Opinion
24A-CR-1324
12-23-2024
Harley Michael Perkins, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Eugene A. Kress Anderson, Indiana. ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General George P. Sherman Supervising 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Madison Circuit Court The Honorable Mark Dudley, Judge Trial Court Cause No. 48C06-2401-F6-285.
ATTORNEY FOR APPELLANT Eugene A. Kress Anderson, Indiana.
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General George P. Sherman Supervising Deputy Attorney General Indianapolis, Indiana.
Altice, Chief Judge and Crone, Senior Judge concur.
MEMORANDUM DECISION
Vaidik, Judge.
Case Summary
[¶1] Harley Michael Perkins appeals his conviction for Level 6 felony possession of methamphetamine, arguing the State failed to establish a sufficient chain of custody for the methamphetamine and his two-year sentence is inappropriate. We affirm.
Facts and Procedural History
[¶2] In January 2024, Elwood Police Department officers went to a house to serve an arrest warrant on Perkins, who was on home detention. Upon locating Perkins, one of the officers, Caleb Smith, handcuffed and searched him. During the search, Officer Smith found a small, paper-wrapped baggie in Perkins's pants pocket containing what he suspected to be methamphetamine. When the baggie was found, Perkins remarked that he "forgot" the "meth" was in his pocket. Tr. Vol. I p. 227.
[¶3] Officer Smith placed the paper-wrapped baggie in his patrol car's center console and then locked his car. Because Officer Smith was taking Perkins to the Madison County Jail, he gave the baggie to another officer, Cody Antrim, who was headed back to the Elwood Police Department. Officer Antrim took the paper-wrapped baggie from Officer Smith, put it in a "container that [he] typically put[s] evidence in," and locked it in his patrol car. Id. at 178. The baggie stayed in Officer Antrim's car until he finished his work on the scene. Other drugs and paraphernalia were later found at the house after a search warrant was obtained.
[¶4] When Officer Antrim arrived at the police department, he gave the paperwrapped baggie to Officer Staci Carder, who had also been present when Perkins was arrested. Officer Carder bagged it up, filled out the standard paperwork, and placed it in an evidence locker for the evidence technician.
[¶5] Later, Officer Doug Stanton, who was in charge of the Elwood Police Department's property room, removed the bag from the evidence locker, generated identifying tags for it, and repackaged it. It was then kept in the property room until it was sent to the Indiana State Police Laboratory, where testing confirmed that the substance was methamphetamine.
[¶6] The State charged Perkins with Level 6 felony possession of methamphetamine for the meth found on his person. Perkins represented himself. At trial, the State admitted into evidence Exhibit 9, which is a screenshot from Officer Carder's body-camera footage of when she was in the property room. The State asked Officer Carder about what was shown in Exhibit 9:
Q Can you, um, can you explain what we're, um, what is going on here? Like, what are we looking at?
A Yeah. So, um, what was found on [Perkins] is the small amount at the top there. And then everything else was, um, seized from the garage after the search warrant.
Q And do you know, in that picture, do you know where the suspected methamphetamine from this case is located?
A Uh, I believe it's the one at the very top there.
Q Could you-
THE COURT: You can stand up if it helps.
Q Yeah.
A Oh, sorry.Id. at 231. When the State later moved to admit the methamphetamine (Exhibit 6) into evidence, Perkins objected:
The fact that they, two (2) other officers was in possession of this, and the chain of custody is seizing officer. And they can't even really see where it went or where it was at all. And it shows that it could be tainted or tampered with.Tr. Vol. II p. 34. The trial court overruled the objection and admitted the methamphetamine. The jury found Perkins guilty.
[¶7] At sentencing, the trial court noted that there wasn't a Presentence Investigation Report. See id. at 120. The judge pointed out that he had a history with Perkins and that Perkins's criminal history predated his time as a judge. The court detailed the many chances that it had given Perkins, including work release and probation, and noted that Perkins had violated them. The court also noted that Perkins had been in the Purposeful Incarceration program in the Indiana Department of Correction (DOC), which was an attempt to get him help for his drug-addiction issues. See id. at 133-34. The court found no mitigators and two aggravators: (1) Perkins's criminal history (which appears to include non-violent drug-related offenses, see Ex. p. 23) and (2) he was on home detention at the time of this offense. The court sentenced Perkins to two years in the DOC.
[¶8] Perkins now appeals. Discussion and Decision
I. The State established a sufficient chain of custody for the methamphetamine
[¶9] Perkins contends the trial court erred in admitting the methamphetamine. We review a trial court's ruling on the admission of evidence for an abuse of discretion. Espinoza v. State, 859 N.E.2d 375, 381 (Ind.Ct.App. 2006).
[¶10] Perkins argues the State failed to establish a sufficient chain of custody for the methamphetamine. To establish a proper chain of custody, the State must give reasonable assurances that the evidence remained in an undisturbed condition. Troxell v. State, 778 N.E.2d 811, 814 (Ind. 2002). For fungible items like drugs, an adequate foundation is laid when the whereabouts of an exhibit is shown from the time it came into the possession of the police. Mateo v. State, 981 N.E.2d 59, 66 (Ind.Ct.App. 2012), trans. denied. The 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, 778 N.E.2d at 814. Moreover, there is a presumption of regularity in the handling of evidence by officers as well as a presumption that officers exercise due care in carrying out their duties. Id. To mount a successful challenge to the chain of custody, one must present evidence that does more than raise a mere possibility that the evidence may have been tampered with. Id.
[¶11] Perkins asserts the State's chain of custody was insufficient because drugs were also found during a later search of the house and those drugs may have been mixed with Perkins's meth such that the officers confused which drugs were whose. Notably, Perkins doesn't contest that methamphetamine was found during the investigation or that he admitted possessing meth. See Appellant's Reply Br. p. 6. The evidence at trial was that Officer Smith searched Perkins and found a small, paper-wrapped baggie of methamphetamine in his pocket; Perkins blurted out that he "forgot" the "meth" was in his pocket. Officer Smith then took the paper-wrapped baggie to his patrol car, placed it in the console, and locked his car. A short time later, Officer Smith gave the baggie to Officer Antrim, who was headed back to the police department. Officer Antrim placed the baggie in a container that he typically puts evidence in and locked it in his patrol car. Once Officer Antrim arrived at the police department, he gave the methamphetamine to Officer Carder. She then bagged it, filled out the standard paperwork, and placed it in an evidence locker. Later, Officer Stanton, who oversaw the property room, removed the item from the evidence locker and prepared it for transport to the lab for testing, which confirmed that it is methamphetamine. The testimony of these four officers detailed the methamphetamine's location from the moment Officer Smith seized it until it was lab-tested. This evidence strongly establishes the exact whereabouts of the methamphetamine.
[¶12] Perkins notes that Officer Carder testified that she "believed" the meth found on his person was located at the top of Exhibit 9, which left open "the possibility of a mistake." Id. at 4. It appears from the exchange quoted above that after saying she believed it was the top item in the photo, she clarified which item she was referring to. Perkins also notes that there are some alleged discrepancies between the officers' deposition and trial testimony. For example, Perkins says that Officer Antrim testified during his deposition that he put the baggie in the property room, but he testified at trial that he handed it to Officer Carder. This alleged discrepancy was fully explored at trial, and Officer Antrim maintained that he handed the baggie to Officer Carder. See Tr. Vol. I pp. 18788, 195-97. In any event, all these arguments go to the weight, and not the admissibility, of the methamphetamine. The trial court did not abuse its discretion in admitting the methamphetamine.
Perkins claims there are other inconsistencies. For several of these, the officers acknowledged saying one thing at deposition but another thing at trial because they had since reviewed their body-cam footage. See, e.g., Tr. Vol. I pp. 159, 237.
II. Perkins's sentence is not inappropriate
[¶13] Perkins contends his two-year sentence is inappropriate and asks us to revise it under Indiana Appellate Rule 7(B), which provides that an appellate court "may revise a sentence authorized by statute if, after due consideration of the trial court's decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender." The appellate court's role under Rule 7(B) is to "leaven the outliers," and "we reserve our 7(B) authority for exceptional cases." Faith v. State, 131 N.E.3d 158, 160 (Ind. 2019) (quotation 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." Thompson v. State, 5 N.E.3d 383, 391 (Ind.Ct.App. 2014) (citing Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008)). Because we generally defer to the judgment of trial courts in sentencing matters, defendants must persuade us that their sentences are inappropriate. Schaaf v. State, 54 N.E.3d 1041, 1044-45 (Ind.Ct.App. 2016).
[¶14] The sentencing range for a Level 6 felony is six months to two-and-a-half years, with an advisory sentence of one year. Ind. Code § 35-50-2-7. The trial court sentenced Perkins to an above-advisory term of two years.
[¶15] As Perkins suggests, there is nothing remarkable about the nature of the offense. Perkins possessed a small baggie of methamphetamine. Perkins, however, does not address his character. He doesn't acknowledge all the chances he has been given or any of his violations or that he was on home detention at the time of this offense. Instead, he claims that a substance-abuse program would be a "more appropriate" sentence since "[i]t does not appear from the record that Perkins was ever ordered by a court to attend" one. Appellant's Br. p. 11. But as the trial court noted, Perkins had already been in the Purposeful Incarceration program, which was an attempt to address his substance-abuse issues. Given the chances that Perkins has already been given to stay in the community, he has failed to persuade us that his two-year sentence in the DOC is inappropriate.
[¶16] Affirmed.
Altice, C.J., and Crone, Sr. J., concur.