Court of Appeals of Indiana | Memorandum Decision 53A01-1406-CR-242 | May 26, 2015 Page 1 of 10

MEMORANDUM DECISION

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

Kimberly A. Jackson

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Michael Gene Worden

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Emmanuel Joseph Cain,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

May 26, 2015

Court of Appeals Case No.

53A01-1406-CR-242

Appeal from the Monroe Circuit 

Court

The Honorable Marc R. Kellams, 

Judge

Cause No. 53C02-1308-FB-797

Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 53A01-1406-CR-242 | May 26, 2015 Page 2 of 10

Statement of the Case

[1] Emmanuel Joseph Cain appeals his convictions for two counts of Dealing in 

Cocaine, each as a Class B felony,1following a jury trial. Cain presents three 

issues for our review:

1. Whether the trial court committed fundamental error 

when it admitted recordings of Cain’s drug transactions 

and testimony regarding those recordings;

2. Whether the State presented sufficient evidence to support 

Cain’s convictions; and

3. Whether Cain’s twenty-year sentence is inappropriate

under Indiana Appellate Rule 7(B).

[2] We affirm.

Facts and Procedural History

[3] On July 18, 2013, confidential informant C.H. contacted Bloomington Police 

Department Detective Erich Teuton. Detective Teuton arranged to have C.H.

buy drugs from Cain at a hotel in Bloomington and met her there at 8:30 p.m. 

Detective Teuton searched C.H. for drugs and money, and he provided her 

with a video recording device and money to buy drugs. C.H. then bought two 

 

1

Ind. Code § 35-48-4-1.
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half-gram bags of crack cocaine from Cain. The resulting buy video was of 

poor quality, and C.H. had entered another room before locating Cain.

[4] In order to obtain better quality, recorded evidence, C.H. and Detective Teuton 

conducted two similar controlled buys from Cain the following day, this time 

using a different recording device. The first buy on July 19 yielded two bags 

containing .27 grams and .19 grams of crack cocaine, and the second buy 

yielded two more bags containing .27 and .23 grams of crack cocaine. The 

Indiana State Crime Lab tested the larger bags from each buy and confirmed 

that both contained a cocaine base.

[5] On August 15, 2013, the State charged Cain with three counts of dealing in 

cocaine, all as Class B felonies, each of which related to one of the three sales of 

crack cocaine that transpired on July 18 and 19. At his ensuing jury trial on

April 14, 2014, the trial court admitted into evidence the video recordings of 

Cain’s sales to C.H. and Detective Teuton’s related testimony. Cain did not 

object to the admission of this evidence. However, after the jury had returned 

its verdicts, Cain for the first time complained that the State’s video evidence 

violated his Sixth Amendment rights.

[6] The jury found Cain not guilty as to Count I, the alleged July 18 sale of crack 

cocaine to C.H., but found him guilty as to Counts II and III, which related to 

the two sales that took place on July 19. The court sentenced Cain to twenty

years executed for each of his two convictions, which the court ordered to run 

concurrently. The court ordered Cain’s twenty-year sentence to be served 
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consecutively to a prior ten-year sentence on another offense. This appeal 

ensued.

Discussion and Decision

Issue One: Admission of the Recordings and Testimony

[7] Cain first contends that the trial court violated his Sixth Amendment right to 

confront the witnesses against him by allowing the State to submit the buy 

videos into evidence without presenting C.H. for cross-examination. He also 

argues that the court admitted testimony by Detective Teuton in violation of 

Indiana Evidence Rule 701. 

[8] We generally review a trial court’s decision to admit evidence for an abuse of 

discretion, and we will not disturb that decision unless it is “clearly against the 

logic and effect of the facts and circumstances before it.” Hoglund v. State, 962 

N.E.2d 1230, 1237 (Ind. 2012). However, where, as here, no contemporaneous 

objection is made to the admission of evidence, any error in that admission is 

waived unless the error constitutes fundamental error. Fundamental error 

requires “a substantial, blatant violation of due process that must be so 

prejudicial to the rights of a defendant as to make a fair trial impossible.” 

Rosales v. State, 23 N.E.3d 8, 11 (Ind. 2015) (quotations omitted).

A. Admission of the Buy Videos

[9] Cain first asserts that the admission of the buy videos violated his Sixth 

Amendment right to confront C.H.. In Crawford v. Washington, 541 U.S. 36, 59
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(2004), the Supreme Court of the United States held that out-of-court, 

testimonial statements are admissible at trial only if the declarant is unavailable 

to testify and the defendant has had a prior opportunity to cross examine the 

declarant. “However, the Confrontation Clause ‘does not bar the use of 

testimonial statements for purposes other than establishing the truth of the 

matter asserted.’ Thus, if a statement is either nontestimonial or nonhearsay,

the federal Confrontation Clause will not bar its admissibility at trial.” Williams 

v. State, 930 N.E.2d 602, 607-08 (Ind. Ct. App. 2010) (quoting Crawford, 541 

U.S. at 59 n.9), trans. denied.

[10] Statements are hearsay under Indiana Evidence Rule 801 if they were made out 

of court and are offered to prove the truth of the matter asserted. But this Court 

has held that a confidential informant’s statements recorded in the course of a 

controlled drug buy are not offered by the State for the truth of those 

statements, but merely to prompt responses from the defendant being recorded, 

and, therefore, those statements are not hearsay. Lehman v. State, 926 N.E.2d 

35, 38 (Ind. Ct. App. 2010), trans. denied. See also Vaughn v. State, 13 N.E.3d 

873, 880 (Ind. Ct. App. 2014) (concluding that videos of drug transactions 

merely showed the conduct of the CI and defendant and that a detective’s 

testimony regarding the videos was not hearsay because it was based on the 

detective’s personal observation and did not relay an out-of-court statement), 

trans. denied. Therefore, despite Cain’s assertions to the contrary, C.H.’s 

statements were not inadmissible hearsay and were not subject to the 
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Confrontation clause. Thus, the trial court did not commit fundamental error 

when it admitted C.H.’s statements at Cain’s trial.

B. Admission of Detective Teuton’s Testimony

[11] Cain next asserts that Detective Teuton gave a lay opinion as to what the video 

recordings demonstrated in violation of Indiana Evidence Rule 701. In Groves 

v. State, 456 N.E.2d 720, 723 (Ind. 1983), our supreme court held that, because 

photographs and videos admitted as substantive evidence speak for themselves, 

lay witnesses’ opinions of that evidence invade the province of the jury. 

However, Groves predated the adoption of Evidence Rule 701. As we have 

explained:

More recently, however, this court has held that the lay opinion 

of a police officer familiar with the defendant was admissible 

under Indiana Evidence Rule 701 as being helpful to the jury in 

reaching a decision about the identification of the person 

depicted in a videotape admitted as a silent witness. See Gibson v. 

State, 709 N.E.2d 11, 15 (Ind. Ct. App. 1999) (citing United States 

v. Stormer, 938 F.2d 759, 762 (7th Cir. 1991)), trans. denied. At 

first blush, the holding in Gibson seems inconsistent with the 

above-quoted portion of Groves. However, Groves was decided 

before the adoption of Evidence Rule 701, upon which Gibson

relied. Furthermore, the holding of Groves was that the State had 

failed to lay a sufficient evidentiary foundation for the 

photograph. 456 N.E.2d at 723.

Goodson v. State, 747 N.E.2d 1181, 1184 (Ind. Ct. App. 2001), trans. denied; see 

also Keller v. State, 25 N.E.3d 807, 814 (Ind. Ct. App. 2015) (recognizing that a 
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police officer’s identification of a defendant, with whom the officer is familiar,

in a video can be helpful to the jury and is admissible), trans. pending.

[12] Here, Detective Teuton’s descriptions of the videos helped the jury identify 

Cain in the videos and understand the language used in the videos with respect 

to the transaction. Thus, Cain cannot demonstrate fundamental error on this 

issue.2

Issue Two: Sufficiency of the Evidence

[13] Cain also contends that the State presented insufficient evidence to support his 

convictions. Our supreme court has held that, when there is substantial 

evidence of probative value to support a conviction, it will not be set aside. 

Jones v. State, 783 N.E.2d 1132, 1139 (Ind. 2003). When reviewing the 

sufficiency of the evidence to support a conviction, we must consider only the 

probative evidence and reasonable inferences supporting the conviction. See 

Dallaly v. State, 916 N.E.2d 945, 950 (Ind. Ct. App. 2009). We do not assess 

witness credibility or reweigh the evidence. Id. We consider conflicting 

evidence most favorably to the trial court’s ruling. Id. We affirm the conviction 

unless “no reasonable fact finder could find the elements of the crime proven 

beyond a reasonable doubt.” Id. (quoting Jenkins v. State, 726 N.E.2d 268, 270 

 

2 We note that pages 99-120 are missing from the trial transcript, which contain portions of Detective 

Teuton’s testimony on cross-examination on redirect. Regardless, their absence does not affect the outcome 

here.
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(Ind. 2000)). Evidence is sufficient if an inference may reasonably be drawn 

from it to support the conviction. Id.

[14] To prove Dealing in Cocaine under Indiana Code Section 35-48-4-1(a)(1), the 

State was required to show that Cain knowingly or intentionally delivered 

cocaine to C.H.. Cain contends that he was not identified by any admissible 

evidence, that no hand-to-hand delivery from Cain to C.H. was recorded, and 

that the State did not prove that the drugs C.H. turned over to Detective Teuton

for testing were the same ones sold to her by Cain.

[15] As was discussed above, the trial court did not err by admitting either the 

recordings or the testimony of Detective Teuton. Thus, insofar as Cain’s 

argument here is premised on the exclusion of this evidence, Cain’s argument 

must fail. In light of that evidence, the State presented sufficient evidence to 

support the jury’s finding that Cain sold crack cocaine to C.H. We affirm 

Cain’s convictions.

Issue Three: Sentencing

[16] Finally, Cain contends that his aggregate sentence of twenty years executed is

inappropriate in light of the nature of the offense and his character, and he 

instead requests that we impose an aggregate term of thirteen years executed.

Article 7, Sections 4 and 6 of the Indiana Constitution “authorize[] independent 

appellate review and revision of a sentence imposed by the trial court.” Roush v. 

State, 875 N.E.2d 801, 812 (Ind. Ct. App. 2007) (alteration original). This 

appellate authority is implemented through Indiana Appellate Rule 7(B). Id. 
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Revision of a sentence under Rule 7(B) requires the appellant to demonstrate 

that his sentence is inappropriate in light of the nature of his offense and his 

character. See Ind. Appellate Rule 7(B); Rutherford v. State, 866 N.E.2d 867, 873 

(Ind. Ct. App. 2007). We assess the trial court’s recognition or non-recognition 

of aggravators and mitigators as an initial guide to determining whether the 

sentence imposed was inappropriate. Gibson v. State, 856 N.E.2d 142, 147 (Ind.

Ct. App. 2006). “[A] defendant must persuade the appellate court that his or 

her sentence has met th[e] inappropriateness standard of review,” Roush, 875 

N.E.2d at 812, and we recognize the special expertise of the trial court in 

making sentencing decisions, Davis v. State, 851 N.E.2d 1264, 1267 (Ind. Ct.

App. 2006).

[17] Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate 

sentence to the circumstances presented, and the trial court’s judgment “should 

receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222, 1224 

(Ind. 2008). The principal role of appellate review is to attempt to “leaven the 

outliers.” Id. at 1225. Whether we regard a sentence as inappropriate at the 

end of the day turns on “our sense of the culpability of the defendant, the 

severity of the crime, the damage done to others, and myriad other facts that 

come to light in a given case.” Id. at 1224.

[18] Cain asserts that his sentence is inappropriate in light of the nature of the 

offenses and his character because he earned his GED while incarcerated in 

2011, he is writing and hopes to publish a book, he has struggled with a drug 

problem, and he would like to return to Michigan to be with his family. But the 
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trial court accounted for those facts and found them to be insignificant. 

Moreover, Cain committed the instant offenses while on probation for another 

crime, just three months after he had been placed on that probation. Further, 

Cain has four prior convictions, including three felonies, two of which were for 

dealing in cocaine. Thus, we cannot say that Cain’s sentence is inappropriate.

[19] Affirmed.

Riley, J., and Barnes, J., concur.