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Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case. ATTORNEY FOR APPELLANT: CRAIG PERSINGER Marion, Indiana ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General Of Indiana JUSTIN F. ROEBEL Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
BENNY LUCAS, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 85A02-0703-CR-258

APPEAL FROM THE WABASH SUPERIOR COURT The Honorable Robert R. McCallen, III, Judge Cause No. 85C01-0410-FB-117

August 8, 2007

MEMORANDUM DECISION - NOT FOR PUBLICATION

ROBB, Judge

Case Summary and Issues A jury found Benny Lucas guilty of dealing in a schedule II controlled substance, a Class B felony, and determined that he was an habitual substance offender. The trial court sentenced Lucas to eleven years and enhanced the sentence by three years for his status as an habitual substance offender. Lucas now appeals, arguing that the admission of a deposition violated his Sixth Amendment right to confront the witnesses against him, and that the threeyear enhancement for his status as an habitual substance offender is inappropriate given the nature of his offenses and his character. Concluding that the admission of the deposition did not violate Lucas's Sixth Amendment rights and that the enhancement is not inappropriate, we affirm. Facts and Procedural History Sometime during either August or September of 2004, Kelly Acosta was arrested and charged with aiding in dealing of some sort of controlled substance. 1 Pursuant to a verbal agreement with members of the Wabash County Drug Task Force, Acosta agreed to participate in controlled buys in exchange for leniency. On September 8, 2004, Acosta went to Lucas's home and purchased three eighty-milligram oxycodone pills from Lucas. Acosta wore a wire, and the conversation between Acosta and Lucas was recorded and monitored by Officers Nick Brubaker and Matthew Rebholz, of the Wabash City Police Department. On October 7, 2004, the State charged Lucas with dealing in a schedule II controlled substance. On October 28, 2004, the State filed an information alleging that Lucas was an habitual

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substance offender based on two previous convictions for operating a vehicle while intoxicated. On January 26, 2006, Lucas's attorney deposed Acosta. The prosecutor was at this deposition but did not ask Acosta any questions. On March 4, 2006, Acosta died. On July 3, 2006, Lucas filed a motion in limine seeking to exclude the deposition. The trial court held a hearing and denied the motion. A jury trial took place on October 26 and 27, 2006. At trial, the State introduced a redacted 2 version of the deposition and read it to the jury. Lucas objected to the admission of this evidence at all relevant times. Officers Brubaker and Rebholz also testified that they had searched Acosta prior to the controlled buy, and visually monitored her from the time they searched her until she entered Lucas's home and from the time she left Lucas's home until she met with the officers and gave them the pills. The officers also listened to the conversation between Lucas and Acosta via Acosta's wire. This recorded conversation, in which Lucas and Acosta discussed the price of the pills and how to ingest them, was also played for the jury. The jury found Lucas guilty of dealing a schedule II controlled substance, and in a separate proceeding, determined he was an habitual substance offender. The trial court entered judgments of conviction accordingly. On November 22, 2006, the trial court held a sentencing hearing. At the hearing, the trial court found Lucas's criminal history to be an aggravating factor, and the fact that Lucas's imprisonment would cause undue hardship to his

Acosta stated that she was charged with a Class B felony for "aiding in drug dealing." Transcript at 103. The record does not disclose the precise offense with which she was charged. 2 Portions of the deposition that related to uncharged acts were not presented to the jury.

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wife to be a mitigating factor. The trial court determined that the aggravating circumstance outweighed the mitigating circumstance and sentenced Lucas to an enhanced sentence 3 of eleven years 4 for dealing in a schedule II controlled substance, enhanced by three years because of his status as an habitual substance offender. Lucas now appeals his convictions 5 and sentence. Discussion and Decision I. The Confrontation Clause A. Standard of Review The admission of evidence is generally a matter that rests within the sound discretion of the trial court and is an issue that we review only for an abuse of that discretion. See Collins v. State, 826 N.E.2d 671, 677 (Ind. Ct. App. 2005), trans. denied, cert. denied, 126 S.Ct. 1058 (2006). However, whether the admission of the deposition violated Lucas's right to confront the unavailable witness is a question of law; therefore, we will review the trial court's decision de novo. See United States v. Nettles, 476 F.3d 508, 517 (7th Cir. 2007) ("We review de novo a district court ruling that affects a defendant's Sixth Amendment rights."); cf. United States v. Saunders, 166 F.3d 907, 918 (7th Cir. 1999) ("Whether the limitations on cross-examination are so severe as to amount to a violation of the

Because Lucas committed his crime before the advisory sentencing scheme took effect, the presumptive sentencing scheme applies. Gutermuth v. State, 868 N.E.2d 427, 431 n.4 (Ind. 2007).
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The presumptive sentence for a Class B felony is ten years. Ind. Code

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