Court of Appeals of Indiana | Memorandum Decision 09A05-1702-CR-283 | July 31, 2017 Page 1 of 16

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

Mark K. Leeman

Leeman Law Office and Cass County 

Public Defender

Logansport, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General

Katherine Cooper

Deputy Attorney General 

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Ronnell Roberts,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

July 31, 2017

Court of Appeals Case No.

09A05-1702-CR-283

Appeal from the Cass Superior 

Court

The Honorable Richard 

Maughmer, Judge

Trial Court Cause No.

09D02-1605-F2-8

Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 09A05-1702-CR-283 | July 31, 2017 Page 2 of 16

Case Summary

[1] A jury convicted Ronnell Roberts of level 2 felony dealing in cocaine and class 

A misdemeanor dealing in marijuana. Roberts now appeals, challenging the 

admission of certain evidence at trial as well as the sufficiency of the evidence 

to support his convictions. Concluding that he has failed to establish an abuse 

of discretion in the trial court’s admission of evidence and finding the evidence 

sufficient to support his convictions, we affirm. 

Facts and Procedural History

[2] The facts most favorable to the verdicts are as follows. In May 2016, Roberts

and his wife Hollie rented a room in a single-family residence owned by Paula 

Lamb. Two weeks later, Logansport police received an anonymous complaint 

concerning drug activity and suspicious odors emanating from the house. 

Officers James Klepinger and Jason Shideler went to the house and spoke with 

Lamb, who invited them in and informed them that she lived there with her 

daughter and her daughter’s fiancé and that she had rented a room to “Nello” 

and Hollie. Tr. at 33, 38-39, 57-58, 135, 142. Per the officers’ request, Lamb 

escorted them to the rented room upstairs. As they approached the room, they 

detected the odor of marijuana. When Lamb opened the door, the odor was 

significantly stronger. Burnt marijuana cigarette butts were on a plate on the 

headboard of the bed, and Roberts and Hollie were sitting on the bed. Roberts 

reported that he had been renting the room for about two weeks. 
Court of Appeals of Indiana | Memorandum Decision 09A05-1702-CR-283 | July 31, 2017 Page 3 of 16

[3] Police searched the room and found several personal items, including clothing, 

identification, a handbag, and two cell phones. They also discovered two velvet 

bags inside a dresser drawer. Inside the purple bag, they found nine 

individually knotted baggies, four of which were later found to contain an 

equally sized off-white rock substance, and five of which contained even 

smaller portions of the same substance. In the same purple bag, police found a 

separate baggie containing a large rock of the same substance. Subsequent 

testing showed the rocks to be cocaine. Also inside the purple bag were a 

digital scale, razor blades, and several empty baggies. Inside the green velvet 

bag, police discovered a plastic bag containing twenty-four individually

wrapped bags of a green substance determined to be marijuana. 

[4] Officers obtained a search warrant for the two phones and determined which 

phone was Roberts’s by using contact information and a reference to the user as 

“Nello.” Id. at 134-35, 140, 142. The phone determined to be Roberts’s 

contained a close-up photo of Roberts as well as photos of marijuana.

[5] The State charged Roberts with level 2 felony dealing in cocaine (at least ten 

grams); level 4 felony cocaine possession (at least ten grams); and class A 

misdemeanor dealing in marijuana. The State requested permission to conduct 

a videotaped deposition of forensic scientist Kimberly Ivanyo, who had 

conducted the lab tests on the suspected illegal substances, to be used at trial. 

The trial court granted the State’s request, and Roberts appeared in person and 

by counsel at the deposition. During his subsequent jury trial, Roberts objected 

to the admission of Ivanyo’s deposition, as well as her certificate of analysis
Court of Appeals of Indiana | Memorandum Decision 09A05-1702-CR-283 | July 31, 2017 Page 4 of 16

regarding the weight and composition of the substances tested. He also 

objected to the admission of text messages extracted from his cell phone. The 

jury convicted him as charged, and the trial court vacated his conviction for 

level 4 felony cocaine possession. The trial court sentenced him to an aggregate 

thirty-one-year term.

[6] Roberts now appeals. Additional facts will be provided as necessary.

Discussion and Decision

Section 1 – Roberts has failed to establish an abuse of 

discretion in the trial court’s admission of the challenged 

evidence.

[7] Roberts challenges the admission of certain evidence during his jury trial. We 

review rulings on the admission or exclusion of evidence for an abuse of 

discretion resulting in prejudicial error. Williams v. State, 43 N.E.3d 578, 581 

(Ind. 2015). An abuse of discretion occurs when the trial court’s decision is 

clearly against the logic and effect of the facts and circumstances before it or 

where the trial court misinterprets the law. Id. 

[8] Particularly, Roberts challenges the trial court’s admission of certain text 

messages extracted from his cell phone as well as Ivanyo’s deposition testimony 

concerning the weight of the cocaine seized from his rented room. We address 

each separately.
Court of Appeals of Indiana | Memorandum Decision 09A05-1702-CR-283 | July 31, 2017 Page 5 of 16

A. Text messages 

[9] Roberts objected to the admission of the extracted text messages on grounds of 

authenticity, relevance, and hearsay. To lay a foundation for admission, 

writings and recordings must be authenticated pursuant to Indiana Evidence 

Rule 901(a). Hape v. State, 903 N.E.2d 977, 990 (Ind. Ct. App. 2009), trans. 

denied. Evidence Rule 901(a) reads, “To satisfy the requirement of 

authenticating or identifying an item of evidence, the proponent must produce 

evidence sufficient to support a finding that the item is what the proponent 

claims it is.” Absolute proof of authenticity is not required, but rather only a 

reasonable probability that the document is what it purports to be. Fry v. State, 

885 N.E.2d 742, 748 (Ind. Ct. App. 2008), trans. denied. Once a reasonable 

probability is shown, any inconclusiveness concerning the exhibit’s connection 

to the events at issue goes to the exhibit’s weight, not its admissibility. Pavlovich 

v. State, 6 N.E.3d 969, 976 (Ind. Ct. App. 2014), trans. denied. 

[10] Roberts claims that the State failed to establish that he was the sender of the 

extracted messages. We disagree. Police recovered two cell phones from the 

room that Roberts rented with Hollie. Because one of the phones listed Hollie 

as a frequent contact, police determined that it was Roberts’s phone and sought

to extract information from it. They obtained a search warrant and extracted 

several text message conversations purportedly between Roberts and others. In 

one of the extracted messages, the sender referred to himself as “Nello.” See

State’s Ex. 44k (“Well if this mike its nello i was wondering if you still have lab 

t op”). This nickname is consistent with Roberts’s first name “Ronnell” as well 
Court of Appeals of Indiana | Memorandum Decision 09A05-1702-CR-283 | July 31, 2017 Page 6 of 16

as with the nickname by which his landlady referenced him to police. The cell 

phone also contained what appeared to be a close-up “selfie” photograph of 

Roberts. State’s Ex. 46. The trial court properly found the cell phone and text 

messages to be authenticated as Roberts’s.

[11] Roberts also contends that the extracted text messages lacked relevance and 

were highly prejudicial. In general, all relevant evidence is admissible. Ind. 

Evidence Rule 402; Wilson v. State, 4 N.E.3d 670, 675 (Ind. Ct. App. 2014), 

opinion on reh’g, trans. denied. Indiana Evidence Rule 401 provides that evidence 

is relevant if it has any tendency to make a fact more or less probable than it 

would be without the evidence and the fact is of consequence in determining 

the action. The trial court has the discretion to admit even marginally relevant 

evidence. Wilson, 4 N.E.3d at 675. Notwithstanding, Indiana Evidence Rule 

403 allows the trial court to “exclude relevant evidence if its probative value is 

substantially outweighed by a danger of ... unfair prejudice.” 

[12] Excerpts from the extracted text messages sent from Roberts’s phone include 

the following:

Sent: Hey its some decent sh*t G cause im out of state so I got 

distinguish myself from the rest in town so I can get the bread

....

Sent: Im coming thru east chicago now and I was wondering if 

its good sh*t cause im coming from out of state and got to 

distinguish myself with better sh*t then the town
Court of Appeals of Indiana | Memorandum Decision 09A05-1702-CR-283 | July 31, 2017 Page 7 of 16

Sent: to make bread

....

Sent: You think dude rock be having some hood sh*t

....

Sent: Im on the highway now ill hustle and make due with 

whatever you hook me up with

....

Sent: Im going back to Chicago its there today I cant keep sitting 

dry aint making no money and I want to still be sitting on 

something when I pay you back or it will defeat the purpose of 

ever borrowing anything to come up you know

....

Sent: My guy aint coming back I got to take the cash to them 

and its mids

....

Sent: Mothers day weekend deal before I go until I come back

State’s Exs. 44a, 44f, 44h, 44i, 44j.

[13] These excerpts from Roberts’s text messages are highly probative of Roberts’s 

intent to deal (not merely use) cocaine and marijuana. This is especially true

when the messages are considered in conjunction with the quantity of the drugs

recovered, their packaging, and the presence of paraphernalia such as razor 

blades and a digital scale. As for Roberts’s claims of unfair prejudice, we 
Court of Appeals of Indiana | Memorandum Decision 09A05-1702-CR-283 | July 31, 2017 Page 8 of 16

observe that, except as previously referenced, the messages are largely 

mundane, sometimes in code,1 and sometimes speaking merely to his 

whereabouts. The relevancy of the text messages was not substantially 

outweighed by any danger of prejudice, and Roberts has failed to establish an 

abuse of discretion for the admission of the messages on this basis. 

[14] Roberts also asserts that the text messages were inadmissible on hearsay 

grounds. Hearsay is a statement not made by the declarant while testifying at 

the trial or hearing and offered in evidence to prove the truth of the matter 

asserted. Ind. Evidence Rule 801(c). Hearsay is generally inadmissible under 

Indiana Evidence Rule 802. Harrison v. State, 32 N.E.3d 240, 254 (Ind. Ct. App. 

2015), trans. denied. Indiana Evidence Rule 801(d)(2)(A) provides that an 

opposing party’s out-of-court statement offered in evidence to prove the truth of 

the matter asserted is not hearsay if it is offered against the opposing party and 

was made by the party in an individual or representative capacity. Having 

authenticated the cell phone and its contents as belonging to Roberts, the State 

properly offered the statements contained in the extracted text messages as

statements of a party opponent. That said, we also note that neither Roberts’s 

“sent” messages nor the messages in his inbox were offered to prove the truth of 

the matters asserted in each of the statements, i.e., not offered to establish that 

out-of-state drugs are “better sh*t” that would distinguish Roberts from other

dealers in town. State’s Ex. 44a. Instead, the mere fact that Roberts sent the 

 

1

 To alleviate potential jury confusion, Officer Klepinger provided clarifying testimony.
Court of Appeals of Indiana | Memorandum Decision 09A05-1702-CR-283 | July 31, 2017 Page 9 of 16

messages was relevant to the issue of his being a drug dealer. We therefore 

conclude that the challenged text messages were properly admitted as nonhearsay. 

B. Ivanyo’s Deposition 

[15] Roberts also submits that the trial court abused its discretion in admitting 

Ivanyo’s deposition. Essentially, he claims that the State failed to lay a 

foundation as to Ivanyo’s competency to testify regarding the weight of the 

marijuana and cocaine and the accuracy of the scale used to weigh the cocaine 

seized from his rented room. Having reviewed Ivanyo’s deposition, we observe 

that the State elicited extensive testimony from Ivanyo concerning her 

educational and occupational credentials, i.e., a bachelor’s degree in chemistry 

from Purdue University, fifteen years’ experience as a forensic scientist with the 

State Police laboratory (having tested over 27,000 items), and testimony in

ninety-five previous cases. Ivanyo explained the nuances of analyzing plant 

matter versus powder or rock substances. State’s Ex. 8. The State established 

that Ivanyo was an experienced chemist, qualified to test the substances and 

testify concerning her findings.

[16] As for the accuracy of the scale that Ivanyo used in her testing, the State made 

only a passing reference to calibration but elicited her explanation concerning 

the margin of error of her results. We addressed the issue of scale calibration in 

Turner v. State, 878 N.E.2d 286, 294 (Ind. Ct. App. 2007), trans. denied (2008). 

There, as here, the trial court granted the State’s request to depose its forensic 

scientist on videotape due to her unavailability to testify at trial. Id. In Turner,
Court of Appeals of Indiana | Memorandum Decision 09A05-1702-CR-283 | July 31, 2017 Page 10 of 16

the State elicited no testimony from its scientist during her deposition 

concerning the calibration of the scale, and the defendant did not object or 

question her concerning the scale’s calibration but later objected at trial. Id. In 

affirming the trial court’s admission of the forensic scientist’s deposition, the 

Turner court reasoned,

We acknowledge that the State bears the burden to show that the 

scale used to measure the weight of the cocaine was properly 

calibrated. However, such is a foundational requirement and not 

an element of the controlled substance offense itself. When the 

foundation for the admission of evidence is at issue, this court 

has determined that before the prosecution has any responsibility 

to establish the foundation, the defense must object that the 

prosecution has not laid the proper foundation. Indeed, a party 

may not sit idly by and fail to object to the lack of a proper 

foundation and subsequently take advantage of that error when a 

timely objection could have permitted the proper foundation to 

be laid. 

As noted above, [the defendant] did not object during the 

deposition when [the scientist] was testifying as to the weight of 

the substances that she tested. As a result, the trial court properly 

admitted the evidence even though the State had not elicited 

testimony about the calibration of the scale. 

Id. (citations omitted). 

[17] Here, the State questioned Ivanyo as follows with respect to the accuracy of her 

results concerning the weight of the cocaine collected from Roberts’s rented 

room: 
Court of Appeals of Indiana | Memorandum Decision 09A05-1702-CR-283 | July 31, 2017 Page 11 of 16

Q. And [what] was your conclusion with regard to Item 1?

A. State’s Exhibit 1, four bags were examined, and each were 

found to contain cocaine, a controlled substance, and had a net 

weight of zero point three-three grams.

Q. And with regard then to State’s Exhibit 2, what was your

conclusion?

A. Item 2 was found to contain cocaine, a controlled substance, 

and had a net weight of ten point zero-zero grams plus or minus 

point zero-four grams.

Q. Okay, and what, what does the point zero-four grams 

indicate? Why, why is that there?

A. There’s some drugs that have a weight threshold. For 

example, cocaine, there’s a different charge if it’s below ten 

grams and above ten grams. So ten grams is kind of the magic 

number.

Q. Okay.

A. So we have to include the, the measurement certainty of the 

balance in that because it could be all the way up to ten point 

zero-four and as low as nine point nine-six. So anywhere in that 

range is where the weight could lie.

Q. Because on your, on your scientifically calibrated scale at the 

Indiana State Police lab, what did that reading come out to?

A. The reading read ten point zero-zero grams.

Q. Okay. So you’re trying to be as accurate as possible. You say 

it’s plus or minus four one-hundredths of a gram; is that right?

A. Correct.
Court of Appeals of Indiana | Memorandum Decision 09A05-1702-CR-283 | July 31, 2017 Page 12 of 16

Q. But with regards to then with the weight between the 

combination of State’s Exhibit 1 and 2, it puts it well over ten 

grams; is that correct?

A. That’s correct.

State’s Ex. 8 (emphasis added). 

[18] Roberts did not object when the State characterized Ivanyo’s scale as 

“scientifically calibrated,” or at any time thereafter during the deposition. Id. 

Nor did he avail himself of the opportunity to question Ivanyo as to the 

calibration of her scale or her testimony concerning the margin of error. By 

waiting until trial to challenge this foundational issue, he waived this issue for 

consideration on appeal. See Konopasek v. State, 946 N.E.2d 23, 27 (Ind. 2011) 

(failure to object to admission of evidence normally results in waiver and 

precludes appellate review). Even so, the challenged evidence was cumulative 

of other evidence, see State’s Exhibit 6 (certificate of analysis), and therefore 

would be considered harmless error. See Harrison, 32 N.E.3d at 254 (if 

erroneously admitted evidence was cumulative of other evidence, admission 

was harmless, not reversible, error). Roberts has failed to establish an abuse of 

discretion in admitting Ivanyo’s deposition.

Section 2 – The evidence is sufficient to support Roberts’s 

convictions.

[19] Roberts maintains that the evidence is insufficient to support his convictions. 

When reviewing a challenge to the sufficiency of evidence, we neither reweigh 
Court of Appeals of Indiana | Memorandum Decision 09A05-1702-CR-283 | July 31, 2017 Page 13 of 16

evidence nor judge witness credibility. Drane v. State, 867 N.E.2d 144, 146 (Ind. 

2007). Rather, we consider only the evidence and reasonable inferences most 

favorable to the verdict and will affirm the conviction “unless no reasonable 

fact-finder could find the elements of the crime proven beyond a reasonable 

doubt.” Id. It is therefore not necessary that the evidence “overcome every 

reasonable hypothesis of innocence.” Id. (citation omitted). 

[20] Roberts was convicted of level 2 felony dealing in cocaine and class A 

misdemeanor dealing in marijuana. To find Roberts guilty of the former, the 

State was required to prove beyond a reasonable doubt that he possessed with 

intent to deliver cocaine in an amount weighing at least ten grams. Ind. Code § 

35-48-4-1(a)(2), -(e)(1). To establish that Roberts committed the latter, the State 

was required to prove that he possessed marijuana with intent to deliver it. Ind. 

Code § 35-48-4-10(a)(2). 

[21] With respect to the quantity of cocaine recovered from Roberts’s room, the 

certificate of analysis as well as forensic scientist Ivanyo’s deposition testimony 

established its total weight to be just under twelve grams, i.e., 10 grams plus 

1.32 grams (0.33 grams x 4) plus 0.58 grams. State’s Exs. 6, 8. This exceeds 

the ten-gram threshold weight to establish the level 2 felony offense of dealing 

in cocaine. 

[22] The State charged both offenses as “possess[ion] with intent to deliver.” 

Because Roberts was not caught red-handed with the contraband on his person, 
Court of Appeals of Indiana | Memorandum Decision 09A05-1702-CR-283 | July 31, 2017 Page 14 of 16

the State was required to establish that he constructively possessed it. Gray v. 

State, 957 N.E.2d 171, 174 (Ind. 2011).

When the State cannot show actual possession, a conviction for 

possessing contraband may rest instead on proof of constructive 

possession. A person constructively possesses contraband when 

the person has (1) the capability to maintain dominion and 

control over the item; and (2) the intent to maintain dominion 

and control over it. 

A trier of fact may infer that a defendant had the capability to 

maintain dominion and control over contraband from the simple 

fact that the defendant had a possessory interest in the premises 

on which an officer found the item. We allow this inference even 

when that possessory interest is not exclusive. 

A trier of fact may likewise infer that a defendant had the intent 

to maintain dominion and control over contraband from the 

defendant’s possessory interest in the premises, even when that 

possessory interest is not exclusive. When that possessory 

interest is not exclusive, however, the State must support this 

second inference with additional circumstances pointing to the 

defendant’s knowledge of the presence and the nature of the 

item. We have previously identified some possible examples, 

including (1) a defendant’s incriminating statements; (2) a 

defendant’s attempting to leave or making furtive gestures; (3) the 

location of contraband like drugs in settings suggesting 

manufacturing; (4) the item’s proximity to the defendant; (5) the 

location of contraband within the defendant’s plain view; and (6) 

the mingling of contraband with other items the defendant owns.

Id. at 174-75 (citations omitted).
Court of Appeals of Indiana | Memorandum Decision 09A05-1702-CR-283 | July 31, 2017 Page 15 of 16

[23] Roberts claims that he did not maintain dominion and control over his rented

room. The record shows that he had been renting the room with his wife for 

approximately two weeks. As a lessee of the room, he had a possessory interest 

in the premises sufficient to support an inference that he was capable of 

maintaining dominion and control over it. Gray, 957 N.E.2d at 174. To the 

extent that he cites photographs depicting pink decorations in the room as 

evidence that he did not control the room’s environment, he invites us to 

reweigh evidence and reassess witness credibility, which we may not and will 

not do. 

[24] As for Roberts’s intent to maintain dominion and control, we note that all the 

contraband was found in close proximity to Roberts’s person and his personal 

belongings. When police arrived, the room had a strong smell of burnt 

marijuana, and Roberts was present in the room, sitting on the bed. On the 

headboard, in plain view, were burnt marijuana blunts. The photographic 

exhibits show that the premises rented by Roberts and his wife comprised a 

small to medium-sized bedroom. Nearly every part of the room was either 

within arm’s reach or within a few steps. Large quantities of drugs neatly 

packaged for sale were nestled, along with dealers’ tools, inside the dresser just

steps from where Roberts was sitting. Though he made no furtive gestures or 

incriminating remarks to police at the time, his incriminating statements in his 

extracted text messages also implicate him as a drug dealer. Roberts had the 

intent to maintain dominion and control over his inventory.
Court of Appeals of Indiana | Memorandum Decision 09A05-1702-CR-283 | July 31, 2017 Page 16 of 16

[25] In sum, the presence and proximity of the drugs and paraphernalia to Roberts, 

the quantity and packaging of the drugs, and the extracted text messages

combine to support a reasonable inference that Roberts possessed the drugs

with intent to deal them, not merely use them. The evidence most favorable to 

the verdicts is sufficient to support Roberts’s convictions. Accordingly, we 

affirm.

[26] Affirmed.

Baker, J., and Barnes, J., concur.