Dennis D. Henry, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

Case Summary

[1] Following a jury trial, Dennis Henry was convicted of conspiracy to commit dealing in at least ten grams of a narcotic drug, a Level 2 felony, and found to be an habitual offender. Henry appeals and claims: (1) the trial court abused its discretion by denying Henry's request for a continuance; and (2) the trial court committed fundamental error in instructing the jury. We disagree and, accordingly, affirm.

Issues

[2] Henry presents two issues, which we restate as:

I. Whether the trial court abused its discretion by denying Henry's request for a continuance.

II. Whether the trial court committed fundamental error in instructing the jury.

Facts

[3] In 2021, law enforcement officers found a syringe in the apartment of a sixty-one-year-old woman serving a sentence on home detention through Tippecanoe County Community Corrections. The woman agreed to work as a confidential informant (“CI”) for the police in exchange for the State not filing a petition to revoke her placement. The CI participated in several controlled buys involving two individuals she knew as “Mike” (Jaylin Smith) and “Fresh” (Henry), both of whom she had previously met while purchasing drugs. Because the CI was on home detention, the suppliers had to come to her apartment to deliver the drugs.

[4] On May 18, 2021, the CI called to arrange a purchase of heroin, and Henry agreed to sell the CI two grams of heroin for $320. Henry drove to the CI's apartment in a black Pontiac to deliver the drugs, and the CI paid Henry with photocopied buy money provided by law enforcement. On May 20, 2021, Henry drove the same black Pontiac and delivered heroin to the CI.

[5] On May 27, 2021, the CI again arranged to purchase heroin, and Smith drove the black Pontiac and delivered the heroin to the CI. On June 7, 2021, the CI called to purchase heroin, and Smith, Henry, and Henry's wife delivered the drugs to the CI in the same black Pontiac. On June 17, 2021, the CI arranged to purchase more heroin, and this time, Smith drove a red Jeep and delivered the heroin to the CI.

[6] On June 24, 2021, officers from the Lafayette Police Department arrested Smith and Henry. During the arrest, 154 grams of heroin fell out of Smith's pocket. During a search of Henry's and Smith's residence, the officers found 101 grams of fentanyl in a plastic bag and nine grams of heroin in nine one-gram bags, all located in the freezer; five grams of heroin in two small, plastic bags; over three grams of crack cocaine packaged in eleven small bags; two digital scales; and latex gloves. Two bills of the photocopied buy money were also recovered.

[7] After Henry's arrest, his wife visited the CI and provided her with a new phone number to call if she needed to purchase more heroin. On June 28, 2021, the CI called the new number and asked to purchase more heroin. Later that day, Henry, who had apparently been released on bond, delivered the heroin.

[8] The State subsequently charged Henry with twelve counts of possession of, dealing in, and conspiracy to deal in a narcotic drug, and also alleged that Henry was an habitual offender.¹ The State also charged Smith with various crimes based on his sale of drugs to the CI, and the trial court granted the State's motion to try Smith and Henry's cases jointly. A long series of continuances followed, with the parties arguing over when the State would reveal the identity of the CI to the defense.²

[9] A jury trial commenced on December 11, 2023, at which Henry failed to appear. Henry's counsel requested a continuance and claimed that he had learned of the CI's identity only five days before trial. The State noted that it had disclosed the CI's identity in an email chain that included both Smith's and Henry's attorneys on November 28, 2023. The trial court denied Henry's counsel's request for a continuance, and the case proceeded to trial. On December 15, 2023, the jury found Henry guilty as charged on seven of the counts, guilty of lesser included offenses on four of the counts, and not guilty on one count. The jury also found Henry to be an habitual offender.

[10] At a sentencing hearing held on March 1, 2024, Henry again failed to appear, and the trial court “merged” all the counts with Count I—conspiracy to deal in at least ten grams of a narcotic drug—and declined to enter judgment of conviction on the remaining counts. The trial court sentenced Henry to twenty-four years on Count I, to which it added an additional six years for the habitual offender enhancement.

[11] On September 24, 2024, Henry was arrested on other charges in Iowa. Henry was returned to Indiana custody on March 7, 2025, at which time he indicated a desire to appeal his conviction. The trial court appointed appellate counsel for Henry, and counsel filed a petition to file a belated notice of appeal. The trial court granted the petition,³ and this appeal ensued.

Discussion and Decision

I. The trial court did not abuse its discretion by denying Henry's request for a continuance.

[12] Henry claims that the trial court abused its discretion by denying his request for a continuance. Our Supreme Court has explained that:

Courts are generally reluctant to grant continuances in criminal cases merely to allow for additional preparation. But [pursuant to Indiana Code Section 35-36-7-1] a defendant is statutorily entitled to a continuance where there is an absence of material evidence, absence of a material witness, or illness of the defendant, and the specially enumerated statutory criteria are satisfied. If none of those conditions are present, however, a trial court has wide discretion to deny a motion to continue. We will only find an abuse of that discretion where a defendant was prejudiced as a result of not getting a continuance. To demonstrate such prejudice, a party must make a specific showing as to how the additional time requested would have aided counsel.

Gibson v. State, 43 N.E.3d 231, 235-36 (Ind. 2015) (internal citations and quotations omitted).

[13] Henry does not argue that he was entitled to a continuance under Indiana Code Section 35-36-7-1. We therefore review the trial court's decision only for an abuse of discretion. Gibson, 43 N.E.3d at 236. When considering whether the trial court abused its discretion in ruling on a motion to continue, “[w]e first determine whether the trial court ‘properly evaluated and compared’ the parties’ ‘diverse interests’ that would be impacted ‘by altering the schedule.’ ” Ramirez v. State, 186 N.E.3d 89, 96 (Ind. 2022) (quoting Vaughn v. State, 590 N.E.2d 134, 135-36. “If not, we assess whether the court's denial resulted in prejudice” to the defendant. Id. (citing Vaughn, 590 N.E.2d at 136; Gibson v. State, 43 N.E.3d 231, 236 (Ind. 2015)). “A defendant can establish prejudice by making specific showings as to why additional time was necessary and how it would have benefitted the defense.” Id. (citing Carter v. State, 686 N.E.2d 1254, 1261 (Ind. 1997)). “ ‘There is a strong presumption that the trial court properly exercised its discretion.’ ” Robinson v. State, 91 N.E.3d 574, 577 (Ind. 2018) (quoting Warner v. State, 773 N.E.2d 239, 247 (Ind. 2002)). And “[l]ast minute continuances are not favored[.]” Cox v. State, 696 N.E.2d 853, 862 (Ind. 1998)).

[14] Here, the trial court had already continued the trial several times due to court congestion or agreement of the parties, and the case had been pending since June 30, 2021—almost two and one-half years. The jury venire had been called, and the State's witnesses were prepared. Although Henry's counsel argued that he had discovered the CI's identity only five days before trial, this was apparently due to his own oversight; the State had disclosed the CI's identity in an email that included Henry's counsel on November 28, 2023—thirteen days before trial.

[15] And even though he only learned of the CI's identity shortly before trial, Henry's counsel knew that the CI was involved in the case and that the State had agreed to not file a Community Corrections violation against the CI in exchange for her cooperation. The State had also disclosed the CI's criminal history to Henry. Tr. Vol. II p. 32. Counsel for Henry's co-defendant, Smith, also deposed the CI on December 5, 2023, and the State made the transcript of this deposition available to Henry's counsel at the December 6 change-of-plea hearing. Although Henry argued that, had he known the CI's name, he might have uncovered additional information beyond her criminal history that could have called her credibility into question, this is merely speculation.⁴ See State v. Jones, 169 N.E.3d 397, 405 (Ind. 2021) (to overcome confidential informer's privilege, “the defense must show it's not speculating that the information may prove useful[.]”).

[16] Moreover, the State's case did not rest solely on the credibility of the CI. The State presented: testimony from the officers who conducted and observed the controlled buys; audio from the telephone calls setting up the controlled buys; audio and video recordings of the controlled buys; and the large quantity of drugs found in the defendants’ home. Under these facts and circumstances, we cannot say that the trial court abused its discretion by denying Henry's day-of-trial request for an additional continuance to further investigate the CI.

II. The trial court did not commit fundamental error in instructing the jury.

[17] The Sixth Amendment to the United States Constitution, which is applicable to the states via the Fourteenth Amendment, guarantees a criminal defendant the right to a unanimous verdict before the defendant can be convicted of a serious offense. Ramos v. Louisiana, 590 U.S. 83, 93 (2020). Indiana has also long required that a verdict of guilty in a criminal case be unanimous. Baker v. State, 948 N.E.2d 1169, 1173-74 (Ind. 2011) (citing Fisher v. State, 291 N.E.2d 76, 82 (1973)). Henry claims that the trial court failed to give an instruction to the jury regarding the requirement of unanimity on the conspiracy charge.

[18] A trial court has broad discretion in instructing the jury, and we generally review the trial court's instructions only for an abuse of that discretion. Paul v. State, 189 N.E.3d 1146, 1159 (Ind. Ct. App. 2022), trans. denied. We consider the instructions as a whole and in reference to each other, not in isolation. Id. And we will not reverse the trial court unless the instructions as a whole mislead the jury as to the law in the case. Id. Henry admittedly failed to object to the instructions regarding the conspiracy charge and failed to tender a unanimity instruction himself. “The failure to tender an instruction or to object at trial to the omission of an instruction generally waives any claim of error on appeal.” Paul v. State, 189 N.E.3d 1146, 1159 (Ind. Ct. App. 2022) (citing Abd v. State, 120 N.E.3d 1126, 1136 (Ind. Ct. App. 2019); Franklin v. State, 715 N.E.2d 1237, 1241 (Ind. 1999)), trans. denied.

[19] Under such circumstances, we may still review the instruction for fundamental error. Gamble v. State, 256 N.E.3d 546, 564 (Ind. Ct. App. 2025) (citing Ramirez v. State, 174 N.E.3d 181, 195 (Ind. 2021)), trans. denied. The fundamental error exception is a narrow exception to waiver. Id. “An error is fundamental if it made a fair trial impossible or was a clearly blatant violation of basic and elementary principles of due process that presented an undeniable and substantial potential for harm.” Id.

[20] Henry claims that the jury was not informed that it had to be unanimous with regard to the element that he conspired to deal in at least ten grams of a narcotic drug. Henry was charged in Count I as follows:

On or about March 1, 2021 through June 24, 2021, in Tippecanoe County, State of Indiana, Jaylin J Smith, Dennis D. Henry and/or unknown other(s) did, with the intent to commit Dealing in Narcotic Drug, agree to commit Dealing in Narcotic Drug, and one or more of the following overt acts were performed in furtherance of said agreement, to wit: On one or more occasions Henry and/or Smith obtained narcotic drugs from unknown source(s); On one or more occasions Henry and/ or Smith possessed narcotics drugs [sic] with intent to deliver said drugs to other persons; On one or more occasions Henry and/ or Smith delivered narcotics drugs to other persons; On one or more occasions Henry and/or Smith accepted payment for the narcotics drugs which they delivered to other persons; And the narcotic drugs which Henry and/or Smith delivered or possessed with intent to deliver included amounts of at least ten (10) grams.

Appellant's App. Vol. II p. 31 (emphasis added). Henry claims that the manner in which the conspiracy charge is drafted “makes it impossible to know on what basis the jury reached a unanimous decision as to whether the amount of narcotic drugs involved was at least ten grams,” and that the failure of the trial court to give a unanimity instruction constituted fundamental error. Appellant's Br. p. 26.

[21] In support of his claims, Henry cites Castillo v. State, 734 N.E.2d 299 (Ind. Ct. App. 2000), trans. granted, summarily aff'd, 741 N.E.2d 1196 (Ind. 2001). In that case, the State charged Castillo with one count of dealing in cocaine but presented evidence of two separate acts of dealing. The State argued to the jury that it could choose to base Castillo's conviction on either incident, and the trial court did not instruct the jury that they were required to render a unanimous verdict regarding a specific act of dealing Castillo committed. On appeal, we reversed Castillo's conviction because it was “possible that some jurors believed that Castillo committed the earlier dealing crime at [his accomplice's] home while other jurors believed that Castillo committed the dealing violation at his home later that same day.” Id. at 304-05.

[22] Henry argues that, because of the various overt acts alleged in Count I, the jury could have based its finding that he conspired to deal in at least ten grams of a narcotic drug on several acts and aggregated the amounts, thus calling into question whether the jury's verdict on Count I was truly unanimous. We disagree.

[23] First, the trial court did instruct the jury that its verdict had to be unanimous. Instruction No. 13.27 included the following language: “To return a verdict, each of you must agree to it,” and “[t]he foreperson should sign and date the verdicts to which you all agree. Do not sign any verdict form for which there is not unanimous agreement.” Appellant's App. Vol. II p. 246.

[24] Moreover, contrary to Henry's claims, there was no need for the jury to aggregate the amounts in the various dealing incidents to find that the amount involved was at least ten grams. Count V alleged that Henry dealt in at least ten grams of a narcotic drug on June 24, 2021, the date Henry and Smith were arrested. This falls within the conspiracy timeframe alleged in Count I. And the jury unanimously found Henry guilty on both of these counts. Thus, the jury had to have unanimously agreed that the amount of drugs involved in the June 24 incident was at least ten grams; thus, there is no risk that the jury was not unanimous in its verdict on the conspiracy charge regarding the basis for the “at least ten grams” element.⁵ Accordingly, we cannot say that the trial court committed fundamental error in instructing the jury.

Conclusion

[25] The trial court did not abuse its discretion by denying Henry's day-of-trial request for a continuance, nor did the trial court commit fundamental error in instructing the jury. We, therefore, affirm the trial court's judgment.

[26] Affirmed.

FOOTNOTES

1.   The State initially charged Henry as follows: Count I—conspiracy to commit dealing in at least ten grams of a narcotic drug, a Level 2 felony; Count II—dealing in at least one but less than five grams of a narcotic drug within 500 feet of school property, a Level 3 felony; Count III—dealing in at least one but less than five grams of a narcotic drug within 500 feet of school property, a Level 3 felony; Count IV—dealing in at least one but less than five grams of a narcotic drug within 500 feet of school property, a Level 3 felony; Count V—dealing in at least ten grams of a narcotic drug, a Level 2 felony; Count VI—possession of at least twenty-eight grams of a narcotic drug, a Level 3 felony; Count VII—dealing in at least one but less than five grams of cocaine, a Level 4 felony; Count VIII—possession of cocaine, a Level 6 felony; Count IX—dealing in at least one but less than five grams of a narcotic drug within 500 feet of school property, a Level 3 felony; and Count X—possession of a narcotic drug within 500 feet of school property, a Level 5 felony. The State later amended the charges to add Count XI—dealing in a narcotic drug in an amount of at least ten grams; and Count XII—possession of at least twenty-eight grams of a narcotic drug.

2.   Henry first requested the disclosure of the CI's identity on May 6, 2022. One week later, the trial court entered an order stating that it would require the State to reveal the identity of the CI when the jury trial was set for first priority. The State indicated that it had provided discovery to the defense, including transcripts of the videos of the controlled buys. But the State withheld any evidence that would reveal the CI's identity. The trial court continued the trial to August 15, 2022, due to court congestion. On July 7, 2022, the trial court issued a standing order for the State to reveal the CI's identity two weeks before trial. On August 12, 2022, the parties agreed to continue the trial to December 6, 2022. Before the trial could take place, the trial court issued another congestion finding, and the parties agreed to a trial date of April 18, 2023. The parties subsequently agreed to continue the trial to August 21, 2023. Before trial, Smith's counsel was appointed to the bench, and Smith moved for another continuance. The trial court granted the motion and reset the trial for December 11, 2023. On November 1, 2023, Henry moved to continue the trial again, but the trial court denied the request. A change-of-plea hearing was held on November 3, 2023, at which the parties indicated that a plea agreement had been reached. But Henry refused to provide a factual basis for the plea, and the trial court reaffirmed the already-set December 11 trial date. On November 17, 2023, Henry requested a new change-of-plea hearing, which the trial court granted and set for November 29, 2023. The trial court also ordered the State to disclose the CI's identity to Smith's counsel by the end of that day, which the State did. The State disclosed the CI's identity in an email to both Henry's and Smith's attorneys. The next day, the trial court held a change-of-plea hearing, but Henry indicated that he was not prepared to be taken into custody after the plea, so the trial court reset the plea hearing for December 6, 2023. Henry, however, failed to appear at the December 6 hearing, and his phone had been disconnected. The trial court refused to continue the trial, and the jury trial commenced on December 11, 2023, at which Henry failed to appear.

3.   The State makes no argument that the trial court erred by granting Henry's petition to file a belated notice of appeal. Cf. Darby v. State, 966 N.E.2d 735, 737 (Ind. Ct. App. 2012) (holding that trial court properly denied defendant's petition to file a belated notice of appeal where the fault for the delay in bringing the appeal was solely due to defendant's acts of fleeing and being a long-term fugitive).

4.   Henry claims that he was prejudiced because he was unaware that the CI had other Community Corrections violations. But even if Henry had known about another Community Corrections violation before trial, we cannot say that this would have affected the jury's verdict; the jury was made aware that the CI was a drug user with a criminal record who agreed to work as a CI to avoid a Community Corrections violation being filed, and Henry had ample opportunity to challenge her credibility on this basis.

5.   In fact, Henry acknowledges that the jury could have based its finding on the “at least ten grams” element on the drugs found during the search of Henry's home, where an amount of drugs well in excess of ten grams was found. Henry notes that the search of the residence occurred on June 24, 2021, “a point near the end of the alleged conspiracy.” Appellant's Br. p. 29. But he offers no argument as to why this evidence, which was found during the timeframe of the alleged conspiracy, could not be considered by the jury when finding that the amount of drugs involved in the conspiracy was at least ten grams.

Tavitas, Judge.

Bailey, J., and Kenworthy, J., concur.