecution has not laid the proper foundation. Indeed, a party
               may not sit idly by and fail to object to the lack of a proper
               foundation and subsequently take advantage of that error when a
               timely objection could have permitted the proper foundation to
               be laid.


               As noted above, [the defendant] did not object during the
               deposition when [the scientist] was testifying as to the weight of
               the substances that she tested. As a result, the trial court properly
               admitted the evidence even though the State had not elicited
               testimony about the calibration of the scale.


       Id. (citations omitted).


[17]   Here, the State questioned Ivanyo as follows with respect to the accuracy of her

       results concerning the weight of the cocaine collected from Roberts’s rented

       room:



       Court of Appeals of Indiana | Memorandum Decision 09A05-1702-CR-283 | July 31, 2017   Page 10 of 16
        Q. And [what] was your conclusion with regard to Item 1?

        A. State’s Exhibit 1, four bags were examined, and each were
        found to contain cocaine, a controlled substance, and had a net
        weight of zero point three-three grams.

        Q. And with regard then to State’s Exhibit 2, what was your
        conclusion?

        A. Item 2 was found to contain cocaine, a controlled substance,
        and had a net weight of ten point zero-zero grams plus or minus
        point zero-four grams.

        Q. Okay, and what, what does the point zero-four grams
        indicate? Why, why is that there?

        A. There’s some drugs that have a weight threshold. For
        example, cocaine, there’s a different charge if it’s below ten
        grams and above ten grams. So ten grams is kind of the magic
        number.

        Q. Okay.

        A. So we have to include the, the measurement certainty of the
        balance in that because it could be all the way up to ten point
        zero-four and as low as nine point nine-six. So anywhere in that
        range is where the weight could lie.

        Q. Because on your, on your scientifically calibrated scale at the
        Indiana State Police lab, what did that reading come out to?

        A. The reading read ten point zero-zero grams.

        Q. Okay. So you’re trying to be as accurate as possible. You say
        it’s plus or minus four one-hundredths of a gram; is that right?

        A. Correct.
Court of Appeals of Indiana | Memorandum Decision 09A05-1702-CR-283 | July 31, 2017   Page 11 of 16
               Q. But with regards to then with the weight between the
               combination of State’s Exhibit 1 and 2, it puts it well over ten
               grams; is that correct?

               A. That’s correct.


       State’s Ex. 8 (emphasis added).


[18]   Roberts did not object when the State characterized Ivanyo’s scale as

       “scientifically calibrated,” or at any time thereafter during the deposition. Id.

       Nor did he avail himself of the opportunity to question Ivanyo as to the

       calibration of her scale or her testimony concerning the margin of error. By

       waiting until trial to challenge this foundational issue, he waived this issue for

       consideration on appeal. See Konopasek v. State, 946 N.E.2d 23, 27 (Ind. 2011)

       (failure to object to admission of evidence normally results in waiver and

       precludes appellate review). Even so, the challenged evidence was cumulative

       of other evidence, see State’s Exhibit 6 (certificate of analysis), and therefore

       would be considered harmless error. See Harrison, 32 N.E.3d at 254 (if

       erroneously admitted evidence was cumulative of other evidence, admission

       was harmless, not reversible, error). Roberts has failed to establish an abuse of

       discretion in admitting Ivanyo’s deposition.


           Section 2 – The evidence is sufficient to support Roberts’s
                                 convictions.
[19]   Roberts maintains that the evidence is insufficient to support his convictions.

       When reviewing a challenge to the sufficiency of evidence, we neither reweigh

       Court of Appeals of Indiana | Memorandum Decision 09A05-1702-CR-283 | July 31, 2017   Page 12 of 16
       evidence nor judge witness credibility. Drane v. State, 867 N.E.2d 144, 146 (Ind.

       2007). Rather, we consider only the evidence and reasonable inferences most

       favorable to the verdict and will affirm the conviction “unless no reasonable

       fact-finder could find the elements of the crime proven beyond a reasonable

       doubt.” Id. It is therefore not necessary that the evidence “overcome every

       reasonable hypothesis of innocence.” Id. (citation omitted).


[20]   Roberts was convicted of level 2 felony dealing in cocaine and class A

       misdemeanor dealing in marijuana. To find Roberts guilty of the former, the

       State was required to prove beyond a reasonable doubt that he possessed with

       intent to deliver cocaine in an amount weighing at least ten grams. Ind. Code §

       35-48-4-1(a)(2), -(e)(1). To establish that Roberts committed the latter, the State

       was required to prove that he possessed marijuana with intent to deliver it. Ind.

       Code § 35-48-4-10(a)(2).


[21]   With respect to the quantity of cocaine recovered from Roberts’s room, the

       certificate of analysis as well as forensic scientist Ivanyo’s deposition testimony

       established its total weight to be just under twelve grams, i.e., 10 grams plus

       1.32 grams (0.33 grams x 4) plus 0.58 grams. State’s Exs. 6, 8. This exceeds

       the ten-gram threshold weight to establish the level 2 felony offense of dealing

       in cocaine.


[22]   The State charged both offenses as “possess[ion] with intent to deliver.”

       Because Roberts was not caught red-handed with the contraband on his person,




       Court of Appeals of Indiana | Memorandum Decision 09A05-1702-CR-283 | July 31, 2017   Page 13 of 16
the State was required to establish that he constructively possessed it. Gray v.

State, 957 N.E.2d 171, 174 (Ind. 2011).


        When the State cannot show actual possession, a conviction for
        possessing contraband may rest instead on proof of constructive
        possession. A person constructively possesses contraband when
        the person has (1) the capability to maintain dominion and
        control over the item; and (2) the intent to maintain dominion
        and control over it.


        A trier of fact may infer that a defendant had the capability to
        maintain dominion and control over contraband from the simple
        fact that the defendant had a possessory interest in the premises
        on which an officer found the item. We allow this inference even
        when that possessory interest is not exclusive.


        A trier of fact may likewise infer that a defendant had the intent
        to maintain dominion and control over contraband from the
        defendant’s possessory interest in the premises, even when that
        possessory interest is not exclusive. When that possessory
        interest is not exclusive, however, the State must support this
        second inference with additional circumstances pointing to the
        defendant’s knowledge of the presence and the nature of the
        item. We have previously identified some possible examples,
        including (1) a defendant’s incriminating statements; (2) a
        defendant’s attempting to leave or making furtive gestures; (3) the
        location of contraband like drugs in settings suggesting
        manufacturing; (4) the item’s proximity to the defendant; (5) the
        location of contraband within the defendant’s plain view; and (6)
        the mingling of contraband with other items the defendant owns.


Id. at 174-75 (citations omitted).




Court of Appeals of Indiana | Memorandum Decision 09A05-1702-CR-283 | July 31, 2017   Page 14 of 16
[23]   Roberts claims that he did not maintain dominion and control over his rented

       room. The record shows that he had been renting the room with his wife for

       approximately two weeks. As a lessee of the room, he had a possessory interest

       in the premises sufficient to support an inference that he was capable of

       maintaining dominion and control over it. Gray, 957 N.E.2d at 174. To the

       extent that he cites photographs depicting pink decorations in the room as

       evidence that he did not control the room’s environment, he invites us to

       reweigh evidence and reassess witness credibility, which we may not and will

       not do.


[24]   As for Roberts’s intent to maintain dominion and control, we note that all the

       contraband was found in close proximity to Roberts’s person and his personal

       belongings. When police arrived, the room had a strong smell of burnt

       marijuana, and Roberts was present in the room, sitting on the bed. On the

       headboard, in plain view, were burnt marijuana blunts. The photographic

       exhibits show that the premises rented by Roberts and his wife comprised a

       small to medium-sized bedroom. Nearly every part of the room was either

       within arm’s reach or within a few steps. Large quantities of drugs neatly

       packaged for sale were nestled, along with dealers’ tools, inside the dresser just

       steps from where Roberts was sitting. Though he made no furtive gestures or

       incriminating remarks to police at the time, his incriminating statements in his

       extracted text messages also implicate him as a drug dealer. Roberts had the

       intent to maintain dominion and control over his inventory.




       Court of Appeals of Indiana | Memorandum Decision 09A05-1702-CR-283 | July 31, 2017   Page 15 of 16
[25]   In sum, the presence and proximity of the drugs and paraphernalia to Roberts,

       the quantity and packaging of the drugs, and the extracted text messages

       combine to support a reasonable inference that Roberts possessed the drugs

       with intent to deal them, not merely use them. The evidence most favorable to

       the verdicts is sufficient to support Roberts’s convictions. Accordingly, we

       affirm.


[26]   Affirmed.


       Baker, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 09A05-1702-CR-283 | July 31, 2017   Page 16 of 16
