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 However, the report was later withdrawn after the trial court ruled that the state had failed to establish a sufficient chain of custody for the heroin.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.”