ATTORNEY FOR APPELLANT			ATTORNEYS FOR APPELLEE

Michael Gene Worden				Jeffrey A. Modisett

Indianapolis, Indiana			Attorney General of Indiana

							Randi F. Elfenbaum

							Deputy Attorney General

							Indianapolis, Indiana

IN THE

SUPREME COURT OF INDIANA

WILLIE RAY LEE,				)

							)

	Appellant (Defendant Below),	)

							)

		v.					)CAUSE NO. 21S00-9612-CR-00800

							)

STATE OF INDIANA,				)

							)

	Appellee (Plaintiff Below).	)

APPEAL FROM THE FAYETTE CIRCUIT COURT

The Honorable Daniel Lee Pflum, Judge

Cause No. 21C01-9606-CF-060

SHEPARD, Chief Justice.

	A jury found Willie Ray Lee guilty of dealing in cocaine within 1000 feet of a school, a class A felony, Ind. Code Ann. §

35-48-4-1(b)(3)(B) (West Supp. 1997), and also found him to be a

habitual offender, Ind. Code Ann. § 35-50-2-8 (West Supp. 1997).  The trial court found aggravating circumstances and sentenced him

to forty-four years, and added thirty years for his status as a

habitual offender.  

	In this direct appeal, Lee raises five issues:

			(1)	Whether evidence of other crimes was properly admitted under Indiana Rule of Evidence 404(b);

			(2)	Whether a proper chain of custody was established to support the admission of a baggie of cocaine passed

from Lee to an informant to an officer;

			(3)	Whether the jury was properly instructed on reasonable doubt during the habitual offender proceeding;

			(4)	Whether Lee’s sentence was properly enhanced; and

			(5)	Whether the trial court properly upheld the State’s peremptory strike of the only prospective juror who was

a member of Lee’s race.

	We conclude that the trial court did not err.  Accordingly,

we affirm.

Facts

	On May 31, 1996, James Napier contacted Detective Ted

McQuinley of the Fayette County Sheriff’s Department because he

believed that McQuinley had a cocaine case against him.  In an effort to help himself, Napier offered to assist McQuinley to buy

cocaine "in an undercover capacity."  (R. at 191.)  McQuinley

brought in Richmond Police Officer Michael Wamsley to work

undercover with Napier.

	Later that same day, Wamsley accompanied Napier in Napier’s

vehicle in an attempt to buy some cocaine.  While they were driving

around Connersville looking for Lee, whom Napier believed was a

drug dealer, Napier presented Wamsley with a piece of crack cocaine

which he claimed was sent by Lee as a sample.  They subsequently

encountered Lee, who instructed them to meet him in the alley

behind his residence, which was within 1000 feet of a school. 

Wamsley contacted McQuinley and State Trooper Ron Shoemaker to

maintain surveillance of the encounter.  

	Napier backed the car into the alley, where two other men were

already waiting for Lee.  The two men pulled into the alley and

parked beside Napier’s car, approximately two to three feet away. 

One of the two men walked up to Lee’s car, had a conversation with

him, received a plastic baggie, handed Lee money in exchange, and

left.  Napier then exited his vehicle and stood between the two

cars, telling Lee that Wamsley wanted to buy a quarter ounce of

crack cocaine.  After Lee responded, Napier told Wamsley that Lee

had only one gram left.  Lee then handed Napier a plastic baggie

containing crack cocaine.  Napier held the baggie between his thumb

and forefinger for approximately five seconds before giving it to Wamsley, who had exited the vehicle.  Wamsley testified that he

never lost sight of the baggie after Lee handed it to Napier.  

	Wamsley then spoke with Lee about obtaining more.  Lee said he

was out of crack cocaine, but would return in two to two and a half

hours with three or four ounces of powdered cocaine.  They arranged

a code for Lee to enter into Wamsley’s pager when he returned with

the drugs, and also agreed on a price.  Wamsley then paid Lee $80

for the gram of crack cocaine he had received.  Lee was

subsequently charged and convicted of dealing in cocaine within

1000 feet of a school.  

I.  Evidence of Other Crimes

	Appellant claims the trial court improperly admitted evidence

of uncharged misconduct under Indiana Rule of Evidence 404(b). 

Specifically, he says it was error to allow Officer Wamsley to

testify, over Lee’s objection, about the apparent drug transaction

between Lee and the two men who were waiting in the alley by his

home when Napier and Wamsley arrived.  He contends the State did

not provide notice of its intention to introduce this prior "bad

acts" evidence at trial.1  Additionally, Lee argues that such evidence was irrelevant and improperly prejudiced him by implying

to the jury that he had a propensity to deal in controlled

substances. 

	Our evidentiary rule governing this issue provides: 

	Evidence of other crimes, wrongs, or acts is not

admissible to prove the character of a person in order to

show action in conformity therewith.  It may, however, be

admissible for other purposes, such as proof of motive,

intent, preparation, plan, knowledge, identity, or

absence of mistake or accident, provided that upon

request by the accused, the prosecution in a criminal

case shall provide reasonable notice in advance of trial,

or during trial if the court excuses pretrial notice on

good cause shown, of the general nature of any such

evidence it intends to introduce at trial.

Ind.Evidence Rule 404(b). 

	 We review trial court rulings admitting or excluding evidence

under an abuse of discretion standard.  Barnes v. State, 634 N.E.2d 46 (Ind. 1994).  Rule 404(b) was designed to assure that "the

State, relying upon evidence of uncharged misconduct, may not

punish a person for his character."  Wickizer v. State, 626 N.E.2d 795, 797 (Ind. 1993) (citing Lannan v. State, 600 N.E.2d 1334, 1338 (Ind. 1992)).  Although evidence of prior uncharged misconduct may

not be admitted for the purpose of proving a defendant’s bad

character, it may be admissible for other purposes, such as "proof

of motive, intent, preparation, plan, knowledge, identity, or

absence of mistake or accident."  Evid.R. 404(b).

	The rule does not bar, however, evidence of uncharged criminal

acts that are "intrinsic" to the charged offense.  See, e.g., United States v. Williams, 900 F.2d 823, 825 (5th Cir. 1990); cf. United States v. Barnes, 49 F.3d 1144, 1149 (6th Cir. 1995) ("When the other crimes or wrongs occurred at different times and under

different circumstances from the offense charged, the deeds are

termed 'extrinsic.'")  The evidence in quesitontion here was instrinsic

to the charged crime and thus not barrded by Rule 404(b).

II.  Chain of Custody

	Appellant contends the trial court improperly admitted into evidence Exhibit 1, the baggie of cocaine which Napier passed from

Lee to Officer Wamsley, because the State did not establish a

proper chain of custody linking it to Lee.  Although he concedes

the State established a proper chain of custody after the cocaine

was received by Officer Wamsley, he suggests that the State did not

negate the possibility that the cocaine may have come from Napier

rather than from him.  

	To establish a proper chain of custody for physical evidence,

the State must provide reasonable assurances that an exhibit which

has passed through various hands has remained undisturbed.  Cliver v. State, 666 N.E.2d 59, 63 (Ind. 1996) (citing Burris v. State, 465 N.E.2d 171, 185 (Ind. 1984), cert. denied, 469 U.S. 1132 (1985)); Bell v. State, 610 N.E.2d 229, 233 (Ind. 1993) (citing Kennedy v. State, 578 N.E.2d 633 (Ind. 1991), cert. denied, 503 U.S. 921 (1992)).  In providing such assurances, the State need not

negate every remote possibility of tampering.  Cliver, 666 N.E.2d at 63 (citing Starks v. State, 517 N.E.2d 46, 53 (Ind. 1987)).  It is sufficient if the State presents evidence which "'strongly

suggests' the exact whereabouts of the evidence at all times." 

Bell, 610 N.E.2d at 233.  Once the State has presented such evidence, "[a]ny gaps in the chain of custody would go to the

weight of the evidence and not to the admissibility of the

evidence." Id.

	A proper chain of custody can be established through an

officer’s identification of the evidence and testimony that he

observed the exchange in its entirety with an unobstructed view.  Collins v. State, 645 N.E.2d 1089 (Ind. Ct. App. 1995).  Here, Officer Wamsley identified the evidence as being like the baggie

which Napier handed him and testified that he observed the exchange

of cocaine from a distance of five or six feet from Lee and two to

three feet from Napier; that he never lost sight of the cocaine

from the time Lee handed it to Napier and Napier handed it to him;

and that the baggie was only in Napier’s possession for five or six

seconds before he gave it to Wamsley.  Such testimony provides

reasonable assurances that the evidence has remained in an

undisturbed condition, and suggests the exact whereabouts of the

evidence at all times.

	Lee has not established that the State laid an inadequate

foundation for the admission of Exhibit 1.

III.  Reasonable Doubt Instruction

	Appellant argues that the "reasonable doubt" instruction given

during the habitual offender phase of the proceedings constitutes

fundamental error and requires reversal of the jury’s habitual

offender finding.  Because Lee did not object to the instruction at

trial, appellate review is unavailable, Ind. Criminal Rule 8(B),

unless the error is deemed to be fundamental.  Tobias v. State, 666 N.E.2d 68 (Ind. 1996).  It was not.  

IV.  Enhanced Sentence

	Lee also claims the trial court used one improper aggravating

circumstance in sentencing him.  Because the court based the

enhanced sentence on three additional valid aggravating factors, we

see no grounds for relief.

	The crime of dealing in cocaine within 1000 feet of a school

is a class A felony, Ind. Code Ann. § 35-48-4-1(b)(3)(B) (West

Supp. 1997). It carries a presumptive thirty-year sentence, which

may be enhanced by as many as twenty years due to aggravating circumstances, Ind. Code Ann. § 35-50-2-4 (West Supp. 1997).  In

this case, the trial judge found the following aggravating factors

and enhanced the presumptive sentence by fourteen years:  (1) Lee

has a history of criminal and delinquent acts; (2) the crime in the

present case occurred after Lee was arrested and had agreed to

plead guilty to another class A felony in Marion County; (3) the

chances of Lee committing another crime are great; and (4) the

imposition of a reduced or suspended sentence would depreciate the

seriousness of the crime.  (R. at 409-10.)  Without challenging the

first three, Lee claims that the fourth factor was improperly used

as an aggravator because the trial judge did not consider imposing

less than the presumptive sentence.

	We agree that the fourth factor may be used as an aggravator

only when the trial court is considering imposing a sentence of

shorter duration than the presumptive sentence.  See Penick v. State, 659 N.E.2d 484 (Ind. 1995); Widener v. State, 659 N.E.2d 529 (Ind. 1995).  However, "[d]espite a trial court’s use of an

improper aggravating circumstance to enhance a sentence, this Court

will affirm if the other aggravating circumstances are adequate to

support the sentence imposed."  Scheckel v. State, 620 N.E.2d 681, 684 (Ind. 1993) (citing Owens v. State, 544 N.E.2d 1375, 1378 (Ind. 1989)).  In the present case, the other three aggravating factors

considered by the trial judge support enhancement of the

presumptive sentence.

V.  Peremptory Strike

	Finally, Lee claims that the trial court erred when it allowed the State to exercise a peremptory challenge to the only

prospective juror who was a member of his race. 

	A peremptory strike is unconstitutional when it is used to

exclude a potential juror from service solely on the basis of his

or her race or gender.  Batson v. Kentucky, 476 U.S. 79 (1986); Williams v. State, 669 N.E.2d 1372 (Ind. 1996).  A criminal defendant seeking to establish a prima facie case of racial

discrimination must show that "(1) the prosecutor has exercised

peremptory challenges to remove members of a cognizable racial

group from the venire; and (2) the facts and any other relevant

circumstances of the defendant’s case raise an inference that the

prosecutor used that practice to exclude venirepersons from the

jury due to their race."  Bradley v. State, 649 N.E.2d 100, 105 (Ind. 1995) (footnote ommitted) (citing Batson, 476 U.S. at 96).  

	Once the defendant has established a prima facie case, "the

burden of production shifts to the proponent of the strike to come

forward with a race-neutral explanation. . . . If a race-neutral

explanation is tendered, the trial court must then decide . . .

whether the opponent of the strike has proved purposeful racial

discrimination."  Purkett v. Elem, 514 U.S. 765, 767 (1995).  Although the State must provide a race-neutral reason for the strike after the defendant has established a prima facie case of

discrimination, the U.S. Supreme Court has emphasized that "the

ultimate burden of persuasion regarding racial motivation rests

with, and never shifts from, the opponent of the strike."  Id. at 768.

	In this case, the trial judge conducted a hearing after Lee

objected to the State’s peremptory strike.  The State offered the

following reasons for striking the potential juror:  his brother

had been convicted in a drug case and was imprisoned, he had a

lawsuit pending against the federal government which he did not

wish to talk about, he stated that he preferred not to sit in

judgment of others, he expressed concern about possible financial

burden, he indicated that he may have a schedule conflict with the

trial, and he indicated that he or a member of his immediate family

had been a crime victim.  (S.R. at 178.)  Although it was revealed

later that neither the venireperson nor any member of his family

had been a crime victim, it was also revealed that he had been

represented by the judge in previous litigation.

	Lee argues that these reasons were merely pretextual and that

the trial court erred in accepting them.  However, "[u]nless a

discriminatory intent is inherent in the prosecutor’s explanation,

the reason offered will be deemed race neutral."  Purkett, 514 U.S. at 768 (quoting Hernandez v. New York, 500 U.S. 352, 360 (1991)).  The record illustrates that the State provided race-neutral reasons for the peremptory strike and that the trial court accepted them. 

The court’s acceptance of these reasons constitutes a factual

determination that the prosecution lacked discriminatory intent.  Kent v. State, 675 N.E.2d 332, 340 (Ind. 1996).  As such, we will not set aside the decision of the trial court on the matter of

discriminatory intent unless it is clearly erroneous.  Id.  We cannot conclude that the trial judge, who had the opportunity to

observe this potential juror, was clearly erroneous in accepting

the State’s reasons for exercising the peremptory strike.

VI.  Conclusion

  	We affirm the judgment of the trial court.

Dickson, Sullivan, Selby, and Boehm, JJ., concur.