MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                       FILED
this Memorandum Decision shall not be
                                                                        Aug 08 2019, 8:48 am
regarded as precedent or cited before any
court except for the purpose of establishing                                 CLERK
                                                                         Indiana Supreme Court
the defense of res judicata, collateral                                     Court of Appeals
                                                                              and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Mark Small                                               Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General
                                                         Benjamin J. Shoptaw
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jason L. Sowers,                                         August 8, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-739
        v.                                               Appeal from the
                                                         Clinton Superior Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff                                       Justin H. Hunter, Judge
                                                         Trial Court Cause No.
                                                         12D01-1612-F6-1116



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-739 | August 8, 2019                    Page 1 of 6
                                          Case Summary
[1]   Jason L. Sowers appeals his conviction for possession of cocaine as a Level 6

      felony, arguing that the State failed to establish a proper chain of custody of the

      purported cocaine and that therefore the trial court committed fundamental

      error when it admitted certain evidence relating to the cocaine. We affirm.



                            Facts and Procedural History
[2]   In December 2016, Clinton County Sheriff’s Department deputies went to a

      house in Frankfort to serve a warrant on Sowers. Deputies located Sowers at

      the house and took him into custody. After Sowers was transported to the

      Clinton County Jail, Officer Christopher Salaba searched him and found a clear

      plastic bag containing a white powdery substance in Sowers’s jeans. Officer

      Salaba handed the bag to Deputy Allen Donovan, who handed it to Deputy

      Jared Yoder. Deputy Yoder then placed the bag in a manila envelope, sealed it,

      printed his initials “JY” and the date “12/23/16” on the envelope, and secured

      the bag in the evidence locker at the jail.


[3]   The State charged Sowers with possession of cocaine as a Level 6 felony. In

      March 2019, a jury trial was held. The State’s Exhibit 2 consisted of three

      pictures: a picture of a clear plastic bag containing a white powdery substance, a

      picture of the front side of a manila envelope used for evidence packaging, and

      a picture of the back side of that envelope. That manila envelope has a bar-

      code sticker attached to the front of it with “Indianapolis Laboratory” typed


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-739 | August 8, 2019   Page 2 of 6
      above it and displays the initials “JY” and the date “12/23/16” on the back of

      the envelope. See Ex. 2. When the State moved to admit Exhibit 2, Sowers’s

      attorney stated, “I don’t have any objection to the admissibility of [Exhibit 2]

      your Honor[,]” and the court admitted that exhibit. Tr. p. 113. The State’s

      Exhibit 3 was a Certificate of Analysis signed by forensic scientist Hailey

      Newton from the Indiana State Police Lab dated February 14, 2017, indicating

      a positive test for cocaine. Again, Sowers made no objection, and the court

      admitted the exhibit.


[4]   The jury found Sowers guilty as charged, and the trial court sentenced him to

      547 days executed in the Department of Correction.


[5]   Sowers now appeals.



                                 Discussion and Decision
[6]   Sowers contends that Exhibit 2 should not have been admitted because the

      State failed to establish a proper chain of custody of the purported cocaine.

      Sowers did not object to the admission of Exhibit 2 at trial, and he

      acknowledges this on appeal. “The purpose of the contemporaneous objection

      rule is to promote a fair trial by preventing a party from sitting idly by and

      appearing to assent to an offer of evidence or ruling by the court only to cry foul

      when the outcome goes against him.” Clark v. State, 6 N.E.3d 992, 998 (Ind. Ct.

      App. 2014) (citations omitted). Therefore, when a defendant fails to object at

      trial and raises a chain-of-custody argument for the first time on appeal, the


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-739 | August 8, 2019   Page 3 of 6
      argument is waived unless the admission constitutes fundamental error. Troxell

      v. State, 778 N.E.2d 811, 814 (Ind. 2002). Fundamental error is an extremely

      narrow exception to our waiver rule, and the defendant is faced with the “heavy

      burden of showing that the alleged errors are so prejudicial to the defendant’s

      rights as to make a fair trial impossible.” Ryan v. State, 9 N.E.3d 663, 668 (Ind.

      2014). “Fundamental error is meant to permit appellate courts a means to

      correct the most egregious and blatant trial errors that otherwise would have

      been procedurally barred, not to provide a second bite at the apple for defense

      counsel who ignorantly, carelessly, or strategically fail to preserve an error.” Id.


[7]   Sowers argues that the trial court committed fundamental error when it

      admitted Exhibit 2 because “the gaps in chain of custody were far more [than]

      should be allowed[.]” Appellant’s Br. p. 11. “The purpose of requiring a

      continuous chain of custody from seizure to admission at trial is to lay a proper

      foundation connecting the evidence with the accused and to negate any

      substantial likelihood of tampering, loss, substitution, or mistake.” Young v.

      State, 508 N.E.2d 24, 26 (Ind. 1987). As the Indiana Supreme Court has

      explained:


              The State bears a higher burden to establish the chain of custody
              of “fungible” evidence, such as blood and hair samples, whose
              appearance is indistinguishable to the naked eye. To establish a
              proper chain of custody, the State must give reasonable
              assurances that the evidence remained in an undisturbed
              condition. However, 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. Moreover, there is a
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-739 | August 8, 2019   Page 4 of 6
              presumption of regularity in the handling of evidence by officers,
              and there is a presumption that officers exercise due care in
              handling their duties.


      Troxell, 778 N.E.2d at 814 (internal citations omitted).


[8]   Here, even though Sowers never made any objection to the admission of

      Exhibit 2, let alone a chain-of-custody objection, the State presented several

      pieces of evidence relevant to the chain of custody. Officer Salaba testified that

      he found a clear plastic bag on Sowers and handed it to Deputy Donovan, who

      testified that he handed it to Deputy Yoder. Deputy Yoder testified that he

      then secured the evidence in the evidence locker. Officer Salaba further testified

      that the picture of the clear plastic bag in Exhibit 2 was consistent with what he

      found on Sowers, and Deputy Yoder further testified that he recognized the

      envelope in the pictures as the envelope he placed the clear plastic bag into,

      that the initials “JY” on the envelope were his initials, that he wrote

      “12/23/16” on the envelope to indicate the date that it was sealed, and that

      only two detectives had access to the evidence locker when the purported

      cocaine was being held there. Additionally, with respect to who handled the

      manila envelope containing the clear plastic bag at the laboratory, the

      Certificate of Analysis presented as Exhibit 3 at trial disclosed the findings of

      the analysis and was signed by forensic scientist Hailey Newton. The

      “Laboratory Case Number” on the Certificate of Analysis and the “Lab #” on

      the bar-code sticker attached to the front of the manila envelope are identical:

      17I-00454. See Exs. 2, 3. While there are gaps in the chain of custody, they


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-739 | August 8, 2019   Page 5 of 6
      certainly are not so significant that the admission of Exhibit 2 constituted

      fundamental error.1


[9]   Affirmed.


      Riley, J., and Bradford, J., concur.




      1
       The State contends that Sowers “stated that he had no objection to the admission of [Exhibit 2] when it was
      offered, and thus, he cannot claim now that it was fundamental error for the trial court to admit this exhibit.”
      Appellee’s Br. p. 6. The State cites Halliburton v. State, where the Indiana Supreme Court held that “the
      doctrine of fundamental error is inapplicable to the circumstances . . . [where a defendant makes] an express
      declaration of ‘no objection[.]’” 1 N.E.3d 670, 679 (Ind. 2013). However, this decision seems to be in
      conflict with the Court’s more recent decision in Batchelor v. State, 119 N.E.3d 550 (Ind. 2019). In any event,
      because we find no fundamental error, we need not reach this issue.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-739 | August 8, 2019                        Page 6 of 6