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COA upholds trial court’s actions and sentence during drug trial

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A defendant who contended the trial court abused its discretion and imposed an inappropriately harsh sentence had his drug conviction upheld by the Indiana Court of Appeals.

John Cherry was stopped May 24, 2011, as part of a drug sting in Morgan County. Cherry told a detective at the scene that he was supplying heroin to Austin Quick who was with Cherry that night. Police also recovered a syringe from Cherry’s pants pocket.

The state charged Cherry with two counts of Class B felony aiding, inducing or causing dealing in heroin and Class D felony unlawful possession of a syringe.

During the trial, the state’s first witness testified that balloons swallowed by Quick during the drug bust contained heroin, and a laboratory report was entered into evidence. However, the report was later withdrawn after the trial court ruled that the state had failed to establish a sufficient chain of custody for the heroin. Cherry moved for a mistrial and requested an admonition. The trial court admonished the jury not to consider any evidence from the witness or the lab report.

Cherry was found guilty and sentenced to an aggregated sentence of 10 years for aiding, inducing or causing dealing in heroin, with two years suspended and four years of probation.  

Cherry said that the trial court abused its discretion in admitting certain evidence and in denying his mistrial motion. He also claimed the state failed to produce sufficient evidence to sustain his convictions and his sentence was inappropriately harsh.

The Court of Appeals found the trial court did not abuse its discretion in admitting the videotape of Cherry’s statement made to a detective nor in admitting syringes found near the scene. In addition, the Court ruled the trial court did adequately admonish the jury and that Cherry failed to establish the trial court abused its discretion in denying his mistrial motion.

Also, the Court found the state produced sufficient evidence to sustain Cherry’s Class B felony convictions. Judge Nancy Vaidik dissented on the grounds that the evidence was insufficient to prove the substance in the balloons Quick swallowed was heroin.

Finally the Court upheld Cherry’s sentence, noting his history of buying and delivering heroin, his history of substance abuse, and his making “only cursory attempts at rehabilitation.”

 

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  1. Excellent initiative on the part of the AG. Thankfully someone takes action against predators taking advantage of people who have already been through the wringer. Well done!

  2. Conour will never turn these funds over to his defrauded clients. He tearfully told the court, and his daughters dutifully pledged in interviews, that his first priority is to repay every dime of the money he stole from his clients. Judge Young bought it, much to the chagrin of Conour’s victims. Why would Conour need the $2,262 anyway? Taxpayers are now supporting him, paying for his housing, utilities, food, healthcare, and clothing. If Conour puts the money anywhere but in the restitution fund, he’s proved, once again, what a con artist he continues to be and that he has never had any intention of repaying his clients. Judge Young will be proven wrong... again; Conour has no remorse and the Judge is one of the many conned.

  3. Pass Legislation to require guilty defendants to pay for the costs of lab work, etc as part of court costs...

  4. The fee increase would be livable except for the 11% increase in spending at the Disciplinary Commission. The Commission should be focused on true public harm rather than going on witch hunts against lawyers who dare to criticize judges.

  5. Marijuana is safer than alcohol. AT the time the 1937 Marijuana Tax Act was enacted all major pharmaceutical companies in the US sold marijuana products. 11 Presidents of the US have smoked marijuana. Smoking it does not increase the likelihood that you will get lung cancer. There are numerous reports of canabis oil killing many kinds of incurable cancer. (See Rick Simpson's Oil on the internet or facebook).

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