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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: LINDSAY R. RUBY Cass County Public Defender's Council Logansport, Indiana

FILED
Feb 06 2008, 10:04 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General Of Indiana ZACHARY J. STOCK Deputy Attorney General Indianapolis, Indiana

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

No. 09A02-0701-CR-52

APPEAL FROM THE CASS SUPERIOR COURT The Honorable Rick Maughmer, Judge Cause No.09D02-0507-FA-15

February 6, 2008

MEMORANDUM DECISION - NOT FOR PUBLICATION

ROBB, Judge

Case Summary and Issues Jason Gibbs appeals his three convictions of dealing in cocaine, two as Class A felonies and one as a Class B felony. On appeal, Gibbs raises three issues, which we consolidate and restate as: 1) whether the trial court properly admitted an audio-video recording into evidence; and 2) whether sufficient evidence supports Gibbs's Class A felony convictions of dealing in cocaine. Concluding that the trial court properly admitted the recording into evidence and that sufficient evidence supports Gibbs's convictions, we affirm. Facts and Procedural History On one occasion in February 2005 and two occasions in March 2005, Officers Richard Sholty and James Klepinger of the Logansport Drug Task Force used a confidential police informant (the "C.I.") to purchase cocaine from Gibbs. Before each sale, Officer Sholty strip-searched the C.I. to confirm he did not possess contraband, gave him money for the sale, and equipped him with a dime-sized surveillance device that recorded video and audio and transmitted audio to Officer Sholty. During each sale, Officer Sholty listened to the audio transmission while Officer Klepinger maintained visual surveillance of the C.I. and Gibbs. After each sale, Officer Sholty strip-searched the C.I. These searches resulted in Officer Sholty recovering 4.66 grams of cocaine from the first sale, 6.91 grams from the second sale, and 2.33 grams from the third sale. The State charged Gibbs with two counts of dealing in cocaine as Class A felonies based on the first and second sales and one count of dealing in cocaine as a Class B felony

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based on the third sale.1 Prior to trial, the parties stipulated that the C.I. was unavailable to testify, apparently because he was incarcerated on an unrelated murder charge and the C.I.'s counsel indicated in a letter to Gibbs's counsel that he had advised the C.I. not to answer questions regarding his involvement in Gibbs's case. Instead, during a two-day trial on November 8 and 9, 2006, Officers Sholty and Klepinger testified, and the trial court admitted an audio-video recording of the third sale into evidence over Gibbs's objection. The jury found Gibbs guilty on all counts. The trial court sentenced Gibbs to forty years for the first conviction, forty years for the second conviction, and ten years for the third conviction. The trial court also ordered that the sentences run concurrently, resulting in a total executed sentence of forty years. Gibbs now appeals. Discussion and Decision I. Admission of Evidence The trial court admitted an audio-video recording of the third sale into evidence over Gibbs's objections that the recording contained inadmissible hearsay and that it violated his right to confront witnesses as guaranteed by the United States and Indiana constitutions. This court reviews the trial court's decision to admit or exclude evidence for an abuse of discretion. Pickens v. State, 764 N.E.2d 295, 297 (Ind. Ct. App. 2002), trans. denied. Abuse of discretion occurs when the trial court's ruling is clearly against the logic and effect of the facts and circumstances before it. Id.

The first and second sales were charged as Class A felonies because they involved more than three grams of cocaine. See Ind. Code

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