MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                             Jun 28 2019, 10:01 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.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Clifford M. Davenport                                    Curtis T. Hill, Jr.
Anderson, Indiana                                        Attorney General of Indiana

                                                         George P. Sherman
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Justin R. Shaul,                                         June 28, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-2260
        v.                                               Appeal from the Madison Circuit
                                                         Court
State of Indiana,                                        The Honorable Mark Dudley,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         48C06-1703-F2-608



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2260 | June 28, 2019                  Page 1 of 13
[1]   Justin R. Shaul appeals his convictions of two counts of Level 2 felony dealing

      in methamphetamine 1 and one count of Level 3 felony dealing in

      methamphetamine. 2 He presents three issues for our review, which we revise

      and restate as:


             I.       Whether venue was proper in Madison County;


             II.      Whether prosecutorial misconduct amounting to fundamental error

                      occurred during discovery; and


             III.     Whether his sentence is inappropriate.


      We affirm.



                                Facts and Procedural History
[2]   Shaul was born in Anderson, Indiana, and attended Madison Heights High

      School in Anderson. He moved to Florida and Alabama for a time but

      returned to Indiana. Upon his return, he lived in Indianapolis and was a friend

      of Madison Parkhurst. Wendy Whitaker is Parkhurst’s mother, and Whitaker

      met Shaul through her daughter. Whitaker did not approve of Shaul’s

      association with her daughter.




      1
          Ind. Code § 35-48-4-1.1(e).
      2
          Ind. Code § 35-48-4-1.1(d).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2260 | June 28, 2019   Page 2 of 13
[3]   On February 6, 2017, Whitaker contacted the Madison County Drug Task

      Force (“DTF”) and conveyed her belief that Shaul was distributing

      methamphetamine in Madison County. Consequently, Whitaker agreed to

      work for DTF as a confidential informant and participate in a series of

      controlled buy operations.


[4]   On February 7, 2017, Whitaker called Shaul to set up the first controlled buy.

      Whitaker placed the call from her home in Anderson. Shaul mentioned he was

      close to Whitaker’s house and offered to stop by her house. However, DTF

      was not prepared for a controlled buy to occur. Whitaker arranged for the buy

      to occur later in the day, and Shaul indicated Whitaker would need to travel to

      Indianapolis to buy the drugs.


[5]   Before the buy, Whitaker met DTF officers at the White River Fitness Club in

      Anderson. The DTF officers searched Whitaker, gave her $500 in marked bills,

      and equipped her with a surreptitious recording device. Whitaker did not

      possess any methamphetamine at the time of the pre-buy search. DTF

      Detective Mike Anderson, who was in plain clothes, drove Whitaker to Shaul’s

      residence in Indianapolis. DTF Officers Dwiggins and Gutherie also drove to

      Indianapolis, but they parked away from Shaul’s house. Whitaker bought

      18.96 grams of methamphetamine from Shaul for $500. During the buy, Shaul

      bragged to Whitaker about his drug dealing operation and claimed he would

      change his voice in court if he ever got caught. After leaving Shaul’s residence,

      Whitaker gave the methamphetamine to Detective Anderson, and the two



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2260 | June 28, 2019   Page 3 of 13
      rendezvoused with the two additional DTF officers at an intersection in

      Castleton for the post-buy search and interview.


[6]   From her house in Anderson, Whitaker contacted Shaul via Facebook on

      February 14, 2017, to set up a second controlled buy. On February 15, 2017,

      Whitaker again met DTF Officers Anderson, Dwiggins, and Gutherie at the

      White River Fitness Club in Anderson, where the officers conducted a pre-buy

      search, gave her $500 in marked bills, and equipped her with a recording

      device. While leaving Madison County, Whitaker placed a phone call to Shaul,

      who confirmed the buy. DTF Detective Anderson drove Whitaker to Shaul’s

      residence in Indianapolis, and Whitaker purchased 9.40 grams of

      methamphetamine from Shaul. Detective Anderson drove Whitaker to the

      same intersection used after the controlled buy on February 7, and there the

      DTF officers searched Whitaker and conducted the post-buy interview.


[7]   On March 2, 2017, Whitaker called Shaul from her house in Anderson to set up

      a third controlled buy, and the buy occurred during the early morning hours of

      March 3, 2017. Whitaker went to her boyfriend’s house in Indianapolis late on

      March 2. The DTF officers met Whitaker at her boyfriend’s house in

      Indianapolis, and they went to the parking lot of the Hooter’s restaurant in

      Castleton to complete the pre-buy preparations. Then, Detective Anderson and

      Whitaker went to Shaul’s residence, where Whitaker purchased 21.95 grams of

      methamphetamine for $800. She and Detective Anderson met with the other

      DTF officers to conduct the post-buy search and interview at the same

      intersection previously used.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2260 | June 28, 2019   Page 4 of 13
[8]    The State charged Shaul with two counts of Level 2 felony dealing in

       methamphetamine and one count of Level 3 felony dealing in

       methamphetamine. At the beginning of the litigation, Shual’s counsel

       requested certain materials that would reveal the identity of the confidential

       informant, Whitaker. During a status conference on February 9, 2018, Shaul’s

       counsel reported he had discussed production of those materials with the State

       and they had reached the understanding that the State would withdraw all plea

       offers once the materials were produced.


[9]    At the final pretrial conference on June 27, 2018, Shaul’s counsel stated he

       wished to depose the confidential informant, but he did not request a

       continuance of the trial date. The parties discussed outstanding discovery, with

       the State indicating that general discovery had already been given to Shaul and

       any remaining documents would be given to him by the end of the week. The

       State acknowledged it would need to disclose the confidential informant’s

       identity sufficiently in advance of trial for Shaul to be able to depose Whitaker,

       and Shaul deposed Whitaker on July 19, 2018.


[10]   On July 19, 2018, Shaul moved for change of venue. The court held a hearing

       on the motion and denied it. The court then held a three-day jury trial

       beginning on July 23, 2018. The jury returned a verdict of guilty on all counts,

       and the court entered judgments of conviction. During his sentencing hearing,

       Shaul quibbled with the number of convictions reported in his pre-sentence

       investigation report, but he confirmed he had five previous felony and



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2260 | June 28, 2019   Page 5 of 13
       seventeen previous misdemeanor convictions. The court sentenced Shaul to an

       aggregate term of twenty-five years in the Indiana Department of Correction.



                                  Discussion and Decision
                                                     Venue
[11]   Defendants are entitled to be tried in the county where the offense was allegedly

       committed. Baugh v. State, 801 N.E.2d 629, 631 (Ind. 2004); see also Ind. Const.

       Art. I, § 13; Ind. Code § 35-32-2-1. When venue is not an element of the

       offense, the State is only required to demonstrate proper venue by a

       preponderance of the evidence. Id. More than one county may have

       concurrent jurisdiction to try a crime. Henke v. State, 801 N.E.2d 633, 634 (Ind.

       2004) (holding motorist’s conduct in operating vehicle while intoxicated on

       border road for two counties had sufficient nexus with both counties to permit

       prosecution in either). “The standard of review for a claim that the evidence

       was insufficient to prove venue is the same as for other claims of insufficient

       evidence.” Eberle v. State, 942 N.E.2d 848, 855 (Ind. Ct. App. 2011), trans.

       denied. Consequently, we do not reweigh the evidence or assess credibility. Id.

       Rather, we “look to the evidence and reasonable inferences therefrom which

       support the conclusion of requisite venue.” Id.


[12]   Venue is appropriate in a county if the defendant directs criminal activity into

       the county. See Baugh, 801 N.E.2d at 632 (“if the defendant directs acts into a

       county, venue is proper in that county”). For example, we held a Marion

       County resident may be tried in Vanderburgh County when the Marion County
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2260 | June 28, 2019   Page 6 of 13
       resident solicited an undercover officer in Evansville, who was posing as a

       thirteen-year-old boy, for sex. Laughner v. State, 769 N.E.2d 1147, 1157 (Ind.

       Ct. App. 2002), reh’g denied, trans. denied, cert. denied 538 U.S. 1013 (2003), but

       overruled on other grounds by Fajardo v. State, 859 N.E.2d 1201, 1206 n.9 (Ind.

       2007). Venue was proper in Vanderburgh County because the Marion County

       resident had taken action directed at Vanderburgh County. Id. Similarly, a

       person who fires a gun over a state line may be tried in either the county where

       the person fired the gun or the county where the victim was hit. Wurster v. State,

       715 N.E.2d 341, 350 (Ind. 1999), reh’g denied.


[13]   Shaul was aware Whitaker was a resident of Madison County when she

       initiated the transactions because Shaul and Whitaker had met before and

       Shaul was a friend of Whitaker’s daughter. Whitaker was in Madison County

       when she arranged all three of the buys, and Shaul initially offered to deliver the

       drugs to Whitaker’s house for the first buy. Although the drug sales were

       completed in Marion County, we may reasonably infer that Shaul understood

       Whitaker was going to return to Madison County with the drugs.


[14]   Additionally, Shaul’s own words demonstrate he was willing to supply

       Madison County residents with narcotics. Shaul described his business model

       by saying, “I go around these cities, and I find these dudes that sell the most

       dope, and I tell them, I can get you the best dope for a cheaper price.” (St. Ex.

       12; St. Ex. 12A at 89.) In fact, Shaul told Whitaker, “I don’t understand why

       people in Anderson didn’t [sic] realize that I’m the mother****ing ticket.” (St.

       Ex. 12; St. Ex. 12A at 88.) In the case at bar, Madison County was a proper

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2260 | June 28, 2019   Page 7 of 13
       venue because there was a sufficient nexus between Shaul’s criminal activity

       and Madison County. Shaul could have been prosecuted in Marion County,

       but his criminal activity sufficiently implicated the interests of the citizens of

       Madison County to make venue in Madison County proper. See Heinzman v.

       State, 895 N.E.2d 716, 723 (Ind. Ct. App. 2008) (holding evidence supported

       finding of venue in Hamilton County when defendant drove from Hamilton

       County to gain access to victim and communicated with victim from Hamilton

       County in furtherance of his offenses), trans. denied.


                                     Prosecutorial Misconduct
[15]   Shaul contends the State committed prosecutorial misconduct by not timely

       responding to discovery. However, he failed to raise a contemporaneous

       objection to this alleged misconduct. Therefore, he “must establish not only the

       grounds for prosecutorial misconduct but also the additional grounds for

       fundamental error.” McKinney v. State, 873 N.E.2d 630, 642 (Ind. Ct. App.

       2007), trans. denied. Fundamental error occurs when the violations “make a fair

       trial impossible or constitute clearly blatant violations of basic and elementary

       principles of due process.” Benson v. State, 762 N.E.2d 748, 756 (Ind. 2002).

       Shaul alleges the prosecutor supplied requested discovery only after ending plea

       negotiations and did not supply it with sufficient time for defense counsel to

       review and advise Shaul. He also asserts he would have considered accepting a

       plea bargain had he known the confidential informant’s identity sooner.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2260 | June 28, 2019   Page 8 of 13
[16]   The State has a valid interest in protecting the identity of a confidential

       informant, and therefore “the general policy is to prevent the disclosure of the

       identity of a confidential informant unless the defendant can demonstrate that

       disclosure is relevant and helpful to his defense or is necessary for a fair trial.”

       Shell v. State, 927 N.E.2d 413, 420 (Ind. Ct. App. 2010). “Bare speculation that

       the informant’s identity may possibly prove useful is not enough to justify

       disclosure, and an informant’s identity shall not be disclosed to permit a mere

       ‘fishing expedition.’” Id. Prematurely revealing the identity of a confidential

       informant risks retaliation against the informant, compromising current

       investigations, and chilling future cooperation. As a result, and in some

       circumstances, the State may convict a criminal defendant without disclosing a

       confidential informant’s identity. Furman v. State, 496 N.E.2d 811, 814 (Ind.

       1980) (holding trial court’s failure to order pretrial disclosure of confidential

       informant’s identity was not an abuse of discretion).


[17]   Shaul was not prejudiced as the result of any delay in revealing the confidential

       informant’s identity. “The purpose of discovery is to put the other party on

       notice of the evidence upon which a party intends to rely at trial.” Bennett v.

       State, 5 N.E.3d 498, 511 (Ind. Ct. App. 2014), reh’g denied, trans. denied. The

       general remedy for curing a discovery violation is a continuance. Warren v.

       State, 725 N.E.2d 828, 832 (Ind. 2000). A defendant waives any discovery

       argument on appeal if a continuance may have cured the alleged violation, but

       the defendant failed to request a continuance. Id. The trial rules anticipate that

       counsel will work together to effectuate the discovery process. See Ind. T. R.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2260 | June 28, 2019   Page 9 of 13
       26(F) (requiring counsel to make reasonable effort to reach an agreement with

       opposing party before filing a motion to compel). Shaul’s counsel indicated at

       the February 9, 2018, status conference and the June 27, 2018, pretrial hearing

       that he and the prosecutor had discussed the State’s discovery compliance.

       Shaul’s counsel did not ask the trial court to compel discovery. Also, Shaul’s

       counsel did not seek to continue Shaul’s trial during the final pre-trial

       conference. In fact, Shaul’s counsel indicated that he was willing and able to

       proceed with trial on July 23, 2018. Shaul deposed Whitaker prior to trial and

       relied on her deposition testimony in arguing his motion for change of venue.


[18]   Additionally, Shaul’s claim that the discovery delays by the State impeded his

       decision to accept a plea deal lack merit. Shaul’s counsel never indicated that a

       delay by the State in revealing the identity of the confidential informant affected

       Shaul’s decision to accept a plea deal. In fact, Shaul’s counsel informed the

       court that Shaul was not interested in accepting a plea deal, and Shaul intended

       to take his case to trial. Shaul had sufficient information about the State’s case

       at the time this representation was made to make an informed decision

       regarding whether to accept a plea deal. He had access to the probable cause

       affidavit which revealed the dates of the transactions, where the transactions

       occurred, the controlled substance Shaul supplied, and the amount of the

       controlled substance he supplied. Consequently, any discovery delays related

       to revealing the identity of the confidential informant do not amount to

       fundamental error. See Murray v. State, 442 N.E.2d 1012, 1018 (Ind. 1982)

       (holding asserted discovery violations did not warrant reversal).


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2260 | June 28, 2019   Page 10 of 13
                                             Shaul’s Sentence
[19]   We “may revise a sentence authorized by statute if, after due consideration of

       the trial court’s decision, the Court finds that the sentence is inappropriate in

       light of the nature of the offense and the character of the offender.” Ind.

       Appellate Rule 7(B). We look “not whether another sentence is more

       appropriate but rather whether the sentence imposed is inappropriate.” Cannon

       v. State, 117 N.E.3d 643, 645 (Ind. Ct. App. 2018) (internal quotation marks

       omitted), trans. denied. Shaul bears the burden of persuading us that his

       sentence is inappropriate. Id. We are very deferential to the trial court in

       reviewing sentencing decisions. Id.


[20]   Shaul was convicted of two counts of Level 2 felony dealing in

       methamphetamine and one count of Level 3 felony dealing in

       methamphetamine. A Level 2 felony carries a minimum term of ten years and

       a maximum term of thirty years, with an advisory sentence of seventeen and

       one-half years. Ind. Code § 35-50-2-4.5. A Level 3 felony carries a minimum

       term of three years and a maximum term of sixteen years, with an advisory

       sentence of nine years. Ind. Code § 35-50-2-5. The trial court imposed an

       executed sentence of twenty-five years on each of the Level 2 felony counts and

       an executed sentence of thirteen years on the Level 3 felony count, and then the

       court ordered the sentences served concurrently.


[21]   As the State aptly observes, Shaul’s offense demonstrates “he was a high level

       drug dealer who was ready and willing to supply methamphetamine on a


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2260 | June 28, 2019   Page 11 of 13
       regular basis.” (Appellee Br. at 21.) Shaul’s own comments demonstrate his

       desire to supply other drug dealers with drugs, and Shaul sold large quantities

       of drugs to Whitaker on multiple occasions. Further, Shaul has a lengthy

       criminal record, including at least seventeen misdemeanor and five felony

       convictions. Shaul had four open cases at the time of completion of the

       presentence investigation report, and he was on probation when he committed

       the instant offenses. While Shaul’s imposed sentence is longer than what the

       presentence investigation report recommended, we cannot say it is

       inappropriate in light of his offenses or his character. 3 See Fugate v. State, 516

       N.E.2d 75, 80 (Ind. Ct. App. 1987) (stating “trial court need not base its

       sentencing determination on the presentence investigation report or upon the

       probation officer’s sentencing recommendation”).



                                                   Conclusion
[22]   Madison County was a proper venue, Shaul has not demonstrated the

       prosecutor engaged in misconduct, and Shaul’s sentence was not inappropriate




       3
         Shaul also claims the trial judge was biased against him because Shaul filed a lawsuit against the trial judge
       while this criminal action was pending. However, Shaul fails to point to any comments by the trial judge at
       sentencing that demonstrate bias. See Smith v. State, 770 N.E.2d 818, 823 (Ind. 2002) (“The law presumes
       that a judge is unbiased and unprejudiced. And to rebut that presumption, a defendant must establish from
       the judge’s conduct actual bias or prejudice that places the defendant in jeopardy.”) (internal citations
       omitted). Further, the judge’s correct denial of Shaul’s motion for change of venue cannot equate to bias
       against Shaul. See Cook v. State, 612 N.E.2d 1085, 1088 (Ind. Ct. App. 1993) (“Adverse rulings or the
       imposition of the maximum possible sentence do not support a claim of bias.”). Shaul fails to demonstrate
       his sentence was the result of bias.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2260 | June 28, 2019                      Page 12 of 13
       given his long criminal history and the large amounts of narcotics involved in

       these offenses. Accordingly, we affirm.


[23]   Affirmed.


       Mathias, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2260 | June 28, 2019   Page 13 of 13
