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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.

FILED
Mar 26 2012, 8:22 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLANT: PHYLLIS J. EMERICK Deputy Public Defender Bloomington, Indiana

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana ELLEN H. MEILAENDER Deputy Attorney General Indianapolis, Indiana

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

No. 53A02-1108-CR-808

APPEAL FROM THE MONROE CIRCUIT COURT The Honorable Kenneth G. Todd, Judge Cause Nos. 53C03-0909-FA-817 & 53C03-0909-FB-751

March 26, 2012 MEMORANDUM DECISION - NOT FOR PUBLICATION VAIDIK, Judge

Case Summary Following a jury trial, Lawrence Roper was convicted of two counts of Class B felony dealing in cocaine and sentenced to concurrent terms of twenty years. Roper now appeals, challenging the chain of custody of the cocaine for one of his convictions and the appropriateness of his aggregate twenty-year sentence. Concluding that the State

sufficiently demonstrated the chain of custody for the cocaine and the trial court did not abuse its discretion in admitting it, and that Roper has failed to persuade us that his twenty-year sentence is inappropriate, we affirm. Facts and Procedural History On August 6, 2009, confidential informant Charles Brutton contacted the Bloomington Police Department and said that he could arrange a purchase of cocaine from a man later identified as Roper. Detective William Jeffers met with Brutton and had him call Roper to arrange the buy, searched Brutton and his car, and provided Brutton with $100 in buy money and an audio-video recording device. Detective Jeffers followed Brutton to a gas station and conducted visual surveillance of the buy. Roper arrived in a white Toyota Camry driven by a female. Roper exited the Camry, entered Brutton's vehicle briefly and performed the deal, and then returned to the Camry, which drove away. Detective Jeffers then met with Brutton, who turned over the cocaine and the recording. Detective Jeffers again searched Brutton and his car. On August 31, 2009, Brutton again contacted the Bloomington Police Department and said that he could arrange a purchase of cocaine from Roper. Brutton met with Detective Brandon Lapossa, who had Brutton call Roper to arrange the buy, searched 2

Brutton and his car, and provided Brutton with $225 in buy money and an audio-video recording device. Detective Lapossa followed Brutton to Kroger and conducted visual surveillance. Roper arrived in the same white Camry driven by a female. Roper exited the Camry, entered Brutton's car briefly and performed the deal, and then returned to the Camry. Detective Lapossa then met with Brutton, who turned over the cocaine and the recording. Detective Lapossa again searched Brutton and his car. The State charged Roper with Class B felony dealing in cocaine for the August 6 buy under Cause No. 53C03-0909-FB-751 (Cause No. 751) and Class A felony dealing in cocaine for the August 31 buy under Cause No. 53C03-0909-FA-817 (Cause No. 817). The cases were later joined, and the Class B felony charge under Cause No. 751 became Count II and the Class A felony charge under Cause No. 817 became Count III.1 A jury trial was held at which Roper objected to the admission of State's Exhibits 4 and 11 on grounds of chain of custody. Exhibit 4 is the cocaine from the August 31 buy, and Exhibit 11 is the Certificate of Analysis for that cocaine.2 Specifically,

Detective Lapossa testified that the controlled buy at issue occurred on August 31. At the conclusion of the buy, Brutton gave the cocaine to Detective Lapossa. Detective Lapossa then put the cocaine into a sealed envelope, which was marked with his initials, the event (or "CFS") number, the item number, the date of the buy, and a des cription of the item. Tr. p. 72, 295. Detective Lapossa put the envelope in the drop safe for the evidence

The State charged Roper with a second count of Class A felony dealing in cocaine under Cause No. 817, and this count became Count I. Because the jury found Roper not guilty of Count I, we do not address the facts surrounding this charge on appeal. Roper did not object to the cocaine from the August 6 buy and therefore does not challenge that conviction on appeal.
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technician. Id. The only people who have the combination to the safe are the evidence clerks. Id. at 243-44. Evidence clerk Andy Cradick retrieved Exhibit 4 from the drop safe on September 2, 2009. Id. at 250. He logged in the evidence and then put the envelope in the secured evidence storage room. Id. The evidence remained there until he took it to the Indiana State Police Laboratory for testing on February 15, 2010. Id. at 252-53, 267. According to Haley Newton, the Indiana State Police Laboratory analyst, Exhibit 4 was either in her custody or in the locked evidence locker while it was at the lab. Id. at 227-28. It showed no signs of being tampered with, and it was in the same condition at trial, with the seal intact, as it had been when Newton returned it to the lab's evidence clerk after testing. Id. at 227-29. Cradick retrieved Exhibit 4 from the Indiana State Police Laboratory on March 25, 2010, and it remained in his custody in the secured evidence storage room until it was checked out by the detective for trial. Id. at 253-54. Roper argued that despite this evidence, the chain of custody was defective because (1) there are allegedly two property sheets for Exhibit 4 and (2) the property sheets and a portion of the probable cause affidavit indicate that the buy occurred on July 31, 2009, instead of August 31, 2009. The trial court heard considerable testimony outside the presence of the jury, id. at 269-94, and then concluded that it was going to admit Exhibits 4 and 11 provided that the State cleared up the issues in the presence of the jury, id. at 292. The jury returned to the courtroom, at which point the issues were explored. The court formally admitted Exhibits 4 and 11. Id. at 308.

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The jury found Roper guilty of Count II Class B felony dealing in cocaine and Count III Class B felony dealing in cocaine as a lesser-included offense of Class A felony dealing in cocaine. The trial court identified the following aggravators: (1) Roper was on parole at the time of these offenses; (2) Roper has an extensive juvenile and criminal history, including a probation violation; (3) Roper was unemployed with no means of "legitimate" support; and (4) Roper was unsuccessful with his previous substance-abuse treatment. Id. at 443-45. The court identified Roper's supportive family, remorse, and intent to reform as mitigators. Id. at 446. Concluding that the aggravators "vastly" outweighed the mitigators, the court sentenced Roper to twenty years for each conviction, to be served concurrently. Id. at 447. Roper now appeals. Discussion and Decision Roper raises two issues on appeal. First, he contends that the trial court erred in admitting the cocaine from the August 31 buy and the Certificate of Analysis for that cocaine because of an inadequate chain of custody. Second, he contends that his twentyyear sentence is inappropriate. I. Chain of Custody Roper first contends that the trial court erred in admitting Exhibits 4 and 11 because of chain of custody problems. Generally, the sufficiency of an evidentiary foundation is a matter left to the trial court's sound discretion, and we will reverse only upon a showing of an abuse of that discretion. Payne v. State, 658 N.E.2d 635, 644 (Ind. Ct. App. 1995), trans. denied. An abuse of discretion occurs if a trial court's decision is 5

clearly against the logic and effect of the facts and circumstances before the court. Roush v. State, 875 N.E.2d 801, 808 (Ind. Ct. App. 2007). Regarding chain of custody in particular, physical evidence is admissible "if the evidence regarding its chain of custody strongly suggests the exact whereabouts of the evidence at all times." Bell v. State, 881 N.E.2d 1080, 1084 (Ind. Ct. App. 2008) (quotation omitted), trans denied. In other words, the State must give "reasonable

assurances that the property passed through various hands in an undisturbed condition." Id. (quotation omitted). Because the State need not establish a perfect chain of custody, slight gaps go to the weight, and not the admissibility, of the evidence. Id. There is a presumption of regularity in the handling of exhibits by public officers. Id. Thus, merely raising the possibility of tampering is insufficient to make a successful challenge to the chain of custody. Id. Despite the State's evidence, which strongly shows the exact whereabouts of Exhibit 4 at all times and provides reasonable assurances that it passed through the various public officers' hands in an undisturbed condition, Roper argues that there are two problems with the chain of custody: (1) there are allegedly two property sheets for Exhibit 4 and (2) the property sheets for Exhibit 4 and a portion of the probable cause affidavit indicate that the controlled buy occurred on July 31, 2009, instead of August 31, 2009. We address the date discrepancy first. The record shows that the property sheet for Exhibit 4 lists "07/31/09" instead of 08/31/09. See Defendant's Exs. C & D.

However, Detective Lapossa clearly explained

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