MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D),                                 FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any
                                                                  Nov 17 2016, 7:38 am

court except for the purpose of establishing                           CLERK
                                                                   Indiana Supreme Court
the defense of res judicata, collateral                               Court of Appeals
                                                                        and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Matthew J. McGovern                                     Gregory F. Zoeller
Anderson, Indiana                                       Attorney General of Indiana
                                                        George P. Sherman
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Kenneth W. Kee,                                         November 17, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        22A05-1512-CR-2151
        v.                                              Appeal from the Floyd Superior
                                                        Court
State of Indiana,                                       The Honorable Maria D. Granger,
Appellee-Plaintiff                                      Judge
                                                        Trial Court Cause No.
                                                        22D03-1503-F4-496



Mathias, Judge.




Court of Appeals of Indiana | Memorandum Decision 22A05-1512-CR-2151 | November 17, 2016   Page 1 of 12
[1]   Kenneth Kee was convicted in Floyd Superior Court of two counts of Level 4

      dealing in methamphetamine. He was also adjudicated a habitual offender.

      Kee appeals his conviction and raises three issues, which we restate as:


          I.   Whether Kee’s right to a speedy trial was violated;

          II. Whether Kee was prejudiced when a police officer was allowed to testify
              that he knew Kee prior to his arrest because of other narcotic
              investigations; and

          III. Whether the State presented sufficient evidence to prove the weight of
               the methamphetamine.

      We affirm.


                                    Facts and Procedural History

[2]   In February 2015, Devan Philpott (“Philpott”) was arrested for possession of

      methamphetamine by the Clarksville Police Department. Philpott asked to

      become a confidential informant, and he was released from custody. On

      February 23, 2015, he was interviewed by Indiana State Police Detective Barry

      Brown (“Detective Brown”). Philpott identified Kee as his dealer, and

      Detective Brown arranged a controlled buy between Philpott and Kee.

[3]   Philpott and Kee agreed to meet at a Meijer store in New Albany. Philpott was

      given $500 in buy money and told to make the exchange in the Meijer parking

      lot. Philpott’s person and vehicle were searched, and he was equipped with a

      recording device.




      Court of Appeals of Indiana | Memorandum Decision 22A05-1512-CR-2151 | November 17, 2016   Page 2 of 12
[4]   When Kee arrived, Philpott went inside the Meijer store with him. Eventually,

      they went into a store bathroom where Kee left two baggies of

      methamphetamine in a stall. Philpott retrieved the baggies as directed. He then

      gave Kee $500: $240 for the two baggies of methamphetamine and $260 for a

      prior debt.


[5]   Next, Kee instructed Philpott to meet him at a gas station in New Albany

      where he would give him more methamphetamine. At the gas station, Kee

      threw another baggie into Phipott’s vehicle. Later testing revealed that the

      combined weight of the three baggies of methamphetamine was 1.94 grams.


[6]   Law enforcement officers arranged a second controlled buy on February 27,

      2015. Once again, before the buy, the officers searched Philpott’s person and

      vehicle. Philpott was given $260, and he was equipped with a recording device.

      This time, Philpott met Kee in the driveway of Kee’s residence. Kee gave

      Philpott three baggies containing methamphetamine in exchange for $260.

      Later testing revealed the baggies contained a total of 1.59 grams of

      methamphetamine.


[7]   Kee was subsequently charged with two counts of Level 4 felony dealing in

      methamphetamine. The State also alleged that Kee was a habitual offender.

      Kee filed a speedy trial request, which was granted and trial was set for May 26,

      2015. The State later requested a continuance under Criminal Rule 4(D) and

      argued that certain evidence from the State Police Lab could not be obtained

      before the trial date. Kee objected to the continuance. After a hearing was held


      Court of Appeals of Indiana | Memorandum Decision 22A05-1512-CR-2151 | November 17, 2016   Page 3 of 12
       on the motion, the trial court granted the motion and continued the trial to

       August 25, 2015.


[8]    Prior to trial, Kee again filed a motion for discharge arguing that he had been

       denied his right to a speedy trial. The court denied the motion, and Kee’s four-

       day jury trial commenced on August 25, 2015. He was found guilty as charged

       on the dealing counts. On August 31, 2015, the habitual offender phase of trial

       was held, and the jury determined that Kee was a habitual offender. At the

       sentencing hearing held on November 6, 2015, the trial court ordered Kee to

       serve an aggregate twenty-year sentence. Kee now appeals. Additional facts

       will be provided as necessary.


                                               I. Speedy Trial

[9]    Kee moved for a speedy trial pursuant to Criminal Rule 4(B). This rule provides

       in relevant part that:


               If any defendant held in jail on an indictment or an affidavit shall
               move for an early trial, he shall be discharged if not brought to
               trial within seventy (70) calendar days from the date of such
               motion, except where a continuance within said period is had on
               his motion, or the delay is otherwise caused by his act, or where
               there was not sufficient time to try him during such seventy (70)
               calendar days because of the congestion of the court calendar.


       Ind. Crim. R. 4(B).


[10]   However, Criminal Rule 4(D) permits the State to request a continuance of the

       70-day rule. Specifically, Criminal Rule 4(D) provides that a trial court may


       Court of Appeals of Indiana | Memorandum Decision 22A05-1512-CR-2151 | November 17, 2016   Page 4 of 12
       grant the State a continuance when it is satisfied that: (1) there is evidence for

       the State that cannot then be had, (2) reasonable effort has been made by the

       State to procure the evidence, and (3) there is just ground to believe that such

       evidence can be had within ninety days. Chambers v. State, 848 N.E.2d 298, 303-

       04 (Ind. Ct. App. 2006). Any exigent circumstances may warrant a reasonable

       delay beyond the limitations of Criminal Rule 4. Id. at 304. The reasonableness

       of such delay should be judged in the context of the particular case, and the

       decision of the trial judge will not be disturbed except for an abuse of discretion.

       Id. “‘Rule 4(D) does not mandate the evidence be essential or unique, only that

       it be unavailable and that the State be entitled to present it.’” Wilhelmus v. State,

       824 N.E.2d 405, 413 (Ind. Ct. App. 2005) (quoting Smith v. State, 502 N.E.2d

       485, 488 (Ind. 1987)). The purpose of Criminal Rule 4(B) is to assure criminal

       defendants speedy trials, not to provide them with a technical means of

       avoiding trial. Id. at 412.


[11]   The State requested a continuance of the May 2015 trial date because the

       Indiana State Police Laboratory wanted additional DNA samples from the

       possible participants of the controlled buy to conduct further analysis of the

       baggies. The State was attempting to obtain the additional, requested DNA

       samples when it filed its May 8 motion to continue the May 26 trial date. The

       State also stated that the State Police Lab would need additional time to

       conduct its DNA analysis. The State hoped the evidence would establish that

       Kee handled the baggies because the video evidence did not establish that he

       actually possessed them. Tr. p. 21.


       Court of Appeals of Indiana | Memorandum Decision 22A05-1512-CR-2151 | November 17, 2016   Page 5 of 12
[12]   It was within the trial court’s discretion to determine whether the State had

       attempted to procure the evidence at issue but had not been able to do because

       of time constraints. The State Police Lab was unable to perform the requested

       analysis without additional DNA samples that the State needed time to

       procure. The State Police Lab performed the additional analysis once the

       samples were obtained. The State established that it did not have an

       opportunity to obtain the evidence within the parameters established by

       Criminal Rule 4(B). For these reasons, we conclude that the trial court properly

       continued Kee’s trial pursuant to Criminal Rule 4(D).


                                         II. Character Evidence

[13]   Next, we address Kee’s claims that he was denied a fair trial because Detective

       Brown testified that Kee was known to law enforcement officers prior to the

       events that occurred in this case. Specifically, during Kee’s re-cross examination

       of Detective Brown, Kee referenced the detective’s earlier testimony that he was

       familiar with Kee before Philpott asked to be a confidential informant.


               KEE: [H]ow did you become familiar with Kenny?


               DETECTIVE: I knew him before. Once . . . the CI told me his
               name, I can go into that if you wish.


               KEE: I would like that because you said earlier that you didn’t
               know anything about Kenny but . . . the confidential informant
               brought him to you.




       Court of Appeals of Indiana | Memorandum Decision 22A05-1512-CR-2151 | November 17, 2016   Page 6 of 12
               DETECTIVE: I knew who Kenny Kee was . . . from past, uh,
               knowing other narcotics officers and their dealings with Mr. Kee,
               that’s how I was familiar with him.


               KEE: But you never tried to arrest him in the past?


               DETECTIVE: No, I did not.


       Tr. pp. 457-58.


[14]   After Detective Brown’s testimony, Kee asked for a mistrial. The State argued

       that Kee was not entitled to a mistrial because he elicited the testimony. The

       trial court denied the motion for a mistrial but did admonish the jury that the

       jurors should not consider Detective Brown’s testimony concerning how he

       knew Kee and struck the testimony from the record. Tr. pp. 463-64.


[15]   It is well-settled that a defendant may “open the door” to the admission of

       evidence otherwise inadmissible under the rules of evidence. See Jackson v. State,

       728 N.E.2d 147, 152 (Ind. 2000). Grounded in estoppel, the doctrine of invited

       error provides “a party may not take advantage of an error that she commits,

       invites, or which is the natural consequence of her own neglect or misconduct.”

       Wright v. State, 828 N.E.2d 904, 907 (Ind. 2005). In other words, “[d]efendants

       cannot complain of errors that they induced the trial court to make; a party may

       not invite error and then rely on such error as a reason for reversal, because

       error invited by the complaining party is not reversible error.” Berry v. State, 574

       N.E.2d 960, 963 (Ind. Ct. App. 1991), trans. denied; see also Cole v. State, 970



       Court of Appeals of Indiana | Memorandum Decision 22A05-1512-CR-2151 | November 17, 2016   Page 7 of 12
       N.E.2d 779, 783 (Ind. Ct. App. 2012) (stating that we will not reverse a

       conviction on the basis of invited error).


[16]   Kee invited error by eliciting the testimony at issue, and then requested a

       mistrial after he introduced the error into the proceedings. The trial court

       appropriately denied Kee’s motion. Also, recognizing the potentially prejudicial

       nature of the detective’s testimony, the trial court admonished the jury and

       struck the testimony from the record.1 A timely and accurate admonition is

       presumed to cure any error in the admission of evidence. Banks v. State, 761

       N.E.2d 403, 405 (Ind. 2002).


[17]   Kee also failed to object to Detective Brown’s testimony during direct

       examination that he was familiar with Kee. Tr. pp. 134, 292, 302. Specifically,

       Detective Brown stated that when Philpott approached him about becoming a

       confidential informant, Philpott “mentioned the name Kenneth Kee, who I was

       familiar with” and that he was “familiar with Mr. Kee prior to the drug

       transaction.” Tr. pp. 134, 292. Because Kee failed to object to these statements,

       he did not preserve this issue for appeal. However, a claim waived by a

       defendant's failure to object can be reviewed on appeal under the fundamental

       error doctrine. See Delarosa v. State, 938 N.E.2d 690, 694 (Ind. 2010).




       1
         When the court admonished the jury, it mistakenly referred to Detective Brown’s testimony concerning
       how he knew “Philpott.” The reference to Philpott was a simple misstatement, and in the context in which
       the admonition was given, we are confident the jury knew the trial court meant to refer to Kee.

       Court of Appeals of Indiana | Memorandum Decision 22A05-1512-CR-2151 | November 17, 2016       Page 8 of 12
[18]   “Fundamental error is an extremely narrow exception to the waiver rule where

       the defendant faces the heavy burden of showing that the alleged errors are so

       prejudicial to the defendant's rights as to make a fair trial impossible.” Ryan v.

       State, 9 N.E.3d 663, 668 (Ind. 2014) (citation and internal quotation marks

       omitted). The error must be “so egregious and abhorrent to fundamental due

       process” that the trial judge should have acted, “irrespective of the parties’

       failure to object or otherwise preserve the error for appeal.” Whiting v. State, 969

       N.E.2d 24, 34 (Ind. 2012).


[19]   Detective Brown’s vague testimony that he was familiar with Kee did not

       prejudice Kee to the extent to deny him a fair trial, particularly when this

       testimony is considered against the weight of the evidence that Kee committed

       dealing in methamphetamine. For all of these reasons, we conclude that Kee

       has not established reversible error concerning Detective Brown’s challenged

       testimony that he knew Kee prior to the commission of these offenses.


                               III. Weight of the Methamphetamine

[20]   Finally, Kee argues that the State failed to present sufficient evidence that Kee

       committing dealing in methamphetamine weighing at least one gram but less

       than five grams because the State failed to prove that the scale used to weigh the

       drug was tested for accuracy. When reviewing the sufficiency of the evidence to

       support a conviction, appellate courts are “markedly deferential to the outcome

       below.” Bowman v. State, 51 N.E.3d 1174, 1181 (Ind. 2016). Our court neither

       reweighs the evidence nor judges the credibility of the witnesses, and we

       consider only the evidence most favorable to the verdict and the reasonable
       Court of Appeals of Indiana | Memorandum Decision 22A05-1512-CR-2151 | November 17, 2016   Page 9 of 12
       inferences that can be drawn from this evidence. Knight v. State, 42 N.E.3d 990,

       993 (Ind. Ct. App. 2015). We will not disturb the jury’s verdict if substantial

       evidence of probative value supports it. Id. As an appellate court, we respect the

       jury’s exclusive province to weigh conflicting evidence. Id.


[21]   Although the State bears the burden to establish that the scale used to measure

       the weight of the methamphetamine was properly calibrated, the accuracy of

       the scale used to weigh the methamphetamine is foundational evidence. See

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

       v. State, 743 N.E.2d 1251. 1255 (Ind. Ct. App. 2001), trans. denied (explaining

       “in other words, the scale’s accuracy is foundational evidence; it is not an

       element of the crime”).


[22]   “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.” Turner, 878 N.E.2d at 294.


               “[A] defendant may not sit idly by while error is committed and
               later take advantage of it, where a proper objection made at trial
               could have corrected the error. . . . Had objection been made to
               the lack of a proper foundation in this case, such foundation
               could then have been supplied.”


       Guadian,743 N.E.2d at 1254 (quoting Mullins v. State, 646 N.E.2d 40, 48 (Ind.

       1995)).




       Court of Appeals of Indiana | Memorandum Decision 22A05-1512-CR-2151 | November 17, 2016 Page 10 of 12
[23]   Because Kee failed to object to admission of the evidence establishing the

       weight of the methamphetamine, the trial court properly admitted the evidence

       even though the State failed to elicit testimony about the calibration of the

       scale. See Turner, 878 N.E.2d at 294.


[24]   The weight of the methamphetamine at issue in this case is important because

       Kee was charged with two counts of Level 4 felony dealing in

       methamphetamine in a weight between one gram but less than five grams. See

       Ind. Code 35-48-4-1.1; Appellant’s App. pp. 27. The weight of the baggies was

       1.94 grams of methamphetamine and 1.59 grams of methamphetamine,

       respectively.


[25]   The weight of the methamphetamine would not have been readily apparent to

       the jury, and specifically that the weight was between one gram and five grams.

       Therefore, the only evidence to establish the weight of the methamphetamine

       was the testimony and certificate of analysis admitted during the State Police’s

       forensic scientist’s testimony. However, Kee only speculates that the weight of

       the methamphetamine might not have been at least one gram. Also, the forensic

       scientist, who has over thirty years of experience, explained how the

       methamphetamine was weighed. Tr. pp. 577-82. For these reasons, we

       conclude that the jury could reasonably infer that the State presented sufficient

       evidence to prove that the weight of the methamphetamine for both offenses

       was over one gram.




       Court of Appeals of Indiana | Memorandum Decision 22A05-1512-CR-2151 | November 17, 2016 Page 11 of 12
                                                  Conclusion

[26]   Kee has not established any reversible error concerning his right to a speedy

       trial, Detective Brown’s testimony, and his claim that the State failed to prove

       the weight of the methamphetamine at issue. We therefore affirm his two Level

       4 felony dealing in methamphetamine convictions.


[27]   Affirmed.


       Robb, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 22A05-1512-CR-2151 | November 17, 2016 Page 12 of 12
