      MEMORANDUM DECISION
                                                                                     FILED
      Pursuant to Ind. Appellate Rule 65(D),
                                                                                 Apr 14 2016, 9:23 am
      this Memorandum Decision shall not be
      regarded as precedent or cited before any                                      CLERK
                                                                                 Indiana Supreme Court
      court except for the purpose of establishing                                  Court of Appeals
                                                                                      and Tax Court

      the defense of res judicata, collateral
      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Craig Persinger                                          Gregory F. Zoeller
      Marion, Indiana                                          Attorney General of Indiana
                                                               James B. Martin
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA

      James Lee Roby,                                          April 14, 2016
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               27A02-1507-CR-954
              v.                                               Appeal from the Grant Superior
                                                               Court
      State of Indiana,                                        The Honorable Dana J.
      Appellee-Plaintiff.                                      Kenworthy, Judge
                                                               Trial Court Cause No.
                                                               27D02-1502-F5-12



      Mathias, Judge.


[1]   James Roby (“Roby”) was convicted in Grant Superior Court of Level 5 felony

      dealing in cocaine and of being a habitual offender. Roby was ordered to serve


      Court of Appeals of Indiana | Memorandum Decision 27A02-1507-CR-954 | April 14, 2016               Page 1 of 7
      an aggregate twelve-year sentence in the Department of Correction. Roby

      appeals and argues that the State failed to present sufficient chain of custody of

      the cocaine evidence.


[2]   We affirm.

                                         Facts and Procedural History


[3]   On October 24, 2014, Grant County Sheriff’s Department Detective Wesley

      McCorkle (“Detective McCorkle”) was working as an undercover officer for the

      Grant County Joint Effort Against Narcotics (“JEAN”) team. Detective

      McCorkle was sent to a residence located on South Branson Street in Marion,

      Indiana, to conduct a controlled buy from Chanell Smith (“Smith”). While

      Detective McCorkle was at Smith’s residence, Roby walked in and kissed her.

      Smith then set up a purchase for $60 of crack cocaine on behalf of Detective

      McCorkle, and McCorkle paid Smith an additional $20 for arranging the deal.

      Shortly after Smith made the phone call, a red Chevrolet pulled up in front of

      her residence. Smith retrieved the package from the individual in the car and

      handed it to Detective McCorkle.

[4]   Detective McCorkle returned to Smith’s residence to conduct another

      controlled buy on November 5, 2014.1 However, this time Smith was unable to

      obtain the drugs from her source for Detective McCorkle. Roby, who was again




      1
          Detective McCorkle wore a recording device under his clothes during this encounter.

      Court of Appeals of Indiana | Memorandum Decision 27A02-1507-CR-954 | April 14, 2016      Page 2 of 7
      present at Smith’s residence, called an individual he identified as “Cuzo” and

      confirmed that he could obtain cocaine from him. Detective McCorkle then

      drove Roby and Smith to a nearby residence and handed Roby $80 that had

      been photocopied by JEAN team officers. Roby exited the vehicle, and Smith

      instructed Detective McCorkle to drive around the block. A few minutes later,

      Roby returned to the car and handed Detective McCorkle a clear, twisted,

      plastic bag containing an off-white rock-like substance. Roby told Detective

      McCorkle that he had already taken his $20 out.2 Tr. p. 65.


[5]   After taking Smith and Roby back to Smith’s residence, Detective McCorkle

      immediately took the clear, plastic bag containing the white substance to the

      JEAN task force office and conducted a field test. The test concluded that the

      substance was a presumptive positive for cocaine. He then wrote his initials

      where he sealed the bag and placed the clear bag into an evidence bag after he

      completed the identifying information located on the front. Detective McCorkle

      then placed the evidence bag into the locked and secured evidence room.

      Evidence technician, Al Culley (“Culley”) was then responsible for ensuring

      that the evidence was transported to the Indiana State Police (“ISP”) lab.

[6]   Several days later, the evidence bag was sent via certified mail to the ISP lab

      where forensic scientist, Nicole Kay (“Kay”) tested the substance

      approximately one month later. Kay explained that when evidence arrives at




      2
       Detective McCorkle took this statement to mean that Roby smoked $20 worth of the crack cocaine in
      exchange for facilitating the buy.

      Court of Appeals of Indiana | Memorandum Decision 27A02-1507-CR-954 | April 14, 2016         Page 3 of 7
      the lab, a unique barcode is generated and placed on the bag.3 Then, an

      evidence technician places the evidence into a secured vault until an analyst has

      time to conduct testing. She also noted that the lab has a backlog and it

      sometimes takes awhile to complete testing. When Kay received the evidence,

      the bag was completely sealed. Like Detective McCorkle’s field test, Kay’s tests

      concluded that the substance in the clear bag contained a cocaine base.4

[7]   The State charged Roby with Level 5 felony dealing in cocaine on February 4,

      2015, and that same day filed a notice of intent to seek a habitual offender

      adjudication. A jury trial was held on June 2 and 3, 2015. At trial, Roby

      objected to the admission of State’s Exhibit 1, 2, and 5, which includes the

      substance Detective McCorkle obtained from the controlled buy, along with the

      corresponding field test report of the substance, and the ISP lab’s certificate of

      analysis of the substance.

[8]   Roby argued that the State could not establish a sufficient chain of custody

      because Grant County Sheriff’s Department evidence technician Culley was not

      available to testify to clear up the discrepancies regarding why he mailed the

      evidence instead of transporting it himself. The trial court gave Roby’s counsel

      and the State an opportunity to speak with Culley over the phone and after

      doing so both parties agreed to continue the trial. The court then determined




      3
          The ISP lab received the evidence on November 17, 2014.
      4
       Kay conducted fourier transform infrared spectroscopy (FTIR) and ultraviolet spectroscopy tests on the
      substance. Tr. p. 103.

      Court of Appeals of Indiana | Memorandum Decision 27A02-1507-CR-954 | April 14, 2016            Page 4 of 7
       that the State established a sufficient foundation for the cocaine evidence

       regarding chain of custody and noted that any gaps would go to weight rather

       than admissibility.


[9]    The jury subsequently found Roby guilty of Level 5 felony dealing in cocaine

       and of being a habitual offender. The trial court then entered judgment of

       conviction. At a sentencing hearing on June 29, 2015, the trial court ordered

       Roby to serve six years for the Level 5 felony conviction, enhanced by six years

       for being a habitual offender in the Department of Correction. Roby now

       appeals.

                                          Discussion and Decision


[10]   The trial court has discretion in matters regarding the admission and exclusion

       of evidence, and we review the court’s decision only for an abuse of that

       discretion. Wells v. State, 904 N.E.2d 265, 269 (Ind. Ct. App. 2009), trans. denied.

       The trial court abuses its discretion only if its decision is clearly against the logic

       and effect of the facts and circumstances before it, or if the court has

       misinterpreted the law. Id.


[11]   Roby argues that the State failed to establish a sufficient chain of custody for the

       cocaine evidence. To establish a proper chain of custody, the State must give

       reasonable assurances that the evidence at issue remained in an undisturbed

       condition. Troxell v. State, 778 N.E.2d 811, 814 (Ind. 2002). The State bears a

       higher burden to establish the chain of custody of fungible evidence whose

       appearance is indistinguishable to the naked eye. Id. However, the State need

       Court of Appeals of Indiana | Memorandum Decision 27A02-1507-CR-954 | April 14, 2016   Page 5 of 7
       not establish a perfect chain of custody, and once the State strongly suggests the

       exact whereabouts of the evidence, any gaps in the chain of custody go to the

       weight of the evidence, not its admissibility. Id.


[12]   Moreover, there is a presumption of regularity in the handling of evidence by

       officers, and there is a presumption that officers exercise due care in handling

       their duties. Id. To mount a successful challenge to the chain of custody, one

       must present evidence that does more than raise a mere possibility that the

       evidence may have been tampered with. Id.


[13]   In the present case, Roby argues a gap is in the chain of custody because the

       evidence was transported to the ISP lab via certified mail instead of being

       delivered by evidence technician Culley, which is the typical procedure.

       Detective McCorkle testified that after obtaining the clear, plastic bag from

       Roby, he immediately conducted a field test on the substance at the JEAN

       office, sealed the bag marked with his initials, and placed it in the secured and

       locked evidence room. The evidence was then sent via certified mail to the ISP

       lab, where it was received on November 17, 2014, and stored in a secure

       location until an analyst was ready to conduct testing.


[14]   ISP forensic scientist, Kay testified that when she received the evidence, the bag

       was sealed. No evidence was presented at trial suggesting that the alleged

       cocaine evidence was opened or otherwise tampered with before it reached the

       ISP lab. Further, both Detective McCorkle’s initial field test report and Kay’s

       certificate of analysis indicate that the substance contained a cocaine base.


       Court of Appeals of Indiana | Memorandum Decision 27A02-1507-CR-954 | April 14, 2016   Page 6 of 7
       Roby has done nothing more than raise a mere possibility of someone

       tampering with the evidence when it was sent via certified mail, and therefore

       he has not rebutted the presumption of officer due care. For all of these reasons,

       we cannot conclude that the trial court abused its discretion when it admitted

       the evidence.


[15]   The State established a sufficient chain of custody of the alleged cocaine

       evidence, and the trial court did not err when it admitted the evidence

       identifying the substance Detective McCorkle purchased from Roby as cocaine.


[16]   Affirmed.


       Vaidik, C.J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 27A02-1507-CR-954 | April 14, 2016   Page 7 of 7
