Opinion
24A-CR-1148
12-19-2024
David Alan Flaherty, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Matthew J. McGovern Fishers ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Jennifer Anwarzai Deputy Attorney General
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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Vanderburgh Circuit Court The Honorable David D. Kiely, Judge The Honorable Celia Pauli, Magistrate Trial Court Cause No. 82C01-2304-F4-2518 Memorandum Decision by Chief Judge Altice
ATTORNEY FOR APPELLANT Matthew J. McGovern Fishers
ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Jennifer Anwarzai Deputy Attorney General
MEMORANDUM DECISION
Altice, Chief Judge.
Case Summary
[¶1] Following a jury trial, David Flaherty appeals his convictions of Level 4 felony possession of methamphetamine and Level 6 felony resisting law enforcement. Flaherty raises several issues that we consolidate as:
1. Did the trial court commit reversible error when it admitted methamphetamine evidence over Flaherty's foundational objections as to chain of custody and lab instrument calibration?
2. Did the State present sufficient evidence to support Flaherty's conviction for resisting law enforcement as a Level 6 felony?
[¶2] We affirm.
Facts &Procedural History
[¶3] On April 24, 2023, Indiana State Police (ISP) Trooper Aaron Hadley conducted a traffic stop of Flaherty for committing traffic violations. Flaherty produced his driver's license but not his registration. After determining that Flaherty's license was suspended, Trooper Hadley asked Flaherty to step off the motorcycle and advised Flaherty that he was going to remove, for safety purposes, a visible large, sheathed knife that Flaherty had on his person. Flaherty got off the bike, paused, and fled on foot.
[¶4] Trooper Hadley and Evansville Police Department Officer Jaylan Blair, who was on the scene at that point, pursued Flaherty. Although Trooper Hadley warned Flaherty multiple times that if he did not stop a taser would be deployed, Flaherty, who still possessed the knife, continued fleeing. Trooper Hadley tased Flaherty but it appeared to have no effect, which Trooper Hadley surmised was due to Flaherty's leather vest. Officer Blair eventually tackled Flaherty into a fence, getting him to the ground. Trooper Hadley grabbed the knife and threw it. The two officers continued to wrestle with Flaherty, who had "heightened aggression" and was using "a lot of force" to resist being handcuffed. Transcript at 154. During the struggle, Trooper Hadley's body camera was pulled off. Officer Blair suffered cuts and scrapes to his hand and elbow. Eventually, they successfully handcuffed Flaherty and recovered, among other things, the knife, brass knuckles, a butterfly knife disguised as a pen, and a white powdery substance that appeared to the officers to be methamphetamine.
[¶5] Following Flaherty's arrest, Trooper Hadley, while wearing his activated body camera, questioned Flaherty. After telling Flaherty that the substance found during his arrest had field-tested positive for methamphetamine, Trooper Hadley asked Flaherty what he had intended to do with it; Flaherty replied, "I use" and estimated the weight of the drugs to be "25, 30 grams." Id. at 172.
[¶6] On April 27, 2023, the State charged Flaherty with: Level 4 felony possession of methamphetamine weighing at least ten grams but less than twenty-eight grams (Count I); Level 4 felony possession of a narcotic substance (Count II); Level 6 felony resisting law enforcement for knowingly or intentionally forcibly resisting, obstructing, or interfering with Officer Blair while he was engaged in official duties and inflicting or causing bodily injury to Officer Blair (Count III); Level 5 felony disarming a police officer (Count IV), and Class A misdemeanor possession of marijuana (Count V). A two-day jury trial was held in March 2024. Following jury selection, and outside of the jury's presence, the trial court dismissed Counts II and V on the State's motion.
[¶7] In testifying about the altercation with Flaherty, Trooper Hadley stated that he felt Flaherty tug at his police belt on the side where the taser was holstered. He also described that, after the three fell to the grass, Flaherty "thrashed" his body and tried to tuck his hands underneath himself. Id. at 152. During Trooper Hadley's testimony, video from his body camera worn during his interview of Flaherty was admitted, over objection. Trooper Hadley testified that, in his training and experience, the white powdery substance recovered at the scene appeared to be methamphetamine and that he had the substance tested at the ISP laboratory. Id. at 156.
[¶8] Officer Blair also testified about the incident, and his body camera video from the scene was admitted over objection and played for the jury. Officer Blair testified that, at times, Flaherty was reaching toward his firearm and that, after he and Trooper Hadley had gotten Flaherty to the ground, Flaherty forcibly pulled away and tried to roll over on his hands. Officer Blair described Flaherty as "very actively fighting" with the officers. Id. at 217. Officer Blair testified that he suffered injuries, namely scrapes and minor cuts to his hands and elbow, as a result of the struggle.
[¶9] The State also called as a witness Shanda Armstrong, a forensic scientist in the ISP laboratory's drug chemistry unit. Armstrong testified that she had completed 4,885 cases in ISP's lab, which included testing of 8,726 items, of which 4,241 were methamphetamine. As the State began to question Armstrong about her testing of drugs found at the scene, Flaherty raised objections on chain of custody grounds, arguing there had been no evidence where the evidence had been before it got to her, who packaged it, or how it got to the lab or to her. Out of the jury's presence, the parties presented argument to the court, with the court concluding:
I don't think [the State] ha[s] to call every single person in the chain of custody to establish it, I think that goes more towards weight than admissibility. Officer Hadley did testify that they were collected and sent to the lab. You know I think [Armstrong]'s free to testify as to what's in the bag and what she tested and whether she's able to, if she's able to connect it to the Defendant then that's the next question but I don't think chain of custody has to be perfect, I think the State has established that the Officer collected it, sent it to the lab, anything else goes to weight, not necessarily admissibility.Id. at 187.
[¶10] Over Flaherty's continuing objection, the trial court allowed Armstrong to testify about the drugs she tested. Prior to doing so, Armstrong addressed chain of custody protocol, testifying that evidence is brought to the lab where it is received by an evidence specialist, who makes sure that the evidence is in a sealed condition and marked appropriately with the requesting agency's name, case number, and item number. Armstrong testified that the evidence is given a barcode, through the computerized laboratory information management system, and placed in an evidence vault until it is requested for analysis. The barcode is scanned and used to track the evidence as it moves throughout the lab, such as in storage locations and into an analyst's hands. She explained that her testing of evidence occurs after she receives a request for a laboratory examination. When she is done with her testing, the evidence is returned to an evidence specialist who places it in the vault to be stored until it is returned to an agency.
[¶11] When Armstrong was asked about the name of the defendant on the request form that she received in the present case, Flaherty objected on hearsay grounds, asserting that it was unknown who had prepared the request form. The court overruled the objection and allowed Armstrong to testify that the name of the defendant on the request form was Flaherty and that the item number of the item that she tested was Laboratory Item 002. Subpart A of Item 002 contained a black rocklike substance and Subpart B contained two plastic baggies each containing a white crystalline substance. Armstrong testified that she received Item 002 from evidence specialist Theresa Bradley, who had received it at the lab and placed it into a vault. Prior to that, it had been in a temporary storage locker but Armstrong was not aware of who put Item 002 into the temporary storage locker nor was she certain of who completed the request form, although Trooper Hadley was identified on the form as the investigating officer.
[¶12] Armstrong testified that she performed two tests on Subparts A and B of Item 002: the first was a color testing, which she considered to be a screening or presumptive test, and the second was a more detailed gas chromatography mass spectrometry that she characterized as a confirmatory test. Before Armstrong testified to the results of her testing of Item 002, Flaherty objected on the basis that no foundation had been laid as to whether the machine that calculated weight was in proper operation, arguing "we've heard nothing about calibration or records[.]" Id. at 192. The court overruled the objection, and Armstrong testified that Subpart A contained .03 grams of methamphetamine, and one of the baggies in Subpart B contained 18.86 grams of methamphetamine; the other baggie had a gross weight of 8.47 grams but was not tested. Amstrong's certificate of analysis was admitted over Flaherty's continuing objection that no foundation as to the functioning or calibration of the machine or scales had been provided. Item 002, the methamphetamine, was also admitted over Flaherty's objection.
[¶13] During cross-examination, Armstrong testified that the lab's testing instruments are validated by external vendors on a monthly or weekly basis, depending on the type of instrument, and that calibration checks are done and log books are kept at the lab that show calibration of the machines. Armstrong testified that the lab's scientists also "do performance checks" and noted that, by conducting multiple tests on evidentiary items, she was capable of identifying any discrepancies or abnormalities in the results. Id. at 196.
[¶14] The jury found Flaherty guilty on Counts I and III - methamphetamine possession and resisting law enforcement - and not guilty on Count IV. The trial court sentenced Flaherty to three years of incarceration on Count I and a concurrent two-year term on Count III. Flaherty now appeals.
Discussion &Decision
1. Admission of Evidence
[¶15] Flaherty argues that the trial court improperly admitted "the drug evidence" at trial due to both "glaring gaps" in the chain of custody and a failure "to lay a sufficient foundation for the weight of the methamphetamine." Appellant's Brief at 10. We review challenges to the admission of evidence for an abuse of the trial court's discretion, which occurs if the decision is clearly against the logic and effect of the facts and circumstances. Jones v. State, 218 N.E.3d 3, 9 (Ind.Ct.App. 2023), trans. denied.
1.1 Chain of Custody
[¶16] Flaherty asserts that the methamphetamine seized at the scene should have been excluded because the State failed to provide a sufficient chain of custody. As Flaherty points out, "[t]he State bears a higher burden to establish the chain of custody of 'fungible' evidence," such as blood and drugs, "whose appearance is indistinguishable to the naked eye." Id. (quoting Culver v. State, 727 N.E.2d 1062, 1068 (Ind. 2000)).
For fungible items, the State lays a proper foundation when a witness is able to identify the item, . . . the item is relevant to the
disposition of the case[,] . . . [and the State] provid[es] a reasonable assurance that the evidence was undisturbed as it passed from the custody of one person to the next.... If the State presents evidence that strongly suggests the exact whereabouts of the evidence at all times, that is sufficient.K.W. v. State, 216 N.E.3d 505, 516 (Ind.Ct.App. 2023) (quoting Mateo v. State, 981 N.E.2d 59, 66 (Ind.Ct.App. 2012), trans. denied) (internal citations and quotations omitted), trans. denied.
[¶17] "[T]he State need not establish a perfect chain of custody, and once the State 'strongly suggests' the exact whereabouts of the evidence, any gaps go to the weight of the evidence and not to admissibility." Troxell v. State, 778 N.E.2d 811, 814 (Ind. 2002). There is a presumption of regularity in the handling of exhibits by public officers. Jones, 218 N.E.3d at 9. "Merely raising the possibility of tampering is insufficient to make a successful challenge to the chain of custody." Boner v. State, 243 N.E.3d 354, 362 (Ind.Ct.App. 2024) (citing Troxell, 778 N.E.2d at 814).
[¶18] Flaherty argues that the State failed to meet its heightened burden because "no person who handled the evidence [] between its collection at the scene and testing testified at trial." Appellant's Brief at 15. We - like the trial court - are unpersuaded that a lack of such testimony was fatal to an adequate chain of custody.
[¶19] Trooper Hadley's testimony indicated that the drug evidence was collected at the scene, and he testified that he had it tested in the lab. Armstrong testified that, initially, collected evidence is placed in a storage locker and, when brought to the lab, is received by an evidence specialist, who makes sure it is in a sealed condition and properly marked with identifying information, including case name, item number, and agency information. The evidence specialist places it in a vault until analysis is requested. When it is ready for testing, the evidence specialist removes it from the vault and then transfers the evidence to the analyst.
[¶20] Consistent with that protocol, Amstrong testified that she received Item 002 from evidence specialist Bradley, and Armstrong confirmed that it was still sealed and that the information on the envelope matched the request form she had received, which bore Flaherty's name as the defendant and Trooper Hadley's as the investigating officer. The certificate of analysis displays Trooper Hadley's name, indicating that he was the investigator associated with the sample submitted for testing. Armstrong's results were consistent with Flaherty's statement to Trooper Hadley that he had "25,30 grams" of methamphetamine on his person at the time of his arrest. Transcript at 172.
[¶21] On this record, we find that the State presented evidence that strongly suggested the whereabouts of the evidence at all times and that reasonable assurances exist that the drug evidence was undisturbed and accounted for from the time it was seized until it was tested. Thus, "any faults in the chain of custody here would go only to the weight of the evidence, not its admissibility." Boner, 243 N.E.3d at 363. Accordingly, the trial court did not err by admitting the challenged methamphetamine evidence.
1.2 Weight of the Methamphetamine
[¶22] Alternatively, Flaherty asserts that the trial court erred when it admitted, over his objection, Amstrong's testimony about the weight of the methamphetamine. He argues that the State failed to lay a proper foundation because it "failed to produce evidence that the scale was tested both before and after the methamphetamine was weighed." Appellant's Brief at 17. Flaherty asks us to reverse and enter the possession conviction as a Level 6 felony and order that he be resentenced accordingly.
Flaherty was convicted and sentenced for possession of methamphetamine as a Level 4 felony, which required that the methamphetamine weigh at least ten grams. Ind. Code § 35-48-4-6.1(c)(1). Possession of methamphetamine without regard to weight is a Level 6 felony. I.C. 35-48-4-6.1(a).
[¶23] As Flaherty points out, Ind. Evidence Rule 901(b)(9) provides that a party may lay a foundation for a process or system by "describing a process or system and showing that it produces an accurate result." Here, Amstrong testified that the testing instruments are validated by external vendors on a monthly or weekly basis, depending on the type of instrument, maintenance is performed annually, and log books are kept at the lab of calibration checks performed on the machines. In addition, Armstrong testified that the analysts "do performance checks." Id. at 196. Armstrong also testified that she had tested over 4,000 items for methamphetamine and was familiar with how the instruments worked, such that by always conducting more than one test on an item, she would observe any abnormalities or conflicting results. We find that the State presented sufficient evidence for the admission of Armstrong's testimony about the weight of the methamphetamine.
2. Resisting as a Level 6 Felony
[¶24] Flaherty contends the State presented insufficient evidence to sustain his conviction of resisting law enforcement as a Level 6 felony. Sufficiency of evidence claims warrant a deferential standard, in which we neither reweigh the evidence nor judge witness credibility. Thrash v. State, 88 N.E.3d 198, 205 (Ind.Ct.App. 2017). We consider only the evidence supporting the judgment and any reasonable inferences drawn from that evidence. Id. We affirm the conviction unless no reasonable factfinder could find the elements of the crime proven beyond a reasonable doubt. Hopson v. State, 95 N.E.3d 531, 533 (Ind.Ct.App. 2018). It is not necessary that the evidence overcome every reasonable hypothesis of innocence. Id. at 147.
[¶25] A person commits resisting law enforcement as a Class A misdemeanor if he or she: "knowingly or intentionally . . . flees from a law enforcement officer after the officer has, by visible or audible means . . . identified himself or herself and ordered the person to stop." Ind. Code § 35-44.1-3-1(a)(3). The offense is a Level 6 felony if, while committing the offense, "the person ... inflicts bodily injury on or otherwise causes bodily injury to another person[.]" I.C. § 35-44.1-3-1(c)(1)(B)(ii). Here, the State alleged that, in resisting arrest, "Flaherty inflicted bodily injury on or otherwise caused bodily injury to" Office Blair. Appendix at 17.
[¶26] Flaherty does not dispute that he resisted arrest. His claim is that there is "no evidence" that he "'inflicted' or 'caused' bodily injury on any law enforcement officer" because "at most, there is only evidence that Officer [] Blair was passively injured while trying to arrest Flaherty." Appellant's Brief at 11. He asks us to remand with instructions that his conviction for resisting be reduced to a Class A misdemeanor.
[¶27] Flaherty relies, in part, on A.S. v. State, 21 N.E.3d 121 (Ind.Ct.App. 2014), where an officer pulled the arm of an already-handcuffed defendant to take her to the ground, and the officer scraped his hand on the pavement. On appeal, this court determined that the evidence was not sufficient to support a conviction for resisting law enforcement as a Level 6 felony because the defendant, although resisting, did not affirmatively inflict injury on the officer and, rather, "was a passive part of the encounter" and "took no actions toward" the officer. Id. at 125. Flaherty also refers us to Moore v. State, 49 N.E.3d 1095 (Ind.Ct.App. 2016), trans. denied, where an officer suffered an injury when he fell as he was chasing the defendant, and a majority of this court reversed the Level 6 felony enhancement, finding that although pursuing the defendant may have been a contributing cause of the officer's injury, "there was no evidence of the actual cause of [the officer]'s fall." Id. at 1108. Flaherty urges that reduction to a misdemeanor is likewise warranted here because Officer Blair was injured as a result of Flaherty's resistance but not because of "any direct and deliberate conduct" on Flaherty's part. Reply Brief at 6.
[¶28] As Moore and subsequent cases have explained, in determining whether the defendant "inflicted" or "caused" an injury while resisting arrest, it is appropriate to apply a proximate causation test. See e.g., Thrash, 88 N.E.3d at 207 (discussing proximate cause test applied in Moore). That is, "the State must prove that the defendant's conduct was a proximate cause of the injury, i.e., that the injury was a foreseeable result of the defendant's conduct." Hopson, 95 N.E.3d at 533.
[¶29] Here, the State presented evidence that Flaherty fled on foot and, despite repeated orders to stop, was tased more than once by Trooper Hadley - with no apparent effect, as Flaherty continued running. To stop Flaherty, Officer Blair tackled him, and the two officers were able to get Flaherty to the ground but he continued to actively wrestle with them with "heightened aggression," at times reaching for or tugging at each of the officers' police belts. Transcript at 154. The struggle was substantial enough that Trooper Hadley's body camera came off as did some buttons on his uniform. Officer Blair testified that he suffered injuries to his hands and elbow during the course of the incident. On these facts, we are unpersuaded that Flaherty was a passive participant or that Officer Blair's injuries were not a foreseeable result of Flaherty's actions.
To the extent that Flaherty claims the proximate causation test "is not the proper vehicle" to determine if a defendant inflicted an injury and that such analysis "should not be permitted to stand," we decline Flaherty's invitation to ignore applicable precedent. Reply Brief at 14.
[¶30] In sum, we find that a reasonable trier of fact could have found that Flaherty inflicted or otherwise caused the bodily injury sustained by Officer Blair. Accordingly, the State presented sufficient evidence to convict Flaherty of Level 6 felony resisting law enforcement. See Thrash, 88 N.E.3d at 207 (affirming resisting conviction as a Level 6 felony where defendant, after being brought to the ground by an officer's leg sweep, continued to refuse to remove his hands from under his body and officer injured his back in the struggle).
[¶31] Judgment affirmed.
Vaidk, J. and Crone, Sr.J., concur.