MEMORANDUM DECISION                                                             FILED
Pursuant to Ind. Appellate Rule 65(D),                                     Feb 27 2017, 9:59 am

this Memorandum Decision shall not be                                           CLERK
                                                                            Indiana Supreme Court
regarded as precedent or cited before any                                      Court of Appeals
                                                                                 and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Alexander L. Hoover                                      Curtis T. Hill, Jr.
Law Office of Christopher G. Walter,                     Attorney General of Indiana
P.C.
Nappanee, Indiana                                        J.T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Cedric S. Ware,                                          February 27, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A03-1607-CR-1686
        v.                                               Appeal from the Elkhart Circuit
                                                         Court
State of Indiana,                                        The Honorable Terry C.
Appellee-Plaintiff.                                      Shewmaker, Judge
                                                         Trial Court Cause No.
                                                         20C01-1504-F2-5



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A03-1607-CR-1686 | February 27, 2017            Page 1 of 18
                                       Statement of the Case
[1]   Cedric S. Ware appeals his conviction, following a jury trial, for dealing in

      cocaine, as a Level 2 felony; possession of a controlled substance, as a Class A

      misdemeanor; and possession of marijuana, as a Class B misdemeanor. He

      raises two issues on appeal:

              1.       Whether the trial court abused its discretion when it
                       admitted evidence obtained pursuant to the execution of a
                       search warrant.


              2.       Whether the trial court committed fundamental error
                       when it admitted cocaine into evidence.


[2]   We affirm.


                                 Facts and Procedural History
[3]   In 2014, Sarah Nidiffer lived at 30850 Oakcrest Drive in Granger, Indiana.

      Beginning in November of that year, Niddifer lived with her son, Brock

      Rodman, and her boyfriend, Ware. During the time period between November

      2014 and April 2015, Niddifer drove Ware to many houses at Ware’s request.

      Niddifer saw Ware enter those homes, usually for about five or ten minutes but

      sometimes for up to an hour, and then return to the car. While Ware entered

      the homes, Niddifer remained in the car as directed by Ware. On occasion, a

      person from a home came out to the car instead of Ware entering the home.

      On those occasions, Ware passed something to the other person through the

      passenger-side window, and the person passed cash to Ware.


      Court of Appeals of Indiana | Memorandum Decision 20A03-1607-CR-1686 | February 27, 2017   Page 2 of 18
[4]   On April 13, 2015, Niddifer returned home from work to find Ware visibly

      upset about Rodman being home. Ware asked Nidiffer when Rodman would

      leave the house because Ware “needed to cook.” Tr. at 157-58. Nidiffer

      understood Ware to mean he needed to cook crack cocaine. Niddifer saw

      Ware heat water in a pot on the stove and place a glass mixing bowl containing

      a white powdery substance on top of the pot. Ware then instructed Nidiffer to

      tear up pieces of paper—first into strips, then into squares—which she did while

      Ware continued to cook the substance on the stove. Niddifer then went to bed

      at approximately 10:00 or 10:30 p.m. that night.


[5]   When Niddifer woke up a few hours later and returned to the kitchen, she

      found Ware at the kitchen table, with scales, cutting up a brick of the white

      substance “into littler rocks.” Id. at 160. Ware told Niddifer to go back to bed

      and she did so. Niddifer never saw Ware consume any of the white substance

      from that night, nor did she observe Ware consume cocaine at any other time.


[6]   Niddifer went to work the next day, April 14, and when she returned home

      Ware told her that he was going to South Bend. Ware left and returned home

      later that night at about 11:45 p.m. Ware smoked some marijuana in his

      bedroom before going to bed that night.


[7]   Sergeant Scott Frey (“Officer Frey”) of the Elkhart County Sheriff’s

      Department was working the midnight shift on April 14 to April 15, 2015, and

      sometime around 11:24 p.m. on April 14 he received an anonymous call

      informing the police that Ware and Nidiffer had been cooking crack cocaine at


      Court of Appeals of Indiana | Memorandum Decision 20A03-1607-CR-1686 | February 27, 2017   Page 3 of 18
      30850 Oakcrest Drive. Because the caller was not identified, Officer Frey

      investigated further; he conducted a criminal history search and a background

      check on Ware and learned that Ware had valid felony arrest warrants with a

      listed address of 30850 Oakcrest Drive. Officer Frey then telephoned the

      master control center at the Elkhart County jail to confirm the arrest warrants

      for Ware and gather identifying information about Ware. Officer Frey also

      located a photograph of Ware through records kept by the Bureau of Motor

      Vehicles.


[8]   Officer Frey then recruited other officers to assist his execution of the felony

      arrest warrants for Ware, and the officers arrived at Ware’s residence at

      Oakcrest Drive at about 12:29 a.m. Officer Frey knocked at the front door, and

      Nidiffer answered. Officer Frey identified himself as a police officer and asked

      if Ware was home. Niddifer said Ware was not there and then tried to shut the

      front door. Officer Frey put his foot out to stop the door from closing and

      explained to Niddifer that the police had a warrant for Ware’s arrest. Officer

      Frey then heard a noise upstairs inside the home that sounded to him like

      footsteps running on a wood floor, which led him to believe someone was

      attempting to flee the residence. Officer Frey then instructed Niddifer to move

      away from the door, drew his firearm, and entered the home along with the

      other police officers.


[9]   Inside the home, Officer Frey immediately smelled the strong odor of raw and

      burnt marijuana. Officer Frey was very familiar with those smells from his

      years of police training and experience. Officer Frey located Ware upstairs in

      Court of Appeals of Indiana | Memorandum Decision 20A03-1607-CR-1686 | February 27, 2017   Page 4 of 18
       the hallway and also located Rodman in the house. Officer Frey handcuffed

       Ware and read Wear, Niddifer, and Rodman their Miranda warnings. All three

       occupants acknowledged to Officer Frey that they understood the Miranda

       warnings. Officer Frey then informed the three occupants that he smelled

       marijuana. Ware admitted to possessing a “blunt” which is a marijuana

       cigarette, in his bedroom, Tr. at 130, and Rodman admitted to possessing “a

       small bag of weed” inside the residence, Def. Ex. TA3.


[10]   Officer Frey asked Niddifer if she would consent to a search of the home, and

       she refused. Officer Frey then sought and obtained a search warrant for the

       residence. In his Affidavit for Search Warrant, Officer Frey stated that he had

       good cause to believe that “[c]ertain evidence involved in the commission of the

       offenses pertaining to Dealing in Marijuana, Possession of Marijuana,

       Possession of a Controlled Substance, and/or Possession of Drug

       Paraphernalia . . . [was] concealed in, on, or about” the residence at 30850

       Oakcrest Drive, and he described that residence in detail. Officer Frey

       described his training and experience as a law officer in identifying controlled

       substances. He noted that he had arrived at Ware’s residence on April 15 to

       execute an arrest warrant for Ware. Officer Frey then described in detail what

       happened when he and the other officers had gone to Ware’s residence to

       execute the arrest warrant and noted, in particular, that, “[a]s [he] had entered

       the residence at 30850 Oakcrest Dr[ive], [he] immediately smelled a strong odor

       of raw and burnt marijuana inside the residence, which [he] identified through

       [his] training and experience as a law enforcement officer.” Id. The affidavit


       Court of Appeals of Indiana | Memorandum Decision 20A03-1607-CR-1686 | February 27, 2017   Page 5 of 18
       noted that, based on the facts contained therein, Officer Frey believed that “a

       search of the residence . . . will disclose the existence of: marijuana, drug

       paraphernalia[] used in the ingestion of a controlled substance, evidence of

       domicile, and any other controlled substances in any form, baggies or other

       types of containers, and any other indicia of the use and/or consumption.” Id.


[11]   Based on Officer Frey’s affidavit, a trial court issued a Search Warrant dated

       April 15 authorizing the Elkhart County Sheriff’s Department to enter the

       residence located at 30850 Oakcrest Drive and search there for “marijuana,

       drug paraphernalia[] used in the ingestion of a controlled substance, evidence of

       domicile, and any other controlled substances in any form, baggies or other

       types of containers, and any other indicia of the use and/or consumption; the

       possession of which is in violation of Code 35-48-4 et seq.” Def. Ex. TA1. The

       search warrant further ordered the officers to “seize such property or any part

       thereof, found on such search . . . ” Id.


[12]   Officer Frey then executed the search warrant on April 15. In doing so, he

       discovered inside Ware and Niddifer’s bedroom a clear plastic baggie of

       seventeen loose yellow pills that later tested positive to be alprazolam, a small

       burnt marijuana cigarette in an ashtray, and 101 pieces of folded paper in two

       clear plastic baggies that contained what would eventually test positive for

       cocaine. Officer Frey knew from his training as a law enforcement officer that a

       common way of storing narcotics is to place them in folded pieces of paper.

       Officer Frey conducted a field test of the substance he found in the ashtray and

       it tested positive for marijuana. Officer Frey photographed all of the

       Court of Appeals of Indiana | Memorandum Decision 20A03-1607-CR-1686 | February 27, 2017   Page 6 of 18
       contraband and took it into evidence. Officer Frey arrested Ware, and on April

       16, the State charged Ware with three counts: (I) dealing cocaine, as a Level 2

       felony; (II) possession of a controlled substance, as a Class A misdemeanor; and

       (III) possession of marijuana, as a Class B misdemeanor.


[13]   On October 20, 2015, Ware filed a motion to suppress evidence discovered and

       gathered during the execution of the search warrant of his home. The trial

       court held a hearing on the motion to suppress on February 16, 2016, and it

       subsequently denied the motion on May 17.


[14]   The court held Ware’s jury trial on May 16 and May 17. Officer Frey testified

       that, after photographing the 101 individually wrapped packets he found in a

       drawer in Ware’s bedroom, he placed them in an evidence bag and transported

       them in a secured trunk to the sheriff’s department. Officer Frey then laid out

       each of the 101 individual packets and photgraphed them. Per the Elkhart

       Sheriff’s Department protocol, Officer Frey then removed the off-white

       substances from each individually wrapped packet, combined the substances all

       together on a scale and weighed the substances in one lump sum. Officer Frey

       then photographed and field tested one sample from the “one lump sum” of the

       off-white substance, and it tested positive for crack cocaine. Tr. at 209. He

       then placed the lump sum in a plastic evidence bag, heat sealed it, initialed it,

       put an identifying tag on it, and placed it in an evidence locker. Officer Frey

       sent the lump sum to a certified laboratory for additional testing.




       Court of Appeals of Indiana | Memorandum Decision 20A03-1607-CR-1686 | February 27, 2017   Page 7 of 18
[15]   Sarah Wildeman, a forensic drug chemist with the Indiana State Police,

       testified that she did both presumptive and confirmatory tests and confirmed

       that the pills found in Ware’s bedroom contained alprazolam and that the off-

       white substance collected at Ware’s home contained cocaine. Wildeman

       testified that, when the cocaine came to her lab for testing, it was in the form of

       a lump sum containing “a lot of different chunks of an off-white rock-like

       substance,” rather than 101 individual packets containing the off-white

       substance. Id. at 232. She testified that the lump sum was sealed when she

       received it. She tested samples of several different rocks within the lump sum

       but she did not remember how many different rocks she tested. She testified

       that the lump sum weighed 13.98 grams. Wildeman noted that she followed

       the normal protocol and safeguard procedures in conducting the testing of the

       lump sum. Wildeman further testified that it was “theoretically” possible that,

       out of the 101 individually wrapped packets, the off-white substance contained

       in ninety of the packets could have tested as a noncontrolled substance. Id. at

       245. Wildeman also testified that, had the off-white substance been sent to her

       individually packaged, pursuant to laboratory protocols she would have tested

       each packet of the substance until she reached the weight threshold contained in

       the criminal charges, which in this case was ten grams.


[16]   The jury found Ware guilty on all three counts. The trial court sentenced Ware

       accordingly. This appeal ensued.




       Court of Appeals of Indiana | Memorandum Decision 20A03-1607-CR-1686 | February 27, 2017   Page 8 of 18
                                      Discussion and Decision
                           Issue One: Probable Cause for Search Warrant

[17]   Ware challenges the trial court’s decision to admit the evidence obtained during

       the April 15, 2015, search of his home. The admission or exclusion of evidence

       is entrusted to the discretion of the trial court. Collins v. State, 966 N.E.2d 96,

       104 (Ind. Ct. App. 2012).


               We will reverse a trial court’s decision only for an abuse of
               discretion. [Farris v. State, 818 N.E.2d 63, 67 (Ind. Ct. App.
               2004).] We will consider the conflicting evidence most favorable
               to the trial court’s ruling and any uncontested evidence favorable
               to the defendant. Taylor v. State, 891 N.E.2d 155, 158 (Ind. Ct.
               App. 2008). An abuse of discretion occurs when the trial court’s
               decision is clearly against the logic and effect of the facts and
               circumstances before the court or it misinterprets the law. Id. In
               determining whether an error in the introduction of evidence
               affected an appellant’s substantial rights, we assess the probable
               impact of the evidence on the jury. Oldham v. State, 779 N.E.2d
               1162, 1170 (Ind. Ct. App. 2002). Admission of evidence is
               harmless and is not grounds for reversal where the evidence is
               merely cumulative of other evidence admitted. Pavey v. State, 764
               N.E.2d 692, 703 (Ind. Ct. App. 2002).


       Id.


[18]   In the context of a motion to suppress evidence due to an alleged lack of

       probable cause underlying a search warrant, we must determine whether the

       judge who issued the search warrant had a substantial basis for concluding that

       probable cause existed.



       Court of Appeals of Indiana | Memorandum Decision 20A03-1607-CR-1686 | February 27, 2017   Page 9 of 18
               In deciding whether to issue a search warrant, “[t]he task of the
               issuing magistrate is simply to make a practical, commonsense
               decision whether, given all the circumstances set forth in the
               affidavit . . . there is a fair probability that contraband or
               evidence of a crime will be found in a particular place.” Illinois v.
               Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 76 L. Ed. 2d 527
               (1983). The duty of the reviewing court is to determine whether
               the magistrate had a “substantial basis” for concluding that
               probable cause existed. Id. at 238-39, 103 S. Ct. 2317. It is clear
               that a substantial basis requires the reviewing court, with
               significant deference to the magistrate’s determination, to focus
               on whether reasonable inferences drawn from the totality of the
               evidence support the determination of probable cause. Houser v.
               State, 678 N.E.2d 95, 99 (Ind. 1997). A “reviewing court” for
               these purposes includes both the trial court ruling on a motion to
               suppress and an appellate court reviewing that decision. Id. at
               98.


       Query v. State, 745 N.E.2d 769, 771 (Ind. 2001).


[19]   Ware first asserts that the April 15 search of his home was in violation of the

       Fourth Amendment to the United States Constitution1 because the search

       warrant was based on an affidavit that failed to state facts showing probable

       cause for the search. Therefore, Ware concludes, the trial court abused its

       discretion in denying his motion to suppress the evidence obtained from that

       search.




       1
         Ware also professes to raise a claim under Article 1, Section 11 of the Indiana Constitution. However,
       because Ware presents no authority or independent analysis supporting a separate standard under the state
       constitution, that claim is waived. See, e.g., Henderson v. State, 769 N.E.2d 172, 175 n.6 (Ind. 2002).

       Court of Appeals of Indiana | Memorandum Decision 20A03-1607-CR-1686 | February 27, 2017      Page 10 of 18
[20]   The Fourth Amendment to the United States Constitution requires that search

       warrants be supported by probable cause. See Combs v. State, 895 N.E.2d 1252,

       1255 (Ind. Ct. App. 2008), trans. denied. Probable cause to search exists “where

       the facts and circumstances within the knowledge of the officer making the

       search, based on reasonably trustworthy information, are sufficient to warrant a

       person of reasonable caution in the belief that an offense has been or is being

       committed.” State v. Hawkins, 766 N.E.2d 749, 751 (Ind. Ct. App. 2002), trans.

       denied. The affidavit requesting a search warrant must “particularly describe”

       the house or place to be searched and the things to be searched for, and it must

       “allege[] substantially” the offense in relation to the place and things searched.

       Ind. Code § 35-33-5-2(a) (2015). The affidavit must also “set[] forth the facts

       known to the affiant through personal knowledge . . . , constituting the

       probable cause.” Id. The determination of whether probable cause exits “is to

       be based on the factual and practical considerations of everyday life upon which

       reasonable prudent persons act.” Hawkins, 766 N.E.2d at 751.


[21]   Officer Frey’s affidavit for a search warrant stated that he had good cause to

       believe he would find “evidence relevant to the offenses of” dealing marijuana

       and possession of marijuana, possession of a controlled substance, and/or

       possession of drug paraphernalia at Ware’s residence.2 Def. Ex. TA3. In

       support of this belief, he cited his experience and training as a law enforcement




       2
           Ware does not dispute that there was probable cause to believe 30850 Oakcrest was his residence.



       Court of Appeals of Indiana | Memorandum Decision 20A03-1607-CR-1686 | February 27, 2017        Page 11 of 18
officer in identifying controlled substances3 and the fact that he had smelled raw

and burnt marijuana upon entering Ware’s residence.4 He also cited the facts

that Ware and Rodman admitted to him, after being given and acknowledging

understanding of Miranda warnings, that they had small amounts of marijuana

in the house. Those factual statements, made from Officer Frey’s own first-

hand knowledge, are sufficient to support a finding of probable cause to search

the house for evidence of possession of marijuana. See Johnson v. United States,

333 U.S. 10, 13 (1948) (noting that, if the presence of odor is testified to before

a magistrate and he finds the affiant qualified to know the odor, and it is one

sufficiently distinctive to identify a forbidden substance, it might be found to

justify issuance of a search warrant); Minnick v. State, 544 N.E.2d 471, 477 (Ind.

1989) (holding that, when the defendant knowingly waived his Miranda rights,

any custodial statement he made after waiver could properly be used to obtain a

search warrant). Therefore, the trial court did not abuse its discretion in

admitting evidence of the marijuana found pursuant to the valid search.




3
   Ware does not challenge Officer Frey’s ability to recognize illegal drugs from his training and experience as
a law enforcement officer.
4
   Ware does not challenge Officer Frey’s initial entry into his home and, indeed, Officer Frey had authority
to enter what he knew to be Ware’s residence to execute the valid felony arrest warrants for Ware at a time
when Ware was likely to be at home, i.e., 12:30 a.m. See Carpenter v. State, 974 N.E.2d 569, 572-74 (Ind. Ct.
App. 2012), trans. denied; see also, I.C. § 35-33-2-3(b) (providing that a “law enforcement officer may break
open any outer or inner door or window in order to execute an arrest warrant, if he is not admitted following
an announcement of his authority and purpose”).



Court of Appeals of Indiana | Memorandum Decision 20A03-1607-CR-1686 | February 27, 2017          Page 12 of 18
[22]   However, Ware contends that the search was unconstitutional because the

       affidavit for the search warrant contained the “false and misleading statements”

       that Officer Frey had good cause to believe he would find evidence of dealing, as

       opposed to merely possessing, marijuana or other controlled substances.5

       Appellant’s Br. at 11. In support, he cites this court’s opinion in Buford v. State,

       40 N.E.3d 911 (Ind. Ct. App. 2015). But Buford involved an affidavit that only

       alleged evidence of drug dealing, and the affidavit only provided evidence of a

       small amount of marijuana, which the court noted did not support probable

       cause for dealing—as opposed to possessing—drugs. Id. at 915 n.7. Here, on

       the other hand, Officer Frey’s affidavit alleges evidence of dealing and

       possessing illegal drugs and, in support, cites evidence of small amounts of

       marijuana located in Ware’s residence. While that evidence would not be

       sufficient to show probable cause for dealing alone, it did provide a sufficient

       showing of probable cause to believe Ware possessed marijuana. Thus, unlike

       in Buford, even if the language relating to dealing were excised from the

       affidavit, there would still remain probable cause to search Ware’s home for

       marijuana.


[23]   Moreover, the cocaine and alprazolam were also admissible even though the

       affidavit for search warrant did not contain facts showing probable cause to

       believe any drugs other than marijuana would be found in Ware’s residence.



       5
         We disregard Ware’s statement that the search warrant was based on “an uncorroborated anonymous tip,”
       Appellant’s Br. at 11, as Ware subsequently admits that the affidavit for search warrant did not mention the
       anonymous tip and that the issue of hearsay was therefore not “in play,” id. at 13.

       Court of Appeals of Indiana | Memorandum Decision 20A03-1607-CR-1686 | February 27, 2017       Page 13 of 18
       Police may seize contraband discovered pursuant to a valid search warrant, so

       long as the contraband is in plain view in places within the scope of the search

       warrant and the contraband’s illegal nature is readily apparent. See, e.g., Granger

       v. State, 946 N.E.2d 1209, 1214 (Ind. Ct. App. 2011) (citing Jones v. State, 783

       N.E.2d 1132, 1137 (Ind. 2003)). Here, the police were authorized under the

       Fourth Amendment to search anywhere in Ware’s home where they were likely

       to find marijuana. In the course of that valid search, they discovered seventeen

       loose alprazolam pills and 101 pieces of folded paper containing cocaine in

       Ware’s bedroom, the incriminating nature of which Officer Frey immediately

       recognized from his training as a law enforcement officer. Therefore, the trial

       court did not abuse it’s discretion in admitting evidence of the alprazolam and

       the cocaine.


                                 Issue Two: Chain of Custody of Cocaine

[24]   Ware also contends that the trial court erred in admitting the cocaine contained

       in State’s Exhibit 15 and the results of the laboratory analysis of that cocaine

       contained in State’s Exhibit 21 because the State failed to show a sufficient

       chain of custody for the cocaine. However, Ware acknowledges that he did not

       object to the admission of those exhibits on the grounds that the State had failed

       to show a sufficient chain of custody.6




       6
         “A mere general objection, or an objection on grounds other than those raised on appeal, is ineffective to
       preserve an issue for appellate review.” Raess v. Doescher, 883 N.E.2d 790, 797 (Ind. 2008). Ware admits that
       his objection to the admission of State’s Exhibits 15 and 21 was based solely on his claim that the exhibits
       should be excluded due to the illegality of the search. Appellant’s Br. at 20.

       Court of Appeals of Indiana | Memorandum Decision 20A03-1607-CR-1686 | February 27, 2017        Page 14 of 18
[25]   When a defendant fails to make a contemporaneous objection at the time the

       evidence is introduced at trial, he waives the right to appeal the admission of

       that evidence unless the trial court committed fundamental error. E.g., Brown v.

       State, 929 N.E.2d 204, 207 (Ind. 2010). Fundamental error is a substantial,

       blatant violation of due process that must be so prejudicial to the rights of a

       defendant as to make a fair trial impossible. Id. When we evaluate the issue of

       fundamental error, we must


               look at the alleged misconduct in the context of all that happened
               and all relevant information given to the jury—including
               evidence admitted at trial, closing argument, and jury
               instructions—to determine whether the misconduct had such an
               undeniable and substantial effect on the jury’s decision that a fair trial
               was impossible.


       Ryan v. State, 9 N.E.3d 663, 668 (Ind. 2014) (emphasis original).


[26]   Ware asserts that the trial court committed fundamental error when it admitted

       State’s Exhibits 15 and 21 because the State failed to show that it kept the

       cocaine in an “undisturbed condition” as required to show a sufficient chain of

       custody. Appellant’s Br. at 18. In particular, Ware asserts that Officer Frey

       “disturbed” the evidence when he removed the rock-like substances from the

       101 individual packets and placed them all into one lump sum for testing. Id.

       He contends, in essence, that that “disturbance” resulted in a lack of evidence

       of how much “adulterated” cocaine he possessed because the laboratory tested

       only a few samples from the lump sum rather than the substance in each

       individual packet. Id. at 20.

       Court of Appeals of Indiana | Memorandum Decision 20A03-1607-CR-1686 | February 27, 2017   Page 15 of 18
[27]   In order to establish a sufficient chain of custody,


               the proponent of fungible evidence need only provide evidence
               that strongly suggests the whereabouts of the evidence at all
               times. Russell v. State (1986), Ind., 489 N.E.2d 955. Reasonable
               assurances must be provided that the evidence passed through
               various hands in an undisturbed condition. Id. A defense
               argument which merely raises the possibility of tampering does
               not make the chain of custody inadequate. Id.


       Reynolds/Herr v. State, 582 N.E.2d 833, 837 (Ind. Ct. App. 2011). Furthermore,

       where an exhibit’s chain of custody is in question but there is no evidence of

       any tampering, there is a presumption that a system of regularity accompanied

       the handling of the evidence if the exhibit was at all times within official

       custody. Troxell v. State, 778 N.E.2d 811, 814 (Ind. 2002).


[28]   Here, the evidence shows a sufficient chain of custody of the cocaine. Officer

       Frey testified that he was the officer who found the cocaine in Ware’s home,

       transported it to the sheriff’s department, placed it all into one lump sum,

       weighed it, field tested it, sealed it, and sent it to the laboratory. Wildeman

       testified that she received that evidence in a sealed and undisturbed condition

       before testing it herself. Thus, the evidence establishes that the cocaine was at

       all times within official custody and was, thus, presumptively handled with a

       system of regularity. Id.


[29]   Ware does not point to any other evidence of tampering. Nor does Ware

       contest that the evidence shows that normal laboratory procedures were



       Court of Appeals of Indiana | Memorandum Decision 20A03-1607-CR-1686 | February 27, 2017   Page 16 of 18
       followed in testing the representative sample of the lump sum.7 And Ware is

       incorrect to the extent he suggests that the testing of a representative sample of

       the total amount of the cocaine, alone, shows a “disturbance” in the chain of

       custody, tampering, or invalid laboratory testing. Our supreme court has

       determined that, with respect to the weight element of the offense of dealing

       cocaine, the total weight of the drug, and not merely its pure component, is to

       be considered. Woodford v. State, 752 N.E.2d 1278, 1283 (Ind. 2001); see also

       Evans v. State, 566 N.E.2d 1037, 1042 (Ind. Ct. App. 1991). Thus, the State was

       not required to test the substance in each individual packet when the packets

       were found together, were similar in appearance and were wrapped in the same

       manner.


[30]   Because Ware does not point to any evidence that the chain of custody of the

       cocaine was insufficient, the trial court did not commit fundamental error when

       it admitted State’s Exhibits 15 and 21.


                                                      Conclusion

[31]   The trial court did not abuse its discretion in admitting the evidence obtained as

       a result of the April 15 search of Ware’s home, as that search was based on

       probable cause. And the trial court did not commit fundamental error when it




       7
         To the extent Ware relies on Wildeman’s testimony that it was theoretically possible that ninety of the 101
       packets could have been noncontrolled substances, Ware’s argument is based on speculation, which we will
       not consider. Reynolds/Herr, 582 N.E.2d at 837.

       Court of Appeals of Indiana | Memorandum Decision 20A03-1607-CR-1686 | February 27, 2017        Page 17 of 18
       admitted evidence of the cocaine, as the State showed a sufficient chain of

       custody for that evidence.


[32]   Affirmed.


       Bailey, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A03-1607-CR-1686 | February 27, 2017   Page 18 of 18
