MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                   FILED
court except for the purpose of establishing                           Aug 09 2017, 5:42 am

the defense of res judicata, collateral                                     CLERK
estoppel, or the law of the case.                                       Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Amy D. Griner                                            Curtis T. Hill, Jr.
Mishawaka, Indiana                                       Attorney General of Indiana

                                                         J.T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Josue Avendano-Gomez,                                    August 9, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A05-1701-CR-160
        v.                                               Appeal from the Elkhart Circuit
                                                         Court
State of Indiana,                                        The Honorable Terry Shewmaker,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         20C01-1507-F2-11



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 20A05-1701-CR-160 | August 9, 2017            Page 1 of 19
                                          Case Summary
[1]   Josue Avendano-Gomez was convicted of seven counts of Level 2 felony

      dealing in cocaine. On appeal, he argues that the trial court committed

      fundamental error when it admitted the cocaine exhibits because the State failed

      to establish a proper chain of custody, that the evidence is insufficient to

      support his convictions even if the cocaine was properly admitted, and that the

      trial court violated his Sixth Amendment rights by preventing him from putting

      on a complete defense and by not allowing him to confront a complaining

      witness. Finding no error in the admission of the cocaine, sufficient evidence,

      and no violation of the Sixth Amendment, we affirm.



                            Facts and Procedural History
[2]   The Elkhart County Interdiction and Covert Enforcement Unit uses undercover

      officers and confidential sources to conduct controlled buys from known drug

      dealers in the area. UC 374 is a member of this unit and has worked on over

      300 drug investigations. When UC 374 is leading a controlled buy, he instructs

      his confidential source to call the alleged drug dealer and suggest a time, place,

      and quantity of drugs to purchase—all of these details have been provided to

      the confidential source by UC 374. The controlled buys in this case were set up

      in this manner.

[3]   Once the details of the buy have been set, UC 374 searches the confidential

      source and his automobile for any contraband—money, weapons, drugs, and


      Court of Appeals of Indiana | Memorandum Decision 20A05-1701-CR-160 | August 9, 2017   Page 2 of 19
      anything illegal. When searching the confidential source, UC 374 instructs the

      source to empty his pockets and then searches the source “from top to bottom

      and [then] from the bottom to the top again.” Tr. Vol. II p. 49. UC 374 does

      not strip search the source, but he turns the source’s pockets inside out, looks in

      his mouth, and checks the source’s genitals by patting down his underwear and

      using his fingers to “go around the underwear.” Id. at 191. UC 374 conducted

      such searches of the confidential source before and after each of the seven

      controlled buys in this case.

[4]   After searching the confidential source, UC 374 searches the source’s

      automobile. UC 374 begins with the driver’s seat and works in a clockwise

      fashion through the interior of the automobile. Once he has finished searching

      the interior, UC 374 searches the trunk and behind the side mirrors. He then re-

      searches the interior of the automobile, starting in the backseat and working in

      a counter-clockwise fashion, ending with the driver’s seat. The officer does not

      remove the dashboard or the fascia underneath the dashboard. UC 374

      conducted such searches of the confidential source’s car before and after each of

      the relevant controlled buys, except for the first controlled buy because UC 374

      and the confidential source drove to the buy location together in UC 374’s car.


[5]   UC 374 also provides the confidential source with an audio- and video-

      recording device. UC 374 has the ability to listen to the transaction live and

      views the video later at the police station. Before the controlled buy, UC 374

      checks the device to make sure that it is working and ensures that it is placed in

      a location that the alleged drug dealer will not notice. After the buy, UC 374

      Court of Appeals of Indiana | Memorandum Decision 20A05-1701-CR-160 | August 9, 2017   Page 3 of 19
      collects the device from the confidential source, receives a debrief from the

      source as to what transpired, and reviews the audio and video at the police

      station to ensure that the information the source told him was accurate. For

      each of the relevant controlled buys, UC 374 provided the confidential source

      with an audio- and video-recording device, and UC 374 or another officer

      listened live to the transaction. After the buys, the confidential source debriefed

      UC 374, and the officer later reviewed the audio and video at the police station

      for accuracy.

[6]   After a controlled buy, UC 374 takes the substance purchased by the

      confidential source to the police station. “I’m going to check the weight. It’s

      going to be drug tested, and after that it’s going to be put into the evidence

      room. It’s going to be sealed and put into the evidence room.” Id. at 57. UC

      374 also places his undercover number on the bag. “Every time I put

      something into evidence I have to print the label and describe the day and time,

      the accused, and my badge number and the case number.” Id. at 102.

      However, when specifically discussing each of the controlled buys, UC 374 did

      not state that he performed any of the above actions with the substances.

      Rather, he testified that after each buy he took possession of the substances and

      that they were “logged into evidence.” Id. at 82.


[7]   In this case, UC 374 was introduced to the confidential source in September

      2014, and the two began working together to set up controlled drug buys. The

      confidential source provided UC 374 with the name and contact information

      for a local cocaine dealer—Avendano-Gomez. Between October 1, 2014, and

      Court of Appeals of Indiana | Memorandum Decision 20A05-1701-CR-160 | August 9, 2017   Page 4 of 19
      May 14, 2015, UC 374 had the confidential source conduct seven controlled

      buys of cocaine from Avendano-Gomez.

[8]   During the seventh controlled buy, Avendano-Gomez met the confidential

      source in the parking lot of a local restaurant. Rather than follow their

      traditional modus operandi of Avendano-Gomez getting into the confidential

      source’s car, both men went into the restaurant. No undercover officer was

      positioned inside the restaurant, but UC 374 was still able to listen live to what

      was being said via the audio-recording device. The two men remained in the

      restaurant for an extended period of time, eating a meal together. After exiting

      the restaurant, Avendano-Gomez and the confidential source entered

      Avendano-Gomez’s truck. The confidential source stayed in the truck for a few

      minutes before getting into his own car and driving to the pre-determined

      meeting point with UC 374. As with the first six controlled buys, he gave UC

      374 a ball of black electrical tape that contained a white powdery substance.

      UC 374 reviewed the video of the seventh controlled buy, and it was consistent

      with the audio that he heard live while conducting surveillance on the

      restaurant.

[9]   Avendano-Gomez was later arrested and charged with seven counts of Level 2

      felony dealing in cocaine. Before his trial commenced, Avendano-Gomez

      requested that the State present the confidential source to be deposed. The

      State complied with the request, but on the morning of the deposition, at

      Avendano-Gomez’s request, his counsel canceled the deposition. According to

      the State, Avendano-Gomez’s former counsel showed up to the deposition and

      Court of Appeals of Indiana | Memorandum Decision 20A05-1701-CR-160 | August 9, 2017   Page 5 of 19
       said, “I’m really sorry. I just got done meeting with my client. He’s instructed

       me not to proceed with this deposition.” Id. at 5. On November 14, 2016, the

       morning the jury trial was scheduled to begin, Avendano-Gomez, represented

       by new counsel, requested a continuance in order to depose the confidential

       source. The State told the trial court that it was not calling the confidential

       source as a witness and informed the court that Avendano-Gomez had

       personally requested that the confidential source’s earlier deposition be

       canceled. The trial court denied the request for a continuance, noting that

       Avendano-Gomez had canceled the earlier deposition, that he could depose the

       confidential source that evening, and that the case had been pending for almost

       one-and-a-half years due to numerous continuances. Avendano-Gomez did not

       accept the court’s offer to depose the confidential source later that day.


[10]   During the trial, UC 374 testified about the details of all seven controlled buys.

       He stated that after each controlled buy he met with the confidential source and

       was presented with a white powdery substance, which was usually wrapped in a

       ball of black electrical tape. UC 374 took possession of the substances and

       stated that he “logged [each] into evidence.” Id. at 83. UC 374 also stated that

       the exhibits were in the same or similar condition as when he logged them into

       evidence. The State did not ask for any additional details. Based on UC 374’s

       testimony, the State moved for each of the substances to be admitted as Exhibits

       3, 6, 8, 10, 12, 14, and 16 (collectively “cocaine exhibits”). Avendano-Gomez

       did not object, and the trial court admitted the cocaine exhibits.




       Court of Appeals of Indiana | Memorandum Decision 20A05-1701-CR-160 | August 9, 2017   Page 6 of 19
[11]   While questioning UC 374 about the sixth controlled buy, the State examined

       Exhibit 14 and realized that it had the other cocaine exhibits out of order and

       that UC 374 had misidentified each of these exhibits and the controlled buy to

       which the exhibit corresponded. The State then re-presented these exhibits to

       UC 374 and asked him to match them to the correct controlled buy, which he

       did. The State then moved to have the exhibits readmitted.1 Again, Avendano-

       Gomez did not object to the admission of the exhibits. The trial court

       readmitted the cocaine exhibits.

[12]   The State also had two certified technicians with the Indiana State Police

       Laboratory Division testify that the seven exhibits were tested and that each

       exhibit weighed over ten grams and tested positive for cocaine, pure or

       adulterated. Before each lab technician testified, Avendano-Gomez stipulated

       to certain facts. Regarding the first technician’s testimony, he stipulated “to her

       training and background and education. We’re stipulating that she performed

       forensic testing on four substances in this case; and we’re stipulating that the

       scale that she used to weigh the substances when they were tested was in good

       proper working order.” Id. at 205. Defense counsel later added, “[W]e

       stipulate to the - - the fact that each one of the samples was, in fact, tested as

       cocaine and that the weight represented in each of the reports was accurate.”




       1
        For example, Exhibit 3 was originally admitted as the substance purchased during the October 1, 2014
       controlled buy but was actually purchased during the May 14, 2015 controlled buy.

       Court of Appeals of Indiana | Memorandum Decision 20A05-1701-CR-160 | August 9, 2017          Page 7 of 19
       Id. at 206. During the laboratory technician’s testimony about the lab reports,

       defense counsel interjected:

               Defense Counsel: We’ve already stipulated to the document,
               Judge, and the - -


               State: But I need - - I need to link it up to the amount.


               Defense Counsel: We’ll stipulate to that too, that they link up
               with the particular samples.


       Id. at 211.


[13]   Regarding the second laboratory technician, Avendano-Gomez stipulated to

       “this witness’s training and background and education. His ability to test the

       substances involved in this case. The fact that the scales were in good proper

       working order for the three substances that he tested.” Id. at 240. Avendano-

       Gomez also stipulated to the admission of the seven laboratory reports that

       confirmed that the substances tested in this case were cocaine. Both technicians

       testified that the cocaine exhibits were in the same condition as when they were

       tested, and the lab reports described each exhibit as a “[s]ealed plastic bag”

       containing a white powdery substance. Exs. 22–28. One of the lab technicians

       stated that she was able to match up the relevant exhibit with the corresponding

       report based on the labels UC 374 had affixed to the evidence bags containing

       each substance.




       Court of Appeals of Indiana | Memorandum Decision 20A05-1701-CR-160 | August 9, 2017   Page 8 of 19
[14]   The jury found Avendano-Gomez guilty on all seven counts, and the trial court

       sentenced him to concurrent terms of twenty-six years, all executed at the

       Indiana Department of Correction. Avendano-Gomez now appeals.



                                  Discussion and Decision
[15]   Avendano-Gomez raises three issues on appeal: (1) the trial court committed

       fundamental error when it admitted the cocaine exhibits because the State failed

       to establish a sufficient chain of custody for each exhibit; (2) the evidence is

       insufficient to support the convictions; and (3) the trial court violated his Sixth

       Amendment rights to present a complete defense and to cross-examine a

       complaining witness.


                                         I. Chain of Custody
[16]   Avendano-Gomez argues that the cocaine exhibits should not have been

       admitted because the State failed to establish a proper chain of custody for each

       exhibit. “The purpose of requiring a continuous chain of custody from seizure

       to admission at trial is to lay a proper foundation connecting the evidence with

       the accused and to negate any substantial likelihood of tampering, loss,

       substitution, or mistake.” Young v. State, 508 N.E.2d 24, 26 (Ind. 1987). When

       the defendant challenges the chain of custody for fungible evidence, like

       cocaine, a burden-shifting analysis is applied:

               The State bears a higher burden to establish the chain of custody
               of “fungible” evidence, such as blood and hair samples, whose
               appearance is indistinguishable to the naked eye. To establish a

       Court of Appeals of Indiana | Memorandum Decision 20A05-1701-CR-160 | August 9, 2017   Page 9 of 19
               proper chain of custody, the State must give reasonable
               assurances that the evidence remained in an undisturbed
               condition. However, the State need not establish a perfect chain
               of custody, and once the State “strongly suggests” the exact
               whereabouts of the evidence, any gaps go to the weight of the
               evidence and not to admissibility. Moreover, there is a
               presumption of regularity in the handling of evidence by officers,
               and there is a presumption that officers exercise due care in
               handling their duties.


       Troxell v. State, 778 N.E.2d 811, 814 (Ind. 2002) (internal citations omitted). If

       the State meets its burden of strongly suggesting the exact whereabouts of the

       evidence, the defendant, to successfully challenge the chain of custody, “must

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

       may have been tampered with.” Id.


[17]   Avendano-Gomez contends that the State failed to strongly suggest the exact

       whereabouts of the cocaine exhibits, arguing that no evidence was introduced

       to show the exhibits’ location from the time UC 374 logged them into evidence

       to the time they were tested at the state laboratory. But Avendano-Gomez did

       not object at trial when the exhibits were admitted, and he acknowledges this

       failure on appeal. We require a party to make an objection so that the court

       and the opposing party are on notice that some aspect of the proceeding is being

       done improperly, and either the court or the opponent is afforded the

       opportunity to correct the alleged error. Therefore, when a defendant fails to

       object at trial and raises a chain-of-custody argument for the first time on

       appeal, the argument is waived unless the admission constitutes fundamental

       error. Id. Fundamental error is an extremely narrow exception to our waiver
       Court of Appeals of Indiana | Memorandum Decision 20A05-1701-CR-160 | August 9, 2017   Page 10 of 19
       rule, and the defendant is faced with the “heavy burden of showing that the

       alleged errors are so prejudicial to the defendant’s rights as to make a fair trial

       impossible.” Ryan v. State, 9 N.E.3d 663, 668 (Ind. 2014). “Fundamental error

       is meant to permit appellate courts a means to correct the most egregious and

       blatant trial errors that otherwise would have been procedurally barred, not to

       provide a second bite at the apple for defense counsel who ignorantly,

       carelessly, or strategically fail to preserve an error.” Id.


[18]   We need not reach Avendano-Gomez’s fundamental-error argument because

       we conclude that the cocaine exhibits were properly admitted. First,

       Avendano-Gomez stipulated during trial that both laboratory technicians

       performed forensic testing on “substances involved in this case.” Tr. Vol. II p.

       240 (emphasis added); see also id. at 205 (“she performed forensic testing on four

       substances in this case.”) (emphasis added). He argues that his stipulations

       were only to the laboratory results and not to the source of the substances. But

       Avendano-Gomez’s stipulations are not as narrowly tailored as he would have

       us hold. His stipulations were related to the substances involved “in this case,”

       not just for the substances presented at trial. The word “case” encompasses all

       of the events that transpired, including the seven controlled buys as well as the

       events at trial. The stipulations go beyond the laboratory results, and

       Avendano-Gomez stipulated that the substances recovered by UC 374 after the

       controlled buys were the same substances that the laboratory technicians tested.

       Furthermore, Avendano-Gomez expanded the stipulation to include that the




       Court of Appeals of Indiana | Memorandum Decision 20A05-1701-CR-160 | August 9, 2017   Page 11 of 19
       lab reports link up with the cocaine exhibits. These stipulations removed the

       need for the State to present chain-of-custody evidence.

[19]   We find that defense counsel’s failure to object both times that the cocaine

       exhibits were admitted is further support of our reading of the stipulation.

       Avendano-Gomez’s defense at trial was not that the chain of custody was

       insufficient but rather that the State failed to definitively prove that the cocaine

       came from Avendano-Gomez and not the confidential source. In other words,

       Avendano-Gomez’s defense was focused on how the cocaine ended up in the

       confidential source’s possession, not what happened to the cocaine after it was

       given to UC 374. This defense strategy further bolsters our conclusion that the

       stipulations served to eliminate the State’s chain-of-custody requirement.

[20]   Even if we were to agree with Avendano-Gomez that his stipulation was

       narrowly tailored to only the results of the laboratory testing, sufficient evidence

       was presented to establish a chain of custody for the cocaine exhibits. While

       testifying generally about controlled buys, UC 374 stated that whenever he

       collects a substance from a confidential source, “I’m going to check the weight.

       It’s going to be drug tested, and after that it’s going to be put into the evidence

       room. It’s going to be sealed and put into the evidence room. . . . Every time I

       put something into evidence I have to print the label and describe the day and

       time, the accused, and my badge number and the case number.” Tr. Vol. II pp.

       57, 102. UC 374 stated that each of the seven substances was “logged into

       evidence” after the controlled buys, creating a reasonable inference that he

       weighed, field tested, labeled, and sealed the substances in an evidence bag, and

       Court of Appeals of Indiana | Memorandum Decision 20A05-1701-CR-160 | August 9, 2017   Page 12 of 19
       then placed the sealed bag into the evidence room. We presume regularity in

       the handling of evidence by officers. Troxell, 778 N.E.2d at 814. When

       presented with the cocaine exhibits at trial, UC 374 testified that he recognized

       each exhibit based on the label that he created that was affixed to the evidence

       bag. The label included the date and time the substance was recovered,

       Avendano-Gomez’s name, UC 374’s badge number, and the case number. UC

       374 also stated that each exhibit was in the same or substantially the same

       condition as when he logged it into evidence.

[21]   Additionally, both lab technicians testified that the cocaine exhibits were in the

       same condition at trial as when they were tested, and each of the lab reports, the

       admission of which Avendano-Gomez stipulated to, described each exhibit as a

       “[s]ealed plastic bag” containing a white powdery substance. Exs. 22–28. One

       of the lab technicians testified that she recognized the exhibits based on the

       label UC 374 created and placed on the evidence bag. The jury was also

       allowed to view and examine the exhibits, including UC 374’s labels. Given

       that we presume regularity in the handling of evidence by police, that UC 374

       testified that it is his habit to seal and label substances recovered from

       controlled buys before logging them into evidence, and that the laboratory

       reports described each exhibit as a “sealed plastic bag,” we conclude that

       sufficient evidence was presented to establish a chain of custody. No error, let

       alone fundamental error, was committed when the cocaine exhibits were

       admitted at trial.




       Court of Appeals of Indiana | Memorandum Decision 20A05-1701-CR-160 | August 9, 2017   Page 13 of 19
                                   II. Sufficiency of Evidence
[22]   In his second argument, Avendano-Gomez contends that, even with the

       cocaine exhibits, the evidence is insufficient to support his convictions. When

       reviewing the sufficiency of the evidence, we neither reweigh the evidence nor

       determine the credibility of witnesses; that role is reserved for the factfinder.

       Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012). “The evidence—even if

       conflicting—and all reasonable inferences drawn from it are viewed in a light

       most favorable to the conviction.” Id. A conviction will be affirmed “if there is

       substantial evidence of probative value supporting each element of the crime

       from which a reasonable trier of fact could have found the defendant guilty

       beyond a reasonable doubt.” Id.


[23]   Avendano-Gomez claims that his convictions must be overturned because UC

       374 did not properly search the confidential source before and after each buy

       because he did not look inside the confidential source’s underwear. “A

       controlled buy consists of searching the person who is to act as the buyer,

       removing all personal effects, giving him money with which to make the

       purchase,” and then sending him to make the purchase. Vaughn v. State, 13

       N.E.3d 873, 888 (Ind. Ct. App. 2014), trans. denied. “Upon his return he is

       again searched for contraband.” Id. Pat-down searches of a confidential source

       are sufficient for a controlled buy, and officers are not required to strip-search

       the confidential source. Wright v. State, 836 N.E.2d 283, 289 (Ind. Ct. App.

       2005), trans. denied.



       Court of Appeals of Indiana | Memorandum Decision 20A05-1701-CR-160 | August 9, 2017   Page 14 of 19
[24]   Before and after each of the seven controlled buys, UC 374 instructed the

       confidential source to empty his pockets and then searched him “from top to

       bottom and [then] from the bottom to the top again.” Tr. Vol. II p. 49. UC 374

       also turned the confidential source’s pockets inside out, looked in his mouth,

       and patted him down. UC 374 testified that he checked the confidential

       source’s genitals by using his hands to pat down the confidential source’s

       underwear and that he used his fingers to “go around his underwear.” Id. at

       191. UC 374’s search of the confidential source was sufficient for a controlled

       buy.

[25]   Avendano-Gomez also argues that the search of the confidential source’s car

       was insufficient because UC 374 did not search inside the dashboard or the

       panel fascia under the dashboard. Avendano-Gomez does not cite to any legal

       authority to support his argument, and we are not aware of any. Nevertheless,

       we find that the strip-search logic articulated in Wright can be applied to

       automobile searches. An officer is not required to disassemble the interior of an

       automobile when conducting pre- and post-buy searches of a confidential

       source’s automobile. UC 374 testified that he searched the confidential source’s

       car before and after each controlled buy when the confidential source drove

       himself to the buy location. UC 374 explained that when he conducted the

       searches he started with the driver’s seat and worked his way through the

       interior in a clockwise fashion. He then searched the trunk and behind the side

       mirrors. UC 374 then searched the interior again, this time working in a




       Court of Appeals of Indiana | Memorandum Decision 20A05-1701-CR-160 | August 9, 2017   Page 15 of 19
       counter-clockwise fashion, ending with the driver’s seat. UC 374’s search of the

       confidential source’s car was sufficient for a controlled buy.

[26]   Avendano-Gomez further contends that the evidence is insufficient because no

       eyewitness testimony was offered to show that he possessed and transferred

       cocaine to the confidential source during any of the controlled buys. “A

       properly conducted controlled buy will permit an inference the defendant had

       prior possession of a controlled substance.” Vaughn, 13 N.E.3d at 888. As

       already stated, a controlled buy consists of pre- and post-buy searches of the

       confidential source, giving money to the confidential source for the buy, and

       sending the confidential source to the buy location. Officers do not have to

       witness the transfer of drugs to create the inference that the defendant possessed

       the drugs and gave them to the confidential source. Id. Officers need only to

       witness the confidential source leave their custody and head directly to the

       controlled-buy location and then leave the buy and head directly to the post-buy

       location to create the necessary inference that the defendant sold the drugs to

       the confidential source. Id.


[27]   During five of the seven controlled buys (buys two through six), UC 374 and

       other members of the Interdiction and Covert Enforcement Unit observed

       Avendano-Gomez enter the confidential source’s car, stay inside the car for a

       few minutes, and then leave. They followed the confidential source to the post-

       buy location, where he provided UC 374 with a white powdery substance that

       was later confirmed to be cocaine. For the other two controlled buys (buys one

       and seven), UC 374 and his fellow officers observed the confidential source

       Court of Appeals of Indiana | Memorandum Decision 20A05-1701-CR-160 | August 9, 2017   Page 16 of 19
       enter Avendano-Gomez’s truck, stay for a few minutes, and then exit the truck.

       The officers then followed the confidential source to the post-buy location

       where he handed UC 374 a white powdery substance that was later confirmed

       to be cocaine.

[28]   Avendano-Gomez further contends that the seventh controlled buy was not

       properly controlled because no undercover officer was inside the restaurant

       “with potentially many other people who could have transferred [the

       confidential source] a controlled substance.” Appellant’s Br. p. 20; Appellant’s

       Reply Br. p. 10. This is a request for us to reweigh the evidence. Officers are

       not required to witness every aspect of a controlled buy to create the inference

       that the confidential source purchased drugs from the defendant. Vaugh, 13

       N.E.3d at 888. UC 374 listened live to the interaction between Avendano-

       Gomez and the confidential source along with any possible interaction that the

       confidential source might have had with other people inside the restaurant. UC

       374 then reviewed the video of the controlled buy and reported that it was

       consistent with the audio he had heard. Sufficient evidence was presented to

       support each of Avendano-Gomez’s seven convictions for Level 2 felony

       dealing in cocaine.


                                      III. Sixth Amendment
[29]   Avendano-Gomez raises two arguments that his Sixth Amendment rights were

       violated: he was unable to present a complete defense and unable to confront a

       complaining witness. Avendano-Gomez argues that the trial court’s denial of


       Court of Appeals of Indiana | Memorandum Decision 20A05-1701-CR-160 | August 9, 2017   Page 17 of 19
       his request for a continuance so that he could depose the confidential source

       prevented him from being able to present a complete defense. “Whether rooted

       directly in the Due Process Clause of the Fourteenth Amendment or in the

       Compulsory Process or Confrontation Clauses of the Sixth Amendment, the

       Constitution guarantees criminal defendants ‘a meaningful opportunity to

       present a complete defense.’” Kubsch v. State, 784 N.E.2d 905, 923-24 (Ind.

       2003) (quoting Crane v. Kentucky, 476 U.S. 683, 690 (1986)).


[30]   Avendano-Gomez argues that because he was not able to depose the

       confidential source he was not able to call the confidential source as a witness.

       But Avendano-Gomez, while represented by different counsel, scheduled a

       deposition of the confidential source that was then canceled at Avendano-

       Gomez’s personal request. The morning his trial was scheduled to begin,

       Avendano-Gomez sought a continuance to depose the confidential source. The

       request for a continuance was denied, but the trial court permitted Avendano-

       Gomez to depose the confidential source after the first day of trial. The court

       even agreed to defense counsel’s request that Avendano-Gomez be present for

       the deposition, stating that the deposition could be conducted at the jail where

       Avendano-Gomez was in custody. However, defense counsel did not schedule

       this deposition. Avendano-Gomez’s Sixth Amendment right to present a

       complete defense was not violated.

[31]   Avendano-Gomez also contends that his Sixth Amendment right to cross-

       examine a complaining witness was violated because he was not given the

       opportunity to cross-examine the confidential source. The Sixth Amendment

       Court of Appeals of Indiana | Memorandum Decision 20A05-1701-CR-160 | August 9, 2017   Page 18 of 19
       provides, “In all criminal prosecutions, the accused shall enjoy the right to . . .

       be confronted with the witnesses against him . . . .” The Confrontation Clause

       “bars admission of out-of-court, testimonial statements in criminal trials unless

       the declarant is unavailable to testify and the defendant had a prior opportunity

       for cross examination.” Ramirez v. State, 928 N.E.2d 214, 217 (Ind. Ct. App.

       2010) (citing Crawford v. Washington, 541 U.S. 36, 68 (2004)), trans. denied.

       There is no confrontation issue here because the State never called the

       confidential source to testify on its behalf, and the trial court sustained all

       objections defense counsel made regarding any out-of-court statements made by

       the confidential source.


[32]   Affirmed.

       Brown, J., and Pyle, J., concur.




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