FOR PUBLICATION

ATTORNEY FOR APPELLANT:                      ATTORNEYS FOR APPELLEE:

KIMBERLY A. JACKSON                          GREGORY F. ZOELLER
Indianapolis, Indiana                        Attorney General of Indiana

                                             BRIAN REITZ
                                             Deputy Attorney General
                                             Indianapolis, Indiana



                                                                   Jul 15 2014, 10:15 am



                            IN THE
                  COURT OF APPEALS OF INDIANA

ANTONIO L. VAUGHN,                           )
                                             )
     Appellant-Defendant,                    )
                                             )
            vs.                              )      No. 84A01-1302-CR-57
                                             )
STATE OF INDIANA,                            )
                                             )
     Appellee-Plaintiff.                     )


                    APPEAL FROM THE VIGO SUPERIOR COURT
                        The Honorable Michael Rader, Judge
                          Cause No. 84D05-1204-FA-1281



                                   July 15, 2014


                            OPINION - FOR PUBLICATION


KIRSCH, Judge
      Antonio L. Vaughn was convicted after a jury trial of two counts of dealing in

cocaine,1 each as a Class A felony, and one count of maintaining a common nuisance,2 a

Class D felony, and was sentenced to an aggregate term of forty years with twenty years

suspended and twenty years executed. He appeals, raising the following restated issues for

our review:

      I.        Whether the trial court abused its discretion when it admitted videos
                of the controlled drug buys, still photographs from the videos,
                recordings of telephone calls arranging the buys, and statements made
                by the confidential informant (“the CI”) because such evidence
                violated Vaughn’s right to confront witnesses under the Sixth
                Amendment as the CI did not testify;

      II.       Whether the trial court abused its discretion in admitting the cocaine,
                the chain of custody report, and testimony by the lead officer;

      III.      Whether the trial court abused its discretion in instructing the jury
                regarding the presumption of innocence, the burden of proof,
                Vaughn’s decision not to testify, and the jury’s right to decide the law
                and the facts;

      IV.       Whether sufficient evidence was presented to support Vaughn’s
                convictions; and

      V.        Whether the trial court abused its discretion when it sentenced
                Vaughn.

      We affirm and remand with instructions.

                          FACTS AND PROCEDURAL HISTORY

      On February 28, 2012, the CI contacted Detective Martin Dooley of the Terre Haute

Police Department Drug Task Force about performing a controlled buy of narcotics from


      1
          See Ind. Code § 35-48-4-1.
      2
          See Ind. Code § 35-48-4-13(b).


                                               2
Vaughn. Detective Dooley set up a time and place for the CI to meet him, and the two met

at the prearranged location. Detective Dooley searched the CI, including his pockets,

jacket, shirt, pants, shoes, socks, mouth, ears, and any place where narcotics could have

been hidden. The detective also had the CI pull his underwear out from his body and shake

them to ensure there was nothing hidden inside.

      Detective Dooley had the CI make a telephone call to Vaughn, and the CI and

Vaughn discussed where to meet. The detective drove the CI to the agreed-upon location

and gave the CI $100 in cash and outfitted him with an audio/visual recording device. The

CI exited the vehicle and walked to Vaughn’s apartment building, where the CI met

Vaughn and handed him the money. Vaughn walked inside the apartment building, came

back outside with his hand cupped, met the CI, and the two engaged in a hand-to-hand

exchange. The CI then walked back to the police vehicle where he was again searched,

and Detective Dooley retrieved a substance that was later identified as crack cocaine from

the CI. During this controlled buy, the officers involved watched the CI and confirmed

that he did not have any contact with anyone else other than Vaughn.

      On March 1, 2012, the CI again contacted Detective Dooley about performing

another controlled buy from Vaughn. Detective Dooley proceeded in the same manner as

before: the officer arranged a meeting place with the CI, Detective Dooley searched the

CI, the CI called Vaughn to set up the transaction, the officers gave the CI $100 in cash,

and they placed a recording device on the CI. The officers drove the CI to near Vaughn’s

apartment building, and the CI exited the vehicle and walked towards Vaughn’s apartment.

The CI stood outside of the building, and Vaughn pulled up in a green van. The CI entered

                                            3
the van, the van drove around the block, and the CI exited approximately one minute later.

The CI walked back to the officers’ vehicle, where he was again searched, and gave the

officers a substance that was later identified as crack cocaine. During this controlled buy,

the officers maintained visual contact with the CI, except for the time that he was inside of

the van, and the CI did not come into contact with any other person besides Vaughn.

       After each of the controlled buys, Detective Dooley retrieved the cocaine from the

CI. Detective Dooley field tested the substance and placed it in a sealed bag; he then placed

the sealed bag in the Terre Haute Police Department’s evidence locker. The cocaine was

later sent to the Indiana State Police (“ISP”) Laboratory and placed in the ISP’s secured

evidence vault. ISP forensic scientist Brandy Cline requested that an evidence clerk

remove the cocaine from the evidence vault. When she received the evidence, Cline first

checked to make sure the contents matched the description. She stated she would not

accept evidence that was not sealed. Cline tested the evidence, and both samples tested

positive for cocaine, one weighing 0.64 grams and one weighing 0.42 grams. Trial Tr.

398, 402.

       The State charged Vaughn with two counts of Class A felony dealing in cocaine and

one count of Class D felony maintaining a common nuisance. At trial, Vaughn objected to

the jury instructions regarding the presumption of innocence, the explanation of the State’s

burden of proof, his decision not to testify, and the jury’s right to decide the law and the

facts. All of his objections were overruled. At the conclusion of the trial, Vaughn was

found guilty as charged. The trial court sentenced Vaughn to forty years for each of his

dealing in cocaine convictions and three years for his maintaining a common nuisance

                                             4
conviction, with the sentences to run concurrently with each other, for an aggregate

sentence of forty years. Vaughn was ordered to serve twenty years executed in the

Department of Correction, and twenty years was suspended to probation. Vaughn now

appeals.

                            DISCUSSION AND DECISION

                                  I. Confrontation Clause

       Generally, we review the trial court’s ruling on the admission of evidence for an

abuse of discretion. Jones v. State, 982 N.E.2d 417, 421 (Ind. Ct. App. 2013), trans. denied

(citing Noojin v. State, 730 N.E.2d 672, 676 (Ind. 2000)). We reverse only where the

decision is clearly against the logic and effect of the facts and circumstances. Id. Even if

the trial court’s decision was an abuse of discretion, we will not reverse if the admission

constituted harmless error. Id.

       Vaughn argues that the trial court abused its discretion when it admitted into

evidence at trial videos of the controlled buys, still photographs taken from the videos,

recordings of the telephone calls made to Vaughn to set up the transactions, and statements

from the recordings. He contends that all of this evidence was inadmissible and highly

prejudicial hearsay. Vaughn further claims that, because the CI did not testify at trial, the

admission of this evidence violated Vaughn’s right to confront witnesses against him as

guaranteed by the Sixth Amendment to the United States Constitution and his right to a

fair trial under the Due Process Clause.

       The Confrontation Clause is embodied in the Sixth Amendment to the United States

Constitution and prohibits the admission of an out-of-court statement if it is testimonial,

                                             5
the declarant is unavailable, and the defendant had no prior opportunity to cross-examine

the declarant. Lane v. State, 997 N.E.2d 83, 92 (Ind. Ct. App. 2013) (citing King v. State,

985 N.E.2d 755 (Ind. Ct. App. 2013), trans. denied), trans. denied. The Confrontation

Clause “does not bar the use of testimonial statements for purposes other than establishing

the truth of the matter asserted.” Williams v. State, 930 N.E.2d 602, 607 (Ind. Ct. App.

2010) (quoting Crawford v. Washington, 541 U.S. 36, 59 n.9 (2004)), trans. denied.

Therefore, if a statement is either nontestimonial or nonhearsay, the federal Confrontation

Clause will not bar its admissibility at trial. Id. at 607-08. Hearsay is a statement, not made

by the declarant while testifying at the trial or hearing, offered in evidence to prove the

truth of the matter asserted. Ind. Evidence Rule 801(c). Statements not admitted to prove

the truth of the matter are not hearsay and do not run afoul of the hearsay rule. Williams,

930 N.E.2d at 608 n.3. It has previously been held by this court that statements made by a

CI recorded in the course of a controlled drug buy were not offered by the State to prove

the truth of the matter asserted and were, therefore, not hearsay. Id. at 608; Lehman v.

State, 926 N.E.2d 35, 38 (Ind. Ct. App. 2010), trans. denied. This court reasoned that the

statements were not hearsay because they were “‘largely designed to prompt’” the

defendant to speak and, as such, it was the statements made by the defendant “‘that really

constituted the evidentiary weight of the conversation.’” Williams, 930 N.E.2d at 608

(quoting Lehman, 926 N.E.2d at 38).

       Here, at trial, the trial court admitted two videos of the drug transactions between

the CI and Vaughn taken by the hidden recording device that the CI wore and still

photographs taken from the videos of the transactions. In Pritchard v. State, 810 N.E.2d

                                              6
758 (Ind. Ct. App. 2004), it was held that a video recording from a prison surveillance

camera showing the defendant entering a cell, running from it, and throwing something

into the shower area was not intended to be an assertion within the meaning of our rules of

evidence and, therefore, was not hearsay. Id. at 761. Likewise, in the present case, the

videos and the still photographs showing the controlled drug buy between the CI and

Vaughn were not meant to be an assertion. They merely showed the conduct of the CI and

Vaughn. Additionally, any testimony regarding the videos by Detective Dooley was not

hearsay because it was testimony based on the detective’s personal observation and did not

relay an out-of-court statement. Under Indiana Evidence Rule 602, witnesses can testify

to things that are within their personal knowledge.

       The trial court also admitted audio recordings of the telephone calls placed by the

CI to Vaughn to discuss where to meet. These recordings did not constitute hearsay. Any

statement made by Vaughn on the recordings were not hearsay because they were

statements by a party-opponent. Evid. R. 801(d)(2)(A). Any statements made by the CI

on the recording were merely designed to prompt Vaughn to speak and were not offered

for the truth of the matter asserted. See Williams, 930 N.E.2d at 608 (finding recorded

statements during controlled drug buys not hearsay because not offered for the truth of the

CI’s statements).

       As previously explained, the Confrontation Clause does not prohibit the use of

testimonial statements for purposes other than establishing the truth of the matter asserted.

Id. at 607. Thus, if a statement is either nontestimonial or nonhearsay, its admissibility is

not barred by the Confrontation Clause. Id. at 607-08. Because, here, we have determined

                                             7
that none of the evidence objected to by Vaughn was hearsay, the admission of such

evidence was not barred by the Confrontation Clause. We conclude that the trial court did

not abuse its discretion in admitting the videos of the controlled drug buy, the still

photographs taken from the videos, the audio recordings of the telephone calls to set up the

controlled drug buys, and the testimony of Detective Dooley regarding the videos,

photographs, and audio recordings.

       Vaughn also argues that the trial court’s restrictions on his introduction of evidence

of the CI’s bias violated the Confrontation Clause and his right to present a defense

pursuant to the Due Process Clause. He contends that he should have been afforded the

opportunity to test the believability of the State’s witnesses and to show bias, prejudice, or

ulterior motives on the part of the CI. However, Vaughn did elicit testimony from

Detective Dooley that the CI was paid for participating in the controlled drug buys, the CI

had been convicted of possession of cocaine on at least one prior occasion, and confidential

informants tend to be deceptive people. Trial Tr. at 295, 298, 299. Vaughn was, therefore,

allowed to question Detective Dooley about the CI’s credibility. Further, Vaughn’s right

of confrontation was not violated because the CI did not testify against him and, as we have

determined above, did not make any testimonial or hearsay statements against Vaughn that

were admitted at trial.

                                II. Admission of Evidence

       We review the trial court’s ruling on the admission of evidence for an abuse of

discretion. Jones, 982 N.E.2d at 421. We will reverse only where the decision is clearly

against the logic and effect of the facts and circumstances. Id. Even if the trial court’s

                                              8
decision was an abuse of discretion, we will not reverse if the admission constituted

harmless error. Id.

       Vaughn argues that the trial court abused its discretion when it admitted the cocaine

purchased by the CI from Vaughn because the State failed to establish a chain of custody

for that evidence. He also contends that the trial court abused its discretion in admitting a

chain of custody report as a business record because it did not meet the requirements of the

business records exception to the hearsay rule. Vaughn claims it was further error to admit

the chain of custody report because it was not disclosed to him prior to its introduction. He

lastly asserts that it was an abuse of discretion to admit Detective Dooley’s opinion

testimony because the State had failed to disclose the opinion testimony as ordered in a

pretrial order.

       Vaughn alleges that State’s Exhibit 10, one of the chain of custody reports, was

inadmissible because it did not meet the requirements of the business records exception.

Hearsay is a “statement, other than one made by the declarant while testifying at the trial

or hearing, offered in evidence to prove the truth of the matter asserted.” Evid. R. 801(c).

Hearsay is not admissible unless it falls within one of the exceptions provided in the

evidence rules. Evid. R. 802. The business records exception to the hearsay rule states, in

pertinent part:

       A memorandum, report, record, or data compilation, in any form, of acts,
       events, conditions, opinions, or diagnoses, made at or near the time by, or
       from information transmitted by, a person with knowledge, if kept in the
       course of a regularly conducted business activity, and if it was the regular
       practice of that business activity to make the memorandum, report, record,
       or data compilation, all as shown by the testimony or affidavit of the


                                             9
       custodian or other qualified witness, unless the source of information or the
       method or circumstances of preparation indicate a lack of trustworthiness.

Evid. R. 803(6). “‘To admit business records pursuant to this exception, the proponent of

the exhibit may authenticate it by calling a witness who has a functional understanding of

the record-keeping process of the business with respect to the specific entry, transaction,

or declaration contained in the document.’” Houston v. State, 957 N.E.2d 654, 658 (Ind.

Ct. App. 2011) (quoting Rolland v. State, 851 N.E.2d 1042, 1045 (Ind. Ct. App. 2006)),

trans. denied. The witness need not have personally made or filed the record or have

firsthand knowledge of the transaction represented by it in order to sponsor the exhibit. Id.

       Vaughn contends that the State failed to present any evidence that “the person who

entered the record had any personal knowledge of the transaction represented at the time

of entry.” Appellant’s Br. at 24. Detective Dooley was the sponsoring witness of State’s

Exhibit 10 and testified that the document was made in the ordinary course of business for

the Terre Haute Police Department and that the entries on the document were made at or

near the time of the transaction by “one of the record[s] ladies” who were authorized by

the Terre Haute Police Department to make the entries and had personal knowledge of the

transaction. Trial Tr. at 276-79. Therefore, the chain of custody report was admissible as

a business record.

       Vaughn next claims that the chain of custody report should not have been admitted

because it constituted a police investigative record, which is only admissible if offered by

the defense. Under Indiana Evidence Rule 803(8), the public records exception to the

hearsay rule, a document must contain factual findings to qualify as a public record, but if


                                             10
that public record is a police investigative report, it is inadmissible unless offered by the

defense. Evid. R. 803(8)(A)(i)(c), (B)(i). These factual findings required to qualify as a

public record must address a materially contested issue in the case, and if they do not, then

the document would not be inadmissible as a police investigative report. Rhone v. State,

825 N.E.2d 1277, 1283 (Ind. Ct. App. 2005), trans. denied. Here, the report in question

does not contain any factual findings that address a materially contested issue in the case

nor any factual findings at all. State’s Exhibit 10 was merely a record of the time and

location of the evidence at issue and never referred to the evidence as cocaine, but only as

a “rock like substance.” State’s Ex. 10. Thus, the exhibit was not rendered inadmissible

as a police investigative report. The trial court did not abuse its discretion in admitting

State’s Exhibit 10.

       Vaughn next argues that the State failed to show sufficient chain of custody for the

cocaine that was purchased during the controlled buys. “The State is required to show a

chain of custody for the purpose of showing the unlikelihood of tampering, loss,

substitution or mistake.” McCotry v. State, 722 N.E.2d 1265, 1267 (Ind. Ct. App. 2000)

(citing Price v. State, 619 N.E.2d 582, 583 (Ind. 1993)), trans. denied. To show a chain of

custody, the State need only provide a reasonable assurance that the evidence was

undisturbed as it passed from the custody of one person to the next. Id. (citing Kennedy v.

State, 578 N.E.2d 633, 639 (Ind. 1991), cert. denied, 503 U.S. 921 (1992)). If the State

presents evidence that strongly suggests the exact whereabouts of the evidence at all times,

that is sufficient. Id.



                                             11
       In order to challenge the adequacy of the chain of custody, a defendant must present

evidence that does more than raise a mere possibility that the evidence could have been

tampered with. Id. Any gaps in the chain of custody go to the weight of the evidence, and

not to its admissibility. Id. Further, when the evidence is handled by public officers, there

is a presumption that they use due care and that the evidence is handled with regularity. Id.

       In the present case, Detective Dooley testified that he retrieved the cocaine from the

CI when the CI returned to the car after the controlled buy. Trial Tr. at 215. Detective

Dooley then field-tested the cocaine at his desk, placed it in a sealed bag, and placed the

sealed bag in the Terre Haute Police Department’s evidence locker. Id. at 243, 335. The

cocaine was then sent to the ISP Laboratory and placed in the secured evidence vault there.

Id. at 335, 399. ISP forensic scientist Cline testified that she asked an evidence clerk to

remove the cocaine from the secured vault, and once she received it, she checked to ensure

the contents matched the description. Id. at 397. Cline testified that she would not accept

evidence that was not in a sealed condition when she received it. Id. State’s Exhibit 10

showed the cocaine being in the Terre Haute Police Department’s property locker on

February 28, 2012 and being moved to the Terre Haute Police Department’s “drug room”

on February 29, 2012. State’s Ex. 10. State’s Exhibit 12 showed the cocaine going from

the Terre Haute Police Department to the ISP Laboratory on June 21, 2012 and going back

to the Terre Haute Police Department from the ISP Laboratory on July 30, 2012. State’s

Ex. 12. This evidence provided a reasonable assurance that the evidence was undisturbed

as it passed from the custody of one person to the next and strongly suggested the exact



                                             12
whereabouts of the evidence at all times. It was therefore sufficient to establish the chain

of custody.

       Vaughn’s argument regarding alleged gaps in the chain of custody goes to the

weight of the evidence, and not to its admissibility. McCotry, 722 N.E.2d at 1267. Further,

when the evidence is handled by public officers, there is a presumption that they use due

care and that the evidence is handled with regularity. Id. Additionally, Vaughn’s argument

that a tear in the plastic bag of State’s Exhibit 4, one of the samples of cocaine,

demonstrated that it was tampered with, is to no avail. The testimony at trial showed that

what appeared to be a tear was actually above the seal and that a piece of tape was placed

on it to reinforce it. Trial Tr. at 321-22. The trial court went on to say, “I think by agreeing,

we’re agreeing that [the] bag is still sealed.” Id. at 322. Cline also testified that she would

not have accepted evidence that was not sealed. Id. at 397. The State sufficiently

established the chain of custody for the cocaine. Therefore, the cocaine was properly

admitted into evidence.

       Lastly, Vaughn contends that the trial court abused its discretion in admitting

opinion testimony of Detective Dooley. After Vaughn filed a motion requesting that all

opinion testimony be disclosed prior to trial, the trial court issued an order that the State

provide Vaughn all opinion evidence it planned to introduce. Vaughn asserts that certain

testimony by Detective Dooley violated this order because it constituted opinion testimony

not previously disclosed to Vaughn.

       Here, Detective Dooley testified that he did not see the CI come into contact with

any other person besides Vaughn, and therefore, the CI could not have obtained the cocaine

                                               13
from anyone else other than Vaughn. Trial Tr. at 227, 229. Vaughn also takes issue with

testimony by Detective Dooley that he saw the CI hand the $100 buy money to Vaughn,

and that Vaughn entered the apartment building and returned with his hand cupped. Id. at

281. Detective Dooley then testified that he observed Vaughn and the CI meet on the

stairway and do a “hand to hand transaction,” which was “[w]hen somebody would meet

up [and] their hands would exchange narcotics.” Id. This was not opinion testimony that

violated the pretrial order; this was testimony regarding direct observations of what

Detective Dooley saw and inferences based upon his observation. A witness may testify

to what he observed as long as it is based on his personal knowledge of the matter. Steen

v. State, 987 N.E.2d 159, 162-63 (Ind. Ct. App. 2013) (citing Evid. R. 602), trans. denied.

       Vaughn also argues that the testimony in question by Detective Dooley was

inadmissible because it constituted improper commentary on the February 28, 2012

controlled buy. However, in both instances of testimony that Vaughn takes issue with,

Detective Dooley is not describing or discussing the video; he is testifying to what he

actually observed during the controlled buy between the CI and Vaughn. We conclude that

the trial court did not abuse its discretion when it admitted this testimony by Detective

Dooley.

                                 III. Jury Instructions

       Vaughn argues that the trial court abused its discretion in instructing the jury

regarding the jury’s duty in assessing testimony, the State’s burden of proof, Vaughn’s

decision not to testify, and the jury’s right to decide the law and the facts. We review a

trial court’s decision to give or refuse a tendered instruction for an abuse of discretion.

                                            14
Matheny v. State, 983 N.E.2d 672, 679 (Ind. Ct. App. 2013), trans. denied. “Jury

instructions are to be considered as a whole and in reference to each other, and we will not

reverse the trial court’s decision as an abuse of discretion unless the instructions as a whole

mislead the jury as to the law of the case.” Walls v. State, 993 N.E.2d 262, 268 (Ind. Ct.

App. 2013), trans. denied. When reviewing the trial court’s decision, we consider (1)

whether the instruction correctly states the law, (2) is supported by the evidence in the

record, and (3) is not covered in substance by other instructions. Matheny, 983 N.E.2d at

679 (citing O’Connell v. State, 970 N.E.2d 168, 172 (Ind. Ct. App. 2012) (quoting Munford

v. State, 923 N.E.2d 11, 14 (Ind. Ct. App. 2010))). A defendant is entitled to a reversal if

he affirmatively demonstrates that the instructional error prejudiced his substantial rights.

Id. (citing Buckner v. State, 857 N.E.2d 1011, 1015 (Ind. Ct. App. 2006)).

       Vaughn first argues that the trial court abused its discretion when it gave the jury

Preliminary Instruction No. 13 and Final Instruction No. 18, which both provided:

       You are the exclusive judges of the evidence, the credibility of the witnesses
       and of the weight to be given to the testimony of each of them. In considering
       the testimony of any witness, you may take into account his or her ability and
       opportunity to observe, the manner and conduct of the witness while
       testifying, any interest or bias or prejudice the witness may have, any
       relationship with other witnesses or interested parties, and the reasonableness
       of the testimony of the witness considered in the light of all of the evidence
       in this case. You should attempt to fit the evidence to the presumption that
       the defendant is innocent and the theory that every witness is telling the truth.
       You should not disregard the testimony or any witness without a reason and
       without careful consideration. If you find conflicting testimony, you must
       determine which of the witnesses you will believe and which of them you will
       disbelieve. In weighing the evidence to determine what or whom you will
       believe, you should use your own knowledge, experience and common sense
       gained from day to day living. The number of witnesses who testify to a
       particular fact or the quantity of evidence on a particular point need not


                                              15
       control your determination of the truth. You should give the greatest weight
       to that evidence which convinces you most strongly of its truthfulness.

Trial Tr. at 187-88, 556-57 (emphasis added). Vaughn contends that these instructions

were given in error because they “misstate the law to the extent that they leave the jury

with the impression that it must accept at least some of the conflicting testimony on an

issue when it can, in fact, reject all testimony on an issue.” Appellant’s Br. at 34. He

asserts that the instructions direct the jury “to ‘determine which of the witnesses you

believe and which of them you will disbelieve,’” but that the jury had the ability to

disregard all evidence and disbelieve all witnesses. Id. Vaughn claims he was prejudiced

by these instructions because the only witnesses who testified were State’s witnesses, and

therefore, the instructions directed the jury to find at least some of the State’s evidence to

be true where the evidence presented by the State’s witnesses was conflicting.

       Vaughn does not argue that the instructions given were covered by any other

instructions and were not supported by the record, he merely contends that the instructions

were a misstatement of the law. The instructions at issue did not compel the jury to believe

the State’s witnesses; when read as a whole, the instructions informed the jury that they

could determine the credibility of the witnesses, could disregard testimony after careful

reason and consideration, and could disbelieve witnesses. The instructions went on to

explain that the number of witnesses testifying to a particular fact or the quantity of

evidence on a particular point did not control the jury’s determination of the truth and that

the most convincing evidence should be given the greatest weight. The jury was also

instructed to fit the evidence presented to the presumption that Vaughn was innocent. We


                                             16
believe that, when read as a whole, these instructions did not misstate the law because the

instructions did not lead the jury to believe it was required to wholesale adopt one witness’s

account over another’s. The trial court did not abuse its discretion in overruling Vaughn’s

objection to the instructions.

       Vaughn next asserts that the trial court erroneously gave the jury Final Instruction

12, which provided:

       The burden is upon the State of Indiana to prove beyond a reasonable doubt
       that the defendant is guilty of the crime(s) charged. It is a strict and heavy
       burden. The evidence must overcome any reasonable doubt concerning the
       defendant’s guilt. But, it does not mean that a defendant’s guilt must be
       proved beyond all possible doubt. A reasonable doubt is a fair, actual, and
       logical doubt based upon reason and common sense. A reasonable doubt
       may arise either from the evidence or from a lack of evidence. Reasonable
       doubt exists when you are not firmly convinced of the defendant’s guilt, after
       you have weighed and considered all the evidence. A defendant must not be
       convicted on suspicion or speculation. It is not enough for the State to show
       that the defendant is probably guilty. On the other hand, there are very few
       things in this world that we know with absolute certainty. The State does not
       have to overcome every possible doubt. The State must prove each element
       of the crime(s) by evidence that firmly convinces each of you and leaves no
       reasonable doubt. The proof must be so convincing that you can rely and act
       upon it in this matter of the highest importance. If you find that there is a
       reasonable doubt that the defendant is guilty of the crime(s), you must give
       the defendant the benefit of that doubt and find the defendant not guilty of
       the crime(s) under consideration.

Trial Tr. at 553-54. Vaughn claims that this instruction invaded the province of the jury

with its definition of reasonable doubt and that it violated Article I, Section 19 of the

Indiana Constitution by restricting the jury’s definition of reasonable doubt. He refers to

several other jurisdictions that have rejected instructions defining reasonable doubt because

of the challenge of defining the term and requests this court to do the same. He asserts

that, because of these difficulties in attempting to define reasonable doubt, the trial court

                                             17
erred in giving Final Instruction No. 12 as it “invited confusion and invaded the province

of the jury.” Appellant’s Br. at 39.

       Our Supreme Court had stated that when a defendant challenges a reasonable doubt

instruction, “[t]he proper constitutional inquiry “is not whether the instruction ‘could have’

been applied in an unconstitutional manner, but whether there is a reasonable likelihood

that the jury did so apply it.’” Winegeart v. State, 665 N.E.2d 893, 897 (Ind. 1996) (quoting

Victor v. Nebraska, 511 U.S. 1, 5 (1994)). On review, we must determine whether there is

a reasonable likelihood that the jury applied the instructions to convict a defendant based

upon constitutionally insufficient proof of guilt. Id. at 897-98. Our Supreme Court has

found that an instruction consisting of 300 words and eleven sentences to explain

reasonable doubt was not atypical and stated, “Through the years, appellate decisions have

held a wide variety of reasonable-doubt instructions to satisfy the minimal constitutional

requirements.” Id. at 898. The Supreme Court went on to state that, although “reasonable

doubt” alone may suffice as other jurisdictions had found, “we are not convinced that the

task [of providing effective additional explanation] is impossible in light of recent and

ongoing research, and we thus prefer to endorse for use in Indiana courts a reasonable doubt

instruction that reflects the wisdom of the various available resources.” Id. at 900-01.

       The instruction given by the trial court was supported by the evidence in the record

and was not covered in substance by other instructions given to the jury. It was also a

correct statement of law and the giving of such reasonable doubt instructions has been

approved by our Supreme Court. Id. Although Vaughn cites to cases from federal circuit

courts that have found that instructions defining reasonable doubt should not be given, this

                                             18
is not the law in Indiana and we reject his invitation to follow those courts. The trial court

did not abuse its discretion when it gave Final Instruction No. 12.

       Vaughn also challenges the trial court’s giving of Final Instruction No. 20, which

provided as follows:

       Under the law of the State of Indiana, a person charged with the commission
       of a crime is a competent witness to testify in his or her own behalf.
       However, a person charged with the commission of a crime cannot be
       compelled to testify and is under no obligation to testify. The fact that the
       defendant did not testify raises no presumption of any kind against him. The
       defendant’s election not to testify shall not be commented upon, referred to,
       or in any manner considered by the jury in reaching a verdict in this case.

Trial Tr. at 557. At trial, Vaughn requested that the first sentence of the instruction be

removed, but the trial court denied his request. He now argues that the trial court abused

its discretion in overruling his objection and giving the instruction in full. Vaughn contends

that giving the full instruction highlighted his failure to testify at trial and violated his right

against self-incrimination under both the Indiana Constitution and the United States

Constitution.

       Assuming without deciding that it was error to give the instruction over Vaughn’s

objection, it was harmless error. Before a defendant is entitled to a reversal, he or she must

affirmatively show that the erroneous instruction prejudiced his substantial rights. Lee v.

State, 964 N.E.2d 859, 862 (Ind. Ct. App. 2012), trans. denied. An error is to be

disregarded as harmless unless it affects the substantial rights of a party. Id. (citing Oatts

v. State, 899 N.E.2d 714, 727 (Ind. Ct. App. 2009); Ind. Trial Rule 61). “‘Errors in the

giving or refusing of instructions are harmless where a conviction is clearly sustained by



                                                19
the evidence and the jury could not properly have found otherwise.’” Id. at 862-63 (quoting

Dill v. State, 741 N.E.2d 1230, 1233 (Ind. 2001)).

       Here, the evidence at trial showed that, on two occasions, the CI performed a

controlled drug transaction with Vaughn. On both dates, the CI was searched, contacted

Vaughn by telephone to set up a meeting, met with Vaughn, gave him money, and returned

to the police with cocaine. On neither date, did the CI meet with any other individual

besides Vaughn, nor did the officer lose sight of the CI except for the time he was inside

the van during the second transaction. Detective Dooley had had prior contact with Vaughn

and was able to identify him as the person who participated in the drug transactions with

the CI. We, therefore, conclude that any error in giving Final Instruction No. 20 was

harmless error and did not affect the substantial rights of Vaughn. His conviction was

clearly sustained by the evidence presented at trial, and the jury could not properly have

found otherwise.

       Vaughn lastly claims that it was error for the trial court to give Preliminary

Instruction No. 16 and Final Instruction No. 15, which both provided:

       Under the Constitution of Indiana, the jury has the right to decide both the
       law and the facts. In fulfilling this duty, you are to apply the law as you
       actually find it and you are not to disregard it for any reason. The instructions
       of the court are your best source in determining what the law is.

Trial Tr. at 189, 555. Vaughn asserts that the instructions violated Article I, Section 19 of

the Indiana Constitution and invaded the province of the jury. Although Article I, Section

19 states that, “[i]n all criminal cases, the jury shall have the right to determine the law and

the facts,” Vaughn contends that the challenged instructions informed the jury it could not


                                              20
disregard the law for any reason, which deprived the jury of its discretion to reject the Class

A felony enhancement on his charges.

       Our Supreme Court has rejected the notion that a jury has the right to disregard the

law. Holden v. State, 788 N.E.2d 1253, 1255 (Ind. 2003), cert. denied, 541 U.S. 1048

(2004); Bivens v. State, 642 N.E.2d 928, 946 (Ind. 1994), cert. denied, 516 U.S. 1077

(1996). The Court has held that, “‘it is improper for a court to instruct the jury that it has

a right to disregard the law.      Notwithstanding Article I, Section 19 of the Indiana

Constitution, a jury has no more right to ignore the law than it has to ignore the facts in a

case.’” Holden, 788 N.E2d at 1255 (quoting Bivens, 642 N.E.2d at 928). In Cole v. State,

790 N.E.2d 1049 (Ind. Ct. App. 2003), trans, denied, a panel of this court upheld the giving

of an instruction identical to the one at issue in the present case, finding that “the trial

court’s instruction stating in part that the jury had no right to disregard the law for any

reason was a correct statement of the law.” 790 N.E.2d at 1055. Vaughn cites to cases

dealing with habitual offender proceedings to support his contention that jury nullification

was equally permissible here. However, habitual offender proceedings involve a status

determination, and the proceedings at issue involve a determination of guilt for crimes

charged. Seay v. State, 698 N.E.2d 732, 736 (Ind. 1998). We conclude that the trial court

did not abuse its discretion when it gave Preliminary Instruction No. 16 and Final

Instruction No. 15.

                                  IV. Sufficient Evidence

       Our standard of review for sufficiency claims is well settled. When we review a

claim of sufficiency of the evidence, we do not reweigh the evidence or judge the credibility

                                              21
of the witnesses. Parahams v. State, 908 N.E.2d 689, 691 (Ind. Ct. App. 2009) (citing

Jones v. State, 783 N.E.2d 1132, 1139 (Ind. 2003)). We look only to the probative evidence

supporting the judgment and the reasonable inferences therein to determine whether a

reasonable trier of fact could conclude the defendant was guilty beyond a reasonable doubt.

Id. If there is substantial evidence of probative value to support the conviction, it will not

be set aside. Id. It is the function of the trier of fact to resolve conflicts of testimony and

to determine the weight of the evidence and the credibility of the witnesses. Yowler v.

State, 894 N.E.2d 1000, 1002 (Ind. Ct. App. 2008).

       Vaughn argues that the evidence presented at trial was insufficient to support his

convictions for Class A felony dealing in cocaine and Class D felony maintaining a

common nuisance. He claims that the State failed to prove beyond a reasonable doubt his

knowing or intentional delivery of the cocaine. Vaughn asserts that the telephone calls

between the CI and Vaughn only establish an arranged meeting, not a drug transaction, and

there is no delivery visible on the videos. He contends that the State failed to prove that

the cocaine produced by the CI at the end of the transactions came from Vaughn and that

the CI had motivation to implicate Vaughn falsely. Vaughn further argues that there was

insufficient evidence presented to support his maintaining a common nuisance conviction

for the same reasons.

       In order to convict Vaughn of dealing in cocaine as a Class A felony, the State was

required to prove beyond a reasonable doubt that Vaughn knowingly or intentionally

delivered cocaine and that such crime occurred within 1,000 feet of a public park. Ind.

Code § 35-48-4-1. In order to convict Vaughn of maintaining a common nuisance as a

                                              22
Class D felony, the State was required to prove beyond a reasonable doubt that he

knowingly or intentionally maintained a building, structure, vehicle, or other place that was

used one or more times to unlawfully manufacture, keep, offer for sale, sell, deliver, or

finance the delivery of a controlled substance. Ind. Code § 35-48-4-13(b).

       A properly conducted controlled buy will permit an inference the defendant had

prior possession of a controlled substance. Ross v. State, 908 N.E.2d 626, 630 (Ind. Ct.

App. 2009) (citing Watson v. State, 839 N.E.2d 1291, 1293 (Ind. Ct. App. 2005)). This

court has described a controlled buy as follows:

       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 into the residence in question. Upon his
       return he is again searched for contraband. Except for what actually
       transpires within the residence, the entire transaction takes place under the
       direct observation of the police. They ascertain that the buyer goes directly
       to the residence and returns directly, and they closely watch all entrances to
       the residence throughout the transaction.

Id. A pat-down search of the CI or buyer is sufficient, and a strip search or complete cavity

search is not necessary. Wright v. State, 836 N.E.2d 283, 289 (Ind. Ct. App. 2005) (citing

Hudson v. State, 462 N.E.2d 1077, 1083 (Ind. Ct. App. 1984)), trans. denied.

       In the present case, the evidence presented showed that, on two occasions, police

officers met with the CI, searched him, had the CI contact Vaughn, gave the CI buy money,

outfitted the CI with a recording device, and sent the CI to Vaughn’s apartment to purchase

drugs. During the search of the CI, the officer searched his pockets, jacket, shirt, pants,

shoes, socks, mouth, ears, and any place that could have hidden narcotics. The detective

also had the CI pull his underwear out from his body and shake them to ensure there was


                                             23
nothing hidden inside. On the date of the first controlled buy, the CI met with Vaughn

outside of the apartment and handed Vaughn the buy money; Vaughn walked into the

apartment, came back outside with his hand cupped, and engaged in a hand-to-hand

exchange with the CI. On the second occasion, the CI went to Vaughn’s apartment,

Vaughn picked him up in a van, and the CI exited the van a minute later. On both

occasions, the CI was searched when he returned to the officers, and cocaine was retrieved

from him. On neither date, did the CI meet with any other individual besides Vaughn, nor

did the officer lose sight of the CI except for the time he was inside the van. This proper

procedure permitted the jury to reasonably infer that Vaughn sold the cocaine to the CI.

Evidence was also presented that Vaughn’s apartment was within 1,000 feet of a public

park.

        Additionally, the evidence showed that, on the first controlled buy, Vaughn entered

into his apartment after accepting money from the CI and, after exiting, gave the CI

cocaine. The jury could reasonably infer that Vaughn was using his apartment for the

storage and sale of cocaine. On the second controlled buy, Vaughn sold the CI cocaine

from his van. The jury could, therefore, infer that Vaughn kept cocaine in his vehicle and

was using the vehicle to sell cocaine.

        Vaughn’s arguments are merely requests for this court to reweigh the evidence and

judge the credibility of the witnesses, which we cannot do. Parahams, 908 N.E.2d at 691.

We conclude that sufficient evidence was presented to support Vaughn’s two Class A

felony convictions for dealing in cocaine and Class D felony conviction for maintaining a

common nuisance.

                                            24
                                       V. Sentencing

         A trial court’s sentencing decisions are discretionary and entitled to “considerable

deference” by the appellate courts. Edsall v. State, 983 N.E.2d 200, 205 (Ind. Ct. App.

2013). A trial court abuses its discretion if it: (1) fails “to enter a sentencing statement at

all”; (2) enters “a sentencing statement that explains reasons for imposing a sentence—

including a finding of aggravating and mitigating factors if any—but the record does not

support the reasons”; (3) enters a sentencing statement that “omits reasons that are clearly

supported by the record and advanced for consideration”; or (4) considers reasons that “are

improper as a matter of law.” Id. (citing Anglemyer v. State, 868 N.E.2d 482, 490-91 (Ind.

2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007)). However, the relative weight or

value assignable to reasons properly found, or those which should have been found, is not

subject to review for abuse of discretion. Id.

         Vaughn contends that the trial court abused its discretion in sentencing him to an

executed term of three-and-a-half years for his maintaining a common nuisance conviction.

He asserts that the maximum sentence for a Class D felony is three years, and therefore,

his sentence exceeds the maximum sentence by six months. The State claims that the trial

court did not abuse its discretion in sentencing Vaughn, but that the sentencing order

contained a clerical error. The State argues that the oral sentencing statement imposed the

correct maximum term of three years, and that the written statement’s pronouncement of a

three-and-a-half year sentence was merely a clerical error, requiring remand to correct. We

agree.



                                              25
       When oral and written sentencing statements conflict, we examine them together to

discern the intent of the sentencing court. Walker v. State, 932 N.E.2d 733, 738 (Ind. Ct.

App. 2010). We may remand the case for correction of clerical errors if the trial court’s

intent is unambiguous. Id. (citing Willey v. State, 712 N.E.2d 434, 445 n.8 (Ind. 1999)

(“Based on the unambiguous nature of the trial court’s oral sentencing pronouncement, we

conclude that the Abstract of Judgment and Sentencing Order contain clerical errors and

remand this case for correction of those errors.”)).

       Here, in the trial court’s oral sentencing statement, it imposed a three-year sentence

for Vaughn’s conviction for Class D felony maintaining a common nuisance. Sent. Tr. at

16. However, the trial court’s written sentencing imposed a three-and-a-half year sentence.

Appellant’s App. at 20. The maximum sentence for a Class D felony is three years. Ind.

Code § 35-50-2-7(a). We believe that it was the trial court’s unambiguous intent to

sentence Vaughn to three years for his Class D felony conviction. Therefore, the written

sentencing statement and the abstract of judgment contain clerical errors. We remand to

the trial court to correct these errors and reflect that Vaughn’s sentence for his maintaining

a common nuisance conviction is three years.

       Affirmed and remanded.

BAILEY, J., and MAY, J., concur.




                                             26
