MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be                                 Apr 30 2019, 10:29 am

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
Anthony S. Churchward                                    Curtis T. Hill, Jr.
Anthony S. Churchward, P.C.                              Attorney General of Indiana
Fort Wayne, Indiana                                      Matthew A. Michaloski
                                                         Angela Sanchez
                                                         Deputy Attorneys General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA
Chadwick M. Childers,                                    April 30, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-2765
        v.                                               Appeal from the Whitley Circuit
                                                         Court
State of Indiana,                                        The Honorable Matthew J.
Appellee-Plaintiff.                                      Rentschler, Judge
                                                         Trial Court Cause No.
                                                         92C01-1801-F5-11



Mathias, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2765 | April 30, 2019                 Page 1 of 11
[1]   Following a jury trial in Whitley Circuit Court, Chadwick M. Childers

      (“Childers”) was convicted of Level 5 felony dealing in marijuana. Childers

      appeals and presents one issue, which we restate as whether the trial court

      abused its discretion by excluding evidence regarding a witness’s prior

      convictions and a pending charge against the witness.


[2]   We affirm.


                                  Facts and Procedural History
[3]   On November 8, 2017, the confidential informant (“C.I.”) in this case was

      arrested on misdemeanor drug charges in Whitley County. While in jail the day

      after his arrest, the C.I. contacted Columbia City Police Department Detective

      Sergeant Robert Stephenson (“Detective Stephenson”) and stated that he had

      purchased marijuana from Childers in the past and would be willing to act as an

      informant in a controlled buy. The C.I. hoped to curry favor with the police and

      prosecuting attorney by acting as an informant. Detective Stephenson made no

      promises as to any benefits the C.I. might receive for cooperating, but the C.I.

      understood that the more help he provided to the police, the more benefit he

      would likely receive. Detective Stephenson took the information he had

      received from the C.I. to the other members of the Whitley County Drug Task

      Force, and they decided to use the C.I. in a controlled buy targeting Childers.


[4]   Accordingly, on December 9, 2017, the C.I. contacted Childers and arranged a

      sale of two ounces of marijuana for $400. Immediately before the controlled

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2765 | April 30, 2019   Page 2 of 11
      buy, Detective Stephenson met with the C.I. and searched his person and

      vehicle. He then gave the C.I. $400 in buy money and placed an audiovisual

      recording device on him. The C.I. then went to Childers’s residence in

      Columbia City, with Detective Stephenson following and observing him.

      Detective Stephenson parked in a gas station parking lot where he could

      observe Childers’s home from across the street.


[5]   Using binoculars, Detective Stephenson observed Childers get into the C.I.’s

      vehicle. Inside the vehicle, the C.I. gave Childers the $400 in buy money, and in

      exchange, Childers gave the C.I. marijuana. Childers then got out of the

      vehicle, and the C.I. drove back to the police station, with Detective

      Stephenson following him. Detective Stephenson searched the C.I. and found

      only the marijuana that Childers had sold. Testing later confirmed that the

      substance Childers sold the C.I. was 52.95 grams1 of marijuana.


[6]   On January 30, 2018, the State charged Childers with Level 5 felony dealing in

      marijuana.2 Prior to trial, the State filed a motion in limine seeking to exclude

      certain evidence, including “any discussion of or reference to any criminal

      record of any witness listed by the State of Indiana, unless specifically

      authorized by the court in a hearing conducted outside the presence of the




      1
          This is just under two ounces, which is equivalent to 56.7 grams.
      2
        The offense was elevated to a Level 5 felony based on Childers’s 2016 conviction for Level 6 felony dealing
      in marijuana.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2765 | April 30, 2019                   Page 3 of 11
      jury.” Appellant’s App. p. 31. The trial court granted the motion. A bifurcated

      jury trial was held on October 2, 2018. At trial, Childers attempted to question

      the C.I. regarding his prior convictions. The State objected, and the trial court

      sustained the objection. In an offer of proof, the C.I. testified that his prior

      convictions would have increased his sentence for the misdemeanor he was

      charged with in November 2017. The C.I. also testified that the State had made

      no promises to him, but he agreed when defense counsel stated that “if you

      were to testify today inconsistent with your prior statements that it could be an

      adverse effect for you in that case[.]” Tr. p. 87. The C.I. also stated that he had

      additional charges pending against him at the time of his testimony.


[7]   The trial court did, however, allow Childers to ask the C.I. about the charges he

      faced as a result of his arrest in November 2017, his subsequent plea, and what

      effect his cooperation in the Childers case may have had on the penalties the

      C.I. faced in that case. The C.I. testified that he had been facing jail time for the

      November 2017 case, but that as a result of his cooperation with the police, he

      was able to avoid incarceration. Childers was also permitted to ask the C.I. to

      speculate if his sentence could have been increased based on his prior

      conviction for conversion,3 and the C.I. agreed that his sentence might have

      been increased based on this prior conviction.




      3
        A prior conviction for criminal conversion may be used to impeach a witness, as it has been held to be a
      crime of dishonesty. See Johnson v. State, 671 N.E.2d 1203, 1206 n.3 (Ind. Ct. App. 1996), trans. denied.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2765 | April 30, 2019                   Page 4 of 11
[8]    At the conclusion of the first phase of the trial, the jury found Childers guilty of

       Level 6 felony dealing in marijuana in an amount greater than thirty grams. See

       Ind. Code § 35-48-4-10(c)(2)(a). At the second phase of the trial, the jury found

       that Childers had previously been convicted of dealing in marijuana, thereby

       increasing his conviction to a Level 5 felony. See id. at § 10(d)(1). At a

       sentencing hearing held on October 29, 2018, the trial court sentenced Childers

       to four years of incarceration. Childers now appeals.


                                          Standard of Review

[9]    Decisions regarding the admission or exclusion of evidence are entrusted to the

       sound discretion of the trial court. Laird v. State, 103 N.E.3d 1171, 1175 (Ind.

       Ct. App. 2018), trans. denied (citing Harrison v. State, 32 N.E.3d 240, 250 (Ind.

       Ct. App. 2015), trans. denied). On appeal, we review the trial court's decision for

       an abuse of that discretion. Id. The trial court abuses its discretion only if its

       decision regarding the admission of evidence is clearly against the logic and

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

       the law. Id.


                                      Discussion and Decision
[10]   Childers contends that the trial court erred by preventing him from confronting

       the C.I. with evidence that he had prior convictions for possession of

       marijuana, possession of a controlled substance, possession of paraphernalia,

       and criminal mischief and newer, pending charges at the time he testified.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2765 | April 30, 2019   Page 5 of 11
       Childers argues that he should have been able to impeach the C.I.’s credibility

       by referring to these prior and pending charges, especially as to how his prior

       convictions could have affected the penalty he faced as a result of his arrest in

       November 2017.

[11]   This requires us to consider the interplay between several rules of evidence.

       Generally, evidence that a witness is biased may be used to attack that witness’s

       credibility. See Ind. Evidence Rule 616 (“Evidence that a witness has a bias,

       prejudice, or interest for or against any party may be used to attack the

       credibility of the witness.”). Indiana Evidence Rule 608(a) provides that a

       witness’s credibility may be attacked (or supported) by testimony about the

       witness’s reputation for having a truthful4 or untruthful character, or by

       testimony in the form of an opinion about the witness’s character for

       truthfulness or untruthfulness. Evidence Rule 608(b) provides, however, that

       extrinsic evidence is not admissible to prove specific instances of a witness’s

       conduct regarding the witness’s character for truthfulness, except as provided

       under Evidence Rule 609.5


[12]   Indiana Evidence Rule 609 in turn provides in relevant part:




       4
        Evidence of a witness’s truthful character is only admissible after the witness’s character for truthfulness has
       been attacked. Evid. R. 608(a).
       5
        “But the court may, on cross-examination, allow them to be inquired into if they are probative of the
       character for truthfulness or untruthfulness of another witness whose character the witness being cross-
       examined has testified about.” Evid. R. 608(b).

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2765 | April 30, 2019                      Page 6 of 11
               For the purpose of attacking the credibility of a witness, evidence
               that the witness has been convicted of a crime or an attempt of a
               crime must be admitted but only if the crime committed or
               attempted is (1) murder, treason, rape, robbery, kidnapping,
               burglary, arson, or criminal confinement; or (2) a crime involving
               dishonesty or false statement, including perjury.


       Evid. R. 609(a).


[13]   The trial court permitted Childers to impeach the C.I.’s credibility using his

       prior conviction for conversion and by noting the favorable treatment he

       received in his November 2017 case in exchange for his cooperation in the

       Childers case. The trial court, however, excluded evidence regarding the C.I.’s

       prior convictions for possession of a controlled substance, criminal mischief,

       possession of marijuana and paraphernalia, and possession of marijuana, and

       additional charges that were pending against the C.I.


[14]   Childers claims this was improper, arguing that he should have been permitted

       to attack the C.I.’s credibility by showing that he was motivated to testify

       against Childers in return for favorable treatment. Specifically, he claims that

       the C.I.’s prior criminal history would have “significantly increased his criminal

       penalties resulting from his November 8, 2017 arrest” and that he might receive

       favorable treatment in the pending charges. Appellant’s Br. p. 13.

[15]   With regard to the charges pending against the C.I. at the time of trial, it is well

       settled that “a witness may not be impeached with evidence of crimes for which

       charges are pending but which have not been reduced to convictions.” Becker v.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2765 | April 30, 2019   Page 7 of 11
       State, 695 N.E.2d 968, 973 (Ind. Ct. App. 1998). Thus, references to the

       pending charges were properly excluded.


[16]   With regard to the C.I.’s prior convictions for possession of a controlled

       substance, criminal mischief, possession of marijuana and paraphernalia, and

       possession of marijuana, none of these convictions falls within the list of those

       convictions admissible under Evidence Rule 609(a), i.e., none of the prior

       convictions were for “murder, treason, rape, robbery, kidnapping, burglary,

       arson, or criminal confinement,” or an attempt to commit those crimes, nor are

       they crimes of dishonesty. See Pierce v. State, 640 N.E.2d 730, 732 (Ind. Ct. App.

       1994) (holding a prior conviction of dealing cocaine could not be used to

       impeach a witness because it is not one of the “infamous crimes” enumerated in

       Evidence Rule 609(a) and was not a crime of dishonesty), trans. denied (citing

       Johnston v. State, 517 N.E.2d 397 (Ind. 1988) (holding that drug offenses are not

       included in the list of impeachable offenses)); Williams v. State, 724 N.E.2d

       1070, 1082 (Ind. 2000) (holding that criminal mischief is not included among

       the crimes admissible under Evidence Rule 609(a)). Accordingly, reference to

       the C.I.’s prior convictions for possession of marijuana, possession of a

       controlled substance, possession of paraphernalia, and criminal mischief was

       clearly impermissible under Evidence Rule 609(a).


[17]   Nevertheless, Childers argues that the trial court should have permitted him to

       show bias on the part of the C.I. by using these prior convictions, claiming that

       this prevented him from exercising his constitutional right to cross-examine the

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2765 | April 30, 2019   Page 8 of 11
       State’s witness. As our courts have repeatedly explained that although a

       defendant has a constitutional right to confront and cross-examine witnesses:

                [t]he right to cross examination . . . is not absolute. [T]he
                Confrontation Clause guarantees an opportunity for effective
                cross-examination, not cross-examination that is effective in
                whatever way, and to whatever extent, the defense might wish.
                Furthermore, the right to confront witnesses may, in appropriate
                cases, bow to accommodate other legitimate interests in the
                criminal trial process.


       Alvarado v. State, 89 N.E.3d 442, 445–46 (Ind. Ct. App. 2017), trans. denied

       (citations and internal quotation marks omitted).


[18]   Here, even though he was not able to introduce evidence regarding all of the

       C.I.’s prior convictions, Childers was nevertheless able to introduce evidence of

       the C.I.’s prior conviction for conversion. Both rulings are consistent with the

       Indiana Rules of Evidence. Childers was also able to establish the C.I.’s bias by

       showing that the C.I. was cooperating in the present case in exchange for more

       favorable treatment in the November 2017 charges against him. We therefore

       reject Childers’s claim that he was denied the right to cross-examine the C.I.6



       6
         Even assuming arguendo that the trial court erred by excluding this evidence, Childers would not prevail.
       Violations of the right of cross-examination do not require reversal if the State can show beyond a reasonable
       doubt that the error did not contribute to the verdict. Hall v. State, 36 N.E.3d 459, 468 (Ind. 2015). When
       determining whether an error is harmless beyond a reasonable doubt, we review the whole record and
       consider factors such as: the importance of the witness’s testimony in the prosecution’s case, whether the
       testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony
       of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the
       overall strength of the State’s case. Id. (citing Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986)). Here, the
       C.I.’s testimony was important, but it was also somewhat cumulative, as Detective Stephenson witnessed

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2765 | April 30, 2019                     Page 9 of 11
       See Stephenson v. State, 742 N.E.2d 463, 486–87 (Ind. 2001) (holding that trial

       court’s exclusion of evidence regarding witness’s seventeen-year-old robbery

       conviction pursuant to Evidence Rule 609(b) did not deny the defendant’s right

       to cross-examination, where defendant was still able to thoroughly cross-

       examine the witness and impeach his credibility in other ways); Beaty v. State,

       856 N.E.2d 1264, 1270 (Ind. Ct. App. 2006), trans. denied (holding that trial

       court did not abuse its discretion by excluding evidence of witness’s prior thefts

       where jury was well aware of the witness’s bias and desire to curry favor with

       the State because details of his plea agreement were admitted and some

       evidence of the witness’s prior misconduct was placed before the jury).


                                                    Conclusion
[19]   The trial court properly excluded evidence of the C.I.’s prior convictions for

       possession of marijuana, possession of a controlled substance, possession of

       paraphernalia, and criminal mischief. And the court’s limitation of Childers’s

       cross-examination of the C.I. regarding these prior offenses did not




       much of the controlled buy, and an audio recording of the controlled buy was admitted into evidence.
       Moreover, the State’s case was particularly strong given the Detective’s eyewitness testimony, the audio
       recording, and the marijuana found on the C.I. after the controlled buy. The trial court also allowed
       extensive cross-examination of the C.I. regarding his deal with the State in exchange for his testimony and
       even allowed evidence of his prior conviction for conversion. Thus, further impeaching the C.I.’s credibility
       with evidence of his prior convictions would not have added much to the equation. We therefore conclude
       that, even assuming error in the trial court’s decision, any error would be harmless beyond a reasonable
       doubt.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2765 | April 30, 2019                   Page 10 of 11
       unconstitutionally impinge on Childers’s right to cross-examine the C.I. We

       therefore affirm the judgment of the trial court.

[20]   Affirmed.


       May, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2765 | April 30, 2019   Page 11 of 11
