MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                FILED
regarded as precedent or cited before any                       Jun 14 2017, 9:18 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
Elizabeth A. Bellin                                      Curtis T. Hill, Jr.
Elkhart, Indiana                                         Attorney General of Indiana

                                                         Tyler G. Banks
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Eduardo Deltoro,                                         June 14, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A05-1608-CR-1868
        v.                                               Appeal from the Elkhart Superior
                                                         Court
State of Indiana,                                        The Honorable Teresa L. Cataldo,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         20D03-1508-F3-27



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 20A05-1608-CR-1868 | June 14, 2017     Page 1 of 14
                                          Case Summary
[1]   Eduardo Deltoro appeals his convictions for possession of methamphetamine,

      unlawful possession of a firearm by a serious violent felon, and carrying a

      handgun without a license. He contends that the evidence is insufficient to

      support these convictions. Deltoro further argues that the trial court committed

      fundamental error by failing to declare a mistrial after the State asked a police

      officer a question that led to testimony about Deltoro’s criminal history.

      Finding sufficient evidence and no fundamental error, we affirm.



                            Facts and Procedural History
[2]   On the morning of August 12, 2015, Elizabeth Keenoy was taking her children

      to school in Goshen. She turned onto Wilden Avenue and saw what appeared

      to be an oncoming car that had lost control—swerving back and forth across all

      lanes of traffic, including oncoming traffic. That car ended up crashing along

      the bike path on the opposite side of the road from which it was traveling.

      Keenoy pulled over to the side of the road and called 911 to report the accident.

      Keenoy’s fifteen-year-old son saw the driver, who was later identified as

      Deltoro, get out of the car. He observed that Deltoro was a dark-skinned male

      wearing a black t-shirt and orange shorts.

[3]   When firefighters arrived at the scene of the crash, Deltoro was not at the car.

      Keenoy approached Firefighter Jonathan Yoder and told him that she had seen

      the driver of the car walking down the bike path. She gave a description of


      Court of Appeals of Indiana | Memorandum Decision 20A05-1608-CR-1868 | June 14, 2017   Page 2 of 14
      Deltoro, including that he was wearing orange shorts, and said that he started

      walking faster when the firetruck approached the crash site. Yoder was able to

      see Deltoro, approximately 150 yards away, walking along the bike path away

      from the crash. He then saw Deltoro “bolt” into a subdivision “as soon as the

      police car came around the curve[.]” Tr. Vol. III pp. 165-66. Yoder relayed

      this information to Sergeant Stuart Smith with the Goshen Police Department,

      who had arrived on the scene to investigate the crash. Based on Yoder’s

      statement, Sergeant Smith requested back-up and told the responding officers to

      be looking for an individual that matched Deltoro’s description.


[4]   Sergeant Smith stayed at the scene of the crash and processed the car to be

      impounded. He found a digital scale inside the glove compartment and a single

      nine-millimeter bullet on the floorboard behind the driver’s seat. Sergeant

      Smith was unable to locate the keys to the car. He then retraced the path the

      car had taken, following tire marks in the roadway and property damage along

      both sides of the road. “It left the road on both sides of the road hitting

      mailboxes, a couple of small trees, a concrete mailbox weight . . . or base,

      before coming to rest on the bike path.” Id. at 192.


[5]   Captain Keith Miller was one of the officers who responded to Sergeant Smith’s

      request for back-up. Captain Miller began searching the subdivision that

      Deltoro was seen “bolting” into. Captain Miller saw Deltoro calmly walking

      down one of the streets and initially drove past him. As he passed Deltoro,

      Captain Miller looked in his rearview mirror and saw Deltoro “suddenly

      sprinting into a driveway[.]” Id. at 238. Captain Miller recognized Deltoro

      Court of Appeals of Indiana | Memorandum Decision 20A05-1608-CR-1868 | June 14, 2017   Page 3 of 14
      from his clothing, turned his squad car around, and stopped Deltoro, who was

      calmly walking out of the driveway. He asked Deltoro for photo identification,

      but Deltoro was unable to provide any; he told Captain Miller that he had his

      information memorized so he did not carry any on him. Captain Miller entered

      Deltoro’s information into his computer and received a report from the Bureau

      of Motor Vehicles that Deltoro had never been issued a driver’s license. During

      this exchange of information, Captain Miller observed that Deltoro was

      wearing flip flops and had wet blades of grass stuck to the tops of his feet.

[6]   Confident that there was sufficient probable cause to arrest Deltoro for driving

      the crashed car without a license, Captain Miller instructed Deltoro to empty

      the contents of his pockets onto the hood of the squad car. Deltoro produced a

      keyring with four keys on it, a loaded magazine for a nine-millimeter handgun,

      and various other items. Deltoro was taken into custody and placed in the back

      of a squad car. Worried that Deltoro had dropped a handgun somewhere

      between the crash site and where he was detained, Captain Miller requested K-

      9 officers to come to his location. While waiting on the K-9 unit, Captain

      Miller took the keys that Deltoro had produced to Sergeant Smith; the keys

      started the crashed car.

[7]   Officer Mark Clere responded to Captain Miller’s request for a K-9 unit.

      Officer Clere and his K-9 partner searched the driveway Deltoro had run into

      when he saw Captain Miller, and they found two bags of methamphetamine in

      the grass along the driveway. The net weight of both bags of

      methamphetamine was 50.04 grams.

      Court of Appeals of Indiana | Memorandum Decision 20A05-1608-CR-1868 | June 14, 2017   Page 4 of 14
[8]   Still searching for the handgun, Officer Clere and his K-9 proceeded to the

      crash site and retraced Deltoro’s path from the crash to where Deltoro was

      detained by Captain Miller. Captain Miller explained that no one had been

      along the bike path “so there’s a good chance the dogs would be able to track

      [Deltoro’s] scent.” Tr. Vol. IV p. 10. Officer Clere and his K-9 began tracking

      Deltoro’s scent, walking along the bike path and through yards. They found a

      nine-millimeter handgun that had been discarded in the grass, next to an

      electrical box. The gun was missing its magazine but had a single bullet loaded

      in the chamber. Captain Miller was called to the location of the handgun; he

      brought with him the magazine from Deltoro’s pocket and inserted it into the

      handgun. It locked in place. According to Captain Miller, “It would appear

      it’s the same magazine, the proper magazine for this firearm.” Id. at 36.


[9]   Deltoro was arrested and taken to jail. While waiting to be booked, he placed a

      phone call to an unknown woman. The conversation varied between English

      and Spanish throughout the call:

              Deltoro:         “Okay. Hopefully everything goes great. They
                               can’t put that sh*t on me today. They didn’t find it
                               on me. They found it (indiscernible), but they
                               didn’t . . .”


              Woman:           “Outside?”


              Deltoro:         “Yeah. Outside the car. I ran; I ran, and I threw
                               everything. Boom. Boom. Boom. Boom.”


              Woman:           “What? Outside in the grass?”
      Court of Appeals of Indiana | Memorandum Decision 20A05-1608-CR-1868 | June 14, 2017   Page 5 of 14
               Deltoro:         “Yes.”


               Woman:           “Okay.”


               Deltoro:         “Yeah, so everything was on the ground. Try to get me an
                                attorney.”


       Ex. 114a (portion of conversation spoken in Spanish in italics); see Tr. Vol. IV

       pp. 234-38 (translation of conversation from Spanish to English). The State

       charged Deltoro with Level 3 felony possession of twenty-eight or more grams

       of methamphetamine; Level 4 felony unlawful possession of a firearm by a

       serious violent felon (“SVF charge”); Class A misdemeanor carrying a handgun

       without a license; Class A misdemeanor operating a motor vehicle while never

       licensed (enhanced from a Class C misdemeanor due to an earlier conviction

       for the same offense); and Class B misdemeanor leaving the scene of an

       accident.

[10]   A bifurcated jury trial was held. During phase one, the State was not allowed

       to mention Deltoro’s criminal history, including his prior conviction for

       operating a vehicle while never licensed or his 2006 burglary conviction

       underlying the SVF charge. In phase one, the State called Officer Stephen

       Priem, one of the responding officers, to testify:

               State:           And again, at this point, he was under arrest?


               Priem:           I was told by my supervisor that he was being
                                charged with a crime and he was under arrest.


       Court of Appeals of Indiana | Memorandum Decision 20A05-1608-CR-1868 | June 14, 2017   Page 6 of 14
        State:           Did you book him into the jail under a certain crime
                         or for a certain crime?


        Priem:           I believe it was Operating While Intoxicated,
                         Endangering, Possession of a Firearm by a Violent
                         Felon, Driving Without a License - -


Tr. Vol. IV pp. 118-19. Defense counsel objected, and the following bench

conference ensued:

        Defense:         I would move to strike the issue as it related to the
                         violent felon aspect. I didn’t anticipate that was
                         going to come up in his --


        Court:           Do you want to say that to the jury?


        Defense:         I just would like to object to that part of it at this
                         point.


        Court:           Okay. I will sustain your objection, but what do you
                         want to do?


        Defense:         What’s that?


        Court:           What do you want to do now that...


        Defense:         Well, I suppose they would have to disregard --


        Court:           Do you want me to just have them disregard the
                         entire --




Court of Appeals of Indiana | Memorandum Decision 20A05-1608-CR-1868 | June 14, 2017   Page 7 of 14
               Defense:         Testimony as it relates to what he was
                                [indiscernible].


               Court:           Yeah.


               State:           I have no objection to striking that - -


               Court:           Okay.


               State:           - - response.


       Id. at 119-20. The trial court admonished the jury to “disregard the response

       about what the defendant was booked into the jail for.” Id. Deltoro’s criminal

       history was never mentioned again during phase one of the trial.

[11]   The jury returned guilty verdicts on all counts tried during phase one—

       possession of methamphetamine, carrying a handgun without a license,

       operating a vehicle while never licensed, and leaving the scene of an accident.

       The court immediately began phase two of the trial, and the State introduced

       evidence of Deltoro’s criminal history, including certified copies of his prior

       convictions for operating a vehicle while never licensed and burglary. See Exs.

       201-205. The jury found Deltoro guilty of unlawful possession of a firearm by a

       serious violent felon and the enhanced crime of operating a vehicle while never

       licensed with a prior conviction for the same offense. Deltoro was sentenced to

       an aggregate term of twenty years, with fifteen years to be executed in the

       Department of Correction and five years suspended to probation.



       Court of Appeals of Indiana | Memorandum Decision 20A05-1608-CR-1868 | June 14, 2017   Page 8 of 14
[12]   Deltoro appeals.



                                  Discussion and Decision
[13]   Deltoro argues that the evidence presented at trial is insufficient to support three

       of his convictions. He also contends that the State engaged in prosecutorial

       misconduct when it questioned Officer Priem about Deltoro’s booking charges

       during phase one of the trial.


                                I. Sufficiency of the Evidence
[14]   Deltoro argues that the evidence is insufficient to support his convictions for

       possession of methamphetamine, carrying a handgun without a license, and

       unlawful possession of a firearm by a serious violent felon. When reviewing the

       sufficiency of the evidence, we neither reweigh the evidence nor determine the

       credibility of witnesses; that role is reserved for the factfinder. Bailey v. State,

       979 N.E.2d 133, 135 (Ind. 2012). “The evidence—even if conflicting—and all

       reasonable inferences drawn from it are viewed in a light most favorable to the

       conviction.” Id. A conviction will be affirmed “if there is substantial evidence

       of probative value supporting each element of the crime from which a

       reasonable trier of fact could have found the defendant guilty beyond a

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

       reasonable hypothesis of innocence.” Sallee v. State, 51 N.E.3d 130, 133 (Ind.

       2016). The evidence is sufficient “if an inference may reasonably be drawn

       from it to support the conviction.” Id.


       Court of Appeals of Indiana | Memorandum Decision 20A05-1608-CR-1868 | June 14, 2017   Page 9 of 14
[15]   Deltoro argues that the State failed to prove that he ever possessed or carried

       the methamphetamine or the handgun since they were found in the grass and

       not on his person. The State presented multiple witnesses who saw the driver

       of the crashed car leave the scene of the crash wearing a black t-shirt and orange

       shorts. Firefighter Yoder saw the driver “bolt” into a subdivision as police

       approached the scene of the crash. Captain Miller then saw a man who

       matched the description of the driver walking through the subdivision and saw

       that same man “sprint” into a driveway after Captain Miller drove past him.

       The man was then seen calmly walking out of the driveway, where Captain

       Miller detained him. The man was identified as Deltoro. Captain Miller had

       Deltoro empty his pockets onto the hood of his squad car. One of the items

       was a loaded magazine for a nine-millimeter handgun. Captain Miller called

       for a K-9 search team and Officer Clere responded. Officer Clere and his K-9

       searched the area along the driveway that Deltoro had run into and found two

       bags of methamphetamine. Officer Clere and his K-9 then tracked Deltoro’s

       movements from the crash site to where he was detained and found a nine-

       millimeter handgun hidden in the grass by an electrical box. The gun was

       missing its magazine, and Captain Miller was later able to confirm that the

       magazine found on Deltoro fit the handgun.

[16]   In addition to the physical evidence recovered by police, Deltoro made a phone

       call from the jail. During the call he stated, “They didn’t find it on me. . . . I

       ran; I ran and I threw everything. . . . Yeah, so everything was on the ground.”

       Ex. 114(a); Tr. Vol. IV pp. 234-38. When asked if he threw everything outside


       Court of Appeals of Indiana | Memorandum Decision 20A05-1608-CR-1868 | June 14, 2017   Page 10 of 14
       of the car into the grass, Deltoro answered “Yes.” Id. We conclude that the

       evidence is sufficient to support Deltoro’s convictions for all three of the

       challenged offenses.1 See Ferguson v. State, 485 N.E. 888 (Ind. 1985) (upholding

       conviction for possession of heroin found on hotel basement floor because

       defendant’s clothing matched the description of suspect’s clothing and

       defendant fled through basement when he saw police).


                                 II. Prosecutorial Misconduct
[17]   Next, Deltoro argues that the State’s question to Officer Priem regarding the

       charges for which Deltoro was booked into the jail amounted to prosecutorial

       misconduct. When reviewing a claim for prosecutorial misconduct that has

       been properly preserved, we determine “(1) whether the prosecutor engaged in

       misconduct, and if so, (2) whether the misconduct, under all of the

       circumstances, placed the defendant in a position of grave peril to which he or

       she would not have been subjected otherwise.” Ryan v. State, 9 N.E.3d 663, 667

       (Ind. 2014). To preserve properly a claim of prosecutorial misconduct, the

       defense must, at the time of the alleged misconduct, raise a contemporaneous

       objection and request an admonishment; if the admonishment is not given or is

       insufficient to cure the error, the defense must request a mistrial. Thomas v.

       State, 9 N.E.3d 737, 742 (Ind. Ct. App. 2014). Failure to preserve a claim of




       1
        Deltoro also contends that the State had to prove that he constructively possessed the firearm and
       methamphetamine because they were not found on his person. Having concluded there was sufficient
       evidence to establish actual possession, we do not address this argument.

       Court of Appeals of Indiana | Memorandum Decision 20A05-1608-CR-1868 | June 14, 2017         Page 11 of 14
       prosecutorial misconduct results in waiver of the issue on appeal. Ryan, 9

       N.E.3d at 667.

[18]   In Deltoro’s case, he objected to Officer Priem’s testimony, and the trial judge

       admonished the jury. On appeal, he contends that the admonishment was

       insufficient and that the trial court should have declared a mistrial. Appellant’s

       Br. p. 21. But Deltoro did not ask the trial court for a mistrial. Deltoro

       concedes that he has not properly preserved his prosecutorial-misconduct claim.

       Id. at 20. To be successful on appeal Deltoro must establish the grounds for

       prosecutorial misconduct and that the alleged misconduct was so prejudicial

       that the trial court committed fundamental error by failing to sua sponte declare

       a mistrial. Ryan, 9 N.E.3d at 667-68.


[19]   Fundamental error is “an extremely narrow exception” to the waiver rule. Id.

       at 668. “[T]he 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.” Id. (internal quotations omitted). Stated another way, to prevail

       under our fundamental-error analysis, the defendant must show that “under the

       circumstances the trial judge erred in not sua sponte raising the issue because

       [the] alleged errors (a) constitute clearly blatant violations of basic and

       elementary principles of due process and (b) present an undeniable and

       substantial potential for harm.” Id. (internal quotations omitted). We review

       the alleged misconduct and all relevant information given to the jury to

       determine whether the alleged misconduct “had such an undeniable and

       substantial effect on the jury’s decision that a fair trial was impossible.” Id.

       Court of Appeals of Indiana | Memorandum Decision 20A05-1608-CR-1868 | June 14, 2017   Page 12 of 14
[20]   Deltoro contends that the State engaged in prosecutorial misconduct when it

       questioned Officer Priem. The trial court bifurcated Deltoro’s trial, and the

       State was not allowed to mention Deltoro’s criminal history during phase one.

       During phase one, the State asked Officer Priem, “Did you book him into the

       jail under a certain crime or for a certain crime?” Tr. Vol. IV p. 118. Officer

       Priem answered with a list of the charges that Deltoro was booked under: “I

       believe it was Operating While Intoxicated, Endangering, Possession of a

       Firearm by a Violent Felon, Driving Without a License[.]” Id. at 118-19.

       Deltoro’s counsel made an objection to the answer, which was sustained, and

       requested an admonishment, which was given.

[21]   The State contends that this situation is factually similar to that of Perez v. State,

       728 N.E.2d 234 (Ind. Ct. App. 2000). During Perez’s trial, the State was not

       permitted to discuss Perez’s criminal history. A police detective then testified

       that he had heard that Perez was a convicted felon. Perez’s counsel failed to

       preserve properly his prosecutorial misconduct claim. Nevertheless, this Court

       determined that the detective’s testimony was an “evidentiary harpoon” which

       placed “inadmissible evidence before the jury so as to prejudice the jurors

       against the defendant.” Id. at 237. We further held that this evidentiary

       harpoon did not place Perez in a position of grave peril because the State made

       no other mention of Perez’s prior felony, and the conviction was supported by

       independent evidence of guilt. Id. at 237-38.


[22]   Even if we were to agree with Deltoro that the State’s question to Officer Priem

       was prosecutorial misconduct, Deltoro fails to establish how this testimony

       Court of Appeals of Indiana | Memorandum Decision 20A05-1608-CR-1868 | June 14, 2017   Page 13 of 14
       placed him in grave peril and resulted in fundamental error. Only one reference

       was made to Deltoro’s criminal history, and the trial court admonished the jury

       to disregard Officer Priem’s entire answer, not just the portion about him being

       a “violent felon.” “[W]e are obligated to presume ‘that the jury are people of

       sense, and that they will obey the admonition of the court . . . .’” Thomas, 9

       N.E.3d at 743-44. After the trial court admonished the jury, the State made no

       other mention of Deltoro’s criminal history during phase one of the trial.

       Furthermore, as already discussed, there was substantial independent evidence

       for the jury to convict Deltoro of the charged offenses. Accordingly, we

       conclude that any prosecutorial misconduct had no probable persuasive effect

       on the jury’s verdict.

[23]   Affirmed.


       Bailey, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A05-1608-CR-1868 | June 14, 2017   Page 14 of 14
