MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                       FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                               Apr 02 2020, 8:56 am

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


ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Alyssa J. Devine                                          Curtis T. Hill, Jr.
Certified Legal Intern                                    Attorney General of Indiana
Joel M. Schumm                                            Tiffany A. McCoy
Appellate Clinic                                          Deputy Attorney General
Indianapolis, Indiana                                     Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Tammy Echeverria,                                         April 2, 2020
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          19A-CR-1459
        v.                                                Appeal from the Marion Superior
                                                          Court
State of Indiana,                                         The Honorable Alicia A. Gooden,
Appellee-Plaintiff                                        Judge
                                                          Trial Court Cause No.
                                                          49G21-1807-F2-21817



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1459 | April 2, 2020                    Page 1 of 14
[1]   Tammy Echeverria appeals her convictions and the sentence imposed by the

      trial court for Level 2 Felony Dealing in Methamphetamine1 and Level 2

      Felony Dealing in a Narcotic Drug,2 arguing that the trial court erred by

      admitting certain evidence—including testimony about a law enforcement

      team, ledgers, and firearms—because it was unduly prejudicial. Echeverria also

      contends that she did not have a fair opportunity to contest the contents of her

      Pre-Sentence Investigation Report (PSI) because it was furnished to her just

      before her sentencing hearing. Finding that the trial court committed, at most,

      only harmless error and that Echeverria is not entitled to relief with regards to

      the PSI, we affirm.


                                                       Facts
[2]   On July 3, 2018, Indianapolis Metropolitan Police Department (IMPD) Officer

      Lona Douglas met with a SWAT team to discuss the execution of a search

      warrant for a home in Indianapolis. IMPD officers had been surveilling the

      home and observed Echeverria and four other individuals entering the

      residence. Later, two individuals left the home, got into a vehicle, and drove

      away. IMPD officers conducted a traffic stop of that vehicle, discovered that the

      two individuals were Echeverria’s niece and nephew, and found approximately




      1
          Ind. Code § 35-48-4-1.1(a)(2), -1.1(e)(1).
      2
          I.C. § 35-48-4-1(a)(2), -1(e)(1).


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1459 | April 2, 2020   Page 2 of 14
      100 grams of a substance later determined to be methamphetamine and over

      $14,000 on their persons. Officers arrested the two and placed them in custody.


[3]   Shortly thereafter, the SWAT and the IMPD southwest “Flex” teams executed

      the search warrant. SWAT entered first, and upon entry, found a man sitting on

      a couch in the living room and Echeverria lying on a bed in the bedroom.

      Officers from both teams then searched the residence and discovered

      approximately 447.424 grams of a substance later determined to be

      methamphetamine, 57.110 grams of a substance later determined to be heroin,

      scales with drug residue on them, and other drug paraphernalia.


[4]   In the bedroom specifically, officers found $16,000, four firearms, a woman’s

      clothing, and bedding. They also discovered roughly twenty-eight pages of

      ledgers of drug transactions featuring multiple entries of dates, names, and

      dollar amounts. The officers Mirandized3 both Echeverria and the man and

      asked them questions. Echeverria admitted to living at that residence and

      selling narcotics, but claimed that she only did it to pay off her son’s

      outstanding debts. They were subsequently arrested.


[5]   On July 5, 2018, the State charged Echeverria with one count of Level 2 felony

      dealing in methamphetamine, one count of Level 2 felony dealing in a narcotic

      drug, and one count of Level 6 felony maintaining a common nuisance. On

      November 21, 2018, Echeverria filed a written request for copies of the ledgers



      3
          Miranda v. Arizona, 384 U.S. 436 (1966).


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1459 | April 2, 2020   Page 3 of 14
      pursuant to Indiana Evidence Rule 404(b). Echeverria feared that any prior bad

      acts evidenced by the notations in the ledgers would unduly prejudice her case

      and would only prove that she had acted in conformity with those acts. The

      State did not respond to Echeverria’s request and ultimately did not provide

      copies of the ledgers until March 15, 2019—three days before trial.


[6]   The State moved to dismiss the maintaining a common nuisance count on

      March 14, 2019, which the trial court granted. Echeverria’s three-day jury trial

      began on March 18, 2019. During the trial, officers from the IMPD “Flex”

      team testified about the circumstances surrounding the July 3, 2018, search and

      arrest. At one point, the State asked Officer Clayton Powell about what the

      “Flex” team does, and he replied that “[w]e are a proactive unit tasked with

      reducing violent crime, going after targeted violent offenders involved with

      firearms, narcotics—[.]” Tr. Vol. II p. 185. Echeverria’s counsel objected,

      arguing that Officer Powell’s testimony improperly characterized Echeverria as

      a violent criminal. The trial court overruled the objection. The trial court also

      ruled, over Echeverria’s objections, that most of the ledgers and the four

      firearms would be admissible.


[7]   On March 20, 2019, the jury found Echeverria guilty as charged. On May 9,

      2019, the probation department provided Echeverria with her PSI, just one day

      before her initial sentencing hearing. However, the trial court continued the

      hearing to May 29, 2019, on which day it sentenced Echeverria to an aggregate

      term of ten years, with five years to be executed in the Department of

      Correction, two years to be served on community corrections, two years

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1459 | April 2, 2020   Page 4 of 14
      suspended to probation, and one year wholly suspended. Echeverria now

      appeals.


                                   Discussion and Decision
                                   I. Admission of Evidence
[8]   First, Echeverria argues that the trial court erred by admitting certain

      evidence—including testimony about a law enforcement team, ledgers, and

      firearms—because it was unduly prejudicial. When there is a challenge to a trial

      court’s admission of evidence, we will reverse only when the decision is clearly

      against the logic and effect of the facts and circumstances before it. Fansler v.

      State, 100 N.E.3d 250, 253 (Ind. 2018). This Court will sustain a trial court’s

      decision regarding the admission of evidence “if it can be done on any legal

      ground apparent in the record.” Jester v. State, 724 N.E.2d 235, 240 (Ind. 2000).


[9]   Indiana Evidence Rule 403 states that “[t]he court may exclude relevant

      evidence if its probative value is substantially outweighed by a danger of one or

      more of the following: unfair prejudice, confusing the issues, misleading the

      jury, undue delay, or needlessly presenting cumulative evidence.” In other

      words, even if particular evidence is probative and could assist a jury in

      reaching its decision, the trial court can still exclude the admission of said

      evidence if the trial court believes that the evidence will overtly prejudice one

      party for any of the aforementioned reasons. Furthermore, Indiana Evidence

      Rules 404(a)(1) and 404(b)(1) prohibit the introduction of specific character



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1459 | April 2, 2020   Page 5 of 14
       traits or bad acts to prove that, in this instance, the defendant acted in

       conformity with those traits or prior bad acts.


                                               Officer Testimony

[10]   First, there is the testimony from Officer Powell describing the role of the

       IMPD “Flex” team: “[w]e are a proactive unit tasked with reducing crime,

       going after targeted violent offenders involved with firearms, narcotics—[.]” Tr.

       Vol. II p. 185.


[11]   Echeverria contends that this testimony unduly prejudiced her because Officer

       Powell’s description of the “Flex” team painted her as a violent felon who

       traffics in firearms and narcotics. Echeverria’s argument is unavailing. Officer

       Powell’s statement did not characterize Echeverria as a violent criminal.

       Rather, as the trial court pointed out, Officer Powell is “simply answering the

       question of what he does for a living and the purpose of the flex team.” Id. at

       185. It was important for the jurors to understand Officer Powell’s position and

       the work that the “Flex” team does in these types of situations.


[12]   Accordingly, there was high probative value in the testimony. As to the

       testimony’s prejudicial value, Echeverria is correct in pointing out that

       “prejudice may arise in a jury trial when a defendant is identified and repeatedly

       referred to as a ‘serious violent felon.’” Imel v. State, 830 N.E.2d 913, 918 (Ind.

       Ct. App. 2005) (quoting Spearman v. State, 744 N.E.2d 545, 550 (Ind. Ct. App.

       2001)) (emphasis added). The problem is that this was the only testimony where

       Officer Powell made any remark about how the “Flex” team specializes in


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1459 | April 2, 2020   Page 6 of 14
       targeting violent offenders. Thereafter, Officer Powell answered questions about

       the situation based on first-hand, personal experience and never directly

       characterized Echeverria as violent. In weighing this testimony’s probative

       value with its prejudicial effect, we have a difficult time believing that

       Echeverria was unduly prejudiced by this lone statement. Thus, the trial court

       did not err by admitting this evidence.


                                                      Ledgers

[13]   Next, there are the ledgers. The roughly twenty-eight pages of ledgers contained

       names, dates, and dollar amounts allegedly connected with Echeverria’s prior

       drug transactions.


[14]   As a preliminary matter, Indiana Evidence Rule 404(b)(2), states, in relevant

       part, the following:


               (2) . . . On request by a defendant in a criminal case, the
               prosecutor must:

                        (A) provide reasonable notice of the general nature of any
                        such evidence [of crimes, wrongs, or other acts] that the
                        prosecutor intends to offer at trial; and

                        (B) do so before trial—or during trial if the court, for good
                        cause, excuses lack of pretrial notice.


       According to Echeverria, in order for the State to permissibly use the ledgers as

       404(b) evidence, the State has to provide her with information about the nature

       of the evidence or, in the alternative, receive explicit permission from the trial




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1459 | April 2, 2020   Page 7 of 14
       court to introduce the ledgers during trial. See, e.g., Hatcher v. State, 735 N.E.2d

       1155, 1158 (Ind. 2000).


[15]   However, it is well established that “[d]etermining whether the State’s notice

       was reasonable requires an examination of whether the purpose of the notice

       provision was achieved in light of the circumstances of a particular case.” Id.

       (emphasis in original). And in this particular case, the State provided

       Echeverria with photocopies of the ledgers at least three days before trial, and

       there was a high likelihood of Echeverria knowing that the State would enter

       the ledgers as evidence. After all, the officers questioned Echeverria about the

       items found on the night of the search, and Echeverria knew that she had been

       charged with serious drug offenses. Further, the fact that Echeverria specifically

       requested copies of the ledgers demonstrates that she knew the general nature of

       the evidence that the State would introduce at trial. Based on these

       circumstances, it is apparent that Echeverria did, in fact, have reasonable notice

       of the State’s intent to use the ledgers as evidence. With this information in

       mind, the State met its burden, and there was no violation of 404(b)’s notice

       requirement.


[16]   In terms of whether the ledgers were unduly prejudicial, for 404(b) evidence,

       the trial court had to (1) determine whether the evidence of other crimes,

       wrongs, or acts is relevant to a matter at issue other than a person’s propensity

       to engage in similar criminal behavior; and then (2) balance the probative value

       of that evidence against its prejudicial effect. Bassett v. State, 795 N.E.2d 1050,

       1053 (Ind. 2003).

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1459 | April 2, 2020   Page 8 of 14
[17]   We concede that Echeverria raises strong arguments about how the ledgers

       might impugn her character and paint her as a repeat narcotics dealer. After all,

       the ledgers show names, dates, and inscriptions of past drug deals all connected

       with Echeverria’s actions. So, in that sense, the ledgers are somewhat

       prejudicial and potentially violate Rule 404(b)’s strictures. However, to say that

       the ledgers have no probative value is simply incorrect.


[18]   As the State highlights, “the ledger is a tool commonly used by drug dealers,

       and [Echeverria’s] mere possession of the ledgers was evidence of her present

       intent to deal.” Appellee’s Br. p. 16. We agree. Indiana Evidence Rule 404(b)(2)

       permits evidence of a crime, wrong, or other inadmissible act for purposes other

       than to prove a person’s character, “such as proving motive, opportunity,

       intent, preparation, plan, knowledge, identity, absence of mistake, or lack of

       accident.” In this instance, the ledger can be proffered, along with other

       evidence discovered by the SWAT and “Flex” teams, to show Echeverria’s

       intent to deal in illegal narcotics. Additionally, the ledgers could be proffered to

       identify Echeverria and showcase that she, as opposed to any other occupants

       of the house, is the one currently dealing in methamphetamine and heroin.

       Further, the ledgers demonstrate Echeverria’s preparation for subsequent drug

       transactions, especially considering that the ledgers were found alongside drug

       scales with residue on them, large sums of money, and huge quantities of the

       drugs themselves.


[19]   The ledgers have substantial probative value for purposes of establishing intent,

       identity, or even preparation, and while they might have some prejudicial effect,

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1459 | April 2, 2020   Page 9 of 14
       it does not outweigh their probative value. As such, the trial court did not err

       when it admitted these ledgers into evidence.


                                                     Firearms

[20]   Finally, there are the four firearms. Echeverria argues that the introduction of

       the four firearms unduly prejudiced her and irreparably painted her as a violent

       individual. According to Echeverria, “[t]he State should not have been allowed

       to bring the guns in the courtroom for the jury’s review when neither firearms

       nor violence was an element of [Echeverria’s] charged offenses.” Appellant’s

       Br. p. 31.


[21]   As a preliminary matter, Echeverria is correct in citing Brown v. State, in which

       this Court ruled that the State’s introduction of a shotgun, duct tape, and ski

       masks “had no relevancy to the issue of Brown’s guilt or innocence on the

       charge of possessing an unlicensed handgun, nor do they prove or disprove any

       material fact in this case.” 747 N.E.2d 66, 68 (Ind. Ct. App. 2001). The Brown

       Court went on to state that even if the evidence had “but a scintilla of

       relevancy,” it would nevertheless be unduly prejudicial and irreparably harm

       the defendant. Id. at 69. Here, because possession or use of a firearm does not

       comprise any elements of the crimes with which Echeverria was charged, the

       introduction and admission of the firearms did, in some capacity, prejudice

       Echeverria’s case.


[22]   However, the nature of Echeverria’s criminal charges is different from that in

       Brown. Echeverria was charged with Level 2 felony dealing in


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1459 | April 2, 2020   Page 10 of 14
       methamphetamine and in a narcotic drug, and our Supreme Court has

       previously held that the presence or possession of a firearm near or by a

       criminal defendant, along with a significant amount of drugs and

       paraphernalia, can support a conclusion that the defendant had the intent to

       deliver. J.L.H. v. State, 642 N.E.2d 1368, 1370 (Ind. 1994). In other words, the

       firearms here have probative value—to prove Echeverria’s intent to deal in

       narcotics. As the State points out, “the four guns in this case made it more

       probable that [Echeverria] intended to distribute the large amount of

       methamphetamine and heroin.” Appellee’s Br. p. 19. Thus, the trial court did

       not err by admitting this evidence.


                                                 Harmless Error

[23]   We concede that the ledgers and the four firearms had some prejudicial effect

       for Echeverria’s case. However, even if we were to find that the trial court erred

       by admitting them as evidence, that error was, at most, harmless. “Errors in the

       admission or exclusion of evidence are to be disregarded as harmless error

       unless they affect the substantial rights of the party.” Corbett v. State, 764 N.E.2d

       622, 628 (Ind. 2002). Specifically, we look at whether the defendant’s

       convictions were supported by substantial independent evidence of guilt and

       whether the challenged evidence contributed to the conviction. Maffett v. State,

       113 N.E.3d 278, 283 (Ind. Ct. App. 2018).


[24]   In looking at the record as a whole, we find that there was overwhelming

       independent evidence supporting Echeverria’s convictions. Echeverria herself

       confessed to dealing in large quantities of drugs in order to pay off her son’s
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1459 | April 2, 2020   Page 11 of 14
       outstanding debts; her clothes and possessions were intermingled with the drugs

       and paraphernalia, Henderson v. State, 715 N.E.2d 833, 836 (Ind. 1999)

       (reiterating that mingling of contraband with defendant’s own possessions

       implies control); law enforcement discovered excessive amounts of cash; and,

       most importantly, there were large quantities of drugs, scales, and

       paraphernalia for dealing found inside the home, Beverly v. State, 543 N.E.2d

       1111, 1115 (Ind. 1989) (finding that “evidence of appellant’s possession of a

       large quantity of drugs and the paraphernalia necessary to cut, package, and sell

       it” is sufficient to sustain a conviction for possession with intent to deliver); see

       also McGuire v. State, 613 N.E.2d 861, 864 (Ind. Ct. App. 1993) (holding that

       circumstantial evidence of intent to deliver, such as possession of a large

       quantity of drugs, large amounts of currency, scales, plastic bags, a loaded

       firearm, and other paraphernalia can support a conviction).


[25]   The substantial independent evidence in the record demonstrates that

       Echeverria would have been convicted of the two dealing charges irrespective of

       the admission or exclusion of the ledgers or firearms. And on the whole, the

       discussion surrounding the contested evidence comprised only a short amount

       of time during the course of Echeverria’s three-day trial. This makes it all the

       more likely that the officer’s testimony, the ledgers, and the four firearms did

       not affect Echeverria’s substantial rights. Accordingly, because the trial court

       committed, at most, only harmless error, we will not reverse the trial court’s

       admission decisions on this basis.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1459 | April 2, 2020   Page 12 of 14
                         II. Pre-Sentence Investigation Report
[26]   Next, Echeverria argues that she did not have a fair opportunity to contest the

       contents of her PSI because it was furnished to her just before her sentencing

       hearing.


[27]   Pursuant to Indiana Code section 35-38-1-12(b), “[t]he court shall furnish the

       factual contents of the presentence investigation or a copy of the presentence

       report sufficiently in advance of sentencing so that the defendant will be afforded a

       fair opportunity to controvert the material included.” (Emphasis added). As a

       general matter, “it would be better if trial courts routinely made sure the pre-

       sentence report was available more than one day before the sentencing

       hearing[.] Lang v. State, 461 N.E.2d 1110, 1114 (Ind. 1984). However, “it is

       incumbent upon [the] defendant to show how [she] was prejudiced by a short

       time period within which to review a pre-sentence report.” Goudy v. State, 689

       N.E.2d 686, 699 (Ind. 1997).


[28]   The State provided Echeverria with the PSI on May 9, 2019—one day before

       her sentencing hearing. It is undisputed, however, that the initial May 10, 2019,

       sentencing hearing was continued to May 29, 2019. So, while Echeverria

       received her PSI just one day before the initial sentencing hearing, the trial

       court effectively gave Echeverria another nineteen days within which to

       evaluate the PSI’s contents. As such, Echeverria had more than enough time to

       review and dispute the contents of her PSI before the trial court conducted its




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1459 | April 2, 2020   Page 13 of 14
       sentencing hearing.4 We hold that Echeverria was given ample time to review

       her PSI, and, therefore, she is not entitled to relief regarding this issue.


[29]   The judgment of the trial court is affirmed.


       Najam, J., and Tavitas, J., concur.




       4
        This Court and our Supreme Court have held that criminal defendants were given ample time to review the
       contents of their PSIs after having received them for a markedly shorter amount of time than that ultimately
       afforded to Echeverria. Wagner v. State, 474 N.E.2d 476, 496 (Ind. 1985) (four days); Eubank v. State, 456
       N.E.2d 1012, 1017 (Ind. 1983) (one day); Evans v. State, 855 N.E.2d 378, 387 (Ind. Ct. App. 2006) (one day).

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1459 | April 2, 2020                  Page 14 of 14
