      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D), this                    Mar 31 2015, 10:14 am
      Memorandum Decision shall not be regarded as
      precedent or cited before any court except for the
      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      P. Jeffrey Schlesinger                                   Gregory F. Zoeller
      Public Defender                                          Attorney General of Indiana
      Crown Point, Indiana
                                                               Jesse R. Drum
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      John Randall Portis,                                     March 31, 2015

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               45A03-1408-CR-285
              v.
                                                               Appeal from the Lake Superior
      State of Indiana,                                        Court
                                                               The Honorable Samuel L. Cappas,
      Appellee-Plaintiff,
                                                               Judge
                                                               Trial Case No. 45G04-1306-FB-52




      Robb, Judge.



                                Case Summary and Issues
[1]   Following a jury trial, John Portis was convicted of one count of dealing in

      cocaine, a Class B felony. Portis appeals, raising the following two restated
      Court of Appeals of Indiana | Memorandum Decision 45A03-1408-CR-285 | March 31, 2015     Page 1 of 10
      issues for our review: (1) whether the State established a sufficient chain of

      custody for the cocaine purchased during a controlled buy on January 30, 2013;

      and (2) whether the evidence presented at trial was sufficient to support his

      conviction. Concluding that the State established a sufficient chain of custody

      and presented evidence sufficient to support a conviction, we affirm.



                            Facts and Procedural History
[2]   In mid-January 2013, Walter Howard agreed to work for the Hammond Police

      Department as a confidential informant. Howard identified “Smokey” as a

      person from whom he could buy cocaine and agreed to participate in controlled

      buys from Smokey. Howard had known Smokey “for a long time” but did not

      know Smokey’s real name. Transcript at 27.


[3]   On January 30, 2013, Howard called Smokey to arrange a controlled buy.

      Detective Michael Darnell of the Hammond Police Department supervised.

      Prior to the buy, Detective Darnell searched Howard for contraband, equipped

      Howard with an audio/video recording device, and provided Howard with buy

      money. Detective Darnell drove Howard from the police station to a grocery

      store parking lot at the corner of Sohl Avenue and Thornton Street. Howard

      called Smokey from the parking lot and proceeded to walk east on Thornton

      Street toward Calumet Avenue.


[4]   Howard stopped at the corner of Thornton Street and Calumet Avenue and

      waited for approximately fifteen minutes. Detective Darnell spoke with


      Court of Appeals of Indiana | Memorandum Decision 45A03-1408-CR-285 | March 31, 2015   Page 2 of 10
      Howard on the phone while Howard was waiting, and Howard said that

      Smokey told him to wait on the corner. Detective Darnell testified that he did

      not see Howard come into physical contact with any other person while he

      waited.


[5]   Smokey eventually exited a nearby building and met Howard at the corner.

      Smokey and Howard walked west on Thornton Street for about a block and

      then made the exchange at the corner of Thornton Street and Beall Avenue.

      Howard used the buy money to purchase two bags of cocaine. Detective

      Darnell was parked at the corner of Calumet Avenue and May Street,“about

      half a block” away. Id. at 200. From this vantage point, Detective Darnell

      personally observed the entire transaction, including the fifteen minutes that

      Howard waited on the corner. The transaction was also captured on video with

      the recording device Howard was wearing.


[6]   After the buy, Howard continued walking west on Thornton Street—towards

      the grocery store parking lot—until Detective Darnell picked him up. Detective

      Darnell then drove Howard back to the police station to remove the recording

      equipment and search for contraband. Howard no longer had the buy money.

      Detective Darnell inventoried the suspected cocaine and took it to the

      Hammond Police Department vault. The inventory sheet is dated January 30,

      2013, and references a particular case number. It identifies “[t]wo clear plastic

      bags with a white in color rock like substance inside of them” as items

      recovered in reference to an ongoing investigation. State’s Ex. 8. The bags of

      suspected cocaine are listed as “EX#2” on the inventory sheet. Id. The

      Court of Appeals of Indiana | Memorandum Decision 45A03-1408-CR-285 | March 31, 2015   Page 3 of 10
      evidence envelope is also marked “EX#2” and references the same case number

      as the inventory sheet. State’s Ex. 4.


[7]   After the controlled buy on January 30, 2013, Howard was unable to set up

      additional buys. The police had not yet learned Smokey’s real name and were

      unable to locate him. The investigation was revived when Howard called

      Detective Darnell approximately a month later and said he saw Smokey driving

      a black Crown Victoria in the neighborhood where the controlled buy had

      taken place. After conducting surveillance on the area, Detective Darnell found

      Smokey, determined Smokey’s real name, and put together a photo lineup. On

      April 7, 2013, Howard picked Portis out of the photo lineup and identified him

      as the person who sold cocaine to him on January 30, 2013.


[8]   Portis was arrested on June 6, 2013, and charged with two counts of dealing in

      cocaine, both Class B felonies.1 Between January 30, 2013, and March 25,

      2014, the suspected cocaine was kept in the Hammond Police Department

      vault. On March 25, 2014, Detective Anthony Mosier of the Hammond Police

      Department transported the suspected cocaine to the Indiana State Police

      (“ISP”) Lab for testing. Sara Wildeman, a forensic drug chemist employed by

      the ISP Lab, received the evidence in a sealed envelope and determined that the

      “off-white rock-like substance” was indeed cocaine. State’s Ex. 5. Wildeman’s




      1
       Portis was the target of two controlled buys. The first controlled buy occurred on January 25, 2013, and
      was charged as Count 1. The second buy occurred on January 30, 2013, and was charged as Count 2. Both
      buys were conducted by Howard and supervised by Detective Darnell. The jury returned a verdict of not
      guilty as to Count 1.

      Court of Appeals of Indiana | Memorandum Decision 45A03-1408-CR-285 | March 31, 2015          Page 4 of 10
       initials are written on the evidence envelope, and her certificate of analysis

       references the same case number listed on the evidence envelope and Detective

       Darnell’s inventory sheet. She testified at trial that the evidence was returned to

       the Hammond Police Department upon completion of testing.


[9]    A jury trial was held on April 21, 2014, at which time Detective Mosier

       retrieved the cocaine from the Hammond Police Department vault. At trial, the

       cocaine was admitted without objection. Portis was found guilty on one count

       of dealing in cocaine for delivering cocaine to Howard on January 30, 2013.

       The trial court sentenced Portis to fourteen years, with eleven years to be served

       in the Indiana Department of Correction followed by three years in Lake

       County Community Corrections. Portis now appeals.



                                 Discussion and Decision
                                        I. Chain of Custody
                                           A. Standard of Review

[10]   Portis contends that the State failed to establish a sufficient chain of custody for

       the cocaine purchased during the controlled buy on January 30, 2013.

       Specifically, Portis argues that the chain of custody is insufficient because

       neither Howard nor Detective Darnell testified that Detective Darnell received

       the cocaine purchased from Portis that day. Because there was no chain of

       custody objection at trial, however, this claim is not available on appeal unless




       Court of Appeals of Indiana | Memorandum Decision 45A03-1408-CR-285 | March 31, 2015   Page 5 of 10
       the admission of the evidence constituted fundamental error. Troxell v. State, 778

       N.E.2d 811, 814 (Ind. 2002).


[11]   To establish fundamental error, the defendant must show that the alleged errors

       constitute blatant violations of due process and are so prejudicial to the

       defendant’s rights that a fair trial is impossible. Ryan v. State, 9 N.E.3d 663, 668

       (Ind. 2014). Our supreme court has stressed that “[f]undamental error is meant

       to permit appellate courts a means to correct the most egregious and blatant

       trial errors that otherwise would have been procedurally barred, not to provide

       a second bite at the apple for defense counsel . . . .” Id.


             B. Chain of Custody for the Cocaine Purchased on January 30, 2013

[12]   “The State is required to show a chain of custody for the purpose of showing

       the unlikelihood of tampering, loss, substitution or mistake[,]” but a perfect

       chain of custody is not required. Vaughn v. State, 13 N.E.3d 873, 882 (Ind. Ct.

       App. 2014) (citation omitted), trans. denied. “If the State presents evidence that

       strongly suggests the exact whereabouts of the evidence at all times, that is

       sufficient.” Id. To successfully challenge chain of custody, the defendant must

       present evidence that overcomes the presumption that public officers exercise

       due care in handling evidence. Troxell, 778 N.E.2d at 814. Merely raising the

       possibility of tampering or mistake is insufficient. Id.


[13]   Although neither Howard nor Detective Darnell testified that Detective Darnell

       received the cocaine from Howard, the State established a sufficient chain of

       custody for the cocaine. Howard testified that Portis gave him “two bags” of

       Court of Appeals of Indiana | Memorandum Decision 45A03-1408-CR-285 | March 31, 2015   Page 6 of 10
       cocaine for sixty dollars. Tr. at 76. Detective Darnell testified that he searched

       Howard prior to the buy and that he personally observed the transaction.

       Before the buy, Howard did not possess cocaine. After the buy, Howard no

       longer had the buy money, and Detective Darnell inventoried two bags of

       cocaine as “EX#2.” State’s Ex. 8. The inventory sheet is dated January 30,

       2013, and references a specific case number. The evidence envelope, also

       marked “EX#2,” references the same case number. State’s Ex. 4. The cocaine

       was transported to the Hammond Police Department vault, where it was stored

       until Detective Mosier took it the ISP lab for testing. After testing, the evidence

       was returned to the Hammond Police Department. It remained there until the

       day of trial.


[14]   Because the evidence presented at trial “strongly suggests the exact whereabouts

       of the [cocaine] at all times,” Vaughn, 13 N.E.3d at 882, the State established a

       sufficient chain of custody. Portis is merely raising the possibility of tampering

       or mistake, which is insufficient to overcome the presumption of due care in

       evidence handling. Troxell, 778 N.E.2d at 814. Portis has not established error,

       let alone the kind of prejudice necessary to support a claim of fundamental

       error.


                                  II. Sufficiency of Evidence
                                           A. Standard of Review

[15]   Portis also argues that the evidence presented at trial was insufficient to support

       his conviction for dealing in cocaine as a Class B felony. When reviewing the


       Court of Appeals of Indiana | Memorandum Decision 45A03-1408-CR-285 | March 31, 2015   Page 7 of 10
       sufficiency of the evidence to support a conviction, we neither reweigh the

       evidence nor judge witness credibility. Wright v. State, 828 N.E.2d 904, 905-06

       (Ind. 2005). We consider “only the evidence most favorable to the verdict and

       any reasonable inferences that may be drawn from that evidence.” Freshwater v.

       State, 853 N.E.2d 941, 942 (Ind. 2006). The conviction will be affirmed unless

       no reasonable trier of fact could find the elements of the offense proven beyond

       a reasonable doubt. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007).


                            B. Evidence to Support the Dealing Conviction

[16]   To convict Portis of dealing in cocaine as a Class B felony, the State was

       required to prove beyond a reasonable doubt that Portis knowingly or

       intentionally delivered cocaine. Ind. Code § 35-48-4-1(a)(1)(C) (2013).


[17]   Portis was the target of a controlled buy. This court has described a controlled

       buy as follows:

               A controlled buy consists of searching the person who is to act as the
               buyer, removing all personal effects, giving him money with which to
               make the purchase, and then sending him into the residence in
               question. Upon his return he is again searched for contraband. Except
               for what actually transpires within the residence, the entire transaction
               takes place under the direct observation of the police. They ascertain
               that the buyer goes directly to the residence and returns directly, and
               they closely watch all entrances to the residence throughout the
               transaction.


       Ross v. State, 908 N.E.2d 626, 630 (Ind. Ct. App. 2009) (quoting Mills v. State,

       177 Ind. App. 432, 434, 379 N.E.2d 1023, 1026 (1978)). A properly conducted



       Court of Appeals of Indiana | Memorandum Decision 45A03-1408-CR-285 | March 31, 2015   Page 8 of 10
       controlled buy with adequate controls permits an inference that the target had

       prior possession of a controlled substance. Vaughn, 13 N.E.3d at 888.


[18]   Here, the controls were in place but largely unnecessary because the entire

       transaction took place on the street rather than inside a residence. Detective

       Darnell testified that he could see Howard the entire time and personally

       witnessed the exchange of cash for cocaine. He described the buy: “[A]s soon

       as [Portis] made contact with the informant, they started walking west on

       Thornton to about Beall Street. There is a tree right there where they kind of

       stopped right there and the transaction occurred.” Tr. at 165. Moreover, the

       State admitted video of the transaction, and the confidential informant testified

       at trial. Howard testified that he called Portis on January 30, 2013, to set up

       the buy and that he did in fact purchase “two bags” of cocaine from Portis that

       day. Id. at 76. Howard likewise described the buy: “We made the buy right on

       the street . . . . He handed it to me when we came across Beall . . . . He handed

       me the stuff and I handed him the money.” Id. at 71. Finally, the substance

       that Portis sold to Howard tested positive for cocaine.


[19]   The evidence is more than sufficient to support Portis’s conviction for dealing

       in cocaine. See Hudson v. State, 462 N.E.2d 1077, 1083 (Ind. Ct. App. 1984)

       (“[T]he sole uncorroborated testimony of the informant-buyer is sufficient to

       convict, despite any arguable inadequacies in the controls of the buy.”).




       Court of Appeals of Indiana | Memorandum Decision 45A03-1408-CR-285 | March 31, 2015   Page 9 of 10
                                               Conclusion
[20]   The State established a sufficient chain of custody for the cocaine and presented

       evidence sufficient to support the conviction. Portis’s conviction is therefore

       affirmed.


[21]   Affirmed.


       Bailey, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 45A03-1408-CR-285 | March 31, 2015   Page 10 of 10
