Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not 

be regarded as precedent or cited 

before any court except for the 

purpose of establishing the defense of 

res judicata, collateral estoppel, or the 

law of the case.

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

BRENT WESTERFELD GREGORY F. ZOELLER

Indianapolis, Indiana Attorney General of Indiana 

MICHELLE BUMGARNER

Deputy Attorney General 

Indianapolis, Indiana 

IN THE

COURT OF APPEALS OF INDIANA

DUSTY E. RHODES, )

)

Appellant-Defendant, )

)

vs. ) No. 11A01-1109-CR-487

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE CLAY CIRCUIT COURT

The Honorable Joseph D. Trout, Judge

Cause No. 11C01-0808-FB-306

May 31, 2012

MEMORANDUM DECISION - NOT FOR PUBLICATION

ROBB, Chief Judge
2

Case Summary and Issue

Following a jury trial, Dusty Rhodes, Jr., was convicted of dealing in 

methamphetamine, a Class B felony. The sole issue on appeal is whether sufficient 

evidence was presented to sustain his conviction. Concluding that sufficient evidence 

was presented, we affirm.

Facts and Procedural History1

N.S. agreed with police to be a confidential informant and arrange a controlled 

drug buy from Rhodes.2 In August 2007, N.S. drove to Rhodes’s home and picked up 

Rhodes and Jonah Childress with the intention of Rhodes selling methamphetamine to 

undercover Officer Terry Silvers. See Transcript at 232. N.S. then drove herself, 

Rhodes, and Childress to the pre-determined meeting place, a gas station in Brazil, 

Indiana.

Upon arrival, and after police searched N.S. in the gas station restroom to ensure 

she did not possess contraband and she returned to her car, Officer Silvers pulled into the 

gas station in his own car, got out, and entered N.S.’s car. N.S. sat in the driver’s seat, 

Rhodes sat in the front passenger’s seat, Childress sat in the rear seat behind N.S., and 

Officer Silvers sat in the rear seat behind Rhodes, after moving a baby car seat towards 

Childress. After brief introductions and some joking, Officer Silvers looked down and 

 

1 We thank counsel for their excellent advocacy during oral argument on April 10, 2012 at the Court of 

Appeals Courtroom in Indianapolis.

2 N.S. was arrested and charged with attempted dealing in methamphetamine, a Class A felony, possession 

of a controlled substance, a Class D felony, and two counts of unlawful possession or use of a legend drug, Class D 

felonies. She subsequently agreed to serve as a confidential informant, which led to her involvement in the present 

case.
3

reached into his wallet for cash; when he looked up, the purported methamphetamine3

was on the front edge of the baby car seat next to him.

Officer Silvers handed cash to Rhodes and picked up the purported 

methamphetamine to “check the meth out to make sure it looked like meth to the best of 

[his] ability.” Tr. at 244. He “held it up to look at – to see if it had the glass shards in it 

that, you know, it typically has to make sure that it actually looked like dope, and it did.” 

Id. (testimony of Officer Silvers); see id. at 286 (Officer Larry Richmond testifying that, 

in listening to the audio recording, Officer Silvers “was kinda looking at it to check it out 

and made a comment that there’s no black stuff in this, talking about the purity of the 

drug and whether it was good quality and that kind of thing.”).

After a brief discussion about the purity of the substance, Officer Silvers placed it 

in his wallet, exited N.S.’s car, and went to the Clay County Sheriff’s Department for 

debriefing. Officer Silvers turned over the purported methamphetamine to Officer Larry 

Richmond, who placed it in the drug safe located at the Clay County Sheriff’s 

Department. Id. at 118-20; id. at 248. Then Detective Jerry Siddons, who “was the only 

one with access to it, that [Officer Todd Stemm] know[s] of,” retrieved it from the safe 

and turned it over to Officer Stemm.4 Id. at 119-20.

Officer Stemm packaged the purported methamphetamine according to protocols 

and submitted it to the State Laboratory for testing. Id. at 120-22. The evidence clerk of 

 

3 Nowhere in the record does it explicitly state how the purported methamphetamine was packaged.

4 On direct examination, Officer Stemm testified to the following:

Q: And you have personal knowledge that [Detective Siddons] removed it from the safe?

A: He gave it to me, so I would assume, yes. I believe he was the only one that had it.

Q: And you took it directly from him?

A: Yes.

Tr. at 120.
4

the State Laboratory accepted the item, assigned a number and a barcode, and stored it in 

the evidence storage vault which has limited access. Id. at 130-32. A forensic scientist 

with the State Laboratory, Karen Bowen, made an appointment with her evidence clerk, 

retrieved the item for her testing, and made a preliminary check regarding proper 

protocols for the chain of custody. Id. at 132-35. Finding no breaches in the chain of 

custody based on the paper record and packaging of the item itself, Bowen conducted 

tests on the substance, which tested positive for methamphetamine. Id. at 138-44.

The State charged Rhodes with dealing in methamphetamine, a Class B felony. 

Rhodes’s first jury trial, in February 2011, concluded with a deadlocked jury. The trial 

court declared a mistrial and ordered a new trial. Officer Stemm retrieved the item from 

the State Laboratory following Bowen’s testing, stored it at the Brazil Police 

Department’s evidence storage area with limited access, and then retrieved it from 

storage and transported it to Rhodes’s second trial, in August 2011. Id. at 124-26. The 

State entered the item into evidence as Exhibit 1 and Rhodes did not object. Id. at 126-

27. Rhodes’s second jury trial concluded with a guilty verdict. The trial court entered a 

judgment of conviction and sentenced Rhodes to six years with one year suspended to 

probation. Rhodes now appeals his conviction. Additional facts will be supplied as 

appropriate.

Discussion and Decision

I. Standard of Review

Our standard of reviewing a sufficiency claim is well-settled: we do not assess 

witness credibility or reweigh the evidence, and “we consider only the evidence that is 

favorable to the judgment along with the reasonable inferences to be drawn therefrom to 
5

determine whether there was sufficient evidence of probative value to support a 

conviction.” Staten v. State, 844 N.E.2d 186, 187 (Ind. Ct. App. 2006), trans. denied. 

“We will affirm the conviction if there is substantial evidence of probative value from

which a reasonable trier of fact could have drawn the conclusion that the defendant was 

guilty of the crime charged beyond a reasonable doubt.” Id.

II. Dealing in Methamphetamine

A. Rhodes’s Argument

Rhodes does not challenge the chain of custody of the item between when Officer 

Stemm submitted it to the State Laboratory and it was introduced at Rhodes’s second 

trial.5 Brief of Appellant at 8. Nor does he contend that the State failed to prove this 

item tested positive for methamphetamine. Id. (“The State did prove that the package 

Officer Stemm sent to the State Police Lab, [later entered into evidence as] Exhibit 1, is 

methamphetamine.”). Rather, Rhodes argues “the State failed to prove . . . that the 

substance in Exhibit 1 is in fact the item that [Officer] Silvers picked up from the baby 

car seat in [N.S.]’s car, or that the substance [Officer] Silvers picked up is 

methamphetamine.” Id.

The State characterizes this as a challenge to the chain of custody from the time 

Officer Silvers received the item to the time Officer Stemm submitted it to the State 

Laboratory. Rhodes characterizes this as a specific gap in the evidence which renders the 

 

5

Implied in this concession is that Rhodes does not allege any improper irregularity in the handling of the 

item at issue regarding his first trial, which resulted in a mistrial, or the time between his first trial and when the item 

was introduced into evidence at his second trial.
6

evidence presented insufficient to sustain his conviction. Rhodes does not make any 

other argument as to the sufficiency of the evidence.6 

B. Sufficiency of the Evidence

To convict Rhodes of dealing in methamphetamine as a Class B felony, the State 

was required to prove beyond a reasonable doubt that Rhodes knowingly or intentionally 

delivered methamphetamine. Ind. Code § 35-48-4-1.1(a).

We note at the outset that if Rhodes were to now challenge a portion of the chain 

of custody of Exhibit 1, he would have waived this challenge by failing to object during 

trial. See Culley v. State, 179 Ind. App. 345, 385 N.E.2d 486, 487 (1979) (“Insofar as 

error is claimed for an insufficient chain of custody, it is waived for failure to object on 

those grounds at the hearing below.”). But, proceeding as Rhodes’s specific argument 

challenges the sufficiency of the evidence, we do not deem his sole appellate challenge to 

be waived.

In reviewing the evidence presented, the following evidence sets the stage for 

addressing Rhodes’s argument. Rhodes testified in several ways that “even before [he, 

Childress, and N.S.] left [Rhodes’s] house,” Rhodes knew a drug deal was planned to 

occur. Tr. at 350. He admitted that Officer Silvers was provided with the drugs, and 

while he denies handing the drugs to Officer Silvers or accepting payment, others 

testified as to his involvement. Specifically, Childress, in a Pre-Sentence Investigation 

Report for his own conviction for involvement in the incident, stated that he “was in the 

car when [Rhodes] sold the dope to the officer . . . . [Rhodes] sold and possessed the 

 

6

It is notable that Rhodes does not raise an issue with Officer Silvers’s failure to observe Rhodes place the 

purported methamphetamine on the baby car seat.
7

dope.” Id. at 325. Although Childress disavowed these statements at Rhodes’s trial, the 

statements were presented as evidence for the jury to weigh. N.S. testified that she drove 

Rhodes to Brazil and that Rhodes knew this was for the purpose of him selling 

methamphetamine to another.7 Id. at 179-80. N.S. testified that Rhodes possessed the 

methamphetamine prior to the sale, id. at 186, and that Rhodes set the methamphetamine 

down for Officer Silvers to pick up. Id. at 201. Officer Silvers testified that the plan was 

to purchase two grams of methamphetamine, and that while he was looking down to take 

money from his wallet, the “methamphetamine showed up” on the baby car seat. Id. at 

243. Officer Silvers testified that he “took the money and . . . handed it straight to Mr. 

Rhodes.” Id. at 243-44. With all of this evidence combined, one may reasonably infer 

that Rhodes possessed a substance that might have been methamphetamine, and 

exchanged this substance for money with Officer Silvers.

We now directly address Rhodes’s appellate contention that insufficient evidence 

was presented that the substance Officer Silvers received is the same item Officer Stemm 

submitted to the State laboratory. Officer Silvers answered in the affirmative when asked 

if “the drugs” were “provided to Officer Richmond to maintain for chain [sic] of 

custody.” Id. at 248. Officer Stemm testified that Officer Richmond “placed it 

[(referring to the substance received from Officer Silvers)] in a drug – in what we call a 

drug safe” in the Sheriff’s Department. Id. at 118-19. Officer Stemm answered in the 

affirmative when asked if Detective Siddons “removed it from the safe,” and then stated 

 

7 At oral argument, defense counsel repeatedly contended that a close reading of the confidential 

informant’s testimony would reveal no use of the word “meth.” On page 180 of the transcript, N.S. testified that

Rhodes would be selling “Meth.” Tr. at 180. Childress also testified that the drugs at issue were two grams of 

methamphetamine. Id. at 304; see id. at 319.
8

that Detective Siddons “gave it to me.” Id. at 120. Officer Stemm again answered in the 

affirmative when asked if he “took it directly from [Detective Siddons].” Id. Officer 

Stemm then proceeded to describe how he packaged the item and submitted the item to 

the State Laboratory. Id. at 120-23. These portions of the officers’ testimonies are 

sufficient to fill what Rhodes contends is a gap in the evidence. Therefore, we conclude 

that sufficient evidence was presented. 

Conclusion

Sufficient evidence was presented that the substance which Officer Silvers picked 

up from the baby car seat was methamphetamine and was the same as that introduced 

into evidence as Exhibit 1. Therefore, we affirm.

Affirmed.

BAKER, J., and KIRSCH, J., concur.