John Cherry v. State of Indiana
2012 Ind. App. LEXIS 359
| Ind. Ct. App. | 2012Background
- Cherry appeals convictions for Class B felony aiding, inducing, or causing dealing in heroin and Class D felony unlawful possession of a syringe.
- Controlled-drug buy initiated May 24, 2011; Quick swallowed tar heroin in balloons during traffic-stop, syringes and spoon with residue recovered.
- Cherry admitted at scene he supplied heroin to Quick; Quick admitted selling heroin for Cherry.
- Laboratory test for heroin initially admitted but later withdrawn due to chain-of-custody issues; jury instructed to disregard related testimony.
- Syringes found near the truck’s route were admitted without contemporaneous objection; mistrial motion denied after admonition.
- Sentence totaled 10 years for the heroin charge (2 suspended, 4 years probation) and 3 years for the syringe charge, to run concurrently.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of Cherry’s videotaped statement | State: corpus delicti/met, probative value not outweighed by prejudice | Cherry: Rule 403 prejudice outweighs probative value; corpus delicti not established | Admissible; totality of evidence supports corpus delicti and probative value outweighed prejudice |
| Corpus delicti for heroin dealing | State: independent evidence (Quick’s admission, controlled buy) establishes crime | Cherry: no direct testimony that substance was heroin; insufficient identity | Sufficient circumstantial evidence established crime beyond reasonable doubt |
| Admission of syringes found near route | Syringes probative of possession with intent to use equipment for heroin | Waived; failure to object at admission | Issue waived; no reversible error shown |
| Sufficiency of evidence to sustain heroin conviction | State: evidence shows Cherry supplied/assisted Quick in heroin dealing | Cherry: lack of direct chemical identity of substance; insufficient proof | Evidence sufficient to sustain conviction for aiding, inducing, or causing dealing in heroin |
| Mistrial motion denial | State: admonishment cured any error from withdrawn lab report | Cherry: admonition ineffective; mistrial warranted | Trial court did not abuse discretion; admonition cured potential prejudice |
| Sentence appropriateness | Court’s discretion to impose sentence warranted by conduct and character | Sentence excessive given nature/Cherry’s history | Sentence affirmed as not inappropriate under Indiana law |
Key Cases Cited
- Curley v. State, 777 N.E.2d 58 (Ind. Ct. App. 2002) (abuse of discretion standard for evidentiary rulings)
- Moore v. State, 839 N.E.2d 178 (Ind. Ct. App. 2005) (evidence rulings sustainable on any legal basis in record)
- Hirshey v. State, 852 N.E.2d 1008 (Ind. Ct. App. 2006) (standard for reviewing evidence admissibility)
- Taylor v. State, 236 Ind. 415 (Ind. 1957) (corpus delicti requirement for confessions)
- Rickey v. State, 661 N.E.2d 18 (Ind. Ct. App. 1996) (corpus delicti requires independent evidence)
- Hurt v. State, 570 N.E.2d 16 (Ind. 1991) (purpose of corpus delicti rule)
- Douglas v. State, 481 N.E.2d 107 (Ind. 1985) (identity/circumstantial proof of narcotics)
- Morgan v. State, 544 N.E.2d 143 (Ind. 1989) (totality of evidence admissible to prove crime)
- Grey v. State, 273 Ind. 439 (Ind. 1980) (circumstantial evidence sufficiency)
- Weida v. State, 693 N.E.2d 598 (Ind. Ct. App. 1998) (establishing corpus delicti by total evidence)
- Purifoy v. State, 821 N.E.2d 409 (Ind. Ct. App. 2005) (contemporaneous objection rule and admonishment)
- Etienne v. State, 716 N.E.2d 457 (Ind. 1999) (mistrial/admonishment framework)
- Emerson v. State, 952 N.E.2d 832 (Ind. Ct. App. 2011) (admonishment cures error where appropriate)
- Mickens v. State, 742 N.E.2d 927 (Ind. 2001) (mistrial standard—grave peril to defendant)
- Gregory v. State, 540 N.E.2d 585 (Ind. 1989) (grave peril/weight of inflammatory conduct)