MCQUEARY v. STATE (2025)

MEMORANDUM DECISION

Case Summary

[1] Following a jury trial, Terence B. McQueary was convicted of two counts of Level 2 felony dealing (cocaine and methamphetamine), Level 5 felony possession of a firearm with an obliterated serial number, Level 6 felony resisting law enforcement, Class A misdemeanor resisting law enforcement, and being a habitual offender. The trial court sentenced him to 30 years. McQueary now appeals, arguing the trial court erred in not giving the jury a limiting instruction and in sentencing him. We affirm.

Facts and Procedural History

[2] On November 15, 2023, Kenny Browning texted McQueary and asked if he could trade him THC cartridges for methamphetamine the next day. McQueary agreed. The next morning around 8 a.m., Browning texted McQueary that he was on his way to his house.

[3] At the same time, Shelbyville Police Department Narcotics Detective Chace Holmes was watching live feed of McQueary's house from a nearby telephone-pole camera. On the live feed, Detective Holmes saw Browning's truck enter the alley behind McQueary's house. McQueary then approached the truck, leaned in the driver's window, and had a “very brief exchange” with the driver before the truck left. Tr. Vol. II p. 112. Detective Holmes radioed a patrol officer about the possible drug transaction and a description of the truck.

[4] When the patrol officer observed Browning's truck change lanes without signaling, he pulled it over. Browning, who was the driver, had methamphetamine on his person. Later testing revealed that the meth weighed 2.60 grams. Browning was taken to the police station, where Detective Holmes told him that if he agreed to cooperate with the investigation of McQueary and become a confidential informant, the police would not pursue charges against him. Browning agreed. Detective Holmes then obtained a search warrant for McQueary's house.

[5] Around 11 a.m., McQueary left his house in his truck. Detective Holmes followed him in his unmarked car and activated his lights. McQueary pulled over but then sped off “at a high rate of speed.” Id. at 125. A pursuit ensued, and McQueary eventually stopped when stop sticks were placed on the road. The police ordered McQueary to exit his truck, but he did not comply. Detective Holmes had to pull McQueary out of his truck, at which point he was arrested. THC cartridges were later found in the truck.

[6] The police then took McQueary to his house so that he could unlock it for them to execute the search warrant. During the search, the police found 12.74 grams of methamphetamine, 8.43 grams of cocaine, a rifle with a removed serial number, a handgun, baggies, an electronic scale, and smoking pipes. The police also obtained a search warrant for McQueary's cell phone. A forensic analysis later revealed text-message conversations between McQueary and two other people about other drug deals in the days leading up to his arrest.

[7] The State charged McQueary with Count I: Level 2 felony dealing in cocaine, Count II: Level 2 felony dealing in methamphetamine, Count III: Level 5 felony possession of a firearm with an obliterated serial number, Count IV: Level 6 felony resisting law enforcement, and Count V: Class A misdemeanor resisting law enforcement. The State also alleged that McQueary is a habitual offender based on prior convictions for Level 6 felony possession of methamphetamine (2016), Class D felony theft (2012), and Class D felony intimidation (2007).

[8] McQueary was released on bond. Afterward, McQueary's truck was seen around town with lettering on the back window that read, “Kenny Browning Jr. stop snitching!” and “FTP,” which stands for “Fu** the police.” Ex. p. 69; Tr. Vol. II p. 146.

[9] Before trial, the trial court held a hearing about whether the State could introduce into evidence the text-message conversations between McQueary and the two other people. Specifically, the parties and the court discussed whether the messages constituted inadmissible hearsay.¹ Defense counsel acknowledged that the messages from McQueary were not hearsay because they were statements of a party opponent under Indiana Evidence Rule 801(d)(2). See Tr. Vol. I p. 94. The trial court believed that the messages from the two other people were not hearsay because they provided context to McQueary's messages but said that it would make a ruling at trial. The court suggested that the parties consider requesting a limiting instruction at trial:

[I]f you have any particular concerns about that line of evidence or those statements from third parties, those could be properly cured with an appropriate limiting instruction that, you know, that for instance, the statements of third parties other than the Defendant [are] not being offered for the truth of the matter, asserted only for some other affect as is allowed. So essentially, a limiting instruction would cure, almost always cures any other defect in the admission of such evidence.

Id. at 95-96.

[10] A jury trial was held in October 2024. McQueary appeared on the first day of trial but not the second. The State presented evidence that the Flock camera system showed that McQueary's truck had left Shelbyville around 4:00 a.m. that morning and was observed near West Virginia around 9:00 a.m. McQueary was eventually arrested in South Carolina and extradited to Indiana.

[11] Browning testified that he purchased methamphetamine from McQueary on November 16, 2023. Detective Jason Myers with the Shelby County Sheriff's Department testified that he conducted a forensic analysis of McQueary's cell phone and found five text-message conversations between McQueary and two other people, R.S. and R.J., about other drug deals around the same time as the deal to Browning. See Exs. 39 (November 10, R.S.), 40 (November 10, R.J.), 41 (November 13, R.S.), 42 (November 14, R.J.), 43 (November 15, R.S.). For example, Exhibit 39 contains the following conversation:

[R.S.] Are you doing any good??

[McQueary] Yep whatcha need

[R.S.] Go

[McQueary] How much

[R.S.] A half zip

[McQueary] I'll be omw in a minute

Ex. 39. Defense counsel objected, arguing that the text-message conversations constituted inadmissible hearsay. The State responded that the messages from McQueary were not hearsay because they were statements of a party opponent and that the messages from R.S. and R.J. were admissible to “provide context” to McQueary's messages. Tr. Vol. II p. 250. In support, the State cited Jackson v. State, which holds that “[s]tatements that provide context for other admissible statements are not hearsay because they are not offered for their truth.” 222 N.E.3d 321, 334 (Ind. Ct. App. 2023), trans. denied. The trial court overruled defense counsel's objection, explaining that the messages from McQueary were statements of a party opponent and that the messages from R.S. and R.J. “provide[d] only context for [McQueary's] non-hearsay and admissible statements.” Tr. Vol. II p. 250; Tr. Vol. III p. 4. Defense counsel did not request a limiting instruction.

[12] The jury found McQueary guilty as charged and that he is a habitual offender. At sentencing, the State requested a 45-year sentence while McQueary requested 18 years. The trial court identified several aggravators, including: (1) McQueary has a criminal history consisting of four felonies and one misdemeanor; (2) McQueary has failed to take advantage of prior opportunities to reform himself; (3) McQueary violated the conditions of his pretrial release in this case by not appearing on the second day of trial and fleeing to South Carolina;² and (4) McQueary has a history of disregarding authority, including failing to report to the Shelby County Jail for execution of a sentence in 2014, which resulted in a felony conviction for failure to return to lawful detention. The trial court found one mitigator: McQueary has minor children, and a lengthy period of incarceration would work a hardship on them. In response to defense counsel's argument that McQueary was a drug user and not a dealer, the trial court declined to find that mitigating, explaining that “the amounts of the drugs involved include things like 21.4 grams of Methamphetamine, 11 1/212 grams of Cocaine, those are clearly dealer quantities. Those are not personal possession, personal use quantities.” Tr. Vol. III pp. 173-74.

[13] In pronouncing sentence, the trial court said that given that McQueary “fled in the middle of trial, it would be really easy, really easy for [it] to ․ sentence [him] somewhere close to th[e] 50 year max.” Id. at 174. Instead, the court sentenced him to 30 years as follows: 20 years enhanced by 10 years for being a habitual offender on Count I, 20 years on Count II, 4 years on Count III, 2 years on Count IV, and 1 year on Count V, to be served concurrently. The court ordered McQueary to serve 25 years in prison and suspended 5 years to probation.

[14] McQueary now appeals.

Discussion and Decision

I. The trial court did not err in not giving the jury a limiting instruction

[15] McQueary first contends that the trial court should have given the jury a limiting instruction when it admitted Exhibits 39-43 into evidence. McQueary acknowledges Jackson’s holding that statements that provide context for other admissible statements are not hearsay because they are not offered for their truth. See Appellant's Br. p. 8. However, he argues that the trial court should have instructed the jury that it could only consider the text messages from R.S. and R.J. to provide context to McQueary's own statements and not as substantive evidence. But as the State points out, McQueary didn't request a limiting instruction below and has therefore waived this issue for appeal. See Humphrey v. State, 680 N.E.2d 836, 840 (Ind. 1997) (holding that a defendant's failure to request a limiting instruction waives the issue for appeal). Moreover, McQueary doesn't argue fundamental error on appeal. See Bowman v. State, 51 N.E.3d 1174, 1179 (Ind. 2016) (holding that where appellant “failed to raise the issue of fundamental error in his initial appellate brief[,]” such a claim was “entirely waived”).

[16] Regardless, McQueary can't establish fundamental error. An error is fundamental if it “made a fair trial impossible” or if it “constituted a clearly blatant violation of basic and elementary principles of due process presenting an undeniable and substantial potential for harm.” C.S. v. State, 131 N.E.3d 592, 595 (Ind. 2019). As the State highlights, the trial court's ruling on defense counsel's hearsay objection appears to have occurred in the jury's presence and was tantamount to a limiting instruction, as the court explained that the challenged statements “provide[d] only context for [McQueary's] non-hearsay and admissible statements.” Moreover, even without the messages from R.S. and R.J. as context, McQueary's messages alone suggested drug activity. See Exs. 39-43. And the other evidence of McQueary's guilt was overwhelming based on Detective Holmes observing the transaction with Browning, Browning's admissions, the separate text messages with Browning, the drugs found at McQueary's house, the additional evidence of dealing found at McQueary's house including baggies and a scale, and McQueary's repeated acts showing consciousness of guilt including his flight from the police and his flight during trial.

II. The trial court did not abuse its discretion in sentencing McQueary

[17] McQueary also contends that the trial court erred in sentencing him to 30 years. Sentencing decisions rest within the sound discretion of the trial court. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh'g, 875 N.E.2d 218 (Ind. 2007).

[18] McQueary first argues that the trial court “relied upon inaccurate amounts of the drugs involved” when discussing the circumstances of the case. Appellant's Br. p. 14. He highlights that the court stated that he possessed 21.4 grams of methamphetamine and 11.5 grams of cocaine but the laboratory report shows that he possessed 15.35 grams of methamphetamine and 8.43 grams of cocaine. But as the State responds, the amounts recited by the court came from the probable-cause affidavit, which was attached to the presentence investigation report. The probable-cause affidavit explained that the amounts included the weight of the baggies. Although the amounts differed, defense counsel didn't say anything when the court said the amounts. We doubt these differences would have impacted the court's observation that they were dealer amounts, not user amounts.

[19] McQueary also argues that the trial court “relied upon ․ a criminal history that was not the worst and followed a lengthy period of sober, law-abiding behavior by McQueary.” Id. This, however, appears to be a challenge to the weight of the criminal-history aggravator, which is not subject to review. See Anglemyer, 868 N.E.2d at 491. But even if McQueary's challenge is to the existence of this aggravator, it likewise fails. As McQueary himself acknowledges, he has “several prior convictions.” Id. at 13. These convictions include some that weren't used to establish that he is a habitual offender. The trial court did not abuse its discretion in sentencing McQueary.

[20] Affirmed.

FOOTNOTES

1.   Defense counsel also argued that the text messages were inadmissible under Indiana Evidence Rules 404(b) and 403. But on appeal, McQueary only argues that the messages were inadmissible hearsay.

2.   McQueary later pled guilty to Level 6 felony failure to appear and was sentenced to 545 days.

Vaidik, Judge.

Tavitas, J., and Felix, J., concur.