Roger Dale Hodson, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

Memorandum Decision by Judge Mathias Judges May and Bradford concur.

[1] Roger Dale Hodson appeals his conviction for Level 3 felony dealing in methamphetamine following a jury trial. Hodson raises eight issues for our review, which we consolidate and restate as six issues:

1. Whether the trial court abused its discretion when it granted the State's motion to amend the charging information five days before trial.

2. Whether the trial court abused its discretion when it admitted certain evidence.

3. Whether the trial court abused its discretion when it excluded evidence regarding a confidential informant's identity.

4. Whether the State presented sufficient evidence to rebut his entrapment defense.

5. Whether the trial court abused its discretion when it withheld certain evidence from the jury during deliberations.

6. Whether his sentence is inappropriate in light of the nature of the offense and his character.

[2] We affirm.

Facts and Procedural History

[3] On June 17, 2024, a confidential informant (“CI”) working with the Johnson County Sheriff's Department (“JCSD”) went to Taylor Swint's house in Franklin to buy methamphetamine. In preparation for the controlled drug buy, JCSD detectives searched the CI's person and her car to make sure that she had no contraband; they gave the CI $200 in cash and a pair of Nike shoes to barter for drugs;¹ and they gave the CI audio and video recording devices.

[4] Before the CI arrived, detectives set up surveillance of the exterior of Swint's house. Detective Travis Wampler was parked nearby when he saw Swint standing outside of his house. Detective Wampler then saw a man later identified as Hodson arrive in a white SUV. Hodson got out of the SUV and retrieved a small black box from underneath the vehicle. Hodson and Swint then entered Swint's house.

[5] A detective followed the CI as she drove to Swint's house. When she arrived, Swint directed the CI to a room where Hodson was already seated. The CI positioned the video recording device so that detectives could see Swint sitting next to her and Hodson sitting across from her. While Swint injected himself with methamphetamine, the CI and Hodson discussed the CI's interest in buying methamphetamine from Hodson. Hodson offered to sell her a small amount, but she asked him how much he wanted for a “quad.”² State's Ex. 1. Hodson explained that he “barely” had a quad to sell because Swint was using some of the seven grams of methamphetamine that he had brought with him. Id. And he offered to sell that amount to the CI for $70. Hodson explained that he was losing $10 in the deal. The CI paid Hodson $70 in exchange for the methamphetamine.

[6] After the CI left Swint's house, detectives followed her to a “staging area” where the CI turned over the audio and video surveillance devices, the methamphetamine, and the remaining cash. Tr. Vol. 2, p. 112. Detectives also searched the CI's person and her car for contraband. Subsequent forensic testing showed that the CI had bought 6.17 grams of methamphetamine from Hodson.

[7] The State charged Hodson with Level 3 felony dealing in methamphetamine. The charging information contained a typographical error stating that the sale to the CI had occurred on July 17, 2024, instead of June 17, 2024. One week before the December 10 trial, the State moved to amend the information to correct the error. The trial court granted that motion following a hearing. During trial, Hodson moved to identify the CI, but the trial court denied that motion. The jury found Hodson guilty as charged. The trial court entered judgment and sentenced Hodson to fourteen years executed. This appeal ensued.

Discussion and Decision

Issue One: Amended Charging Information

[8] Hodson contends that the trial court abused its discretion when it allowed the State to amend the charging information, one week before trial, to change the date of the offense from July 17, 2024, to June 17, 2024. Notably, the probable cause affidavit correctly stated the date of the offense as June 17, 2024. As we have explained,

[i]n general, Indiana Code section 35-34-1-5(b) permits the State to amend a charging information even in matters of substance at any time before the commencement of trial so long as the amendment does not prejudice the defendant's substantial rights. See Brown v. State, 912 N.E.2d 881, 890 (Ind. Ct. App. 2009), trans. denied. The “substantial rights” of a defendant include a right to sufficient notice and an opportunity to be heard regarding the charge. Id. “ ‘Ultimately, the question is whether the defendant had a reasonable opportunity to prepare for and defend against the charges.’ ” Id. (quoting Sides v. State, 693 N.E.2d 1310, 1313 (Ind. 1998), abrogated on other grounds by Fajardo v. State, 859 N.E.2d 1201 (Ind. 2007)). The substantial rights of the defendant are not prejudiced if: (1) a defense under the original information would be equally available after the amendment, and (2) the defendant's evidence would apply equally to the information in either form. Id. Our supreme court has also explained that “an amendment is of substance only if it is essential to making a valid charge of the crime.” McIntyre v. State, 717 N.E.2d 114, 125-26 (Ind. 1999); accord Brown, 912 N.E.2d at 890.

Gaby v. State, 949 N.E.2d 870, 874 (Ind. Ct. App. 2011).

[9] Here, during a hearing one week prior to trial, the State moved to amend the charging information to change the date of the offense by one month. Hodson objected and asserted, generally, that he was prejudiced by the change because it would impact his “ability to defend the case ․” Tr. Vol. 2, p. 25. Even assuming that this was a substantive amendment, which it does not appear to be,³ Hodson failed to request a continuance of the trial date, and, therefore, he has waived this issue for our review. See Gaby, 949 N.E.2d at 874-75 (stating that the failure to request a continuance after the trial court allows a pre-trial substantive amendment to the charging information over defendant's objection results in waiver of the issue on appeal).

[10] Waiver notwithstanding, Hodson maintains that he had prepared his defense based on the allegation that he had committed dealing in methamphetamine on July 17, 2024, and that the amendment eliminated his prepared defense strategy, namely, that he did not commit the alleged offense on that date. However, again, the probable cause affidavit included the correct date of the offense. And if Hodson needed more than one week to prepare a defense to the information as amended, he could have requested a continuance. In any event, Hodson does not explain how his defense would have been different if he had had more time to prepare. We cannot say that the trial court abused its discretion when it granted the State's motion to amend the charging information.

Issue Two: Admission of Evidence

[11] Hodson contends that the trial court abused its discretion in the admission of certain evidence. Our standard of review is well settled. The trial court has broad discretion to rule on the admissibility of evidence. Thomas v. State, 81 N.E.3d 621, 624 (Ind. 2017). Rulings on the admissibility of evidence are reviewed for an abuse of discretion and ordinarily reversed only when admission is clearly against the logic and effect of the facts and circumstances. Id.

[12] Hodson challenges the admission of evidence regarding his predisposition to sell methamphetamine; audio and video evidence regarding the sale; and the methamphetamine he sold to the CI. We address each evidentiary challenge in turn.

Predisposition

[13] At trial, in response to Hodson's request that the jury be instructed on entrapment, the State offered evidence that Hodson was predisposed to sell methamphetamine.⁴ In its direct examination of Detective Wampler, the State asked whether he was “aware of several complaints about [Swint's] home ․” Tr. Vol. 2, p. 215. Detective Wampler answered that he was aware of two complaints in early 2024. Before he lodged an objection, defense counsel asked Detective Wampler whether he had ever seen Hodson at Swint's house before, whether Hodson lived at Swint's house, or whether Hodson had frequented Swint's house. When Detective Wampler answered no to each question, defense counsel objected to the testimony regarding a history of drug use at Swint's house as irrelevant and prejudicial. The trial court overruled the objection. And Detective Wampler testified that he had information that, in February 2024, methamphetamine was being sold at Swint's house and that, in March, there was an overdose inside the house.

[14] On appeal, Hodson maintains that the trial court abused its discretion in allowing this testimony because,

[w]hile Hodson was just a guest at the house, the jury likely imputed fault upon Hodson regarding the alleged prior drug sale(s) and past drug overdose in this residence. Despite the suggestion of his prior bad acts concerning the house, there was no indication that Hodson proximately caused or was involved in such incidents. Thus, a heightened danger exists that, if the jury assumed he was involved in those prior incidents, they would find him guilty in this case.

Appellant's Br. at 23. As the trial court suggested, Hodson's objection was grounded in Evidence Rules 401 and 403.⁵

[15] Indiana Evidence Rule 401 provides a liberal standard for relevancy, and we review a trial court's ruling on relevance for an abuse of discretion. Konopasek v. State, 946 N.E.2d 23, 27 (Ind. 2011). Relevant evidence is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Id. (quoting Ind. Evidence Rule 401). Here, the State offered Detective Wampler's testimony regarding the history of drug activity at Swint's house to show Hodson's predisposition to sell methamphetamine to the CI. While Detective Wampler testified that Hodson had no known connection to Swint's house, the fact that Hodson brought approximately seven grams of methamphetamine to Swint's house and openly offered to sell it to the CI while Swint was injecting himself with methamphetamine supports a reasonable inference that Hodson knew about the history of drug activity there. We cannot say that the trial court abused its broad discretion in finding that the evidence was relevant.

[16] Under Indiana Evidence Rule 403, relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence. Snow v. State, 77 N.E.3d 173, 179 (Ind. 2017) (citation modified). “As with relevance under Rule 401, this balancing is committed to the trial court's discretion.” Id. While the probative value of this evidence was low, we cannot say that the danger of unfair prejudice outweighed the probative value. Again, Detective Wampler testified that Hodson had no known connection to Swint's house, so the jury was unlikely to blame Hodson for those prior incidents. The State argues that any error in the admission of this evidence was harmless.

When an appellate court must determine whether a non-constitutional error is harmless, [Indiana Appellate] Rule 66(A)'s “probable impact test” controls. Under this test, the party seeking relief bears the burden of demonstrating how, in light of all the evidence in the case, the error's probable impact undermines confidence in the outcome of the proceeding below. Importantly, this is not a review for the sufficiency of the remaining evidence; it is a review of what was presented to the trier of fact compared to what should have been presented. And when conducting that review, we consider the likely impact of the improperly admitted or excluded evidence on a reasonable, average jury in light of all the evidence in the case. Ultimately, the error's probable impact is sufficiently minor when—considering the entire record—our confidence in the outcome is not undermined.

Hayko v. State, 211 N.E.3d 483, 492 (Ind. 2023) (citations omitted). Here, given the audio and video surveillance evidence showing Hodson's sale of methamphetamine to the CI, as well as the evidence that the State did not induce the sale, we cannot say that our confidence in the outcome of the trial is undermined by any error in the admission of the challenged evidence. See id. Therefore, we agree with the State that any error in the admission of this evidence was harmless.

State's Exhibit 18

[17] Hodson next contends that the trial court abused its discretion when it admitted State's Exhibit 18, which was the methamphetamine he allegedly sold to the CI. At trial, Hodson argued that the evidence was not properly authenticated because the CI did not testify. However, on appeal, Hodson argues, for the first time, that the State did not present evidence to show a proper chain of custody of the methamphetamine following the sale to the CI.

[18] A party may not object on one ground at trial and raise a different ground on appeal. White v. State, 772 N.E.2d 408, 411 (Ind. 2002). Therefore, this issue is waived for review. See id. Waiver notwithstanding, the State presented sufficient evidence to show the chain of custody of the methamphetamine. The trial court did not abuse its discretion when it admitted State's Exhibit 18 into evidence.

Silent-Witness Evidence

[19] Hodson challenges the admission of the video and audio surveillance footage of the methamphetamine sale under the silent-witness doctrine. Hodson argues that “the evidence was insufficient to indicate the process or system that produced the videos or photographs and that the process or system produced an accurate result.” Appellant's Br. at 32. Hodson maintains that, under this Court's holdings in McFall v. State, 71 N.E.3d 383 (Ind. Ct. App. 2017), and Wise v. State, 26 N.E.3d 137 (Ind. Ct. App. 2015), the State was required to introduce evidence regarding “how and when the camera was loaded, how frequently the camera was activated, when the photographs were taken, and the processing and changing of custody of the film after its removal from the camera.” Id. at 32. Hodson is incorrect.

[20] “Under the silent-witness doctrine, our trial courts may admit videos and photographs ‘as substantive rather than demonstrative evidence.’ ” Jones v. State, 258 N.E.3d 1063, 1075 (Ind. Ct. App. 2025) (quoting McCallister v. State, 91 N.E.3d 554, 561 (Ind. 2018)), trans. denied. “To do so, ‘there must be a strong showing of authenticity and competency, including proof that the evidence was not altered.’ ” Id. (quoting McCallister, 91 N.E.3d at 561-62). “That is, ‘there must be adequate proof of the reliability of the process that produced what the photographs' or videos depict.” Id. (quoting Stott v. State, 174 N.E.3d 236, 246 (Ind. Ct. App. 2021)).

[21] As we have explained:

[Indiana's case law] addressing surveillance footage or images derived from that footage under the silent-witness theory establish[es] that the evidence may be admissible when there is 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 video or image was altered. For example, in McCallister v. State, our supreme court found that testimony from a hotel manager authenticated “a DVD purporting to show surveillance video” of a hotel lobby by describing how the security system operated, by verifying the accuracy of the time-and-date stamp on the footage, and by indicating that the video showed what it purported to show. 91 N.E.3d at 561-62. Similarly, in Flowers v. State, the security director for a company that owned an apartment complex authenticated surveillance footage from the complex as well as several images derived from that footage “in several important respects.” 154 N.E.3d 854, 869-70 (Ind. Ct. App. 2020). The director's testimony established that he was intimately familiar with the type of system in place, including how it worked, where the cameras were placed, and how the cameras operated. Id. at 869-70. He also accessed the footage multiple times and signed and dated the DVD to which the video had been saved. Id. at 870. Likewise, in Rogers v. State, a CVS supervisor authenticated surveillance footage and images derived from that footage through extensive testimony “regarding CVS's security system and the procedure he used to view, copy, and edit the footage.” 902 N.E.2d 871, 877 (Ind. Ct. App. 2009).

Stott, 174 N.E.3d at 246.

[22] Hodson's reliance on McFall and Wise is misplaced. The technology in those cases was different from that used here. In McFall, the video evidence was taken on a personal cell phone, and the cell phone's owner did not testify at trial. In Wise, a woman used a hand-held camcorder to record videos on her husband's cell phone. The trial court admitted the evidence based on the woman's testimony explaining how the recordings were made and verifying that she could be seen in the videos.

[23] Here, the State presented testimony that law enforcement officers used their own equipment with which they were very familiar, including a “virtual body wire” on the CI's person and a high-definition video recording device in her purse. Tr. Vol. 2, p. 108. The State presented evidence regarding the safe keeping of the recordings after they were made. And Detective Wampler testified that the recorded footage “matche[d] the live recording that [he had] listened to during the operation[.]” Id. at 109.

[24] The State presented sufficient evidence to satisfy the silent-witness doctrine requirements, and the trial court did not abuse its discretion when it admitted into evidence the audio and video recordings of the methamphetamine sale to the CI.

Issue Three: CI's Identity

[25] Hodson next contends that the trial court abused its discretion when it denied his request, made for the first time during trial, to know the CI's identity. As the trial court noted during a sidebar conference, this issue is typically raised during discovery. Defense counsel explained that he had made a strategic decision to postpone the request until trial so that he could argue that Hodson had been denied his right to confront the CI. Defense counsel then added that he wanted to check the CI's criminal history in order to impeach her. The trial court denied the request.

[26] As our Supreme Court has explained:

The long-standing confidential informer's privilege furthers and protects the public's interest in law and order. Roviaro[ v. United States], 353 U.S.[ 53,] 59[ (1957)]. By promising anonymity to informants, the privilege encourages citizens to report crimes, prevents retaliation, and ensures individuals feel safe helping law enforcement. Beville[ v. State], 71 N.E.3d[ 13,] 19[ (Ind. 2017)]. Thus, the general rule is one of nondisclosure. Randall v. State, 474 N.E.2d 76, 81 (Ind. 1985).

While these law-and-order concerns are significant, they conflict with a defendant's important interest in obtaining relevant information that could lead to an acquittal. Lewandowski[ v. State], 271 Ind. at 7, 389 N.E.2d[ 706,] 708[ (1979)]. So, where the disclosure of an informer's identity “is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause,” the privilege must yield. Id., 389 N.E.2d at 708 (quoting Roviaro, 353 U.S. at 60-61, 77 S. Ct. 623). These exceptions to the general rule of nondisclosure stem from our fundamental concern for fairness. Roviaro, 353 U.S. at 60, 77 S. Ct. 623. Thus, when a criminal defendant argues that a confidential informant's identity must be disclosed, courts employ a balancing test to determine whether the defendant has overcome the State's interest in invoking the privilege. See, e.g., Beville, 71 N.E.3d at 19.

* * *

Once the State has met the threshold requirement to show the confidential informer's privilege applies, the burden falls on the defendant to demonstrate disclosure is relevant and helpful to the defense or that it's necessary for a fair trial. Lewandowski, 271 Ind. at 7-8, 389 N.E.2d at 708-09. Specifically, the defense must show it's not speculating that the information may prove useful; and a court should not permit an exception for a “mere fishing expedition.” State v. Cook, 582 N.E.2d 444, 446 (Ind. Ct. App. 1991) (quoting Dole v. Local 1942, 870 F.2d 368, 373 (7th Cir. 1989)). If the defense satisfies this burden, it has shown an exception is warranted.

The State then gets the opportunity to dispute whether disclosure is necessary to the defense or show that disclosure would threaten its ability to recruit or use CIs in the future. Beville, 71 N.E.3d at 19 (citing Williams v. State, 529 N.E.2d 323, 324 (Ind. 1988); Furman v. State, 496 N.E.2d 811, 814 (Ind. Ct. App. 1986)). As we explained in Beville, the State may demonstrate, for example, “that the CI played a merely tangential role, that the CI's safety would be in danger, that the defendant or his associates have a violent or threatening history, or that it would be difficult for the State to use or recruit CIs in the future.” 71 N.E.3d at 23.

Then, with both sides' evidence in hand, the trial court balances the respective interests to determine whether the general rule of nondisclosure has been overcome. Id.; Furman, 496 N.E.2d at 814. In applying this balancing test, courts consider factors like the crime charged, possible defenses, and the potential significance of the CI's testimony. United States v. Valles, 41 F.3d 355, 358 (7th Cir. 1994). For example, CIs who played a major role in a crime will offer more significant testimony than those whose roles were more peripheral. Id. So, showing that a potential defense depends on the CI's involvement weighs in favor of disclosure, while a CI's minimal role would not. Id.; see also Beverly v. State, 543 N.E.2d 1111, 1114 (Ind. 1989). Similarly, the fact that a CI will testify at trial supports disclosure, while the fact that a CI simply provided a tip that police followed up on favors nondisclosure. Beverly, 543 N.E.2d at 1114. Then, only after a trial court is satisfied that an exception is warranted, should the court order disclosure of the CI's identity. Id.

State v. Jones, 169 N.E.3d 397, 403, 405-06 (Ind. 2021).

[27] Here, the State asserted the CI's privilege based on testimony that there was a risk of retaliation and that revealing her identity would negatively impact recruitment of future CIs. Defense counsel responded that he needed to know the CI's identity so that he could obtain her criminal history for impeachment purposes. In balancing the parties' respective interests, the trial court concluded as follows:

[Defense counsel has] had to make some difficult strategic decisions and the one that he has made here today, which I think ultimately best allows him to represent his client, also [it] necessarily arises from an informed decision to wait to invoke the privilege today. I think that cuts against what I would consider to be the second step if the State invokes the privilege, once it shifts to the Defense that there's some strategic decision making here, which I think preserves the right to advance the defense that you want to make today. So all this is to [say] I think it's an appropriate invocation of the factors that the court is to consider the State's properly put in the record today. Those aren't the only factors, but weighing those factors, I think it slants in the State's favor. I will note that the C.I.'s involvement, which slants in Mr. Hodson's favor, are that the C.I. was not tangentially involved, but was centrally involved in this. But weighing the factors, I think the factors lie on the side of the State, so I'm gonna show the privilege is invoked.

Tr. Vol. 2, p. 173.

[28] Hodson maintains that the trial court should have denied the privilege given the CI's central role in the controlled buy and the State's many references to the CI during its case. But, as the State points out, Hodson was able to elicit evidence regarding the charges that the CI was “working off” with her involvement in the controlled drug buy, namely, “Possession of a Syringe, Possession of Marijuana, Methamphetamine [sic], and Possession of Paraphernalia.” Id. at 180. Also, defense counsel was able to emphasize the CI's statement during the recorded drug buy that she was “trying to get a CHINS case figured out, but she can't stop getting high.” Id. at 137. Thus, Hodson was able to present evidence to impeach the CI's credibility. We cannot say that the trial court abused its discretion when, after balancing the parties' interests, it denied Hodson's request to disclose the CI's identity during trial.

Issue Four: Entrapment

[29] After the State rested its case at trial, defense counsel stated that Hodson would “not be calling any witnesses,” and the trial court proceeded to discuss final jury instructions. Id. at 202. Hodson requested a final jury instruction on entrapment. Hodson had not previously indicated an intent to assert an entrapment defense, so, after a colloquy, the trial court allowed the State to reopen its case to meet its burden to show Hodson's “predisposition to commit the crime.” Id. at 205. The trial court then agreed to instruct the jury on Hodson's entrapment defense.⁶ On appeal, Hodson contends that the State did not present evidence sufficient to rebut his entrapment defense. We do not agree.

[30] We review a claim of entrapment using the same standard that applies to other challenges to the sufficiency of evidence. Griesemer v. State, 26 N.E.3d 606, 608 (Ind. 2015) (quotation marks omitted). We neither reweigh the evidence nor reassess the credibility of witnesses. Id. Instead, we look to the probative evidence supporting the verdict and the reasonable inferences drawn from that evidence. Id. If we find a reasonable trier of fact could infer guilt beyond a reasonable doubt, we will affirm the conviction. Id.

[31] As our Supreme Court has explained:

Entrapment in Indiana is statutorily defined:

(a) It is a defense that:

(1) the prohibited conduct of the person was the product of a law enforcement officer, or his agent, using persuasion or other means likely to cause the person to engage in the conduct; and

(2) the person was not predisposed to commit the offense.

(b) Conduct merely affording a person an opportunity to commit the offense does not constitute entrapment.

Ind. Code § 35-41-3-9 ․A defendant does not need to formally plead the entrapment defense; rather, it is raised, often on cross-examination of the State's witnesses, by affirmatively showing the police were involved in the criminal activity and expressing an intent to rely on the defense. Wallace v. State, 498 N.E.2d 961, 964 (Ind. 1986); Fearrin v. State, 551 N.E.2d 472, 473 (Ind. Ct. App. 1990). Officers are involved in the criminal activity only if they “directly participate” in it. Shelton v. State, 679 N.E.2d 499, 502 (Ind. Ct. App. 1997) (finding, where officers merely placed deer decoy in field, they did not “directly participate in the criminal activity of road hunting,” and the defendants thus failed to raise the entrapment defense). The State then has the opportunity for rebuttal, its burden being to disprove one of the statutory elements beyond a reasonable doubt. Riley v. State, 711 N.E.2d 489, 494 (Ind. 1999); McGowan v. State, 674 N.E.2d 174, 175 (Ind. 1996) (holding because entrapment is established by the existence of two elements, it is defeated by the nonexistence of one). There is thus no entrapment if the State shows either (1) there was no police inducement, or (2) the defendant was predisposed to commit the crime. Riley, 711 N.E.2d at 494.

To rebut the inducement element, the State must prove police efforts did not produce the defendant's prohibited conduct, McGowan, 674 N.E.2d at 175, because those efforts lacked “a persuasive or other force.” Williams v. State, 274 Ind. 578, 584, 412 N.E.2d 1211, 1215 (1980).

Id. at 608-09 (emphasis added). “That the crime itself may be tempting, without more, is not inducement.” Id. at 610.

[32] Here, on appeal, Hodson argues that the State presented insufficient evidence to show that he was predisposed to commit the offense of dealing in methamphetamine. But Hodson makes no specific argument that the State also failed to present sufficient evidence that he was not induced by law enforcement officers to commit the offense. Because the State need only show either no inducement or the defendant's predisposition to commit the offense, Hodson has waived this issue for our review.⁷ See id. (holding that the State presented sufficient evidence to rebut entrapment defense based solely on inducement prong).

[33] Waiver notwithstanding, the State presented sufficient evidence to show both that Hodson was not induced to commit the offense and that he was predisposed to commit the offense. The CI went to Swint's house to buy methamphetamine. She did not know that Hodson would be there. As the CI, Swint, and Hodson were discussing the CI's addiction to methamphetamine, Hodson offered to sell her a small amount of the drug. The CI then asked him whether he would sell a quad, and he agreed. In other words, without any persuasion or influence on Hodson, he offered to sell the CI methamphetamine. The fact that she requested a larger amount than he had offered is of no moment. See Griesemer, 26 N.E.3d at 610 (stating that merely providing an opportunity to commit an offense is not inducement).

[34] As for Hodson's predisposition to sell methamphetamine to the CI, when he arrived at Swint's house he retrieved a magnetic black box from underneath his SUV. Detective Wampler testified that he has seen this type of box used by other dealers during prior controlled buys. Despite the CI's intention to buy methamphetamine from Swint, Hodson had transported almost seven grams of methamphetamine in that box before he sold it to the CI. The State also presented evidence that Hodson's criminal history spanned almost twenty years and included multiple convictions for possession of methamphetamine. The State presented sufficient evidence to show Hodson's predisposition to commit the offense of dealing in methamphetamine.

Issue Five: Jury Deliberations

[35] Hodson next contends that the trial court abused its discretion when it allowed the jury to have still photographs taken from the video evidence in the jury room during deliberations but not the actual videos themselves. As our Supreme Court has explained, the trial court should consider three factors in deciding whether to permit the jury to take a copy of the exhibits into the jury room:

(1) whether the material will aid the jury in a proper consideration of the case;

(2) whether any party will be unduly prejudiced by submission of the material; and

(3) whether the material may be subjected to improper use by the jury.

Thacker v. State, 709 N.E.2d 3, 7 (Ind. 1999) (citation omitted). We review the trial court's decision on a jury's access to exhibits during deliberations for an abuse of discretion. See Torrence v. State, 219 N.E.3d 775, 778 (Ind. Ct. App. 2023).

[36] Hodson maintains that he was prejudiced by the jury's inability to see the context of the still photos with reference to the videos. The trial court explained that it was keeping the video evidence out of the jury room because of the danger of “misuse” of video evidence by jurors that has been discussed in case law. Tr. Vol. 2, p. 203. In any event, the trial court later instructed the jury that the video evidence was available to jurors upon request during deliberations and would be played in open court if requested. Id. at 245. Thus, Hodson cannot show that he was prejudiced by the trial court's decision. The trial court did not abuse its discretion when it denied Hodson's request to provide the video evidence to the jury during deliberations.

Issue Six: Sentence

[37] Finally, Hodson contends that his sentence is inappropriate in light of the nature of the offense and his character. Under Indiana Appellate Rule 7(B), we may modify a sentence that we find is “inappropriate in light of the nature of the offense and the character of the offender.” Making this determination “turns on our sense of the culpability of the defendant, the severity of the crime, the damage done to others, and myriad other factors that come to light in a given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008).

[38] However, sentence modification under Rule 7(B) is reserved for “a rare and exceptional case.” Livingston v. State, 113 N.E.3d 611, 612 (Ind. 2018) (per curiam). Thus, when conducting this review, we will defer to the sentence imposed by the trial court unless the defendant demonstrates compelling evidence that portrays the nature of the offenses and his character in a positive light, such as showing a lack of brutality in the offenses or showing substantial virtuous character traits. Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).

[39] The sentencing range for a Level 3 felony is between three and sixteen years, with an advisory term of nine years. Ind. Code § 35-50-2-5. In imposing Hodson's fourteen-year executed sentence, the trial court found Hodson's criminal history to be an aggravating factor. The trial court noted that Hodson was forty-two years old at the time of sentencing and had committed seven prior felonies and five misdemeanors. The trial court also emphasized that Hodson had failed to “successfully complete” probation on five occasions. Tr. Vol. 3, p. 15. The trial court noted that Hodson had committed the instant offense a little over a year after completing a Recovery While Incarcerated (“RWI”) program. The trial court also observed that Hodson had a bad attitude at sentencing and was “mad” at his counsel without good reason. Id. at 16. The trial court found the nature and circumstances of the instant crime to deserve “a bit of mitigation.” Id. at 17. And the court concluded that the aggravator outweighed the mitigator.

[40] Regarding the nature of the offense, Hodson argues that he was only at Swint's house to get high and not to sell methamphetamine. He maintains that he was “reluctant” to sell the methamphetamine to the CI. Appellant's Br. at 43. But the evidence undermines this contention. Hodson arrived at Swint's house with approximately seven grams of methamphetamine, which he had transported in a black magnetic box underneath his SUV. Hodson willingly sold the methamphetamine to the CI. And while Swint injected methamphetamine, Hodson did not. We cannot say that Hodson's sentence is inappropriate in light of the nature of the offense.

[41] Next, in support of his good character, Hodson emphasizes his education and work history, as well as his participation in substance abuse treatment. Hodson argues that he has the support of family and friends. And he details his long struggle with substance abuse. Be that as it may, Hodson has continued to commit offenses and abuse drugs despite many prior efforts at alternative sentencing and rehabilitation. Indeed, the trial court, over the State's objection, ordered that Hodson participate in the RWI program, even though the court thought Hodson had not “learned much” from his prior participation. Tr. Vol. 3, p. 17. We cannot say that Hodson's sentence is inappropriate in light of his character.

[42] For all these reasons, we affirm Hodson's conviction and sentence.

[43] Affirmed.

FOOTNOTES

1.   The evidence shows that neither Swint nor Hodson was interested in bartering for the shoes.

2.   The evidence shows that a “quad” is slang for seven grams of methamphetamine.

3.   An amendment is one of substance only if it is essential to making a valid charge of the crime. Fajardo v. State, 859 N.E.2d 1201, 1207 (Ind. 2007). The State charged Hodson with dealing in methamphetamine under Indiana Code section 35-48-4-1.1, which does not include a time element. And the State brought the charge against Hodson within the applicable statute of limitations. See, e.g., Poe v. State, 775 N.E.2d 681, 686 (Ind. Ct. App. 2002) (holding variance not fatal where evidence showed dealing offense was committed on date different from that in the charging information where charge was brought within the statute of limitations), trans. denied.

4.   As we discuss later in this decision, when a defendant asserts the defense of entrapment, the State must show either (1) there was no police inducement, or (2) the defendant was predisposed to commit the crime. See Griesemer v. State, 26 N.E.3d 606, 609 (Ind. 2015).

5.   We do not address Hodson's argument that the trial court abused its discretion when it admitted Detective Wampler's testimony that, in conversations with other law enforcement officers, Hodson's name had been brought up as a possible drug dealer. Hodson made no objection to that testimony, and he has waived that issue for our review.

6.   Curiously, on appeal, Hodson argues that he was “entitled to a defense of entrapment” as though the court had denied the instruction. Appellant's Br. at 21.

7.   We note that the trial court mistakenly stated that Hodson had the burden to “establish[ ] police inducement” and the State had only the burden to show his predisposition to commit the offense. Tr. Vol. 2, p. 205. Our case law is clear that the State's burden is to show either lack of inducement or predisposition to commit the offense. See Griesemer, 26 N.E.3d at 610.

Mathias, Judge.

May, J., and Bradford, J., concur.