Will Ollie Cross, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

Statement of the Case

[1] During a drug dealing investigation, law enforcement officers coordinated three controlled buys through a confidential informant and executed a search warrant for Will Cross's residence and surrounding property. Officers discovered methamphetamine in Cross's bedroom as well as baggies, scales, and more than $4,000 in cash. The trial court denied Cross's motion to exclude the testimony of the confidential informant and admitted over Cross's objection three videos depicting controlled buys. Cross was convicted of three counts of dealing in methamphetamine and one count of maintaining a common nuisance, and the trial court sentenced him to 25 years of incarceration. Cross now appeals, raising several issues for our review, which we restate as the following two issues:

1. Whether the trial court abused its discretion regarding certain evidence at trial;

2. Whether the State presented sufficient evidence to support Cross's convictions.

[2] We affirm.

Facts and Procedural History

[3] In January 2021, Owen County Sheriff's Department Detective Mitchell Fleetwood was investigating Cross's residence after receiving a tip that drugs were being dealt from it. The residence was owned by Biff Leighton who lived there with his wife and children. Cross maintained a bedroom at the residence but sometimes stayed in his fiancée Stephanie Bruce's camper parked on the property. Detective Fleetwood observed vehicles “coming and going from the residence.” Tr. Vol. II at 205. Detective Fleetwood conducted a traffic stop on a vehicle driven by Nevin Wright after it left the residence. After illegal narcotics were discovered, Wright was “given the option” to “proceed to jail on the charges or work for [law enforcement officers] as a Confidential Informant.” Id. Wright elected to work as a confidential informant.

[4] Wright participated in three controlled buys, which are described more particularly below. Before and after each controlled buy, officers searched Wright and his vehicle for “currency and contraband,” which included checking his pockets, shoes, and under his socks. Tr. Vol. II at 208. Prior to each controlled buy, Detective Fleetwood outfitted Wright with surveillance equipment that Detective Fleetwood activated before Wright left and deactivated when Wright returned. Officers “maintain[ed] surveillance” on Wright while he traveled to and from Cross's residence to purchase drugs. Id. at 119. Officers debriefed and searched Wright and his vehicle after each controlled buy before watching the videos captured by the surveillance equipment worn by Wright (collectively referred to as the “Controlled Buy Videos”).

[5] On January 28, officers provided Wright with $110, and he returned from the controlled buy with 2.2 grams of methamphetamine. On January 31, officers provided Wright with $130, and he returned from the controlled buy with 3.38 grams of methamphetamine. On February 4, officers provided Wright with $250, and he returned from the controlled buy with 7.15 grams of methamphetamine. Consequently, Detective Fleetwood requested a search warrant for the residence.

[6] While executing the search warrant, officers searched Bruce's camper and Cross's bedroom. In the camper, officers located small baggies, digital scales with white residue, and smoking devices. In Cross's bedroom inside the residence, officers located a firearm, rock-like substances, and a wallet containing $4,105. Additional paraphernalia was located in the common areas of the residence. Testing later revealed the white and rock-like substances were methamphetamine.

[7] The State charged Cross with two counts of dealing in methamphetamine as Level 4 felonies;¹ three counts of dealing in methamphetamine as Level 3 felonies;² and one count each of dealing in methamphetamine as a Level 2 felony,³ dealing in methamphetamine as a Level 5 felony,⁴ and maintaining a common nuisance as a Level 6 felony ⁵ . Before trial, Cross filed a motion to exclude Wright as a witness because the State did not disclose Wright as a witness until the trial date was confirmed eight days before the trial. After an evidentiary hearing, the trial court denied Cross's motion because exclusion is an “extreme remedy.” Tr. Vol. II at 11.

[8] During the trial, the state published three Controlled Buy Videos to the jury, Wright testified that he gave Cross money in exchange for methamphetamine, and Bruce testified that she observed Cross sell methamphetamine to Wright. The jury found Cross guilty of five of the seven dealing charges ⁶ and of maintaining a common nuisance. Due to double jeopardy concerns, the trial court entered judgment on three counts of dealing in methamphetamine and one count of maintaining a common nuisance, and it sentenced Cross to 25 years of incarceration. This appeal ensued.

Discussion and Decision

1. The Trial Court Did Not Abuse Its Discretion Regarding Certain Evidence at Trial

[9] Cross contends the trial court abused its discretion by admitting and excluding certain evidence at trial. We review rulings on admissibility of evidence for an abuse of discretion. Russell v. State, 234 N.E.3d 829, 858 (Ind. 2024) (quoting Conley v. State, 972 N.E.2d 864 (Ind. 2012)), cert. denied. “[W]e may affirm the trial court's decision on any basis supported by the record,” Means v. State, 201 N.E.3d 1158, 1163 (Ind. 2023) (citing Ramirez v. State, 174 N.E.3d 181, 190 n.2 (Ind. 2021)), and we will reverse “only where the decision is clearly against the logic and effect of the facts and circumstances,” Russell, 234 N.E.3d at 858 (quoting Smith v. State, 754 N.E.2d 502, 504 (Ind. 2001)). In particular, Cross argues that the trial court abused its discretion by (a) overruling his objection to the admission of the Controlled Buy Videos, (b) denying his motion to exclude a witness, and (c) sustaining the State's objection to his questions regarding Wright's criminal history. We address each argument in turn.

a. Controlled Buy Videos

[10] Cross argues that the trial court erred in admitting the Controlled Buy Videos without proper authentication. Detective Fleetwood described outfitting Wright with surveillance equipment and testified that Wright was not able to turn the videos on or off. When the State offered into evidence the Controlled Buy Videos captured with the surveillance equipment worn by Wright, Cross objected that the State had not laid an adequate foundation for its admissibility because Detective Fleetwood did not personally “produce,” “make,” or “transfer” the Controlled Buy Videos. Tr. Vol. II at 215. After Detective Fleetwood confirmed the Controlled Buy Videos reproduced in State's Exhibits 49, 50, and 51 were unchanged from when he viewed the videos previously, the trial court admitted the Controlled Buy Videos over Cross's objection.

[11] The State offered the Controlled Buy Videos as substantive evidence. Video “[e]vidence offered for substantive purposes acts as a silent-witness[ ] as to what activity is being depicted[.]” Kirby v. State, 217 N.E.3d 575, 583 (Ind. Ct. App. 2023) (internal quotation marks omitted) (quoting Knapp, 9 N.E.3d at 1282). The foundation for the admission of videos or photographs as substantive evidence requires “a strong showing of authenticity and competency, including proof that the evidence was not altered.” McCallister, 91 N.E.3d at 561–62 (citing Knapp, 9 N.E.3d at 1282). To properly authenticate a piece of evidence, “the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.” Ind. Evidence Rule 901(a). Surveillance video footage may be properly authenticated and admissible under the silent-witness theory when the proponent presents “testimony from someone with knowledge on the security system that produced the video or image, on the integrity of the system's process, and on whether [the] video or image was altered.” Stott v. State, 174 N.E.3d 236, 246 (Ind. Ct. App. 2021).

[12] Although Detective Fleetwood did not personally download the trial exhibits containing the Controlled Buy Videos, the State provided sufficient evidence to authenticate them. Detective Fleetwood testified about his role in the controlled buys and his familiarity with the Controlled Buy Videos. The testimony provided that: (1) Detective Fleetwood activated the surveillance equipment and placed it on Wright before each controlled buy; (2) Detective Fleetwood deactivated the surveillance equipment after each buy; (3) Wright was unable to turn off or change the contents of the video; (4) Detective Fleetwood reviewed the recordings after retrieving the surveillance equipment from Wright; (5) the Controlled Buy Videos admitted at trial were preserved and unedited from the originals that Detective Fleetwood viewed after each buy; and (6) the date and time stamps displayed in the videos are accurate. The State provided the foundation to demonstrate the Controlled Buy Videos were authentic and unaltered. We therefore hold that the trial court did not abuse its discretion by admitting the Controlled Buy Videos.

[13] On appeal, Cross makes additional claims concerning the characterization of the Controlled Buy Videos and their admissibility. First, Cross claims they should not be characterized as silent witness evidence because “the C.I. testified and was available to the State[.]” Appellant's Br. at 16. Next, Cross claims that Detective Fleetwood could not lay a proper foundation because he “did not go into the residence so he had no basis for this foundation.” Id. at 15–16. “[A] defendant may not object to the admission of evidence on one basis at trial and then raise a different basis on appeal.” Ward v. State, 203 N.E.3d 524, 531 (Ind. Ct. App. 2023) (citing Bradfield v. State, 192 N.E.3d 933, 935 (Ind. Ct. App. 2022)). Thus, these evidentiary arguments are waived. Id.

b. Motion to Exclude Wright as a Witness

[14] Cross argues that the trial court erred by denying his motion to exclude Wright as a witness because the State waited until July 2, 2024, to notify Cross that Wright would be testifying, even though the trial was scheduled to begin on July 10. On April 8, 2021, Cross filed a motion for general discovery and request for character evidence. In June 2023, after multiple continuances and plea negotiations, the State disclosed witnesses and exhibits it intended to call and use at trial. Witnesses included “[a]ny witness listed in the State's discovery response” and exhibits included the Controlled Buy Videos which were available for Cross to download or view. Appellant's App. Vol. II at 92. The probable cause affidavits (“PCA”) specify that a confidential informant conducted controlled buys and that the buys were captured on video.

[15] On July 1, 2024, trial was confirmed to proceed on July 10. On July 2, the State supplemented its discovery response and specifically identified Wright as the confidential informant whom the State would call as a witness at trial. In response, on July 9, Cross filed a motion to exclude Wright as a witness. After an evidentiary hearing, the trial court denied Cross's motion because exclusion is an “extreme remedy.” Tr. Vol. II at 11.

[16] We agree that, under the circumstances, exclusion would have been inappropriate. At the outset, we note that the State's standard practice of not disclosing the identity of a confidential informant until trial is confirmed is an approved method of “preventing retaliation against informants and ensuring individuals come forward with information to help law enforcement.” Beville v. State, 71 N.E.3d 13, 19 (Ind. 2017). Furthermore, “[t]he most extreme sanction of witness exclusion should not be employed unless the [party's] breach has been purposeful or intentional or unless substantial and irreparable prejudice would result to the [other party].” Vasquez v. State, 868 N.E.2d 473, 476 (Ind. 2007) (quoting Wiseheart v. State, 491 N.E.2d 985, 991 (Ind. 1986)). We consider the following factors to determine whether to exclude a witness: (1) “when the parties knew of the witness;” (2) “the importance of the witness's testimony;” (3) “the prejudice resulting to the opposing party;” (4) the appropriateness of lesser remedies such as continuances; and” (5) “whether the opposing party would be unduly surprised and prejudiced by the inclusion of the witness's testimony.” Id. (quoting Williams v. State, 714 N.E.2d 644, 651 (Ind. 1999)); see also Woodcox v. State, 591 N.E.2d 1019 (Ind. 1992), abrogated on other grounds by Richardson v. State, 717 N.E.2d 32 (Ind. 1999).

[17] Here, based upon a simple review of the PCAs, Cross knew about the existence of a confidential informant from the start but did not seek to compel disclosure of Wright's identity. Viewing the Controlled Buy Videos would have made it clear who the confidential informant was given Cross's familiarity with Wright. Further, Wright's testimony was of limited importance given his memory lapses, the admission of the Controlled Buy Videos, Detective Fleetwood's testimony describing the controlled buys, and Bruce's testimony that she observed Cross selling methamphetamine to Wright. In other words, the threat of prejudice from allowing Wright to testify was low. Also important, the State disclosed its intent to have Wright testify the day after the parties and the court confirmed the case was ready to be tried. Accordingly, the trial court did not err by denying Cross's motion to exclude Wright as a witness.

c. Wright's Criminal History

[18] Cross argues that the “Trial Court unnecessarily restricted [Cross's] inquiry into [Wright's] background depriving of the ability to question whether he was an appropriate” confidential informant. Appellant's Br. at 14. While cross-examining Detective Fleetwood, Cross asked about Wright's criminal history:

[DEFENSE COUNSEL]: And you ran his criminal history?

WITNESS: Again, I believe I did, I would have ran it for the case that was drawn for his case, for the traffic stop and the drugs found in his case.

[DEFENSE COUNSEL]: Are you aware that he's a convicted felon?

Tr. Vol. II at 223. The State objected to this question, and the trial court addressed the parties outside the jury's presence. After the issue was addressed by both parties, the Court permitted Cross to inquire about Wright's criminal history; specifically, regarding the process of vetting criminal informants, to “ask[ ] questions about the process and that the evidence is being offered ․ for purposes of exploring that process[.]” Id. at 248. Cross clarified and ultimately agreed with the trial court's ruling on this issue.

[DEFENSE COUNSEL]: Would it be permissible for me to ask this line of question maybe, did you review his criminal history, yes, does he have a criminal history, and leave it at that.

* * *

[DEFENSE COUNSEL]: I don't see how that could be objectionable and just leave it at that, I think that would solve this issue ․

[STATE]: I think it is objectionable, I would object ․

COURT: ․ [W]e'll note the State's objection there and the Court would note that being overruled, um, in particular though, with respect to this being offered specifically not for purposes of 609 impeachment of a witness, but as to the process and procedures by the law enforcement in terms of selection and vetting of CIs and um, with the understanding that we're not getting into specific convictions and we'll go from there.

[19] Tr. Vol. II at 249; Tr. Vol. III at 2. Cross did not assert a continuing objection to the trial court's limitations. Instead, Cross expressly agreed with the trial court's ruling on his inquiring into Wright's criminal history. Ultimately Detective Fleetwood could not remember whether Wright had a criminal history prior to 2021.

[20] Cross affirmatively agreed with the trial court's limitation on his inquiry into Wright's criminal history yet, on appeal, claims the trial court erred. “For a party to preserve a claim for review, we generally require that party to object to the trial court's ruling and to state the reasons for that objection.” Bradley v. State, 248 N.E.3d 563, 573 (Ind. 2024) (citing Durden, 99 N.E.3d at 651). On appeal, Cross seems to ignore the trial court's reconsideration of the issue and his agreement with the trial court's decision in that regard. Cross has waived this issue.

2. The State Presented Sufficient Evidence to Support Cross's Convictions

[21] Cross argues that the State presented insufficient evidence at trial to support his convictions. Our standard of review for such a claim is as follows:

“A conviction is supported by sufficient evidence if ‘there is substantial evidence of probative value supporting each element of the offense such that a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt.’ ” Hancz-Barron v. State, 235 N.E.3d 1237, 1244 (Ind. 2024) (quoting Willis v. State, 27 N.E.3d 1065, 1066 (Ind. 2015)). This Court reviews only the evidence most favorable to the verdict and the reasonable inferences therefrom, and will reverse only where it is shown that “no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt.” Teising [v. State], 226 N.E.3d [780,] 783 [(Ind. 2024)].

Konkle v. State, 253 N.E.3d 1068, 1090–91 (Ind. 2025). We do not reweigh the evidence or reassess witness credibility. Id. at 1090 (quoting Teising, 226 N.E.3d at 783). Cross claims the State failed to provide sufficient evidence to support four of his convictions for dealing in methamphetamine during the course of the three controlled buys.⁷ The four convictions based on the controlled buys were one count each of dealing in methamphetamine as Levels 2 and 4 felonies and two counts of dealing in methamphetamine as a Level 3 felony.

[22] In order to convict Cross of dealing in methamphetamine as a Level 4 felony, the State had to prove beyond a reasonable doubt that Cross “knowingly or intentionally ․ deliver[ed] methamphetamine” and the amount was “at least one (1) gram but less than five (5) grams.” Ind. Code § 35-48-4-1.1(a)(1), (c)(1).

[23] In order to convict Cross of dealing in methamphetamine as a Level 3 felony, the State had to prove beyond a reasonable doubt that Cross “knowingly or intentionally ․ deliver[ed] methamphetamine” and the amount of the drug involved is at least five (5) grams but less than ten (10) grams; or ․ the amount of the drug involved is at least one (1) gram but less than five (5) grams and an enhancing circumstance applies.” Ind. Code § 35-48-4-1.1(a)(1), (d)(1)–(2).

[24] In order to convict Cross of dealing in methamphetamine as a Level 2 felony, the State had to prove beyond a reasonable doubt that Cross “knowingly or intentionally ․ deliver[ed] methamphetamine” and the amount was “at least five (5) grams but less than ten (10) grams and an enhancing circumstance applies.” I.C. § 35-48-4-1.1(a)(1), (e)(2).

[25] Cross concedes the amounts and authenticity of the methamphetamine but claims that there is no evidence that Cross was the one who provided the methamphetamine to Wright. Specifically, Cross argues that Bruce and Wright's testimonies are unreliable due to their memory loss. This is a clear request to reassess witness credibility which we will not do. See Teising, 226 N.E.3d at 783.

[26] Identity can be established by circumstantial evidence and the reasonable inferences therefrom. Hancz-Barron, 235 N.E.3d at 1244–45; Holloway v. State, 983 N.E.2d 1175, 1178 (Ind. Ct. App. 2013). The evidence most favorable to the verdict shows Wright became a confidential informant after he was caught by law enforcement with methamphetamine after leaving from Cross's residence; Detective Fleetwood controlled the legitimacy of the buys by searching Wright and his vehicle before and after each buy, controlling the surveillance equipment worn by Wright, following Wright to and from the buy location, and collecting and testing the methamphetamine Wright returned with after each buy; Wright confirmed buying methamphetamine from Cross on at least two occasions as controlled buys; Bruce saw Cross sell methamphetamine to Wright on at least one occasion; and the search of Cross's bedroom at the residence and Bruce's camper revealed more than $4,000 in cash, methamphetamine, baggies, scales, and weights to calibrate the scales. Additionally, there is direct evidence that Cross is the individual who provided the methamphetamine to Wright. In the Controlled Buy Videos, Cross was heard asking Wright if he wanted another “ball;⁸ ” St. Ex. 49 at 09:28–09:30; was seen holding up a bag full of a white substance claiming it contained “a hundred f*cking grams right here;” St. Ex. 51 at 06:07–06:12; and was heard confirming Wright wanted “two more” before handing Wright a baggie or baggies containing a white substance in exchange for money and asking “this is for two?”. Id. at 09:01–09:13. Also, during the February 4 controlled buy, Cross advised Wright how much Wright should be charging per ball.

[27] Consequently, the jury reasonably determined Cross was the person who provided the methamphetamine to Wright during the two controlled buys resulting in convictions. We therefore cannot say the State failed to present sufficient evidence to support Cross's convictions for dealing in methamphetamine, so we affirm those convictions.

[28] Affirmed.

FOOTNOTES

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

2.   I.C. § 35-48-4-1.1(a)(1), (d)(1)(d)(2).

3.   I.C. § 35-48-4-1.1(a)(1), (e)(2).

4.   I. C. § 35-48-4-1.1(a)(1).

5.   I.C. § 35-45-1-5(c).

6.   During the second phase of the trial, the State moved to dismiss one dealing charge as a Level 3 felony after the jury found Cross not guilty on the corresponding lesser included count associated with the second controlled buy—dealing in methamphetamine as a Level 4 felony.

7.   Cross does not challenge his convictions for maintaining a common nuisance as a Level 6 felony or for dealing in methamphetamine as a Level 5 felony associated with the search warrant execution.

8.   A ball is drug terminology referring to a weight of 3.5 grams.

Felix, Judge.

Judges Vaidik and Tavitas concur. Vaidik, J., and Tavitas, J., concur.