Ginger M. Crum, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2026)

MEMORANDUM DECISION

Case Summary

[1] Ginger M. Crum appeals her conviction for Level 5 felony possession of methamphetamine, alleging the trial court abused its discretion in denying her motion to dismiss. We affirm.

Facts and Procedural History

[2] On October 7, 2024, Muncie Police Department Officer Ryan Miley and then Officer Mark Bonneau saw a car blocking an alleyway.¹ As the officers drove towards the car, the passenger door opened and “a black male fled the vehicle at a full sprint[.]” Tr. Vol. II p. 42. Officer Bonneau approached the driver, later identified as Crum, who remained in the car. Other officers attempted to locate the fleeing passenger but were unsuccessful.

[3] Officer Bonneau engaged Crum and subsequently searched the vehicle. He found an “open” plastic bag tucked between the driver's seat and the center console that contained a substance he suspected to be methamphetamine. Id. at 52. Subsequent testing revealed the bag contained 9.95 grams of methamphetamine. After Officer Bonneau found the substance, Crum told him the passenger “was trying to get her to perform oral sex[.]” Id. at 50. Later, Officer Miley commented that the passenger was “probably coming back for his dope” and “[the passenger] definitely made sure [Crum's] going to take the hit for it[.]” Id. at 93.

[4] Police also found a white cell phone and a loaded firearm magazine on the passenger side of the vehicle. Crum denied owning a white cell phone, so Officer Bonneau labeled it as “found property” because he did not identify it as having “any evidentiary value to support the charges[.]” Id. at 62. Officer Miley later explained the phone had evidentiary value “[t]o a degree” but for “possible suspected drug dealing and the firearm[,]” not for Crum's possession charge. Id. at 95. He agreed they “didn't have a suspect for said cell phone [and] ․ didn't have evidence of a crime” related to the phone. Id. Thus, Officer Miley agreed with Officer Bonneau that he would not have put the phone in evidence in that situation. See id. at 101. Because the officers did not believe the phone to have evidentiary value regarding Crum's “charge of ․ possession[,]” they never obtained a warrant to search the phone. Id.

[5] On October 10, the State charged Crum with possession of methamphetamine as a Level 4 felony, which was later amended to a Level 5 felony. The existence of the white cell phone was disclosed to the defense during discovery ahead of trial. See id. at 80-81. In March 2025, the cell phone was destroyed because it was unclaimed found property. Defense's Ex. A. There is no evidence that Crum attempted to examine the phone before it was destroyed.

[6] Crum's jury trial ensued on August 25. On August 26, the second day of trial, Crum moved to dismiss due to the destruction of evidence. Crum, by her counsel, explained she just received a “property receipt” on August 22 and learned the phone was destroyed. Tr. Vol. II p. 80. Thus, she argued it was “very possible that there's exculpatory evidence” on the phone but that it was “impossible” to know for sure since the phone was already destroyed. Id. Crum also conceded she had “no direct evidence that that was done in bad faith[.]” Id. The court denied Crum's motion to dismiss and resumed the trial.

[7] The jury found Crum guilty of Level 5 felony possession of methamphetamine. The court sentenced her to three years in the Indiana Department of Correction suspended to probation minus credit for time served.² Crum now appeals.

Discussion and Decision

[8] Crum contends the trial court erred in denying her motion to dismiss, claiming her due process rights were violated by the destruction of evidence. We review the denial of a motion to dismiss for an abuse of discretion. Ko v. State, 243 N.E.3d 1153, 1159 (Ind. Ct. App. 2024), trans. denied. “An abuse of discretion occurs when denial of the defendant's motion to dismiss is contrary to the facts and circumstances before the trial court.” Id.

[9] “ ‘Whatever duty the Constitution imposes on the States to preserve evidence, that duty must be limited to evidence that might be expected to play a significant role in the suspect's defense.’ ” Id. (quoting California v. Trombetta, 467 U.S. 479, 488 (1984)). “To determine whether a defendant's due process rights were violated by the State's failure to preserve evidence, we must first determine whether the evidence was ‘materially exculpatory’ or ‘potentially useful.’ ” Id. (quoting Pimentel v. State, 181 N.E.3d 474, 479-80 (Ind. Ct. App. 2022) (citations omitted), trans. denied).

[10] “Evidence is materially exculpatory if it ‘possesses an exculpatory value that was apparent before the evidence was destroyed’ and must ‘be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.’ ” Id. “ ‘[T]here must be some indication in the record that the evidence was exculpatory.’ ” Id. (quoting Chissell v. State, 705 N.E.2d 501, 504 (Ind. Ct. App. 1999), trans. denied). “Exculpatory evidence is evidence ‘tending to establish a criminal defendant's innocence.’ ” Id. (quoting State v. Durett, 923 N.E.2d 449, 453 (Ind. Ct. App. 2010) (citation omitted)). “When the State fails to preserve materially exculpatory evidence, a due process violation occurs regardless of whether the State acted in bad faith.” Id.

[11] “On the other hand, evidence is merely potentially useful if ‘no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant.’ ” Id. (quoting Chissell, 705 N.E.2d at 504). “The State's failure to preserve potentially useful evidence does not constitute a denial of due process unless the defendant can show that the State acted in bad faith.” Id.

[12] Without any citation to the record, Crum asserts the phone “belonged to the only other individual in the car, contained information regarding communications that that individual had had with the Defendant, and would have corroborated both the locations visited and communications had between the Defendant and the individual who fled.” Appellant's Br. p. 10. However, the record is devoid of any indication that the cell phone's contents were materially exculpatory of Crum's possession. Officer Bonneau located the methamphetamine on the driver's side of Crum's vehicle where she was seated, and Crum's response on the scene was that the passenger was trying to get her to perform “oral sex[.]” Tr. Vol. II p. 50. Officer Miley later mentioned the passenger may come back for “his dope[,]” but this statement does not negate that Crum was in possession of methamphetamine when officers searched her car. Id. at 93. Officers Bonneau and Miley agreed the phone had no evidentiary value relevant to Crum's charge of possession of methamphetamine.

[13] At most, Officer Miley suspected the phone might have evidentiary value for “possible suspected drug dealing[,]” which would not be exculpatory of Crum's possession. Id. at 95. Even Crum readily admitted at trial it was merely “very possible” that the cell phone contained exculpatory evidence but it was also “impossible” to know. Id. at 80. The cell phone was at best potentially useful; thus, the destruction of the phone was only a due process violation if Crum can show the State destroyed it in bad faith. See Ko, 243 N.E.3d at 1159. Her arguments on appeal notwithstanding, Crum conceded at trial that she had “no direct evidence” the phone was destroyed in bad faith, and we find none. Id. at 80. The trial court did not abuse its discretion by denying Crum's motion to dismiss. We affirm.

[14] Affirmed.

FOOTNOTES

1.   Mark Bonneau has since transferred to the Marion Police Department where he serves as a Grant County Drug Task Force Detective.

2.   At sentencing, the Court announced a sentence of four years with the “balance” suspended to probation, minus time served, for a total of two years and 317 days on probation. See Tr. Vol. II p. 172. Her sentence was recorded on the Chronological Case Summary (CCS) as four years with three years and 317 days on probation. App. Vol. II p. 14. Her sentence was then amended by the sentencing order and on the CCS to three years minus time served, totaling two years and 317 days on probation. Id. at 14-15, 147.

Scheele, Judge.

Bailey, J., and Vaidik, J., concur.