Opinion
23A-CR-3131
11-26-2024
Javious O. Curry, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Gregory L. Fumarolo Fort Wayne, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Catherine Brizzi 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Allen Superior Court The Honorable Steven O. Godfrey, Judge Trial Court Cause No. 02D04-2308-F2-46
ATTORNEY FOR APPELLANT Gregory L. Fumarolo Fort Wayne, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Catherine Brizzi Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
Pyle, Judge.
Statement of the Case
[¶1] Javious O. Curry ("Curry") appeals, following a jury trial, his convictions for Level 2 felony dealing in methamphetamine and Level 3 felony dealing in methamphetamine. Curry also appeals his sentence imposed for his two dealing in methamphetamine convictions and for his Class A misdemeanor resisting law enforcement conviction to which he pleaded guilty. Curry argues that: (1) the trial court abused its discretion when it admitted evidence; (2) there was insufficient evidence to support his dealing convictions; and (3) his sentence for his Level 2 felony conviction is inappropriate. Concluding that: (1) the trial court did not abuse its discretion when it admitted evidence; (2) there was sufficient evidence to support his dealing convictions; and (3) his sentence is not inappropriate, we affirm the trial court's judgment and the sentence imposed thereon.
Id.
I.C. § 35-44.1-3-1.
[¶2] We affirm.
Issues
1. Whether the trial court abused its discretion when it admitted evidence.
2. Whether there was sufficient evidence to support Curry's dealing convictions.
3. Whether Curry's sentence for his Level 2 felony conviction is inappropriate.
Facts
[¶3] In June 2023, Christopher Kauffman ("Kauffman") began working with the Fort Wayne Police Department as a confidential informant. Fort Wayne Police Department Detective Shane Heath ("Detective Heath") asked Kauffman to participate in a controlled buy, and Kauffman agreed to participate. Kauffman told Detective Heath about a man named J.J. who Kauffman could contact for drugs and also told Detective Heath where J.J. usually could be found. Kauffman knew Curry as J.J.
A controlled buy is "a purchase of illegal narcotics" where officers search a confidential informant before and after the transaction, provide money for the transaction, provide a recording device that records the transaction, and gather the purchased illegal narcotics after the transaction. (Tr. Vol. 2 at 97).
[¶4] On June 19, 2023, Detective Heath and Kauffman worked together on a controlled buy ("the June controlled buy"). Detective Heath and Kauffman met at a location where Detective Heath could conduct a pre-buy search of Kauffman and his car. Officers searched Kauffman by checking the exterior of his clothing, his pockets, all of his interior clothing, his shoes, and his genitalia and buttocks. Detective Heath also thoroughly searched Kauffman's car.
[¶5] Kauffman called Curry and asked him to sell Kauffman some methamphetamine. Curry told Kauffman to come to a house on Oliver Street ("the house"). Detective Heath gave Kauffman $200 for Kauffman to use to buy the drugs. Detective Heath also activated and gave a recording device to Kauffman. In addition, Detective Heath alerted other officers that the controlled buy would take place at the house, and Fort Wayne Police Department Detective Tina Dickey ("Detective Dickey") surveilled the controlled buy using binoculars. Kauffman drove to the house, and Curry came out of the house and spoke with Kauffman at his car. Curry returned to the house, came back to Kauffman's car with the methamphetamine, and Kauffman paid Curry for the methamphetamine. Kauffman then left the house and met with Detective Heath for a post-buy search. Kauffman gave Detective Heath the methamphetamine that he had purchased from Curry along with the activated recording device.
[¶6] On July 6, 2023, Kauffman and Detective Heath worked together on a second controlled buy ("the July controlled buy"). Detective Heath searched Kauffman and his car before giving Kauffman $200 and an activated recording device. Detective Heath alerted other officers about the July controlled buy, and Fort Wayne Police Department Detective Sarah Schmieman ("Detective Schmieman") and Fort Wayne Police Department Sergeant Bradley Schultz ("Sergeant Schultz") surveilled the house from different locations. Kauffman contacted Curry, who told him to come to the house and enter through the back door. Kauffman entered the house and exchanged the $200 for methamphetamine. While in the house, Kauffman pulled out from his pocket the recording device before putting it away again. The recording device recorded a brief video of a man on the ground. After Curry gave the methamphetamine to Kauffman, Kauffman returned to his car. Sergeant Schultz surveilled the July controlled buy and saw Kauffman walk to the back side of the house before returning to his car five minutes later. Detective Schmieman saw Kauffman enter the back door of the house and return about five minutes later. Kauffman then drove back to a meeting spot, where Detective Heath conducted a post-buy search of his person and car. Kauffman gave Detective Heath the methamphetamine and the activated recording device.
[¶7] In August 2023, law enforcement officers approached Curry at a gas station and ordered him to stop. Curry fled from the officers, and the officers apprehended and arrested Curry. The State charged Curry with Level 2 felony dealing in methamphetamine for the July 2023 controlled buy, Level 3 felony dealing in methamphetamine for the June 2023 controlled buy, and Class A misdemeanor resisting law enforcement.
[¶8] In October 2023, the trial court held a jury trial. Curry pleaded guilty to the Class A misdemeanor resisting law enforcement charge before the start of his trial. During Detective Heath's testimony, the State moved to admit the methamphetamine collected from the June 2023 controlled buy as State's Exhibit 6 and the methamphetamine collected from the July 2023 controlled buy as State's Exhibit 7. Curry did not object to the admission of this evidence. The State also moved to admit the recordings of both controlled buys as State's Exhibits 1, 2, and 3. Curry did not object to the admission of this evidence.
[¶9] Detective Heath testified that he had used confidential informants to conduct controlled buys "[t]housands" of times. (Tr. Vol. 2 at 101). Detective Heath also testified that "it's more common than not" for a drug dealer to not use his or her real name because "they don't want the person that's buying drugs from them to have any idea what their name is." (Tr. Vol. 2 at 101). On crossexamination, Curry questioned Detective Heath about the thoroughness of his search of Kauffman and his car before the June controlled buy. Specifically, Curry asked Detective Heath if he had conducted that search of Kauffman and his car in eight minutes, and Detective Heath agreed that he had. Detective Heath also testified that he had not provided Kauffman with a photo array to identify Curry.
[¶10] Kauffman also testified at the jury trial. Kauffman testified that Detective Heath had conducted a "[f]ull body search" of his person and a search of his car before each controlled buy. (Tr. Vol. 2 at 140). Kauffman also testified that Detective Heath had followed him from the house back to a meeting spot after each controlled buy. When the State asked Kauffman who J.J. was, Kauffman identified Curry in the courtroom. When the State asked Kauffman who the man on the video recording of the July controlled buy was, Kauffman answered that it was J.J. Kauffman further explained that the brief video he had recorded was of J.J. "pulling out the [methamphetamine] and weighing it on a scale." (Tr. Vol. 2 at 150). Finally, the State asked Kauffman if he had known Curry for awhile and Kauffman responded, "[y]es." (Tr. Vol. 2 at 153). When the State asked Kauffman if he would recognize Curry, Kauffman said, "[o]f course." (Tr. Vol. 2 at 153).
[¶11] Detective Dickey testified that she had been surveilling the house during the June controlled buy and that Curry was the man she had seen approach Kauffman's car during the June controlled buy. Detective Schmieman testified that she had been surveilling the house during the July controlled buy and had seen Kauffman enter the back door of the house and exit the house about five minutes later.
[¶12] The State moved to admit State's Exhibit 8, which was a stipulation of facts regarding the methamphetamine that Kauffman had purchased from Curry. Curry did not object to the admission of the stipulated facts. The stipulation provided that the drugs purchased by Kauffman during the June controlled buy amounted to 5.61 grams of methamphetamine and that the drugs purchased by Kauffman during the July controlled buy amounted to 13.21 grams of methamphetamine.
[¶13] On the morning of the second day of trial, the State filed a motion to amend its witness list. The State alleged that Curry, while using the jail phone after the first day of trial, had referred to himself as J.J. The State moved to amend its witness list to include Allen County Sheriff's Department Corporal Jeffrey Kroemer ("Corporal Kroemer"), who could lay the foundation in order to admit the jail phone calls. Curry objected to the "late timing" because they were in "the middle of trial." (Tr. Vol. 2 at 185). Curry did not ask for a continuance, but he instead argued that the State was aware of the fact that Kauffman knew Curry as J.J. Curry's counsel also conceded that he had been able to listen to the phone calls but was still objecting. The trial court granted the State's motion to amend its witness list.
[¶14] Corporal Kroemer testified that he worked at the Allen County Jail and explained that he was the administrator for the phone and video systems at the jail. Corporal Kroemer also testified that the phone system requires an inmate at the jail to state their name the first time they use the system, and the phone system records this audio. Additionally, Corporal Kroemer testified that the phone system plays this audio to any person that the inmate calls in the future.
[¶15] The State moved to admit State's Exhibit 9, which included two phone calls made by Curry on the first day of trial. Curry objected, arguing that the phone system had recorded Curry's name as J.J. the first time he had ever used the system and that this information had been available to the State from that moment onward. The State argued that these phone calls had not been available to them until the previous evening and that they further established Curry's identity as J.J. The trial court noted that these phone calls had just been made the night before and admitted the phone calls over Curry's objection.
[¶16] At the conclusion of the jury trial, the jury found Curry guilty of Level 2 felony dealing in methamphetamine and Level 3 felony dealing in methamphetamine. In December 2023, the trial court held a sentencing hearing. The trial court noted that Curry has four prior felony convictions and six prior misdemeanor convictions. The trial court also noted that Curry had had his work release placement revoked twice, his probation revoked once, and a suspended sentence revoked once. The trial court found as aggravating circumstances Curry's criminal history and multiple revocations. The trial court found as mitigating circumstances Curry's substance abuse and that incarceration would result in a hardship to his dependents, but it gave these mitigating circumstances "almost little to no weight." (Tr. Vol. 2 at 225). The trial court sentenced Curry to twenty (20) years for his Level 2 felony dealing in methamphetamine conviction, ten (10) years for his Level 3 felony dealing in methamphetamine conviction, and one hundred and eighty-three (183) days for his Class A misdemeanor resisting law enforcement conviction. The trial court ordered Curry's sentences to be served concurrently with one another at the Indiana Department of Correction ("the DOC").
[¶17] Curry now appeals.
Decision
[¶18] Curry argues that: (1) the trial court abused its discretion when it admitted evidence; (2) there was insufficient evidence to support his dealing convictions; and (3) his sentence for his Level 2 felony conviction is inappropriate. We address each of Curry's arguments in turn.
1. Admission of Evidence
[¶19] Curry first argues that the trial court abused its discretion when it admitted evidence. Specifically, Curry challenges the admission of the two jail phone calls made by Curry on the first day of trial because this evidence was not timely disclosed to the defense and constituted a discovery violation. The admission of evidence is within the sound discretion of the trial court, and we will reverse only for an abuse of that discretion. Rogers v. State, 897 N.E.2d 955, 959 (Ind.Ct.App. 2008), trans. denied. "Trial courts have broad discretion in dealing with discovery violations by the State in the alleged late disclosure of evidence to the defense." Alcantar v. State, 70 N.E.3d 353, 356 (Ind.Ct.App. 2016). "We may reverse the manner in which the trial court deals with such an alleged violation only for an abuse of that discretion involving clear error and resulting prejudice." Id.
[¶20] The Indiana Supreme Court has held that "[e]xclusion of the evidence is an extreme remedy and is to be used only if the State's actions were deliberate and the conduct prevented a fair trial." Berry v. State, 715 N.E.2d 864, 866 (Ind. 1999). "Generally, the proper remedy for a discovery violation is a continuance." Alcantar, 70 N.E.3d at 356. "If a continuance would have cured the harm that arose by the discovery violation, failure to request one results in waiver." Id.
[¶21] Here, our review of the record reveals that Curry, on the first day of trial, made two phone calls using the jail phone system. In these calls, Curry referred to himself as J.J. The State acquired these jail phone calls the night of the first day of trial. The next morning, at the start of the second day of trial, the State moved to admit this evidence and to amend its witness list. Curry objected to its admission but did not request a continuance. The proper remedy here might have been a continuance, but, because Curry did not request one, his challenge to the admission of this evidence is waived. See id.
[¶22] Waiver notwithstanding, the record is clear that the State had just acquired this evidence the night of the first day of trial and had shared it with Curry's counsel. Additionally, the record shows that Curry's counsel had listened to these phone calls before they were admitted at trial. Curry was not prejudiced by the admission of this evidence. Therefore, we hold that the trial court did not abuse its discretion when it admitted the evidence of the two jail phone calls.
2. Sufficiency
[¶23] Curry next argues that there was insufficient evidence to support his dealing convictions. Our standard of review for sufficiency of the evidence claims is well settled. We consider only the probative evidence and reasonable inferences supporting the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do not reweigh the evidence or judge witness credibility. Id. We will affirm the conviction unless no reasonable fact finder could find the elements of the crime proven beyond a reasonable doubt. Id. at 146-47. The evidence is sufficient if an inference may be reasonably drawn from it to support the verdict. Id. at 147.
[¶24] INDIANA CODE § 35-48-4-1.1 provides that "A person who . . . knowingly or intentionally . . . delivers . . . methamphetamine, pure or adulterated . . . commits dealing in methamphetamine[.]" The statute further provides that the offense is a Level 2 felony if "the amount of the drug is at least ten (10) grams[.]" I.C. § 35-48-4-1.1(e)(1). The statute also provides that the offense is a Level 3 felony if "the amount of the drug involved is at least five (5) grams but less than ten (10) grams[.]" I.C. § 35-48-4-1.1(d)(1).
[¶25] Our review of the record reveals that during the June controlled buy, Curry sold Kauffman 5.61 grams of methamphetamine and that during the July controlled buy, Curry sold Kauffman 13.21 grams of methamphetamine. Detective Heath testified that he had thoroughly searched both Kauffman and his car before and after each controlled buy. Detective Heath also activated a recording device and gave it to Kauffman during each controlled buy. Kauffman also testified that he had been thoroughly searched by Detective Heath before and after each controlled buy. Kauffman further testified that he had purchased the methamphetamine from Curry during both controlled buys and identified Curry at trial.
[¶26] Curry argues that no reasonable person would have believed that Detective Heath could have conducted a thorough pre-buy search in eight minutes. Curry also argues that Kauffman was not "constantly observed" during the controlled buys and that the quality of the recording of the July controlled buy "was not helpful to establish delivery or deliverer[.]" (Curry's Br. 18). Finally, Curry argues that the money used during the controlled buys was never recovered. Curry's arguments amount to requests to reweigh the evidence and reassess witness credibility, which we will not do. See Drane, 867 N.E.2d at 146.
Curry only argues that his sentence for his Level 2 felony dealing in methamphetamine conviction is inappropriate and makes no argument regarding his convictions for Level 3 felony dealing in methamphetamine or Class A misdemeanor resisting law enforcement.
[¶27] Finally, Curry argues that his sentence for his Level 2 felony conviction is inappropriate. He asks this Court to revise his sentence to ten years. We may revise a sentence if it is inappropriate in light of the nature of the offense and the character of the offender. Ind. Appellate Rule 7(B). The defendant has the burden of persuading us that his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). The principal role of a Rule 7(B) review "should be to attempt to leaven the outliers, and identify some guiding principles for trial courts and those charged with improvement of the sentencing statutes, but not to achieve a perceived correct result in each case." Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008) (internal quotation marks omitted). Whether a sentence is inappropriate ultimately turns on "the culpability of the defendant, the severity of the crime, the damage done to others, and a myriad of other factors that come to light in a given case." Id. at 1224. "Appellate Rule 7(B) analysis is not to determine whether another sentence is more appropriate but rather whether the sentence imposed is inappropriate." Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012) (internal quotation marks and citation omitted), reh'g denied.
[¶28] When determining whether a sentence is inappropriate, we acknowledge that the advisory sentence "is the starting point the Legislature has selected as an appropriate sentence for the crime committed." Childress, 848 N.E.2d at 1081. A person who commits a Level 2 felony "shall be imprisoned for a fixed term of between ten (10) and thirty (30) years, with the advisory sentence being seventeen and one-half (17%) years." IND. CODE § 35-50-2-4.5. In this case, a jury convicted Curry of Level 2 felony dealing in methamphetamine, and the trial court sentenced Curry to twenty years for his Level 2 felony dealing in methamphetamine conviction. The trial court ordered this sentence to be served concurrently with Curry's other sentences at the DOC, which, we note, is less than the maximum sentence permitted by statute.
[¶29] Turning first to the nature of the offenses, we note that Curry sold 13.21 grams of methamphetamine to Kauffman in July 2023. Turning to Curry's character, we note that he has multiple prior convictions. Specifically, Curry has four prior felony convictions and six prior misdemeanor convictions. Additionally, Curry has had his probation and work release revoked. The record shows that attempts to rehabilitate Curry have failed.
[¶30] As a result, Curry has not convinced us that his sentence for his Level 2 felony dealing in methamphetamine conviction is inappropriate. Therefore, we affirm the sentence imposed by the trial court.
[¶31] Affirmed.
May, J., and Brown, J., concur.