                                                                FILED
                                                           Mar 09 2017, 5:37 am

                                                                CLERK
                                                            Indiana Supreme Court
                                                               Court of Appeals
                                                                 and Tax Court




ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
James H. Voyles, Jr.                                      Curtis T. Hill, Jr.
Tyler D. Helmond                                          Attorney General of Indiana
Voyles Zahn & Paul
                                                          Michael G. Worden
Indianapolis, Indiana
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

Devon L. Hunter,                                          March 9, 2017

Appellant-Defendant,                                      Court of Appeals Case No.
                                                          45A04-1605-CR-1015
        v.                                                Appeal from the Lake Superior
                                                          Court.
                                                          The Honorable Salvador Vasquez,
State of Indiana,                                         Judge.
Appellee-Plaintiff.                                       Cause No. 45G01-1401-FA-1




Sharpnack, Senior Judge




Court of Appeals of Indiana | Opinion 45A04-1605-CR-1015 | March 9, 2017                Page 1 of 14
                                           Statement of the Case
[1]   Devon Hunter appeals his conviction and sentence on three counts of dealing in
                                               1
      cocaine, all as Class A felonies; one count of possession of cocaine as a Class B
                  2                                                                              3
      felony; and one count of maintaining a common nuisance as a Class D felony.

      We affirm in part and reverse and remand in part with instructions.


                                                     Issues
[2]   Hunter presents three issues for our review, which we restate as:

                 I. Whether the trial court erred by admitting video and audio
                 recordings into evidence.
                 II. Whether Hunter’s convictions violate the double jeopardy
                 provision of the Indiana Constitution.
                 III. Whether the trial court erred in sentencing Hunter by failing
                 to find a mitigating factor proposed by him.

                                   Facts and Procedural History
[3]   The facts most favorable to the verdict show that on three occasions Hunter

      sold cocaine to a confidential informant (CI), and, on another occasion, he was

      stopped in his vehicle and found to be in possession of cocaine. Based upon the

      facts surrounding these offenses, Hunter was charged with three counts of



      1
          Ind. Code § 35-48-4-1 (2006).
      2
          Ind. Code § 35-48-4-6 (2006).
      3
          Ind. Code § 35-48-4-13 (2001).


      Court of Appeals of Indiana | Opinion 45A04-1605-CR-1015 | March 9, 2017        Page 2 of 14
      dealing in cocaine, one count of possession of cocaine, and one count of

      maintaining a common nuisance.


[4]   The charges proceeded to a jury trial, at which Hunter failed to appear for the

      final day. The jury found Hunter guilty on all counts, and the court sentenced

      him to an aggregate sentence of twenty-seven years. Hunter now appeals his

      conviction and sentence.


                                    Discussion and Decision
                    I. Admission of Video and Audio Recordings
[5]   Hunter first contends the trial court erred by admitting into evidence video and

      audio recordings without a proper foundation. The trial court admitted State’s

      Exhibits 2, 4, and 8 at trial over Hunter’s objection and published them to the

      jury. Exhibits 2 and 8 are video recordings of two of the three controlled drug

      buys between Hunter and the CI and were recorded by a device worn by the CI.

      Exhibit 4 is an audio recording of the phone call between Hunter and the CI

      arranging the second controlled buy.


                                  Video Recordings – Exhibits 2 and 8

[6]   The trial court is afforded wide discretion in ruling on the admissibility of

      evidence. Nicholson v. State, 963 N.E.2d 1096, 1099 (Ind. 2012). On appeal,

      evidentiary decisions are reviewed for abuse of discretion and are reversed only

      when the decision is clearly against the logic and effect of the facts and

      circumstances. Id. Where, as here, video recordings are sought to be admitted

      as demonstrative evidence (i.e., “visual aids that assist in the presentation and
      Court of Appeals of Indiana | Opinion 45A04-1605-CR-1015 | March 9, 2017     Page 3 of 14
      interpretation of testimony”), an adequate foundation requires testimony that

      the video recording accurately depicts the scene or occurrence as it appeared at

      the time in question. Knapp v. State, 9 N.E.3d 1274, 1282 (Ind. 2014).


[7]   Hunter argues that the video recordings were improperly admitted at trial

      because the CI did not testify they were true and accurate representations of the

      scene or occurrence at the time of the buys. Our review of the transcript shows

      that defense counsel objected at trial as to lack of foundation only on the bases

      that there was confusion as to the date the CI marked on the exhibits when she

      viewed them and that she had used only her CI number, without her signature,

      as her identifying mark.


[8]   Litigants may not object in general terms but must state their objections with

      specificity. Espinoza v. State, 859 N.E.2d 375, 384 (Ind. Ct. App. 2006). Any

      grounds for objections not raised at trial are not available on appeal, and a party

      may not add to or change his grounds in the reviewing court. Treadway v. State,

      924 N.E.2d 621, 631 (Ind. 2010). A claim of evidentiary error may not be

      raised for the first time on appeal but rather must first be presented at trial in

      order to permit consideration of the objection and appropriate corrective action

      by the trial court. Stephenson v. State, 29 N.E.3d 111, 121 (Ind. 2015). The

      argument Hunter makes on appeal is independent of and outside the specific

      subject matter of the objection that was before the trial court. Although Hunter

      objected as to lack of foundation both at trial and on appeal, the trial court

      never had an opportunity to consider the argument Hunter now makes to this



      Court of Appeals of Indiana | Opinion 45A04-1605-CR-1015 | March 9, 2017    Page 4 of 14
       Court. Therefore, Hunter has waived this issue for appeal by not raising it at

       trial.


[9]    Waiver notwithstanding, even if the trial court erred in admitting Exhibits 2 and

       8, the error was harmless. The improper admission of evidence is harmless

       error when the erroneously admitted evidence is merely cumulative of other

       evidence before the trier of fact. Purvis v. State, 829 N.E.2d 572, 585 (Ind. Ct.

       App. 2005), trans. denied. Exhibits 2 and 8 are video recordings of the first and

       third drug buys, the details of which the CI, Sergeant Darnell, and Detective

       Gonzalez testified to at trial. The CI testified about the drug buys and

       identified Hunter as the person who sold her the drugs in each instance.

       Additionally, the testimony of both Sergeant Darnell and Detective Gonzalez

       consisted of detailed recitations of the process of each of the three drug buys,

       including how and why they contacted the CI to participate in the controlled

       buys, the process of going to her house and having her contact Hunter by phone

       to arrange the buys, the recording of the phone calls, the amount of money they

       gave the CI to purchase the cocaine on each occasion, the searches they

       conducted of the CI before she was given the money, the process of equipping

       the CI with a hidden camera and audio device, and the process of her turning

       over the cocaine immediately upon returning to the house and being searched

       again.


[10]   Sergeant Darnell further testified that he listened to the buys as they were

       occurring, and, when asked if he could definitively say that he heard the same

       voices in all three transactions, he responded, “Yes.” Tr. Vol. I, pp. 206-07.

       Court of Appeals of Indiana | Opinion 45A04-1605-CR-1015 | March 9, 2017   Page 5 of 14
       Detective Gonzalez also testified that the officers working surveillance during

       the buys obtained the plate numbers for the cars Hunter drove to the buys, and

       record searches revealed those plates were registered to Hunter. Furthermore,

       State’s Exhibit 12, a still photo of Hunter derived from the video of Exhibit 2,

       was admitted into evidence and published to the jury without any objection by

       Hunter. Once the photo was admitted, Detective Gonzalez identified Hunter

       as the person in the photo. Thus, even if we were to determine that the trial

       court erred by admitting Exhibits 2 and 8, the error would be harmless because

       the content of the video recordings was merely cumulative of the testimony at

       trial.


[11]   Moreover, any error in the admission of Exhibits 2 and 8 was rendered

       harmless or further waived by Hunter when he deliberately replayed both

       exhibits during his cross-examination of the CI, followed by thorough

       questioning of the CI regarding what occurred in the videos. See Reaves v. State,

       586 N.E.2d 847, 853 (Ind. 1992) (citing U.S. v. Silvers, 374 F.2d 828, 832 (7th

       Cir. 1967) (stating that defendant’s reference to or use of erroneously admitted

       line of evidence cures or waives any error); see also Sevener v. Nw. Tractor &

       Equip. Corp., 41 Wash. 2d 1, 247 P.2d 237, 245 (1952) (stating that while party

       does not waive his objection to admission of incompetent evidence by

       introducing evidence to explain or rebut incompetent evidence, he may, by

       subsequently using it for his own purposes or by introducing evidence similar to

       that already objected to, waive his objection). The harm to Hunter, if the

       admission of Exhibits 2 and 8 was error, is that the videos were played for the


       Court of Appeals of Indiana | Opinion 45A04-1605-CR-1015 | March 9, 2017   Page 6 of 14
       jury. Thus, Hunter’s replaying of State’s Exhibits 2 and 8 waived his earlier

       objections to their admission and any harm therefrom.


                                        Audio Recording – Exhibit 4

[12]   The trial court is afforded wide discretion in ruling on the admissibility of audio

       recordings. Dearman v. State, 743 N.E.2d 757, 762 (Ind. 2001). We will reverse

       the trial court’s decision only when it represents a manifest abuse of discretion

       that denied the defendant a fair trial. Hall v. State, 897 N.E.2d 979, 981 (Ind.

       Ct. App. 2008).


[13]   The foundational requirements for admission of an audio recording made in a

       noncustodial setting are: (1) the recording is authentic and correct, (2) the

       recording does not contain evidence otherwise inadmissible, and (3) the

       recording is of such clarity as to be intelligible and enlightening to the jury.

       Lehman v. State, 730 N.E.2d 701, 703 (Ind. 2000). The trial court has broad

       discretion in determining whether these criteria have been met. Id.


[14]   Hunter challenges the admission of Exhibit 4 based upon none of these factors.

       Rather, he argues that the audio recording was improperly admitted because the

       CI did not testify that the recording truly and accurately represented the

       occurrence. However, that is the standard for admitting video recordings, see




       Court of Appeals of Indiana | Opinion 45A04-1605-CR-1015 | March 9, 2017    Page 7 of 14
                                                                             4
       Knapp, supra, and Exhibit 4 is an audio recording. At trial, defense counsel

       objected to the lack of foundation of Exhibit 4 solely with regard to the alleged

       date the CI marked on the disc when she listened to it. Because Hunter raises a

       different, and inapplicable, argument on appeal than he presented to the trial

       court, he waives this issue. See Treadway, 924 N.E.2d at 631.


[15]   Nevertheless, error, if any, was harmless. With regard to the admission of

       evidence, only error that affects the substantial rights of a party prevails on

       appeal. Nicholson, 963 N.E.2d at 1099. Here, the CI testified that she was

       asked by the police to participate in another buy from Hunter and that phone

       calls were exchanged with Hunter. When shown the disc, the CI stated that she

       saw her markings on the disc and that she had listened to the recording. The

       Prosecutor then asked the CI whose voices were on the recording and the CI

       responded that they were hers and Hunter’s. This is adequate foundational

       testimony to support the trial court's determination on admissibility. Hunter’s

       substantial rights were not affected by the admission of Exhibit 4.


[16]   Additionally, the CI and Sergeant Darnell testified to the CI placing a call to

       arrange the second buy using the number that the CI identified as Hunter’s

       number and to the recording of that call. Any error in the admission of Exhibit

       4 is harmless error because the content of the recording was cumulative of other




       4
         Although in his brief Hunter treats Exhibit 4 as if it is a video recording of the second controlled buy, it is
       the audio recording of the phone call between the CI and Hunter arranging the second buy. Exhibit 5, whose
       admission is not challenged on appeal by Hunter, is the video recording of the second buy.

       Court of Appeals of Indiana | Opinion 45A04-1605-CR-1015 | March 9, 2017                            Page 8 of 14
       evidence at trial. See Purvis, 829 N.E.2d at 585 (harmless error results when

       erroneously admitted evidence is cumulative of other evidence).


                                           II. Double Jeopardy
[17]   For his second claim of error, Hunter asserts that his conviction for maintaining

       a common nuisance violates the double jeopardy provision of the Indiana

       Constitution. Specifically, he argues that the jury relied upon the same

       evidence in finding him guilty of maintaining a common nuisance as it did in

       finding him guilty of both dealing in cocaine and possession of cocaine.


[18]   The Indiana Constitution provides in part that “[n]o person shall be put in

       jeopardy twice for the same offense.” IND. CONST. art. I, § 14. Two or more

       offenses are the same offense in violation of the double jeopardy clause of the

       Indiana Constitution if, with respect to either the statutory elements of the

       challenged crimes or the actual evidence used to convict, the essential elements

       of one challenged offense also establish the essential elements of another

       challenged offense. Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999). In the

       present case, Hunter claims a violation only under the actual evidence test.


[19]   With regard to the actual evidence test, we examine the actual evidence

       presented at trial in order to determine whether each challenged offense was

       established by separate and distinct facts. Id. at 53. To show that two

       challenged offenses constitute the same offense under the actual evidence test, a

       defendant must demonstrate a reasonable possibility that the evidentiary facts

       used by the factfinder to establish the essential elements of one offense may also

       Court of Appeals of Indiana | Opinion 45A04-1605-CR-1015 | March 9, 2017   Page 9 of 14
       have been used to establish the essential elements of a second offense. Id. A

       “reasonable possibility” requires “substantially more than a logical possibility”

       and involves a practical assessment of whether the factfinder “may have latched

       on to exactly the same facts for both convictions.” Lee v. State, 892 N.E.2d

       1231, 1236 (Ind. 2008). Further, our State’s double jeopardy clause is not

       violated when the evidentiary facts establishing the essential elements of one

       offense also establish only one, or even several, but not all, of the essential

       elements of a second offense. Spivey v. State, 761 N.E.2d 831, 833 (Ind. 2002).

       In applying the actual evidence test, we evaluate the evidence from the

       factfinder’s perspective, and we may consider the charging information, jury

       instructions, and arguments of counsel. Newgent v. State, 897 N.E.2d 520, 525

       (Ind. Ct. App. 2008).


[20]   Here, Hunter was convicted of three counts of dealing in cocaine, one count of

       possession of cocaine, and maintaining a common nuisance. The elements of

       dealing in cocaine that the State was required to prove beyond a reasonable

       doubt are that Hunter (1) knowingly or intentionally (2) delivered (3) cocaine

       (4) within 1,000 feet of school property. Appellant’s App. Vol. II, p. 16; see Ind.

       Code § 35-48-4-1. The essential elements to be proved by the State beyond a

       reasonable doubt for the charge of possession of cocaine are that Hunter (1)

       knowingly or intentionally (2) possessed (3) cocaine (4) within 1,000 feet of

       school property. Appellant’s App. Vol. II, p. 16; see Ind. Code § 35-48-4-6.

       And finally, as to the charge of maintaining a common nuisance, the State was

       required to prove beyond a reasonable doubt that Hunter (1) knowingly or


       Court of Appeals of Indiana | Opinion 45A04-1605-CR-1015 | March 9, 2017   Page 10 of 14
       intentionally (2) maintained a vehicle (3) used for manufacturing, keeping,

       offering for sale, selling, or delivering (4) controlled substances. Appellant’s

       App. Vol. II, p. 16; see Ind. Code § 35-48-4-13.


[21]   The evidence presented at trial showed that on November 20, 21, and 25, 2013,

       Hunter drove his car to the CI’s house, which was within 1,000 feet of an

       elementary school, and sold crack cocaine to the CI. In addition, the evidence

       demonstrated that on January 15, 2014, police stopped Hunter on school

       property as he was picking up his child from school and found crack cocaine in

       his vehicle. No separate conduct of maintaining a common nuisance was

       alleged in the charging information, presented to the jury through evidence or

       the court’s instructions, or offered by the State in closing argument. Thus, there

       is more than a reasonable possibility that the jury used the same evidentiary

       facts to establish the essential elements of the three counts of dealing in cocaine

       and the single count of possession of cocaine as it used to establish the essential

       elements of the offense of maintaining a common nuisance. Accordingly, we

       conclude that Hunter’s convictions for dealing in cocaine and possession of

       cocaine together with his conviction of maintaining a common nuisance

       constitute a double jeopardy violation. Because all of these convictions “cannot

       stand, we vacate the conviction with the less severe penal consequences.”

       Richardson, 717 N.E.2d at 55. Therefore, Hunter’s conviction of maintaining a

       common nuisance is ordered vacated. In light of this, the trial court need not

       undertake a full sentencing reevaluation, however, as vacation of this

       conviction leaves in place the trial court’s aggregate twenty-seven-year sentence.


       Court of Appeals of Indiana | Opinion 45A04-1605-CR-1015 | March 9, 2017   Page 11 of 14
       See Bookwalter v. State, 22 N.E.3d 735, 742 (Ind. Ct. App. 2014) (citing

       Richardson, 717 N.E.2d at 54-55), trans. denied.


                                               III. Sentencing
[22]   Finally, Hunter claims the trial court erred in sentencing him by failing to find

       as a mitigating circumstance that his incarceration would impose a hardship on

       his children. Sentencing decisions rest within the sound discretion of the trial

       court and are reviewed on appeal only for an abuse of discretion. Anglemyer v.

       State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (2007).

       An abuse of discretion occurs if the decision is clearly against the logic and

       effect of the facts and circumstances before the court, or the reasonable,

       probable and actual deductions to be drawn therefrom. Id.


[23]   The finding of mitigating circumstances is not mandatory but is within the

       discretion of the trial court. Page v. State, 878 N.E.2d 404, 408 (Ind. Ct. App.

       2007), trans. denied. Further, the court is neither obligated to accept the

       defendant’s arguments as to what constitutes a mitigating factor nor required to

       give the same weight to a proposed mitigating factor as does the defendant. Id.

       An allegation that the trial court failed to find a mitigating factor requires the

       defendant on appeal to establish that the mitigating evidence is both significant

       and clearly supported by the record. Id. Specifically, a trial court is not

       required to find that a defendant’s incarceration would result in undue hardship

       on his dependents. Benefield v. State, 904 N.E.2d 239, 247 (Ind. Ct. App. 2009),

       trans. denied. “Many persons convicted of crimes have dependents and, absent


       Court of Appeals of Indiana | Opinion 45A04-1605-CR-1015 | March 9, 2017   Page 12 of 14
       special circumstances showing that the hardship to them is ‘undue,’ a trial court

       does not abuse its discretion by not finding this to be a mitigating factor.” Id.


[24]   Although the trial court did not afford this mitigating factor the weight Hunter

       believes it deserves, it is clear from the transcript of the sentencing hearing that

       the trial court considered his claimed concern for the impact that his

       incarceration would have on his children. Both of the mothers of Hunter’s

       three children testified that Hunter supports the children financially and that the

       children would miss him. However, Hunter has not been court-ordered to pay

       child support, and both mothers testified that they are employed and have been

       employed in their respective positions for six years. While Hunter’s children

       may suffer some hardship, both financially and emotionally, due to his

       imprisonment, this is true of most, if not all, dependents of incarcerated

       persons. See Vazquez v. State, 839 N.E.2d 1229, 1234 (Ind. Ct. App. 2005)

       (stating that, “jail is always a hardship on dependents”), trans. denied. The

       materials available on appeal do not indicate any special circumstances

       demonstrating that the hardship to Hunter’s children will be unusual. Thus, the

       trial court did not abuse its discretion by failing to find this as a mitigating

       circumstance.


                                                 Conclusion
[25]   For the reasons stated, we conclude Hunter waived the issue of the trial court’s

       admission of Exhibits 2, 4, and 8, and, waiver notwithstanding, any resulting

       error was harmless. Further, Hunter’s conviction of maintaining a common


       Court of Appeals of Indiana | Opinion 45A04-1605-CR-1015 | March 9, 2017    Page 13 of 14
       nuisance violates our state’s double jeopardy clause and must be vacated.

       Finally, the trial court did not err by determining the hardship to Hunter’s

       dependents did not qualify as a mitigating circumstance.


[26]   Affirmed in part and reversed and remanded in part with instructions to the trial

       court to vacate Hunter’s conviction of maintaining a common nuisance.


       Pyle, J., and Altice, J., concur.




       Court of Appeals of Indiana | Opinion 45A04-1605-CR-1015 | March 9, 2017   Page 14 of 14
