CHERRY v. STATE (2025)

MEMORANDUM DECISION

Case Summary

[1] A jury found Keith Michael Cherry guilty of dealing in methamphetamine, as a Level 2 felony,¹ and maintaining a common nuisance, a Level 6 felony,² and Cherry admitted to being a habitual offender.³ On appeal, Cherry argues that the trial court abused its discretion in excluding evidence regarding a witness's criminal conviction. Finding no abuse of discretion, we affirm.

Facts and Procedural History

[2] Cherry lived with his girlfriend, Jessica Comstock, and several of her family members in a home on Cleveland Street in Columbus. On May 1, 2024, Comstock, who was on probation, was placed in community corrections work release. She was prohibited from being anywhere other than the work release facility or her place of employment, which was a two-minute walk from her home.

[3] On the evening of May 16, two Columbus law enforcement officers responded to a 9-1-1 call regarding a possible overdose at Cherry's home. The home had been under surveillance for suspected narcotics dealing for several months. Cherry was not home when the officers arrived. One officer went inside the residence to attend to the overdose victim, who had been revived with Narcan by one of Comstock's sons. The other officer saw Comstock, whom he recognized from previous encounters, running out the back of the residence. Comstock told the officer that she was taking formula to her grandchild, who was at her neighbor's home. The officer went inside Comstock's home to assist his colleague. Comstock eventually entered the home and started yelling at the officers to leave. She was arrested for violating her probation and taken to jail.

[4] Officers obtained a search warrant for the home and found baggies containing methamphetamine, digital scales, Ziploc baggies with the corners removed, Narcan, syringes, a marijuana bong, and other drug paraphernalia in a bedroom that Cherry had shared with Comstock. The officers recovered a total of 55.42 grams of methamphetamine with a street value of approximately $1,600. Based on their training and experience, the officers believed that the amount of methamphetamine, the presence of the scales and the baggies, and their location in Cherry's bedroom were indicative of drug dealing.

[5] Officers also obtained a warrant to search a cell phone that Cherry and Comstock shared. They determined that Comstock had placed almost eighty calls to that phone between May 2 and May 15, when she was in the work release facility, which indicated that the phone was in Cherry's possession during that time. On the phone, officers found text exchanges from that timespan between Cherry and his drug supplier and customers.

[6] The State charged Cherry with dealing in methamphetamine, as a Level 2 felony, and maintaining a common nuisance, a Level 6 felony, and alleged that he was a habitual offender. A two-day jury trial occurred in August 2024. On the first day of trial, defense counsel attempted to elicit testimony from one of the investigating officers regarding Comstock's prior conviction for dealing in methamphetamine. The State objected on relevance and hearsay grounds, and defense counsel withdrew the question. Defense counsel made the same attempt moments later, and the State again objected on relevance grounds. The trial court sustained the objection.

[7] On the second day of trial, the State requested an order in limine to exclude evidence of Comstock's prior conviction, which the trial court granted. Defense counsel stated that he wanted to offer such evidence for the purpose of proving Comstock's “intent[,] plan[,] knowledge[, and] preparation” under Indiana Evidence Rule 404(b). Tr. Vol. 2 at 140. Counsel then made an offer of proof, during which Comstock stated that she had pleaded guilty to dealing in methamphetamine, as a Level 3 felony, which she had committed in May 2019, and that she was in community corrections for that offense in May 2024.

[8] The State then called Comstock to testify before the jury. She admitted that she had been placed in community corrections lockdown between May 4 and May 16 because she had failed a drug screen. She testified that when she returned to work on May 16, her son showed up and told her that his friend had overdosed. According to Comstock, she went home to help her son administer Narcan to the victim. She then took her infant grandchild to the neighbors’ home, returned to her home, and attempted to flee when the police arrived because she was “scared” of “being out of place in work release.” Id. at 152. She admitted to using drugs in the past and being an addict, but she denied knowing who the methamphetamine belonged to or putting the methamphetamine in the bedroom that she had shared with Cherry.

[9] On cross-examination, defense counsel again tried to introduce evidence of Comstock's methamphetamine conviction, claiming that her admission of drug use had “opened the door” to that evidence. Id. at 157. The State and the trial court disagreed. Defense counsel then questioned Comstock regarding her community corrections placement and elicited testimony that she had twice been placed on lockdown after testing positive for methamphetamine. Defense counsel also elicited testimony that Comstock had been charged with dealing in methamphetamine and maintaining a common nuisance based on the events of May 16 and that those charges were currently pending.

[10] The jury found Cherry guilty of dealing in methamphetamine and maintaining a common nuisance, and Cherry admitted to being a habitual offender. The trial court imposed an aggregate sentence of thirty years. Cherry now appeals.

Discussion and Decision

[11] Cherry contends that the trial court erred in excluding evidence regarding Comstock's conviction. “Generally, we review the trial court's ruling on the admission or exclusion of evidence for an abuse of discretion.” Neeley v. State, 70 N.E.3d 866, 870 (Ind. Ct. App. 2017). “We reverse only when the decision is clearly against the logic and effect of the facts and circumstances.” Id. “We may affirm a trial court's decision regarding the admission of evidence if it is sustainable on any basis in the record.” Id.

[12] Cherry first asserts that the trial court's exclusion of evidence regarding Comstock's conviction violated his due process rights under the Fourteenth Amendment to the U.S. Constitution and his compulsory process and confrontation rights under the Sixth Amendment and deprived him of “a meaningful opportunity to present a complete defense.” Appellant's Br. at 13 (quoting Crane v. Kentucky, 476 U.S. 683, 690 (1986)). But Cherry did not object on any of these bases below, so these assertions are waived. See Finnegan v. State, 240 N.E.3d 1265, 1270 n.3 (Ind. 2024) (finding that defendant waived constitutional claim because he raised it “for the first time on appeal”).⁴

[13] Next, Cherry asserts that the evidence was admissible under Evidence Rule 404(b), which provides in pertinent part 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 a particular occasion the person acted in accordance with the character[,]” but it “may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Our Supreme Court has explained that “[t]he text of Rule 404(b) is such that it governs evidence about acts by defendants, and non-defendants[,]” and that “the rule acts as an appropriate restraint on admissibility of evidence about events or acts that are by definition largely extraneous to those for which a defendant is on trial.” Garland v. State, 788 N.E.2d 425, 429 (Ind. 2003). The rule “is designed to prevent the jury from making the ‘forbidden inference’ that prior wrongful conduct suggests present guilt.” Haliburton v. State, 1 N.E.3d 670, 681 (Ind. 2013).

[14] Cherry argues that “Comstock's prior (and relatively recent) conviction for dealing in methamphetamine – which she was currently on work release for – qualified as an exception under Rule 404(b)[ ] because it tended to show her intent, plan, and/or knowledge.” Appellant's Br. at 16. Cherry's argument gives way because it relies so heavily on the forbidden inference, i.e., that because Comstock dealt methamphetamine in May 2019, she must have dealt it again in May 2024. Cherry fails to establish that the 2019 conviction has any relevance to the intent, plan, or knowledge of Comstock's actions that resulted in the 2024 charges – charges the jury learned about at trial. Accordingly, we conclude that the trial court did not abuse its discretion in excluding evidence regarding the conviction. See Jones v. State, 250 N.E.3d 1062, 1080 (Ind. Ct. App. 2024) (“Simply stated, evidence is inadmissible under Rule 404(b) when its only apparent purpose is to prove the [person at issue] is a person who commits crime.”), trans. denied. Therefore, we affirm Cherry's convictions.⁵

[15] Affirmed.

FOOTNOTES

1.   Ind. Code § 35-48-4-1.1(a)(2), (e)(1).

2.   I.C. § 35-45-1-5(c).

3.   I.C. § 35-50-2-8(c).

4.   We would find Cherry's assertions waived in any event because they are not supported by cogent argument. See Howard v. State, 32 N.E.3d 1187, 1195 n.12 (Ind. Ct. App. 2015) (citing, inter alia, Ind. Appellate Rule 46(A)(8)(a)).

5.   On appeal, Cherry has not renewed his argument that Comstock's trial testimony opened the door to evidence of her conviction.

Bailey, Judge.

Brown, J., and Weissmann, J., concur.