Appeal from the Madison County Circuit Court. The Honorable Judge Thomas Newman, Jr. Case No. 48C03-1402-FB-298.
ATTORNEY FOR APPELLANT: Clifford M. Davenport, Davenport Law Offices, Anderson, Indiana.
ATTORNEY FOR APPELLEE: Gregory F. Zoeller, Attorney General of Indiana; Justin F. Roebel, Deputy Attorney General, Indianapolis, Indiana.
Vaidik, Chief Judge. Kirsch, J., and Bradford, J., concur.
Vaidik, Chief Judge.
[¶1] A confidential informant performed a controlled buy of heroin from the defendant, Bruce Angelo Evans. At the jury trial, several witnesses who had been present in the house where the controlled buy occurred or who were otherwise associated with Evans and the confidential informant testified that Evans had also sold them
heroin on the day of the controlled buy. On appeal, Evans argues first that in light of the evidence of multiple acts of dealing, the trial court erred in failing to issue an instruction on jury unanimity, in order to ensure that all of the jurors relied on the same act of dealing to support Evans's conviction. We find that Evans waived this alleged error by failing to object to the jury instructions or offer one of his own. Moreover, we find that any error does not rise to the level of fundamental error because given that the overwhelming majority of evidence at trial was about the controlled buy, it is clear that this was the act of dealing that supported the jury's guilty verdict. Second, Evans argues that the trial court abused its discretion in admitting evidence of a large amount of cash - in addition to the buy money - found on Evans when he was searched by law enforcement officers after the controlled buy. But Evans failed to object when the evidence of this additional money was first offered into evidence, and thus has waived this claim on appeal. Waiver notwithstanding, we find that any error in the admission of this evidence was harmless insofar as there was substantial evidence supporting Evans's conviction regardless of the evidence of additional money. Accordingly, we affirm.
Facts and Procedural History
[¶2] On the afternoon of February 18, 2014, Roberta Scherer overdosed at a house (the 28th Street house) in Anderson, Indiana, where Evans was living. Another resident of the 28th Street house went to Scherer's mother's house three or four blocks away to notify the family of Scherer's condition, and Scherer's niece Shyanne " ran straight to her." Tr. p. 312. When Shyanne arrived, her aunt was " blue, not breathing, on the kitchen floor." Id. An ambulance was summoned and within a few hours Scherer recovered.
[¶3] Scherer's brother-in-law (and Shyanne's father), David Trueblood, who had served as a confidential informant before, contacted Lieutenant John Branson of the Anderson Police Department (APD) because of Scherer's overdose and his concern over the amount of drugs his family members were using. Detective Ryan Geer of the APD and Madison County Drug Task Force (the Drug Task Force) contacted Trueblood to ask if he would be willing to do a controlled buy from Evans that same day - February 18 - and Trueblood agreed to do so. Sergeant Frank Sigler of the APD, who was also assigned to the Drug Task Force, and Detective Geer picked up Trueblood at 8:00 p.m. and performed all the steps necessary for a controlled buy. First they took Trueblood to a remote location to check whether he had any drugs, weapons, or money. Then Trueblood was given buy money - four twenty-dollar bills that had previously been photocopied - and was equipped with two recording devices and one device that enabled Detective Geer to monitor live feed throughout the transaction.
[¶4] Trueblood was dropped off near the 28th Street house at 9:08 p.m. He knocked on the back door of the 28th Street house at 9:11 p.m., indicating to Evans that he was buying the heroin for someone named Ryan and giving Evans the $80 of buy money in exchange for heroin. The entire exchange was recorded, and Trueblood was picked up again by the police officers at 9:15 p.m.
[¶5] After the buy, Trueblood was subjected to another search. He provided Detective Geer with a wrapper containing a substance that ...