Opinion
23A-CR-2841
11-20-2024
Deontrae Marshawn Adams, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEYS FOR APPELLANT Justin K. Clouser Eric Grzegorski Howard County Public Defender Kokomo, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Daylon L. Welliver Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Howard Superior Court The Honorable Brant J. Parry, Judge Trial Court Cause No. 34D02-2203-F1-818
ATTORNEYS FOR APPELLANT Justin K. Clouser Eric Grzegorski Howard County Public Defender Kokomo, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Daylon L. Welliver Deputy Attorney General Indianapolis, Indiana
Judge Brown concurs.
Judge Kenworthy concurs in part and concurs in result with separate opinion. Mathias, Judge.
MEMORANDUM DECISION
MATHIAS, JUDGE
[¶1] Deontrae Marshawn Adams appeals his conviction for Level 2 felony dealing in a controlled substance and his twenty-five-year sentence. Adams raises the following two issues for our review:
1. Whether the trial court abused its discretion in the admission of certain evidence.
2. Whether Adams's sentence of twenty-five years, with seven years suspended, is inappropriate in light of the nature of the offense and his character.
[¶2] We affirm.
Facts and Procedural History
[¶3] In the overnight hours between November 20 and 21, 2021, Adams met Shalynn Carroll at a club in Kokomo. Later, the two went to Adams's apartment.
[¶4] Around 1:30 p.m. on the 21st, Adams woke up and found Carroll unresponsive. Adams carried Carroll to his car and drove her "back to [the] club where he picked her up," but "she wouldn't get out of the car." Tr. Vol. 2, p. 31. Adams then drove Carroll to a nearby hospital. There, emergency personnel observed that Carroll was "cold," "stiff," and "in rigor mortis" inside the car. Id. at 29.
[¶5] Carroll had died of a fentanyl overdose. Accordingly, investigating officers searched Adams's apartment. In his bedroom, officers located a shoebox. From inside the shoebox, the officers seized approximately twelve grams of a powdery substance that later tested positive for fentanyl.
[¶6] The State charged Adams in relevant part with Level 2 felony dealing in a controlled substance. At his ensuing jury trial, Adams argued that the fentanyl seized from the shoebox belonged to Carroll. In response to Adams's theory, the State called Gage Ray as a witness. Ray testified, over Adams's objections, that he had been in Adams's apartment in the fall of 2021 and had seen a powdery substance that he believed, based on his own prior use, to be fentanyl. Ray also told an investigating officer that Adams stored the fentanyl in a shoebox in Adams's bedroom. On cross-examination, Ray admitted that he has a long criminal history and that, in exchange for his testimony, the conditions of his release were favorably modified.
[¶7] The jury found Adams guilty of Level 2 felony dealing in a controlled substance. After a sentencing hearing, the trial court found Adams's criminal history and failure at prior, lesser placements to be aggravating circumstances. The court also noted that Adams was on probation at the time of Carroll's death. The court did not find any mitigating circumstances. The court then ordered Adams to serve twenty-five years in the Department of Correction, with seven of those years suspended to supervised probation.
[¶8] This appeal ensued.
1. The trial court did not abuse its discretion in the admission of Ray's testimony.
[¶9] Adams contends that the trial court abused its discretion when it permitted Ray to testify that he had observed fentanyl in Adams's apartment in the fall of 2021. A trial court has broad discretion regarding the admission of evidence, and its decisions are reviewed only for abuse of discretion. Hall v. State, 177 N.E.3d 1183, 1193 (Ind. 2021). We will reverse only if the trial court's ruling was clearly against the logic and effect of the facts and circumstances before it and the errors affect a party's substantial rights. Id.
[¶10] Adams first asserts that Ray's testimony should have been excluded under Indiana Evidence Rule 404(b). Under that Rule, evidence of an individual's prior bad acts is inadmissible "to prove a person's character in order to show that on a particular occasion the person acted in accordance with" that character. Ind. Evidence Rule 404(b)(1). However, such evidence "may be admissible for another purpose," such as proving "motive, opportunity, intent, preparation, plan, knowledge, . . . absence of mistake, or lack of accident." Evid. R. 404(b)(2).
[¶11] "Rule 404(b)'s list of permissible purposes is illustrative but not exhaustive." Davis v. State, 186 N.E.3d 1203, 1210 (Ind.Ct.App. 2022), trans. denied. The trial court must exclude evidence under Rule 404(b) "only when it is introduced to prove the forbidden inference of demonstrating the defendant's propensity to commit the charged crime." Laird v. State, 103 N.E.3d 1171, 1177 (Ind.Ct.App. 2018), trans. denied. Thus, under Rule 404(b), the trial court may admit testimony that "is relevant to a matter at issue other than the defendant's propensity to commit the charged act." Fairbanks v. State, 119 N.E.3d 564, 568 (Ind. 2019) (quoting Hicks v. State, 690 N.E.2d 215, 219 (Ind. 1997)) (emphasis added).
[¶12] We agree with the State that Ray's testimony was admissible under Rule 404(b)(2). Prior to the State calling Ray as a witness, Adams made clear that his "theory of defense" was that the fentanyl discovered in his bedroom was Carroll's, not his. Tr. Vol. 2, p. 98. Accordingly, Ray's testimony was relevant and admissible to respond to Adams's defense that the fentanyl seized from the shoebox in his room belonged to Carroll. See, e.g., Pittman v. State, 234 N.E.3d 874, 885 (Ind.Ct.App. 2024) (noting that evidence may be admissible under Rule 404 to respond to the defense's argument), trans. denied.
[¶13] Adams next asserts that, even if Ray's testimony was relevant and admissible under Rule 404(b), it still should have been excluded under Evidence Rule 403. Under Rule 403, "relevant evidence may be excluded if its probative value is substantially outweighed by the danger of . . . unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence." Snow v. State, 77 N.E.3d 173, 179 (Ind. 2017) (quotation marks omitted). Where a trial court reasonably could decide that evidence either be "admitted or excluded" under Rule 403, we will not "second-guess the trial court's determination." Id.
[¶14] Adams's argument under Rule 403 appears to be that Ray was an especially untrustworthy witness, and there is nothing in the record to verify Ray's claim that the substance he had previously seen in Adams's apartment was fentanyl. But it was within the trial court's broad discretion under Rule 403 to allow, as it did, Ray to testify while also allowing Adams's counsel to put Ray's credibility to the jury. We therefore cannot say that the trial court abused its discretion in the admission of Ray's testimony.
2. Adams's sentence is not inappropriate.
[¶15] Adams also asserts that his sentence is inappropriate in light of the nature of the offense and his character. Under Indiana Appellate Rule 7(B), we may modify a sentence that we find is "inappropriate in light of the nature of the offense and the character of the offender." Making this determination "turns on our sense of the culpability of the defendant, the severity of the crime, the damage done to others, and myriad other factors that come to light in a given case." Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). Sentence modification under Rule 7(B), however, is reserved for "a rare and exceptional case." Livingston v. State, 113 N.E.3d 611, 612 (Ind. 2018) (per curiam).
[¶16] When conducting this review, we generally defer to the sentence imposed by the trial court. Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012). Our role is to "leaven the outliers," not to achieve what may be perceived as the "correct" result. Id. Thus, deference to the trial court's sentence will prevail unless the defendant persuades us the sentence is inappropriate by producing compelling evidence portraying in a positive light the nature of the offense-such as showing restraint or a lack of brutality-and the defendant's character-such as showing substantial virtuous traits or persistent examples of positive attributes. Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).
[¶17] Adams was convicted of a Level 2 felony, which carries a sentencing range of ten to thirty years, with an advisory term of seventeen and one-half years. Ind. Code § 35-50-2-4.5 (2021). And, here, the trial court ordered Adams to serve twenty-five years with seven of those years suspended to supervised probation.
[¶18] We cannot say that Adams's sentence is inappropriate. Regarding the nature of the offense, Adams possessed more than twelve grams of fentanyl, which is twenty percent more than the amount necessary to establish his Level 2 felony offense. And officers found the fentanyl after Carroll had overdosed in Adams's apartment, which resulted in her death. Regarding his character, Adams has a long criminal history, including three prior felony convictions for drug-related offenses, and prior attempts at lesser placements have been unsuccessful.
[¶19] Adams also presents no compelling evidence that portrays the offense in a positive light or shows that his character has substantial virtuous traits or positive attributes. Instead, he simply seeks to have our Court substitute its judgment for the trial court's, which we will not do. See Stephenson, 29 N.E.3d at 122. We therefore affirm Adams's sentence.
Conclusion
[¶20] For all of these reasons, we affirm Adams's conviction and sentence.
[¶21] Affirmed.
Brown, J., concurs.
Kenworthy, J., concurs in part and concurs in result with separate opinion.
Kenworthy, Judge, concurring in part and concurring in result in part.
[¶22] I agree with the majority that Adams's sentence is not inappropriate. But I respectfully disagree with the majority's conclusion that the trial court did not abuse its discretion in admitting Ray's testimony. Although I would hold the testimony should not have been allowed, I conclude its admission was harmless and concur in result as to that issue.
[¶23] The trial court and counsel held a lengthy discussion about the admissibility of Ray's testimony prior to him taking the stand. The State offered multiple alleged non-propensity purposes in its bid to present Ray's testimony that Adams had previously possessed fentanyl, and the basis on which the trial court ultimately admitted Ray's testimony is not entirely clear. It was during this discussion that Adams stated his theory of defense. On appeal, the State claims-and the majority agrees-Ray's testimony was admissible to "rebut [Adams's] assertion that Carroll possessed the drugs found in [his] bedroom." Appellee's Br. at 12; see slip op. at ¶ 12.
The trial court did limit the scope of Ray's testimony.
[¶24] Otherwise inadmissible evidence may be admitted where the defendant opens the door by eliciting evidence that leaves the trier of fact "with a false or misleading impression of the facts." Clark v. State, 915 N.E.2d 126, 130 (Ind. 2009). "Opening the door refers to the principle that where one party introduces evidence of a particular fact, the opposing party is entitled to introduce evidence in explanation or rebuttal thereof[.]" Sampson v. State, 38 N.E.3d 985, 992 n.4 (Ind. 2015). It is important to note Adams did not refer to ownership of the fentanyl during his opening statement, did not elicit testimony on cross-examination of the State's witnesses relating to possession, and had not yet presented any witnesses when Ray testified. Adams did not open the door to Rule 404(b) evidence by generally denying the fentanyl was his. See United States v. Miller, 673 F.3d 688, 698 (7th Cir. 2012) (observing "if merely denying guilt opens the door wide to prior convictions for the same crime, nothing is left of the Rule 404(b) prohibition"). The trial court acknowledged as much. See Tr. Vol. 2 at 105 (explaining "just because you say I didn't do it or they belong to somebody else" does not open the door to evidence of prior bad acts). At the time Ray testified, there was nothing to rebut.
His only statement about the fentanyl was that "a bag of powder was found in his house . . . that had his DNA on it and Ms. Carroll's DNA on it[.]" Tr. Vol. 2 at 27.
[¶25] Adams did not place his intent or knowledge at issue and the State did not offer any other plausible non-propensity reason for presenting the evidence.Because there was no basis on which to admit Ray's testimony, the trial court abused its discretion in allowing it over Adams's objection.
Among other things, the State argued the testimony would show a plan, opportunity, and Adams's "identity as a drug dealer." Tr. Vol. 2 at 103. As the trial court pointed out, "You can't say he's a drug dealer, this identity as a drug dealer, so now he is a drug dealer here. That is exactly what we can't do." Id.
[¶26] But generally, an error in the admission of evidence is harmless unless it affects the defendant's substantial rights. Hoglund v. State, 962 N.E.2d 1230, 1238 (Ind. 2012). When we consider the effect of an evidentiary ruling, we look to the probable effect on the fact finder. Id. "The improper admission is harmless error if the conviction is supported by substantial independent evidence of guilt satisfying the reviewing court there is no substantial likelihood the challenged evidence contributed to the conviction." Id. In other words, we will reverse only "if the record as a whole discloses that the erroneously admitted evidence was likely to have had a prejudicial impact on the fact-finder, thereby contributing to the verdict." Chapman v. State, 141 N.E.3d 881, 887 (Ind.Ct.App. 2020).
[¶27] The prejudicial impact here was negligible. Ray's credibility was questionable at best. He has a criminal history and is an admitted drug user. While in the Howard County Jail, he expressed his willingness to "set people up" and approached the detective in charge of Adams's case, asking his sentence to be modified to house arrest. He broached the subject of assistance with charges in another county. Given this, there is no substantial likelihood Ray's testimony contributed significantly to Adams's conviction. And there was substantial independent evidence of Adams's guilt, including that Adams's DNA was on the bag of fentanyl found in the shoebox in his room. And Adams did not object to Ray's testimony that after Carroll died, Adams contacted him and asked him to hold drugs for him "because he was being watched by the police[.]" Tr. Vol. 2 at 230. Ray said Adams brought him approximately seven grams of a white powdery substance.
[¶28] Although I believe the trial court should not have admitted Ray's testimony for the amorphous purpose of rebutting Adams's general denial of guilt, the error was harmless, and I concur in the result reached by the majority to affirm Adams's conviction.