Timothy J. Slaven, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2026)

MEMORANDUM DECISION

Case Summary

[1] Timothy Slaven appeals after he was convicted of dealing in a narcotic drug, resisting law enforcement, and possession of paraphernalia and found to be a habitual offender. He first argues that at his jury trial, the trial court abused its discretion in admitting into evidence two photographs extracted from his phone depicting substances that appeared to be drugs, a scale, and other paraphernalia, which were dated months before Slaven's current offenses. Second, he contends the court erred in denying his motion for a mistrial after the State informed the defense on the second morning of trial that it had found evidence previously thought to have been lost. Finding no reversible error, we affirm Slaven's convictions.

Facts and Procedural History

[2] On the evening of April 18, 2024, Portland Police Officer Patrick Long was monitoring traffic from his squad car. He saw a black sedan drive by, and the two occupants both turned their faces away from him as they passed. Finding that behavior suspicious, Long followed the vehicle and asked dispatch to run the license plate. The car came back registered to Slaven, who had an active warrant for his arrest. Though Slaven owned the car, that evening he was riding as a passenger while his girlfriend, Cheyenne Petro, drove. Long followed the car until it turned into a gas station (which happened to be next door to City Hall) and parked. Petro went inside while Slaven stayed in the car, and Long pulled into a nearby alley and radioed for backup. A few minutes later, Officer Luke Darby arrived on scene and parked his cruiser behind Slaven's vehicle. As soon as he did, Slaven got out of the car and started to walk away. Darby exited his cruiser and twice instructed Slaven to “stop[,]” but instead Slaven took off running. Transcript Vol. 2 at 76.

[3] Long and Darby lost sight of Slaven and initially believed he ran into the gas station. When they did not find Slaven inside, they and several other officers began searching the area around the gas station and City Hall. As part of that search, a K9 officer conducted a sniff search of an alley that ran between those two buildings. The K9, Spyke, indicated the presence of narcotics near a gas meter attached to the City Hall building. Behind the meter, officers found a black zip-up bag inside of which were five plastic baggies containing differing crystalline and powdery substances, four empty baggies, and paraphernalia including two used glass smoking devices. Two of the used baggies were later determined to contain mixtures of fentanyl, methamphetamine, and Xylazine weighing 3.14 grams and 5.97 grams, respectively. One of the other baggies contained 2.77 grams of fentanyl, and another had 9.42 grams of methamphetamine.¹

[4] After finding the black bag, Spyke followed a scent trail out of the alley and stopped at the base of a set of stairs leading to the roof of a nearby building. Officers found Slaven on the roof and arrested, handcuffed, and Mirandized him. Slaven's subsequent interaction with the officers was captured on the body-worn camera of Officer Craig Jarvis. Jarvis asked Slaven why he ran from the officers, and Slaven said he had done so because he “had warrants.” State's Exhibit 20 at 01:25. Slaven maintained a crestfallen demeanor as Jarvis questioned him further, and he gave terse, often nonverbal, answers. See id. at 01:27-01:50. A few minutes later, however, as Slaven and the arresting officers waited for a firetruck to assist them down from the roof, he asked Jarvis, “No new charges, right?” Id. at 06:51. Because Jarvis didn't know the zip-up bag had been discovered, he speculated that Slaven's only new charge would be for misdemeanor resisting arrest. Slaven's demeanor changed, and he began smiling, laughing, and cracking jokes with the officers. For example, when Darby told him, “It's just easier when you turn yourself in,” Slaven retorted, “Wasn't it fun, though?” and chuckled. Id. at 08:32-08:41. Then, as the firetruck maneuvered its ladder onto the roof, Slaven asked in jest, “They gonna [sic] blast me with the hose, or what?” Id. at 08:48-08:51.

[5] The day after his arrest, the State charged Slaven with various offenses, which as later amended included Level 2 felony dealing in methamphetamine,² Level 2 felony dealing in a narcotic drug,³ Class A misdemeanor resisting law enforcement,⁴ and Class C misdemeanor possession of paraphernalia.⁵ The State also filed notice of its intent to seek a habitual offender sentence enhancement under Indiana Code section 35-50-2-8 (2024).

[6] On February 21, 2025, Slaven filed a motion in limine alleging the State had extracted unspecified “drug related materials/artifacts” from his cell phone. Appellant's Appendix Vol. 2 at 55. According to Slaven, any such materials not having “a sufficient temporal nexus to the charged crimes” were “inadmissible as a prior bad act ․” Id. He accordingly asked that all parties be precluded at trial from referencing any “cell phone material or artifacts over one week old at the time of [his] arrest ․” Id.

[7] At a June 4, 2025 hearing on the motion in limine,⁶ the State suggested, and Slaven's counsel agreed, it was premature for the trial court to rule on the admissibility of materials extracted from the phone, as the State had not yet filed notice of what it intended to offer under Indiana Evidence Rule 404(b).⁷ The court provisionally granted the motion in limine but made clear it would reconsider the issue when the State filed a Rule 404(b) notice. On June 10, the State filed its notice and indicated it intended to offer several photographs pulled from Slaven's phone depicting apparent drug activity. Two of those photographs are relevant to this appeal.⁸ The first depicted three white rock-like objects on a digital scale, which indicated they collectively weighed 1.13 grams. Also visible was a clear plastic baggie containing a dark substance, two glass smoking pipes, and other paraphernalia. The data associated with the image file indicated that the photograph was last edited on February 9, 2024—suggesting it was taken no less than two months before Slaven's April 2024 arrest. The second photograph was of a large white rock-like crystal on a digital scale, with a weight of 27.66 grams. The data from that image file showed the second photograph was last edited on December 4, 2023.

[8] The trial court held a second hearing on the motion in limine on August 7, 2025, at which the State argued the photographs were relevant to Slaven's possession of the black zip-up bag, his knowledge of its contents, and his intent to deliver the drugs found inside. Regarding possession and knowledge, the State asserted many of the items found in the bag looked like items shown in the photographs. As for intent to deliver, the State explained the photographs

show[ ] a stretch of time ․ that [Slaven] had been in ․ possessi[on] and taking photographs of paraphernalia as well as controlled substances․ [O]ne of the things that's depicted in these photographs shows that [Slaven] had access or had ownership of a digital scale, which is an item that can be considered by a jury to determine if he had the intent to deliver.

Tr. Vol. 2 at 24. Slaven's attorney countered that even though the photographs were found on Slaven's phone, there was no evidence he had taken them, and in any event, the photographs predated April 2024 by several months and had no bearing on Slaven's knowledge or intent at the time of his arrest. The trial court ruled from the bench that the photographs were admissible at trial without explaining why, and it denied Slaven's motion in limine.

[9] On September 2, 2025—the day before Slaven's trial was set to begin—Slaven's attorney met with a deputy prosecutor to review the physical evidence the State intended to admit at trial. The deputy prosecutor asked Portland Police Officer Jeff Hopkins to retrieve that evidence and bring it to the meeting. As Hopkins would later explain, he located a single envelope in the police department's evidence room associated with Slaven's case. That envelope contained the drugs that were found in the black zip-up bag and Slaven's cell phone. When Hopkins arrived at the meeting without the zip-up bag itself or the paraphernalia found inside, the deputy prosecutor asked about the location of those items. Hopkins said they were lost. But unbeknownst to Hopkins, they were sealed in a second envelope that he had simply overlooked when he retrieved evidence from the evidence room. Because of that mix-up, at the start of the trial, both the State and the defense believed that the bag and paraphernalia had gone missing.

[10] A two-day jury trial was held on September 3 and 4. In its opening statement, the State told the jury that as Slaven ran from the police on April 18, 2024, he dropped the black bag behind the gas meter and the evidence would show he intended to deal the drugs stored inside it. In his opening, Slaven's counsel attacked the quality of the investigation and said the police did little to document the location where they found the bag and “[did] no[t] preserve” it, apparently referring to the fact that the evidence was lost. Id. at 37. Moreover, he claimed the jury would see no evidence that Slaven possessed the bag or was engaged in dealing drugs and said,

[Y]ou are going to be asked to determine whether ․ Slaven ․ is a drug dealer because the police located roughly 11 to 12 [ ]grams of substances in a black bag right next to City Hall. You[ ] will not hear of any controlled buys that were conducted by the police. You will not see any evidence showing Slaven arranging the sale of drugs. You will not see significant amounts of cash or digital scales for weighing drugs or significant quantities of Ziploc bags typically used to handle drugs. You will not see drugs portioned into small amounts for sale. Instead[,] you will see the police found evidence of drug usage in a bag, in a public alley, right next to the police department.[9] They will ask you to assume that it's ․ Slaven's because he was in that alley and ultimately found on the top of a building a few blocks away.

Id. at 38.

[11] On the first day of trial, the State called several current and former Portland Police Officers to testify about locating Slaven at the gas station, his fleeing from the officers, the subsequent search that led to the discovery of the black bag, and Slaven's eventual arrest. Among other exhibits, the State offered surveillance footage recorded outside City Hall shortly after Slaven took off running through the adjacent alley. Though the gas meter in that footage is obstructed by the corner of the City Hall building, Slaven can be seen pausing next to where the gas meter is located, coming out of the alley, and running through a parking lot. See State's Exhibit 1, file ch05_20240418210803 at 00:00-00:06.¹⁰ The State's last witness for the day was an employee of the prosecutor's office who briefly testified about sending the baggies police collected to various labs for testing.

[12] That evening, Portland Police Officer Brandon Wright was asked by his superiors to search the evidence room “for evidence related to” Slaven's case. Tr. Vol. 2 at 133. Early the next morning, he found the second envelope that Hopkins had overlooked, and he called the deputy prosecutor shortly after four o'clock to tell him the zip-up bag and paraphernalia had been located. The deputy prosecutor then called Slaven's attorney and told him the State had found the missing evidence and intended to introduce it at trial later that day.

[13] Before the trial resumed that morning, Slaven's counsel moved for a mistrial. He argued that the defense had relied on Hopkins’ representation that the bag and paraphernalia were lost, and he made a comment during his opening statement that the police failed to preserve that evidence. Accordingly, he claimed the State's mid-trial discovery put Slaven “in a position where [he was] prejudiced by this ․ late disclosure ․” Id. at 129. The trial judge suggested that rather than declaring a mistrial, he “would be willing to suppress the additional evidence.” Id. Slaven's counsel rejected that proposal and said that if the court denied the motion for a mistrial, his preferred remedy “would be to allow a liberal cross[-examination] into the circumstances that led to this issue ․ as opposed to exclusion.” Id. The court then denied the mistrial motion but said it would allow Slaven's counsel to conduct a liberal cross-examination of the officers who handled and rediscovered the missing evidence.

[14] After the trial resumed, the State called Wright, Long, and Hopkins to testify about the mid-trial discovery of the zip-up bag and paraphernalia. During Hopkins’ cross-examination, Slaven's counsel asked him about his failure to locate the second envelope before trial. Hopkins said it was not typical for the Portland Police to store evidence associated with one case in two envelopes, explaining,

[U]sually you have one envelope. The way I've got it set up is everything woulda [sic] been in [one]. In this instance it appears that Officer Long had filed that evidence into another area and made two separate envelopes.

Id. at 150.

[15] The State next called a forensic scientist from the Indiana State Police drug lab, who testified that she had performed tests on the substances found in the zip-up bag which came back positive for methamphetamine, fentanyl, and Xylazine in the amounts described above. The State then called its penultimate witness, a member of the Hi-Tech Crime Unit of the Muncie Police Department who assisted the Portland Police in extracting the photographs from Slaven's phone. During his testimony, the State offered Exhibits 23 and 24, which were two of the photographs the trial court ruled were admissible in denying Slaven's motion in limine. Slaven made a contemporaneous objection to those exhibits on the same grounds raised by the motion in limine, which the court overruled.

[16] The State's last witness was an investigator with the Jay County Sheriff's Department, who testified that he had experience investigating hundreds of drug cases. He explained that when a typical methamphetamine user is arrested, officers usually find no more than a gram of methamphetamine in his possession. Likewise, he said the average fentanyl user is typically found with much less than a gram of fentanyl and often as little as a quarter of a gram. He also explained that when individuals are found with drugs and unused baggies in their possession, “[i]t typically means they're either buying or selling.” Id. at 191.

[17] After the State rested its case-in-chief, Slaven moved for a directed verdict on the methamphetamine charge, arguing the State failed to prove he possessed the requisite quantity of methamphetamine to support a conviction under Indiana Code section 35-48-4-1.1(a)(2), (e)(1) (2024). The court agreed and entered a directed verdict on that count. Slaven then called Petro as his sole witness. She claimed that when she drove with Slaven to the gas station on the day of his arrest, he did not possess the black bag, and she had not seen him with any of the drugs or paraphernalia that were found inside it. After her testimony, the defense rested and the State indicated it had no rebuttal evidence.

[18] In closing, the deputy prosecutor argued the evidence proved that on the evening Slaven ran from the police, he possessed the black zip-up bag and intended to deal the drugs found inside it. He played the surveillance video depicting Slaven pausing at the exact spot where the bag was later found. The State also tied Slaven to the bag through the paraphernalia inside it, particularly a glass pipe the deputy prosecutor argued was identical to a pipe shown on the photographs extracted from Slaven's phone. And, according to the State, when Slaven asked the arresting officers about “no new charges[,]” he was trying to learn whether they had found the bag he concealed while fleeing. Tr. Vol. 2 at 223. To support Slaven's intent to deliver, the deputy prosecutor said the quantity of fentanyl and methamphetamine in the bag exceeded what Slaven would need for personal use. Additionally, the State reiterated the investigator's testimony that the presence of unused baggies was characteristic of those used in drug transactions. Likewise, according to the State, the photographs from Slaven's phone proved he “has a digital scale[,]” yet another indication that he was selling drugs. Id. at 225.

[19] The defense's closing argument focused on four points. First, Slaven's counsel argued Darby did not sufficiently identify himself as a police officer before Slaven ran, negating a necessary element of resisting arrest. Second, the defense highlighted several “police errors” that tainted the investigation:

Number one, they misplaced [the zip-up bag] and [the envelope used to store it in the evidence room] ․ They misplaced this big envelope containing the biggest piece of evidence in the whole case until 3:30 a.m. this morning. This morning. That's when they found this evidence. They never took a picture of where the black bag was located in that walkway or alleyway․ But most important ․ is they never got the [gas station] surveillance footage․ [T]his case might be real easy if they pulled the video from the front door at [the gas station] and each of you could see whether ․ Slaven has a black bag or he doesn't.

Id. at 229-30. Third, the defense argued Slaven never had possession of the bag, as Petro testified it wasn't his and the State presented no evidence directly tying it to him. Finally, counsel asserted the State had failed to prove that Slaven intended to deliver the drugs found inside the bag and argued the unused baggies were “not just indicative of dealing, they're indicative of people buying. That's not evidence of possession with the intent to deliver.” Id. at 233. As for the photographs extracted from Slaven's cell phone, the defense argued they were dated “[m]onths before this incident” and hardly proved “what Slaven intended to do ․ in April of 2024 ․” Id.

[20] In rebuttal, the State argued the photographs suggested that Slaven was “marketing” drugs and had likely sent the photographs to prospective buyers “[s]aying here's what I got. Here's how much I have.” Id. at 236. As for Slaven's contentions that he was not running from the police and did not possess the bag, the State asserted,

Darby shows up in a fully marked police car and says stop․ Long is in a fully marked ․ police car and in uniform. Says stop. Get back here. They call [him] out by name․ And he keeps running. You think he's runnin[g] for fitness, for exercise[?] No. He's running from the police [be]cause he knows he[’s] got a big bag of drugs. And ․ he hesitates right ․ at that gas meter ․ Why's he hesitating[?] Wouldn't he wan[t to] get away[?] Not before he pitches the bag.

Id. at 236-37.

[21] After deliberation, the jury found Slaven guilty of dealing in a narcotic drug, resisting law enforcement, and possession of paraphernalia. The trial then proceeded to a second phase, during which the jury found that Slaven was a habitual offender. The trial court entered judgments of conviction on all three guilty verdicts, accepted the habitual offender finding, and ultimately sentenced Slaven to an aggregate sentence of thirty-three years in the Department of Correction. Slaven now appeals.

Discussion and Decision

1.Admission of Photographs from Slaven's Cell Phone

[22] Slaven first argues the court erred in admitting the two photographs extracted from his cell phone because they were inadmissible under Indiana Evidence Rule 404(b) and in any event should have been excluded under Rule 403. According to Slaven, the photographs were “remote in time, lacked clear relevance, and risked the forbidden inference that past acts indicate present guilt.” Appellant's Brief at 8. Our review of a trial court's decision to admit or exclude evidence is limited to whether the court abused its discretion. Satterfield v. State, 33 N.E.3d 344, 352 (Ind. 2015). “We will reverse only if the trial court's ruling was clearly against the logic and effect of the facts and circumstances before it.” McCallister v. State, 91 N.E.3d 554, 561 (Ind. 2018).

[23] Under Evidence Rule 404(b), “a court may not admit evidence of another crime, wrong, or act ‘to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character.’ ” Fairbanks v. State, 119 N.E.3d 564, 568 (Ind. 2019) (quoting Ind. Evidence Rule 404(b)(1)), cert. denied. The purpose of this rule is to “prevent[ ] the jury from indulging in the ‘forbidden inference’ that a criminal defendant's ‘prior wrongful conduct suggests present guilt.’ ” Id. (quoting Byers v. State, 709 N.E.2d 1024, 1026-27 (Ind. 1999)). But while such evidence is inadmissible to prove a defendant's propensity to commit bad acts, Rule 404(b) “plainly states that other-bad-acts evidence may be admissible for other purposes,” such as “to show ‘motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.’ ” Id. (quoting Evid. R. 404(b)(2)).

[24] However, even if other-bad-acts evidence “is relevant to a matter at issue other than the defendant's propensity to commit the charged act[,]” it may be admitted only if it satisfies the Rule 403 balancing test. Id. (quoting Hicks v. State, 690 N.E.2d 215, 219 (Ind. 1997)). That is, such evidence is admissible only if “the trial court ․ conclude[s] that the evidence's probative value is not ‘substantially outweighed’ by the danger of unfair prejudice[.]” Id. (quoting Evid. R. 403). As summarized by this Court in Echeverria v. State, before admitting other-bad-acts evidence, the trial court must “(1) determine whether the evidence of other crimes, wrongs, or acts is relevant to a matter at issue other than a person's propensity to engage in similar criminal behavior; and then (2) balance the probative value of that evidence against its prejudicial effect.” 146 N.E.3d 943, 949 (Ind. Ct. App. 2020), trans. denied.

[25] Here, the State contends the photographs were admissible under Rule 404(b) because they were “probative of [Slaven's] constructive possession of the black zip [bag], his knowledge of the contents of that [bag], and his intent to deal the methamphetamine and fentanyl found in the [bag] ․” Appellee's Br. at 14. According to the State, the photographs “showed: 1) similarly looking contraband being weighed on a digital scale; and 2) two smoking pipes that looked exactly like the pipes found in the black zip [bag] ․” Id. Thus, Slaven's prior possession of similar paraphernalia tied the bag to him, and his previous “use of digital scales showed his present intent to deliver.” Id. at 16.

[26] The State is right that to secure a conviction for possession with intent to deliver, it had to prove not only that Slaven possessed the bag but also that he intended to deliver the drugs found inside. See Ind. Code § 35-48-4-1(a)(2)(C) (2024) (amended 2025). And the State is also correct that under this Court's precedents, when, as here, a defendant “dispute[s] the requisite intent to deal and present[s] a contrary explanation that he could have intended to personally use the drug[,]” evidence of the defendant's prior drug dealing may be admitted “for the purpose of reconciling whether his intent was truly to possess the drugs for personal use or to deliver them ․” Schnitzmeyer v. State, 168 N.E.3d 1041, 1046-47 (Ind. Ct. App. 2021) (“The intent exception is narrow and is available when a defendant goes beyond merely denying the charged culpability and affirmatively presents a claim of particular contrary intent.”); see also Echeverria, 146 N.E.3d at 949 (affirming admission of ledgers memorializing the defendant's prior drug transactions to prove her intent to deal).

[27] However, the flaw in the State's argument is that both Schnitzmeyer and Echeverria are readily distinguishable, as in both cases, the defendants’ prior bad acts had an obvious connection to their present offenses. In Echeverria, officers found ledgers in the defendant's home, along with 447.424 grams of methamphetamine, 57.11 grams of heroin, and drug paraphernalia including scales with drug residue on them. 146 N.E.3d at 946. The ledgers were admissible under Rule 404(b), the panel reasoned, because though they contained evidence of the defendant's prior acts of drug dealing (and were thus inherently prejudicial), “the ledger is a tool commonly used by drug dealers, and [the defendant's] mere possession of the ledgers was evidence of her present intent to deal.” Id. at 949. Here, the State argues Echeverria supports its position that Slaven's prior “possession and use of digital scales showed his present intent to deliver.” Appellee's Br. at 16. But while we can easily see how a defendant's possession of scales at or shortly before the time he is also found in possession of a large quantity of drugs could indicate an intent to deal—the State fails to explain how months-old photographs of scales on Slaven's phone supports a similar conclusion.

[28] Schnitzmeyer is slightly more on point but is also distinguishable. There, while investigating a deadly shooting, officers obtained a search warrant for the defendant's property, where they found 1.88 grams of methamphetamine and a pipe. Schnitzmeyer, 168 N.E.3d at 1043. On the defendant's phone, officers discovered text messages between the defendant and the decedent sent in the month before the shooting. Id. In those messages, the defendant discussed trading various items with the decedent for drugs, and on the day of the shooting the defendant said he had “a half to a whole G that [he was] trying to get rid of[.]” Id. at 1044. Before the defendant's trial for one count of dealing and one count of possessing methamphetamine, he filed a motion in limine seeking to exclude text messages sent before the date of the shooting. Id. The trial court denied that motion and admitted the text messages at trial. Id. at 1045. After being convicted of dealing in methamphetamine, the defendant argued on appeal that the trial court erred in admitting the incriminating text messages. Id. at 1043. The panel disagreed, reasoning all of the text messages sent in the month before the shooting were admissible under Rule 404(b) “because they demonstrate[d] and explain[ed] the trading relationship between the two men, [the defendant's] intent to deal rather than retain methamphetamine for personal use, and [his] identity as the owner of the contraband[.]” Id. at 1046.

[29] In the present case, the State relies on Schnitzmeyer to argue that the photographs extracted from Slaven's phone were admissible as “evidence of [Slaven's] intent to deliver the contraband” found at the time of his arrest. Appellee's Br. at 16. However, the photographs differ in several material respects from the text messages in Schnitzmeyer. While the text messages in Schnitzmeyer were sent in the month before the shooting, the photographs at issue here predated Slaven's present offenses by much more than a month, thus undermining the State's assertion that they were relevant to Slaven's intent on the day of his arrest. Moreover, though the State speculates Slaven sent the photographs to prospective buyers as a form of marketing, it obtained no evidence from his phone (such as text messages, emails, or other communications) to support that claim.

[30] Given the limited relevance (if any) of the photographs to Slaven's intent to deal on the day of his arrest, their inherently prejudicial nature substantially outweighed their probative value. See Duvall v. State, 978 N.E.2d 417, 428 (Ind. Ct. App. 2012) (“All evidence that is relevant to a criminal prosecution is inherently prejudicial, and thus the Evidence Rule 403 inquiry boils down to a balance of the probative value of the proffered evidence against the likely unfair prejudicial impact of that evidence.”), trans. denied. In other words, by admitting the photographs, the trial court effectively permitted the State to argue that because Slaven might have been dealing drugs months before his arrest, he must have been dealing on the day of his arrest, too. We agree with Slaven that “[t]his is exactly the forbidden inference” Rule 404(b) and Rule 403 “are designed to prevent[,]” and the trial court therefore abused its discretion in admitting the photographs. Appellant's Br. at 15.

[31] That said, the State correctly argues that “[e]ven if admitted in error, the [photographs] did not affect the verdict.” Appellee's Br. at 19. It is well-settled that “[e]rrors in the admission of evidence are ordinarily disregarded as harmless error unless they affect the substantial rights of a party.” Remy v. State, 17 N.E.3d 396, 401 (Ind. Ct. App. 2014), trans. denied. Whether a party's substantial rights have been affected turns on the probable impact the evidence had on the jury. Id. We will find an error regarding the admission of evidence harmless “if the conviction is supported by substantial independent evidence of guilt satisfying the reviewing court there is no substantial likelihood the challenged evidence contributed to the conviction.” Id. (quoting Hoglund v. State, 962 N.E.2d 1230, 1238 (Ind. 2012), reh'g denied).

[32] There was substantial evidence independent of the photographs proving that Slaven constructively possessed the bag when he was arrested and intended to deal the drugs found inside. Starting with possession, when determining whether a defendant constructively possessed drugs, the fact finder must consider “circumstances pointing to the defendant's knowledge of the nature of the controlled substances and their presence[,]” which includes but is not limited to

(1) incriminating statements made by the defendant, (2) attempted flight or furtive gestures, (3) location of substances like drugs in settings that suggest manufacturing, (4) proximity of the contraband to the defendant, (5) location of the contraband within the defendant's plain view, and (6) the mingling of the contraband with other items owned by the defendant.

Cannon v. State, 99 N.E.3d 274, 279 (Ind. Ct. App. 2018) (quoting Gee v. State, 810 N.E.2d 338, 341 (Ind. 2004)), trans. denied. Many of these factors are present here. Slaven fled from the officers when they instructed him to stop, suggesting he did not want to be apprehended while in possession of controlled substances. See Holmes v. State, 785 N.E.2d 658, 662 (Ind. Ct. App. 2003) (finding sufficient evidence defendant possessed marijuana found in a vehicle when he “jumped” out of the car and “bolted”). While at trial Slaven tried to explain his flight as an attempt to avoid execution of an outstanding warrant, the fact remains that he was caught on surveillance footage hesitating next to the same gas meter behind which the bag was later found and not far from where he was apprehended. Moreover, once in custody he asked the arresting officers if there would be new criminal charges and showed relief after he was erroneously told he would only be facing a new charge for resisting arrest.

[33] The jury also heard ample evidence to conclude, without reference to the photographs, that Slaven intended to deal the drugs inside the bag. Slaven possessed a large quantity of controlled substances, more than a typical drug user would have for personal use. See Hape v. State, 903 N.E.2d 977, 997-98 (Ind. Ct. App. 2009) (“ ‘Possession of a substantial amount of narcotics constitutes circumstantial evidence of intent to deliver,’ and ‘[i]f the quantity is such that it could not be personally consumed or used, then an inference of a predisposition to sell can reasonably be drawn.’ ” (quoting Goodner v. State, 685 N.E.2d 1058, 1062 n.4 (Ind. 1997))), trans. denied. Moreover, the drugs in Slaven's possession were packaged in four separate baggies, further indicative of his intent to deal. See Goodner, 685 N.E.2d at 1062 (holding defendant's intent to deal was supported by the fact that cocaine in his apartment “was packaged in nine separate bags”). The jury also heard from the Sheriff's investigator that the unused baggies in Slaven's possession indicated that he might have been selling drugs.

[34] For these reasons, though we conclude the trial court erred in admitting the photographs, that error was harmless.

2. Slaven's Motion for a Mistrial

[35] Slaven next argues “[t]he trial court abused its discretion in denying [his] motion for a mistrial.” Appellant's Br. at 8. Because trial judges are “best positioned to assess the circumstances of an error and its probable impact on the jury, ‘[t]he denial of a mistrial lies within the sound discretion of the trial court,’ and [we] review[ ] only for abuse of that discretion.” Lucio v. State, 907 N.E.2d 1008, 1010 (Ind. 2009) (quoting Gill v. State, 730 N.E.2d 709, 712 (Ind. 2000)) (first alteration in original). “The remedy of mistrial is ‘extreme,’ ․ strong medicine that should be prescribed only when ‘no other action can be expected to remedy the situation’ at the trial level[.]” Id. at 110-11 (first quoting Warren v. State, 757 N.E.2d 995, 998-99 (Ind. 2001); and then quoting Gambill v. State, 436 N.E.2d 301, 304 (Ind. 1982)). To prevail on appeal, the defendant “must demonstrate the statement or conduct in question was so prejudicial and inflammatory that he was placed in a position of grave peril to which he should not have been subjected.” Brittain v. State, 68 N.E.3d 611, 620 (Ind. Ct. App. 2017), trans. denied. And the gravity of the peril is determined “based upon the probable persuasive effect of the misconduct on the jury's decision rather than upon the degree of impropriety of the conduct.” Id.

[36] To begin, the State correctly notes that Slaven has failed “to sustain his burden of showing that other remedial measures could not have rectified” the State's mid-trial discovery of the previously missing evidence. Appellee's Br. at 23. The trial court suggested that in lieu of a mistrial, it would suppress the admission of that evidence for the remainder of trial—a remedy Slaven rejected. As this Court has explained, when a defendant has rejected a lesser remedy proposed by the trial court, he “must demonstrate to us that the ․ proposed lesser remedy ․ was inadequate.” Anderson v. State, 774 N.E.2d 906, 912 (Ind. Ct. App. 2002). Slaven has failed to do so here, as suppression of the rediscovered evidence would have maintained the status quo that existed at the start of trial when Slaven's counsel told the jury the State failed to preserve the bag and paraphernalia.

[37] Moreover, the mid-trial discovery of the evidence did not put Slaven in grave peril. During his opening statement, Slaven's counsel said the evidence would show that the State failed to preserve crucial pieces of evidence. By electing to liberally cross-examine officers about the circumstances surrounding the rediscovery of that very same evidence, Slaven's counsel was able to elicit testimony suggesting the evidence associated with Slaven's case was not handled according to the police department's usual practices, which led the State to misplace the second envelope. Far from “discredit[ing] the defense[’s]” opening statement about “what the evidence was expected to show[,]” Appellant's Br. at 17, this testimony supported Slaven's contention that there had been “police errors” throughout the case, including the mishandling of evidence, Tr. Vol. 2 at 229.

[38] Accordingly, we find no abuse of discretion in the trial court's denial of Slaven's motion for a mistrial.

Conclusion

[39] For these reasons, we affirm Slaven's convictions.

[40] Affirmed.

FOOTNOTES

1.   No evidence was presented concerning the weight or contents of the fifth used baggy.

2.   Ind. Code § 35-48-4-1.1(a)(2), (e)(1) (2024).

3.   Ind. Code § 35-48-4-1(a)(2), (e)(1) (2024) (amended 2025).

4.   Ind. Code § 35-44.1-3-1(a)(3) (2024) (amended July 1, 2024).

5.   Ind. Code § 35-48-4-8.3(b)(1) (2024) (amended 2025).

6.   The transcript erroneously reflects that this hearing occurred on June 4, 2024. See Transcript Vol. 2 at 2.

7.   Indiana Evidence Rule 404(b) provides that at the defendant's request, the State must provide pre-trial notice that it intends to offer evidence of a prior crime, wrong, or other act of the defendant for an admissible purpose.

8.   Though the 404(b) notice indicated the State intended to introduce four photographs from Slaven's phone depicting apparent drugs and paraphernalia, the State only offered two such photographs at trial.

9.   The Portland Police Department and City Hall are housed in the same building.

10.   State's Exhibit 1 contains two MP4 files, which are labeled ch05_20240418210803 and ch07_20240418210807_001.

DeBoer, Judge.

Mathias, J, and Kenworthy, J., concur.