MEMORANDUM DECISION                                             Jul 07 2015, 9:29 am

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                                    ATTORNEYS FOR APPELLEE
Leanna Weissmann                                          Gregory F. Zoeller
Lawrenceburg, Indiana                                     Attorney General of Indiana
                                                          Monika Prekopa Talbot
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Scott Huy,                                                July 7, 2015

Appellant-Defendant,                                      Court of Appeals Case No.
                                                          15A01-1410-CR-465
        v.                                                Appeal from the Dearborn Superior
                                                          Court.
                                                          The Honorable Sally A.
State of Indiana,                                         Blankenship, Judge.
Appellee-Plaintiff                                        Cause No. 15D02-1312-FA-31




Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 15A01-1410-CR-465 | July 7, 2015      Page 1 of 8
[1]   Scott Huy appeals his conviction and sentence for Dealing in Cocaine or

      Narcotic Drug,1 a class A felony. Huy argues that the trial court erred in

      denying his motion for a mistrial and that his sentence is inappropriate in light

      of the nature of the offense and his character. Finding that the trial court did

      not err in denying Huy’s motion for a mistrial and that his sentence is not

      inappropriate, we affirm. We remand to the trial court so that it may correct

      the abstract of judgment to reflect that Huy is serving an enhanced, rather than

      consecutive, sentence.


                                                       Facts
[2]   On September 16, 2013, a confidential informant by the name of Jeremiah

      McCoy informed Detective Carl Pieczonka that he could arrange for Huy to

      sell heroin to an undercover officer. McCoy then contacted Huy and arranged

      a meeting. The next day, McCoy met with Detective Timothy Wuestefeld, an

      undercover officer with the Indiana State Police, and the two went to meet Huy

      at the Hollywood Casino. Once there, all three drove to the roof of the casino’s

      parking garage where Detective Wuestefeld handed Huy $600 in exchange for a

      baggie filled with a substance that was later confirmed to be 6.848 grams of

      heroin.




      1
        Ind. Code § 35-48-4-1(b)(1). This statute was recently amended with an effective date of July 1, 2014. We
      cite to the statute as it existed when Huy committed the crime.

      Court of Appeals of Indiana | Memorandum Decision 15A01-1410-CR-465 | July 7, 2015               Page 2 of 8
[3]   The State charged Huy with class A felony dealing in heroin and later added an

      habitual offender count.2 A jury trial took place on August 26 and 27, 2014.

      During the trial, Detective Pieczonka testified that, before the controlled buy

      took place, he advised Detective Wuestefeld that he “had an individual in the

      Cincinnati area that was trafficking heroin.” Tr. p. 200.


[4]   Immediately following this statement, Huy objected and moved for a mistrial.

      Huy argued that Detective Pieczonka had told the jury that Huy was selling

      heroin in Ohio and that this was evidence of a prior crime prohibited under

      Indiana Evidence Rule 404(b). The State argued that Detective Pieczonka’s

      statement was merely meant to put the detectives’ actions in context and, as

      such, was admissible.


[5]   The trial court did not grant a mistrial, but prohibited the State from making

      any further mention of Huy’s criminal history and gave the jury a limiting

      instruction. The instruction provided that any statements made by the

      confidential informant to the detectives could not be considered as evidence of

      Huy’s guilt, but were merely meant to provide context for the detectives’

      actions. Huy agreed with the trial court that this was an acceptable remedy.


[6]   The trial concluded, and the jury found Huy guilty as charged. The jury later

      found Huy to be an habitual offender. The trial court held sentencing hearings

      on September 26 and October 3, 2014. Following these hearings, the trial court



      2
          Ind. Code § 35-50-2-8.


      Court of Appeals of Indiana | Memorandum Decision 15A01-1410-CR-465 | July 7, 2015   Page 3 of 8
      sentenced Huy to forty years for dealing in heroin, enhanced by thirty years for

      the habitual offender finding. This resulted in an executed term of seventy

      years.3 Huy now appeals.


                                    Discussion and Decision
                                       I. Motion for Mistrial
[7]   Huy first argues that the trial court erred in failing to grant a mistrial following

      Detective Pieczonka’s testimony as to Huy’s involvement with heroin

      trafficking in the Cincinnati area. We review a trial court’s decision to grant or

      deny a motion for mistrial for an abuse of discretion “because the trial court is

      in the best position to gauge the surrounding circumstances of an event and its

      impact on the jury.” Pittman v. State, 885 N.E.2d 1246, 1255 (Ind. 2008). “A

      mistrial is appropriate only when the questioned conduct is so prejudicial and

      inflammatory that the defendant was placed in a position of grave peril to

      which he should not have been subjected.” Id. (quotations omitted). We

      measure the gravity of the peril by considering the conduct’s probable

      persuasive effect on the jury. Id.


[8]   Indiana Evidence Rule 404(b) provides that “[e]vidence of a crime, wrong, or

      other act is not admissible to prove a person’s character in order to show that on




      3
        On the abstract of judgment, the trial court mistakenly noted that Huy’s sentence was “Consecutive:
      Habitual Substance Offender.” Appellant’s App. p. 180. The State points out that Huy is actually serving an
      enhanced, rather than consecutive, sentence. Huy agrees. Reply Br. p. 5-6. Accordingly, we remand to the
      trial court so that it may correct this mistaken notation.

      Court of Appeals of Indiana | Memorandum Decision 15A01-1410-CR-465 | July 7, 2015              Page 4 of 8
      a particular occasion the person acted in accordance with the character.” Thus,

      Detective Pieczonka’s testimony that the confidential informant “had an

      individual in the Cincinnati area that was trafficking heroin” would not be

      admissible to prove that Huy was likely guilty of trafficking in heroin in the

      instant case. Tr. p. 200. However, Rule 404(b) provides that such evidence

      may be admissible for other purposes, “such as proving motive, opportunity,

      intent, preparation,” etc. Here, the State argues that the testimony was simply

      meant to give the jury some of the story behind the detectives’ investigation of

      Huy.


[9]   Assuming solely for the sake of argument that Detective Pieczonka’s testimony

      was inadmissible, we do not believe that Huy was placed in a position of grave

      peril when the testimony is viewed in light of the limiting instruction provided

      by the trial court. Following the testimony, the jury was specifically instructed

      that it was not to consider the testimony as evidence of Huy’s guilt as to the

      present crime. Tr. p. 204. Huy himself agreed that this was an appropriate cure

      for any prejudice he may have suffered. Id. We agree with Huy. “A timely

      and accurate admonishment is presumed to cure any error in the admission of

      evidence.” Owens v. State, 937 N.E.2d 880, 895 (Ind. Ct. App. 2010).

      Furthermore, in light of the overwhelming evidence presented against Huy,

      Detective Pieczonka’s statement could have had very little persuasive effect

      upon the jury. Under these circumstances, the trial court did not err in refusing

      to declare a mistrial.




      Court of Appeals of Indiana | Memorandum Decision 15A01-1410-CR-465 | July 7, 2015   Page 5 of 8
                              II. Appropriateness of Sentence
[10]   Huy next argues that his sentence is inappropriate. Indiana Appellate Rule 7(B)

       provides that “[t]he Court may revise a sentence authorized by statute if, after

       due consideration of the trial court’s decision, the Court finds that the sentence

       is inappropriate in light of the nature of the offense and the character of the

       offender.” It is the defendant’s burden to persuade us that his sentence is

       inappropriate. Stokes v. State, 947 N.E.2d 1033, 1038 (Ind. Ct. App. 2011).


[11]   In this case, the jury convicted Huy of class A felony dealing in heroin and

       found him to be an habitual offender. “A person who commits a Class A

       felony . . . shall be imprisoned for a fixed term of between twenty (20) and fifty

       (50) years, with the advisory term being thirty (30) years.” I.C. § 35-50-2-4.

       Here, Huy was sentenced to a term of forty years. Our habitual offender statute

       provides that “[t]he court shall sentence a person found to be an habitual

       offender to an additional fixed term that is not less than the advisory sentence

       for the underlying offense . . . .” I.C. § 35-50-2-8. Therefore, the trial court was

       required to add at least thirty years to Huy’s sentence, as this is the advisory

       term for a class A felony. Once the trial court added the minimum thirty-year

       term, Huy’s sentence totaled seventy years.


[12]   Regarding the nature of his offense, Huy argues that the heroin in this case was

       sold to an undercover officer and, therefore, never made it on to the street. Huy

       also points out that no one was injured. Regarding his character, Huy argues

       that he comes from a family with a history of drug addiction. Both of Huy’s


       Court of Appeals of Indiana | Memorandum Decision 15A01-1410-CR-465 | July 7, 2015   Page 6 of 8
       parents died from heroin. Huy began using drugs at a young age and has been

       battling addiction his entire adult life. However, Huy argues that his problem is

       treatable and that the State should seek to rehabilitate rather than incarcerate

       Huy in this instance.


[13]   As for the nature of his offense, Huy is correct to point out that no one was hurt

       and that, on this particular occasion, the heroin did not make its way onto the

       street. However, this outcome is the result of the detectives’ intervention rather

       than the intended result of Huy’s crime. Had Huy’s criminal actions gone as

       planned, heroin would have made its way onto the street where it would have

       posed a serious danger to the community. The fact that officers were able to

       prevent harm to the community does not affect the true nature of Huy’s offense

       in this case.


[14]   As to Huy’s character, while the trial court took note of his difficult upbringing,

       it also took note of his extensive criminal history. The trial court observed that

       Huy has a criminal history that began with multiple juvenile adjudications. Tr.

       p. 389-90. As to Huy’s adult criminal history, the trial court noted Huy’s

       numerous felony convictions, including convictions for possession of more than

       100 grams of cocaine, trafficking in cocaine, and domestic violence. Id. Huy’s

       drug trafficking history also includes “involvement in a multi-state drug

       trafficking operation, possession of [a] weapon while trafficking drugs, throwing

       drugs out of a car window and injury to a police officer while fleeing from

       police while on felony probation.” Id. at 391. The trial court also noted the fact

       that Huy committed the instant crime within a very short time after being

       Court of Appeals of Indiana | Memorandum Decision 15A01-1410-CR-465 | July 7, 2015   Page 7 of 8
       released from prison for similar offenses. Id. It concluded that these facts

       indicate that Huy is a risk to the safety of the community.


[15]   Given such an extensive criminal history, we agree with the trial court’s

       conclusion. The facts indicate that Huy has no respect for the law and that

       there is a substantial likelihood that he will continue to commit similar crimes

       upon his release. While Huy has certainly suffered from a tragic upbringing,

       the trial court was correct to note that his actions pose a significant risk to the

       safety of others. Huy knows all too well the dangers of heroin and other

       narcotics, and his continued sale of such substances evinces a strong disregard

       for the wellbeing of others. As for the length of his sentence, we note that the

       trial court has not imposed the maximum sentence authorized by statute.

       Accordingly, we cannot conclude that Huy’s sentence is inappropriate in light

       of the nature of the offense and his character.


[16]   The judgment of the trial court is affirmed and remanded with instructions that

       the trial court correct the abstract of judgment to indicate that Huy is serving an

       enhanced, rather than consecutive, sentence for the habitual offender finding.


       Najam, J., and Friedlander, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 15A01-1410-CR-465 | July 7, 2015   Page 8 of 8
