Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be                              FILED
regarded as precedent or cited before any                   Aug 22 2012, 8:53 am
court except for the purpose of
establishing the defense of res judicata,                          CLERK
                                                                 of the supreme court,

collateral estoppel, or the law of the case.                     court of appeals and
                                                                        tax court




ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

MARK D. OSTERMAN                                 GREGORY F. ZOELLER
Public Defender’s Office                         Attorney General of Indiana
Muncie, Indiana
                                                 GARY R. ROM
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

TACUMA G. WOLFE,                                 )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )      No. 18A05-1111-CR-604
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                    APPEAL FROM THE DELAWARE CIRCUIT COURT
                           The Honorable John M. Feick, Judge
                              Cause No. 18C04-0901-FB-1



                                      August 22, 2012

               MEMORANDUM DECISION – NOT FOR PUBLICATION

BAKER, Judge
          Appellant-defendant Tacuma G. Wolfe appeals his conviction for Dealing in

Cocaine,1 a class B felony. Specifically, Wolfe argues that his due process rights were

violated because of various instances of prosecutorial misconduct. Wolfe claims that the

State failed to provide him with the name of the confidential informant (C.I.), and that the

trial court permitted one of the police officers to portray Wolfe as a drug dealer in front

of the jury.       Wolfe also maintains that the deputy prosecutor engaged in improper

discussions with the jury during voir dire about the harmful effects of having a drug

dealer in the community.      Wolfe further claims that the trial court erred in admitting the

cocaine into evidence because the State failed to establish a proper chain of custody of

the drugs that were seized, and that the State intentionally withheld an audio recording of

the drug transaction from him. Finally, Wolfe contends that his conviction should be set

aside because he never received a plea agreement that the State had offered to him.

Finding no prosecutorial misconduct, and concluding that there was no other error, we

affirm the judgment of the trial court.

                                           FACTS

          On September 19, 2008, Officers Tony Skinner and Jeff Stanley of the Delaware

County Sheriff’s Office picked up a C.I. to conduct a controlled drug buy with Wolfe.

Officer Skinner outfitted the C.I. with a recording device and an audio transmitter so that

the officers could listen to the buy “live.” Tr. p. 253, 284, 360-61. A search of the C.I.

revealed no contraband. The C.I. was also given $100 in marked buy money. After the
1
    Ind. Code § 35-48-4-1.

                                               2
officers dropped the C.I. off at a McDonald’s Restaurant, the C.I. walked two blocks to

an open parking lot. The officers parked in an empty parking lot across the street to

watch.

         The C.I. arranged for the buy to occur at 2:00 p.m., but when Wolfe had not

appeared by that time, Officer Skinner phoned the C.I. and told him to call Wolfe. The

C.I. did so, and after two telephone conversations, Wolfe arrived at approximately 2:15

p.m. Wolfe parked his green pick-up truck on the street next to the curb near the area of

the parking where the C.I. was standing. No one else was inside the truck and no other

vehicles were in the immediate vicinity. The C.I. walked to the passenger side of the

truck and after a brief conversation, the C.I. stepped back and the truck drove away.

         Officer Stanley exited the vehicle and maintained visual contact with the C.I. as

the C.I. walked back to McDonald’s. Officer Skinner followed the green pick-up truck

and after several blocks, pulled beside the truck and confirmed that Wolfe was the driver.

In fact, Officer Skinner was “absolutely positive” that Wolfe was driving. Tr. p. 270.

Wolfe was not arrested at this time because the investigation was ongoing.

         Officer Skinner picked up the C.I. and Officer Stanley. The C.I. handed Officer

Skinner an off-white rock-like substance that subsequently tested positive for cocaine.

The C.I. also handed Officer Skinner $20 because Wolfe had only $80 worth of crack

cocaine. Wolfe was subsequently arrested on January 22, 2009, while driving the same

green pick-up truck.



                                             3
       On January 27, 2009, Wolfe was charged with two counts of dealing in cocaine, a

class B felony.   The police report in this case stated that a digital audio recording had

been made of the transaction.     It specifically indicated that “A CD was made from the

digital recording . . . [and] is included with this case. The audio from that recording is

very poor quality and no transcripts are included with this case.” Tr. p. 57.

       On February 17, 2010, E. Phillip Gregg, a public defender, requested the recording

of the transaction. When a CD of the audio recording had not been released to Gregg,

discussions commenced about the missing recording to no avail. On October 20, 2010,

the deputy prosecutor informed the trial court that the investigating police officer was in

Israel and upon his return, she would inquire again about the CD. On March 2, 2011,

Wolfe, who was not represented by counsel at the time, informed the trial court that he

had still not received a recording of the transactions. As a result, the trial court issued an

order requiring the CD to be turned over to Wolfe in one week.

       Wolfe had still not received the recording as of April 6, 2011. Wolfe’s stand-by

public defender informed the trial court that there had been mention of an audiotape in

the form of a CD that is unintelligible. However, the public defender explained to the

trial court that Wolfe should have the right to make a copy and determine for himself

whether the recording is unintelligible. The trial court then ordered the State to turn over

the CD to Wolfe within ten days.

       Also at the hearing on April 6, 2011, the deputy prosecutor indicated that she

could provide Wolfe with information about the C.I.’s deal with law enforcement and his

                                              4
criminal history. However, the deputy prosecutor stated that she would not provide

Wolfe with the C.I.’s name. Wolfe responded that he did not care about withholding the

C.I.’s name. In fact, Wolfe commented that

       [A]s far as the C.I. is concerned, I’m not asking for the C.I.’s name, sir, I’m
       asking for the C.I.’s, his docket number, or whatever, reference number.
       Also his criminal history. I’m not asking for his name, sir. I mean, if they
       want to withhold that, that’s fine. I have no problem with that.

Tr. p. 54 (emphases added). Wolfe also indicated that he knew “for a fact” that the C.I.

was in prison. Id. at 63. Even though it was later determined that Wolfe already knew

the C.I.’s identity, the trial court ordered the State to provide Wolfe with the C.I.’s

identity and criminal history.

       The trial court also heard argument about the issue of the chain of custody

concerning the cocaine that was purchased during the controlled buy. More particularly,

Wolfe raised the issue of the admissibility of the cocaine at trial. Wolfe argued to the

trial court that the cocaine was placed in a safe at the Drug Task Force (DTF) office for

four days and was improperly handled, marked and had not been secured. The State

denied that there was any issue concerning the chain of custody, so Wolfe sought the trial

court’s assistance. The trial court commented that the issue is “not for suppression. But I

will look at it.” Tr. p. 86. However, the trial court made no finding as to the issue.

       Wolfe also believed that the criminal history the State provided him concerning

the C.I. was inaccurate. Tr. p. 63-64. However, the deputy prosecutor asserted that she

had revealed what she knew about the C.I. and law enforcement officials. The deputy


                                             5
prosecutor stated that the C.I. was “working off charges” and the police officer that the

deputy prosecutor spoke with knew nothing more than that. Id. at 72. The trial court

took Wolfe’s motion for contempt against the State and his motion to exclude evidence

under advisement. The trial court ultimately denied Wolfe’s motion to hold the State in

contempt.

       The State dismissed one of the counts against Wolfe on April 21, 2011. At a

pretrial conference on May 11, 2011, Wolfe pointed out that he did not receive any

information about the recording from the State, despite the trial court’s earlier order. In

response, the deputy prosecutor maintained that there was only one CD of the transaction,

and Wolfe was in possession of it.       However, Wolfe argued that the CD that was

provided was based on the case that had been dismissed. The deputy prosecutor then

informed the trial court that if the audio was, in the opinion of the police officer, totally

inaudible, the recording would have been destroyed. The deputy prosecutor added that

she “did try to locate a second CD. . . . We cannot produce that which we do not have.”

Tr. p. 64. The deputy prosecutor made it clear that no other recording existed, and there

was no other information about whether it was disposed of or not, but the staff did, in

fact, search for it.

       At a subsequent hearing on September 7, 2011, the deputy prosecutor confirmed

the she did not receive an audio CD because none existed. The trial court determined that

Wolfe can argue about the missing evidence at trial.



                                             6
      A two-day jury trial commenced on September 26, 2011. During voir dire, the

deputy prosecutor engaged in discussions with the jury about the effects that a drug

dealer has on the community, including fears of theft and violence.          The deputy

prosecutor noted that drugs and dealing in them can lead to other serious issues. The

deputy prosecutor then used this approach in both the opening and closing statements.

      During the re-cross examination of Officer Skinner, Wolfe wanted to know how

Officer Skinner was able to identify him as the individual who was driving the green

pick-up truck. Wolfe proceeded pro se, and the following exchange occurred:

      [DEFENDANT]: Looks identical, but you just said you couldn’t describe
      me, but a big black male. That opening statement she said, you had prior
      dealings with me, yes or no?


      [SKINNER]: I knew who you were, yes.


      [DEFENDANT]: So, if you’ve seen me and you know me, then you know
      who I am, correct? Yes or no?


      [SKINNER]: Yes.

Tr. p. 402-03. Wolfe finished questioning Officer Skinner and the trial court proceeded

to ask him several questions that had been submitted by the jury:

      THE COURT: I’ve got several [juror] questions here. When did you
      initially identify the driver of the green pick up truck as the Defendant?


       [SKINNER]: I initially identified him after I followed the truck and got the
      license plate number then pulled alongside of him and recognized him as
      Tacuma Wolfe.

                                            7
THE COURT: On that question, any follow up?


PROSECUTOR: And prior to that date, you were well aware of what the
Defendant looked like, is that correct?


[SKINNER]: I knew Tacuma Wolfe, yes.


PROSECUTOR: No further questions on that one.


THE COURT: Mr. Wolfe, any follow up on that?


DEFENDANT: How do you know Tacuma Wolfe? He said he knew
Tacuma Wolfe. I want to know how he knew Tacuma Wolfe.


THE COURT: Go ahead. Ask a question [sic].


[SKINNER]: As a police officer of fifteen years, I know that, I know
Tacuma Wolfe through the community. I know that Tacuma Wolfe has,
you know, a criminal background and I’ve dealt with him in my law
enforcement career before.


DEFENDANT: And when was this that you dealt with me in your law
enforcement, what year was this?

[SKINNER]: I can’t give exact dates.


DEFENDANT: Can you give years? Don’t give dates. Just go with years.




                                   8
       [SKINNER]: In my time at the Drug Task Force, I was very aware of who
       Mr. Tacuma Wolfe was.

Tr. p. 404-05 (emphases added).

       Wolfe was found guilty as charged and the trial court subsequently sentenced him

to fifteen years of incarceration at the Indiana Department of Correction (DOC) with

three years suspended. At the sentencing hearing, Wolfe claimed that the State had

offered him a plea agreement during the second day of trial, but he had never received it.

The State did not respond at the time, but it later filed a report to the court, clarifying

what had occurred. More particularly, the deputy prosecutor stated that a plea offer had

been extended to Wolfe when he was represented by counsel. Because Wolfe was

represented by counsel when the offer was made, the deputy prosecutor did not directly

communicate any offer to Wolfe. Wolfe now appeals.

                            DISCUSSION AND DECISION

                               I. Prosecutorial Misconduct

                                  A. Standard of Review

       The review of a prosecutorial misconduct claim requires two steps. First, we must

determine whether the prosecutor engaged in misconduct. Carter v. State, 956 N.E.2d

167, 169 (Ind. Ct. App. 2011), trans. denied.         We then determine “whether the

misconduct, under all of the circumstances, placed the defendant in a position of grave

peril to which he should not have been subjected.” Id. The gravity of peril is measured




                                            9
by the probable persuasive effect of the misconduct on the jury’s decision rather than the

degree of impropriety of the conduct. Booher v. State, 773 N.E.2d 814, 817 (Ind. 2002).

       When the error is not preserved by a contemporaneous objection, the defendant

must not only establish the grounds for prosecutorial misconduct, but also the grounds for

fundamental error in order to succeed on his claim. Id. at 818. Fundamental error is a

“substantial, blatant violation of due process” that is so prejudicial to the rights of the

defendant that a fair trial was impossible. Hall v. State, 937 N.E.2d 911, 913 (Ind. Ct.

App. 2010).

                              B. Revealing the C.I.’s Identity

       Wolfe contends that he is entitled to a reversal because the deputy prosecutor did

not disclose the C.I.’s identity to him. Wolfe argues that the deputy prosecutor’s refusal

to comply with the trial court’s order to do so constituted prosecutorial misconduct.

       As noted above, Wolfe indicated to the trial court that he had “no problem” with

the State withholding the C.I.’s name. Tr. p. 54. Moreover, at a later pretrial conference,

Wolfe indicated that he knew who the C.I. was and knew “for a fact” that the C.I. was in

prison. Id. at 63-64. The deputy prosecutor did share with Wolfe what she knew about

the deal that the C.I. had with law enforcement officials, in that he was “working off

charges” and the police officer that the deputy prosecutor spoke with “did not know any

more than that.” Id. at 72.

       Even though the State did not comply with the trial court’s order for it to produce

the name of the C.I., Wolfe has shown no prejudice in light of the failure to do so because

                                            10
of his statement at the pretrial conference that he did not care whether the State withheld

his identity.   And, as mentioned above, Wolfe already knew who the C.I. was. Thus,

Wolfe’s claim of prosecutorial misconduct fails with regard to this issue. See Smith v.

State, 829 N.E.2d 64, 71 (Ind. Ct. App. 2005) (holding that a defendant’s knowledge of

the informant’s identity establishes that the decision to withhold the informant’s identify

is harmless error).

                             C. Questioning Officer Skinner

       Wolfe next contends that the trial court erred in permitting the deputy prosecutor

to establish, through the questioning of Officer Skinner, that Wolfe is a drug dealer. In

other words, Wolfe blames the deputy prosecutor for the alleged inflammatory statements

that Officer Skinner made in response to Wolfe’s questions at trial.

       In resolving this issue, we note that a party may not invite error, and later argue

that such error supports a reversal. Pinkton v. State, 786 N.E.2d 796, 798 (Ind. Ct. App.

2003). In other words, a party many not take advantage of an error that he or she

commits, invites, or which is the natural consequence of his or her own neglect or

misconduct. Wright v. State, 828 N.E.2d 904, 907 (Ind. 2005). Invited error is not

subject to review on appeal. Pinkton, 786 N.E.2d at 798.

       In this case, the record shows that Officer Skinner answered the deputy

prosecutor’s questions as to how he knew Wolfe only in generalities. However, it was

Wolfe, himself, who continued to press the issue. Thus, Officer Skinner answered the

questions in more detail. As a result, Wolfe invited any error that might have occurred

                                            11
with regard to this issue, when he asked Officer Skinner how he knew him and Officer

Skinner testified that he knew Wolfe had a “criminal background,” and that he has “dealt

with him in his law enforcement career.” Tr. p. 404-05. As a result, Wolfe’s claim of

prosecutorial misconduct with regard to this issue fails.

                             D. Questioning During Voir Dire

       Wolfe next claims that his conviction must be reversed because he was prejudiced

by the questions that the deputy prosecutor asked the jurors about drug dealing in the

community. Wolfe contends that the deputy prosecutor improperly attached the fears of

theft and violence that drug dealers cause in the community, to Wolfe.

       We initially observe that Wolfe did not object to any of the deputy prosecutor’s

comments. However, Wolfe points out that the trial court’s instructions prohibiting

objections during voir dire and in counsels’ opening and closing statements amounted to

a chilling effect that entitles him to a reversal. Appellant’s Br. p. 22-23.

       The trial court directly informed Wolfe, who was proceeding pro se at the time,

that “unnecessary objections” during voir dire or in opening and closing argument that

were not legally necessary would not be “looked favorably upon.” Tr. p. 102. Moreover,

it was made clear that if Wolfe said anything improper, the deputy prosecutor or the trial

court might interrupt him. Appellant’s App. p. 115-16. Those interruptions, according to

the trial court, are “not good.” Id. at 116.

       The trial court told Wolfe that objections must be based on the law and that

applicable rules of procedure and non-meritorious objections would not be tolerated. The

                                               12
trial court also stated that if trained counsel made the same type of objection, they would

not be tolerated. Moreover, it was made clear to Wolfe that he would be held to the same

standard as an attorney, as long as he proceeded pro se. We cannot say that the trial court

erred by instructing Wolfe in this regard.    See Evans v. State, 809 N.E.2d 338, 344 (Ind.

Ct. App. 2004) (observing that pro se litigants without legal training are held to the same

standard as trained counsel and are required to follow procedural rules). Thus, Wolfe

failed to preserve the error on appeal. Therefore, he must prove fundamental error to

prevail on his argument.

       That said, the purpose of voir dire is to examine jurors and “ascertain whether

jurors can render a fair and impartial verdict in accordance with the law and the

evidence.” Coy v. State, 720 N.E.2d 370, 372 (Ind. 1999). Proper examination is used

to discover whether a prospective juror has an “opinion, belief, or bias” that might affect

the juror’s ability to determine the issues at trial that would lead a party to strike the juror

by either peremptory strike or challenge for cause. Gregory v. State, 885 N.E.2d 697,

706 (Ind. Ct. App. 2008).

       Questions designed to uncover a juror’s attitude about the type of charged crime is

proper. Id. at 707. And to reveal the jurors’ attitudes and ideas, the parties may pose

hypothetical questions, provided they do not suggest prejudicial evidence not adduced at

trial. Id. A prosecutor should not educate jurors during voir dire and any attempt to

indoctrinate the jury may require reversal if the prosecutor’s questions amount to

misconduct, and if that misconduct subjects the defendant to grave peril. Coy, 720

                                              13
N.E.2d at 372. The gravity of the peril is determined by the probable persuasive effect on

the jury’s decision, not by the degree of impropriety of the conduct. Id.

       Our review of the record reveals that the deputy prosecutor’s statements and

questions during voir dire were attempts to uncover hidden biases or beliefs about

confidential informants and whether potential jurors were sympathetic to defendants who

were subject to controlled buys through a confidential informant. Tr. p. 170-73, 202-04.

Moreover, it is apparent that the deputy prosecutor wanted to ensure that no juror would

harbor ill will against the State when it did not present the C.I. as a witness at trial, as

well as whether any juror might be sympathetic to drug users. Id. at 172-74, 178-83, 203-

08. In short, the deputy prosecutor wanted to know the jurors’ thoughts about the laws

prohibiting drug use and drug dealing. See Gregory, 885 N.E.2d at 707 (finding no

misconduct when the prosecutor asked jurors their attitudes towards methamphetamine

and the laws circumscribing its creation and use). Thus, the deputy prosecutor committed

no error as she examined potential jurors regarding their opinions, beliefs, or biases.

       Wolfe also contends that it was improper for the deputy prosecutor to mention the

dangerous effects that drug dealing and drug use have on the community. Appellant’s

Br. p. 24. In our view, such remarks are simply statements of opinion by the deputy

prosecutor that are not prohibited. See Emerson v. State, 952 N.E.2d 832, 837 (Ind. Ct.

App. 2011) (noting that statements of opinion by counsel are not prohibited during

arguments to the jury), trans. denied.       Moreover, there was no danger that those

comments placed Wolfe in a position of grave peril. Indeed, it is no secret that drug

                                             14
dealing and drug usage have resulted in undesirable effects in various communities. The

deputy prosecutor simply made known her feelings about drug use in the community.

See Gregory, 885 N.E.2d at 708 (finding no misconduct when the prosecutor’s opinion

about the disastrous effects drug use causes a community). As a result, we conclude that

there was no prosecutorial misconduct with regard to this issue.

                 E. Wolfe’s Alleged Confession to Being a Drug Dealer

       Wolfe next argues that the prosecutor’s comments during final argument that

Wolfe implicitly admitted to being a drug dealer placed Wolfe in grave peril or

constituted fundamental error. However, as discussed above, a deputy prosecutor can

discuss the evidence and reasonable inferences during closing argument that can be

derived therefrom so long as there is no implication of personal knowledge that is

independent of the evidence. Emerson, 952 N.E.2d at 837. And statements of opinion

are not prohibited. Id.

       In this case, the deputy prosecutor argued that through Wolfe’s own questioning of

a witness, he implicitly admitted to being a drug dealer. Tr. p. 439. In support of his

contention that prosecutorial misconduct occurred with regard to this issue, Wolfe points

to the following remarks of the deputy prosecutor:

       Through the Defendant’s own questioning, he asked Investigator Skinner
       How do you know me? How do you know me? He asked them several
       times and finally investigator Skinner said as a Drug Task Force, I have had
       prior dealings with the Defendant as a criminal. As a Drug Task Force
       member. That is how I knew who you were before September 18, 2008.
       So the State has identified the defendant. Also through the defendant’s
       questions with Investigator Stanley, the Defendant stated there was a

                                            15
      discussion about the C.I. and the person in the truck. The Defendant said
      quote, whatever you want to call me, the drug dealer. The Defendant
      admitted he was the person who was conversing with the C.I. on September
      18, 2008 through his questioning of investigator Stanley.

Tr. p. 439.

      Wolfe did not object to these remarks. And in our view, the deputy prosecutor’s

use of Wolfe’s questions to a witness during her final argument did not place Wolfe in

grave peril or amount to fundamental error because the statement that the deputy

prosecutor was referring to was already heard in open court by the jury. The deputy

prosecutor did not reference any personal knowledge that was independent of the

evidence that had been offered at trial. Furthermore, any prejudicial effect was lessened

by the trial court’s instruction that the statements made by the deputy prosecutor and

Wolfe were not evidence. Tr. p. 457.

      The deputy prosecutor’s remarks were also rendered harmless by the evidence that

the State presented. Only one person was inside the green pick-up truck that pulled up

next to the C.I. Id. at 277, 363, 377, 389-90. Officer Skinner never lost visual contact

with the truck and when he pulled up next to it, he was “absolutely positive” that Wolfe

was the driver. Id. at 261, 270, 288, 395, 402, 404, 432. In light of this testimony, any

error that might have resulted from the deputy prosecutor was harmless.

                       II. Spoliation and Destruction of Evidence

      Wolfe maintains that the trial court improperly ruled concerning the State’s

alleged destruction and withholding of evidence. In particular, Wolfe argues that the


                                           16
State intentionally withheld the audio recording of the controlled buy that was obtained

by a digital recorder outfitted on the C.I. In other words, Wolfe maintains that the deputy

prosecutor was deliberately withholding a recording of the transaction or that it had been

destroyed because it was established the C.I. had been equipped with a recording device

during the transaction. Wolfe also points out that a police report makes specific mention

of an audio disc that was of poor quality.

       Notwithstanding this contention, Wolfe does not support his assertion with proper

citation to the record. Appellant’s Br. 29. The probable cause affidavit makes no such

claim; nor does the supplemental report that Officer Skinner had filed. Appellant’s App.

p. 19. A search of other documents in Wolfe’s appendix that has been filed with this

court similarly yields no such results. The supplemental report did note that the C.I. was

outfitted with a digital recorder and that Officer Skinner took possession of the recording

device after the drug buy. Def.’s Ex. A. However, the report did not mention that the

conversation was actually recorded or that Officer Skinner listened to it.   Def.’s Ex. A.

       As noted above, there was confusion prior to trial about whether a disc of the

recording ever existed, but Officer Skinner’s testimony during trial ended the confusion.

More specifically, Officer Skinner testified that a disc was never produced and one never

existed because the recording device had malfunctioned. Officer Skinner testified that

they “had a technical malfunction and the disc was never created. The disc was never

made because the recording never happened.” Tr. p. 288, 311, 317. In short, the State



                                             17
could not produce what never existed. Thus, it was impossible for the State to produce an

audio disc of the drug buy.

      Also, the trial court informed Wolfe that he could ask the officers about the

recording at trial. Tr. p. 131. The testimony that the recorder malfunctioned and no disc

had ever been made was conveyed to the jurors, and they were free to believe or

disbelieve that testimony. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007).

      Finally, even assuming solely for the sake of argument that the recorder did not

malfunction and something was recorded, we cannot say that the decision of the law

enforcement officials to not make an audio disc violated Wolfe’s due process rights.

More particularly, Wolfe has made no showing that the individual who delivered the

drugs to the C.I. was not him and he only asks us to speculate as to the contents of the

recording. See Chissell v. State, 705 N.E.2d 501, 504 (Ind. Ct. App. 1999) (holding that

videotapes of the defendant taking field sobriety tests were not materially exculpatory

because the defendant presented no evidence that the tapes would show him passing the

tests, and instead asked this court to speculate as to the contents of the tapes); see also

Terry v. State, 857 N.E.2d 396, 406 (Ind. Ct. App. 2006) (observing that this court will

not speculate as to how evidence might exonerate the defendant).

      Moreover, the police officers’ testimony established that it was Wolfe who

delivered the drugs to the C.I. Tr. p. 270, 397, 402, 404. Because Wolfe purportedly

knew the C.I.’s identity, he could have deposed him and used such evidence to support

his claim that he was not the individual who delivered the drugs. In short, Wolfe had

                                            18
nothing to support his contention that any alleged recording of the transaction—assuming

that one even existed—was exculpatory. Finally, Wolfe has failed to show that the State

destroyed any alleged recording in bad faith. For all of these reasons, Wolfe has failed to

show that his due process rights were violated with regard to any destruction or spoliation

of evidence. Thus, Wolfe is not entitled to a reversal on this basis.

                                  III. Chain of Custody

       Wolfe next argues that the trial court erred in allowing the cocaine to be admitted

into evidence because the State failed to establish an adequate chain of custody with

regard to the drugs. Wolfe points out that the drugs were not properly marked, were

placed in a safe shared by nearly ten people for four days, and the weight, character, and

color of the evidence had changed.

       In resolving this issue, we note that when dealing with fungible evidence such as

cocaine, the State must give reasonable assurances that the evidence remained in an

undisturbed condition. See Whaley v. State, 843 N.E.2d 1, 7 (Ind. Ct. App. 2006)

(finding cocaine as fungible evidence). The State need not establish a perfect chain of

custody, and once the State “strongly suggests” the exact whereabouts of the evidence,

any gaps go to the weight of the evidence and not to admissibility. Troxell v. State, 778

N.E.2d 811, 814 (Ind. 2002). Police officers are presumed to exercise due care in

handling their duties and a presumption of regularity exists in the handling of evidence by

the officers. Id. To successfully challenge the chain of custody, a defendant “must



                                             19
present evidence that does more than raise a mere possibility that the evidence may have

been tampered with.” Id.

       In this case, Officer Skinner testified that after obtaining the cocaine from the C.I.,

he placed the drugs in a plastic bag and put the bag inside another heat-sealed bag. Tr. p.

262-63. Officer Skinner initialed the inner and outer bags and wrote the cause number on

the bag and placed the sealed bag into a secure locker at the Drug Task Force. Id. at 262-

63. Only investigators on the Drug Task Force knew the combination to the locker. Id.

at 266-67.

       It was also established that it was common practice for an officer to place newly

obtained evidence into the locker. Tr. p. 267. Officer Greg Ellison, the supervisor of the

Delaware County Drug Task Force at the time, testified that he first came into contact

with the evidence on September 24, 2008. He then moved the evidence to the property

room two days later. Id. at 347-48. According to the property record and receipt, the

evidence was submitted to the Delaware County Sheriff’s Department on September 22,

2008. Def’s Ex. B. It appears likely that Officer Ellison simply confused the dates as to

when he initially moved the evidence to the property room, especially considering that

the trial happened three years after the fact.

       On October 9, 2008, Officer Ellison removed the evidence from the property room

and transported it to the Indiana State Police Lab in Fort Wayne. Tr. p. 348; State’s Ex.

3. The lab report indicated that the evidence was sealed when it was received. State’s

Ex. 3. Once at the lab, the evidence tested positive for cocaine. Tr. p. 329. The chemist

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testified that she tested the drugs and recognized the markings on it and her own

markings after she sealed the evidence. Id. at 329.

       On March 4, 2009, Officer Ellison returned to the Indiana State Police Lab in Fort

Wayne to retrieve the evidence. Tr. p. 348. The evidence remained in the property room

at the Sheriff’s Department until trial. Id. It was established that the evidence was under

the care of the Sheriff’s Department at all times, and only law enforcement officials had

access to the evidence. Id. at 349, 354. The cocaine admitted at trial still bore Officer

Skinner’s initials and the cause number. State’s Ex. 2. Moreover, the chemist testified

that the seal she applied was still in place and did not appear to be tampered with. Id. at

330.

       Officer Skinner field tested the crack cocaine at a weight of 1.1 grams, while the

lab found it weighed 1.07 grams. Tr. p. 330. According to Officer Ellison, .04 grams is

not a “very big difference” and it was normal for the field test weight to be different than

weight recorded at the laboratory. Id. at 355-56. The 0.04 gram difference was equated

to a piece of hair. Id. at 355. With respect to the color of the cocaine, Officer Skinner

testified that different shades of brown, yellow, and white are all classified as “off white.”

Tr. p. 294.

       In sum, the evidence established the cocaine’s whereabouts and demonstrated that

the drug remained in an undisturbed condition from the time that it had been originally

obtained.     It is also apparent that the difference in weight and the alleged color

characteristics in the drugs were so minor that they only affect the weight of the evidence

                                             21
that could be properly resolved by the trier of fact. See, e.g., Hill v. State, 450 N.E.2d 64,

65 (Ind. 1983) (noting that contradictory evidence about defendant’s height, hair color,

and cap was not significant enough to preclude a jury determination of guilt). In short,

the State provided assurances that the cocaine remained in an undisturbed condition and

Wolfe’s claims of tampering were nothing more than mere possibilities. Hence, Wolfe’s

chain of custody arguments amount to requests for us to reweigh the evidence, which we

decline.

                                          IV. Plea Agreement

        Finally, Wolfe argues that his conviction must be reversed because he never

received a plea agreement from the State that was purportedly offered to him. Wolfe

contends that because he did not know about the plea agreement, he was under the false

assumption that his only option was to proceed to trial.

        As discussed in the FACTS, because Wolfe was represented by counsel when the

offer was made, the State directly communicated with Wolfe’s counsel and not directly to

him. Appellant’s App. p. 186. It was not the State’s obligation to ensure that Wolfe

knew of the plea offer. 2 Even more compelling, the State is not under any obligation to

offer a plea agreement. Therefore, we conclude that Wolfe is not entitled to a reversal

on this basis.


2
  In fact, Wolfe claims that his trial counsel was ineffective allegedly for failing to advise him of any plea
offer that the State had made. Even assuming that Wolfe’s counsel had not conveyed the plea agreement
to him, Wolfe must still establish by a preponderance of the evidence that counsel acted unreasonably and
that, “but for counsel’s actions, there was a reasonable probability that [the defendant] would have
accepted the plea offer.” Dew v. State, 843 N.E.2d 556, 565 (Ind. Ct. App. 2006).
                                                     22
      The judgment of the trial court is affirmed.

ROBB, C.J., and BRADFORD, J., concur.




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