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:

STEVEN E. RIPSTRA GREGORY F. ZOELLER

Jasper, Indiana Attorney General of Indiana

JODI KATHRYN STEIN

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

ALEXANDER A. LOPEZ, )

)

Appellant-Defendant, )

)

vs. ) No. 63A04-1201-CR-35

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE PIKE CIRCUIT COURT

The Honorable Jeffrey L. Biesterveld, Judge 

Cause No. 63C01-1110-CM-186 

December 28, 2012

MEMORANDUM DECISION - NOT FOR PUBLICATION

PYLE, Judge
2

STATEMENT OF THE CASE

Alexander Lopez (“Lopez”) appeals his conviction for class A misdemeanor 

dealing in marijuana.1

We affirm.

ISSUES

1. Whether there is sufficient evidence to support the conviction.

2. Whether the trial court abused its discretion in admitting evidence.

3. Whether fundamental error occurred when the State referred to 

Lopez’s speedy trial request.

4. Whether the trial court abused its discretion in denying Lopez’s motion for 

leave to file a belated motion to correct error.

FACTS

On October 2, 2011, deputies with the Pike County Sheriff’s Department executed 

a search warrant for the Winslow residence of Ryan Herald (“Herald”) after conducting 

several controlled drug buys. In addition to seizing several drug-related items from the 

residence, deputies seized Herald’s cell phone. 

Later that evening, Deputy Jeff Boger (“Deputy Boger”) took Herald’s cell phone 

back to the department in order to “go through it and . . . find out more information 

relating to . . . the sale and purchase of drugs.” (Tr. 52). After the phone started ringing, 

Deputy Boger checked the caller ID, which indicated that the caller’s name was “Flaco,” 

 

1

 Ind. Code § 35-48-4-10.
3

Lopez’s nickname. (Tr. 53). Without identifying himself, Deputy Boger answered the 

phone. Lopez, who apparently believed that he was speaking with Herald, “started off by 

asking for a ride . . . .” (Tr. 53). At some point in the conversation, Lopez “said he 

would give half an ounce . . . of marijuana” for a ride to Indianapolis. (Tr. 54). Deputy 

Boger “played along,” and told Lopez that he could provide him with a ride in exchange 

for marijuana. (Tr. 55). Deputy Boger arranged to meet Lopez at Herald’s residence the 

next morning.

The next morning, Deputy Boger and several other officers with the Pike County 

Sheriff’s Department and the Petersburg Police Department positioned themselves “four 

or five houses down from” Herald’s residence on County Road 300 East. (Tr. 56). 

Deputy Boger and Lopez telephoned “back and forth” several times. (Tr. 57). At one 

point, Lopez gave the phone to Joaquin Cunningham (“Cunningham”), who was driving 

Lopez from Evansville to Herald’s residence, and Deputy Boger spoke with 

Cunningham. As Lopez and Cunningham drove by the officers in Cunningham’s pick-up 

truck, Lopez mentioned the officers’ presence, but Deputy Boger reassured him that 

“they were cool.” (Tr. 80).

As Deputy Boger spoke with Lopez, Cunningham and Lopez drove “southbound 

past” the officers, “[w]ent out of sight briefly,” and then passed the officers again. (Tr. 

60). Because officers had discovered an AK-47 during the search of Herald’s residence

and did not know whether the truck’s occupants were armed, they initiated a stop of 

Cunningham’s vehicle. 
4

Officer Chad Tharp (“Officer Tharp”) ordered the occupants to put up their hands 

and exit the vehicle. Cunningham “[i]mmediately” put up his hands and exited the 

vehicle in accordance with the officer’s orders. (Tr. 87). Lopez started to comply with 

Officer Tharp’s commands but lowered his hands as he looked over his shoulder toward 

the officers. Lopez then reached down and leaned over toward the center of the truck’s 

cab before finally complying with Officer Tharp’s orders. 

After the officers read Cunningham and Lopez their Miranda rights, Cunningham 

consented to a search of his vehicle. Cunningham also volunteered that he had marijuana 

in his pocket. A search of Cunningham did reveal “a small bag of marijuana in his 

pocket.” (Tr. 156). Once the officers had handcuffed and seated Cunningham and 

Lopez, Officer Tharp overheard Lopez tell Cunningham that “he couldn’t go down for 

that . . . .” (Tr. 139).

During a search of the truck, Deputy Dallas Killian (“Deputy Killian”) located a 

baggie “on the transmission covering or hump . . . between the passenger and driver” 

sides. (Tr. 159). The baggie contained fourteen (14) grams, or one-half (1/2) ounce, of 

marijuana. Cunningham denied knowing anything about the marijuana discovered in the 

truck. Officers also recovered a bag belonging to Lopez in the cab.

After placing Lopez and Cunningham under arrest, deputies transported them to 

the Pike County Jail, where they were housed together. On October 4, 2011, 

Cunningham made a voluntary statement, wherein he represented the following:
5

I . . . am a witness that my cousin [Lopez] had no poss [sic] of marijuana or 

intent to sell. He was simply trying to get a ride to Indianapolis to get tires 

for his truck. The marijuana that was found in th[e] truck was in my 

possession because the truck was mine, [e]ven tho [sic] I was unaware of it 

being in there. [Lopez] had no awareness that the marijuana was in there as 

well.

(Lopez’s Ex. B).

On October 5, 2011, the State charged Lopez with Count 1, class A misdemeanor 

possession of marijuana, and Count 2, class A misdemeanor possessing marijuana with 

the intent to deliver. That same day, Rebecca Burns (“Burns”), Cunningham’s mother, 

spoke with Lopez on the telephone while Lopez was in jail. During the conversation, 

which was recorded and later transcribed, Lopez offered Burns money if Burns would 

telephone the prosecutor and try to get the charges against Lopez dropped. Lopez told 

Burns to represent that Lopez was her nephew and that he should be released because 

Cunningham had made a voluntary statement. Lopez told Burns that “they ain’t [sic] 

going to do nothing [sic] to” Cunningham for what would be a misdemeanor conviction 

whereas Lopez would get a harsher sentence because he was on parole at the time for 

“[d]rug dealing and trafficking cocaine . . . .” (State’s Ex. 4 at 19).

Subsequently, while Lopez was in court for a pre-trial hearing, Deputy John 

Palmer (“Deputy Palmer”) overheard Lopez tell a bailiff that “all [he] had was a small 

bag of marijuana and they’re trying to make a big deal of it.” (Tr. 120). On another 

occasion, Deputy Palmer overheard Lopez say that “[a]ll [he] had was a small bag of 
6

marijuana.” (Tr. 121). Lopez made this statement after meeting with the prosecutor and 

his counsel.

The trial court commenced a two-day jury trial on December 12, 2011. During the 

trial, Cunningham testified that he had purchased the marijuana found in the truck 

approximately three days prior to being stopped, but he had forgotten “where [he] put it.” 

(Tr. 297). Cunningham further testified that he usually purchased his marijuana from a 

“Michael Smith,” but he did not know “for sure” the name of the person from whom he 

purchased the marijuana found in the truck. (Tr. 280). He also did not know what the 

person looked like or where he had purchased the marijuana. He testified that he usually 

purchased only “very little sacks” of marijuana and seldom purchased “halves and ounces 

. . . .” (Tr. 281). 

Also during the trial, the trial court, over Lopez’s objections, admitted into 

evidence the recording of the telephone call between Lopez and Burns and the deposition 

testimony of Deputy Don Burkhart (“Deputy Burkhart”), who was unavailable for trial. 

Deputy Burkhart testified that he had observed Lopez and Cunningham having a 

conversation, “being led primarily by” Lopez, in the jail’s outdoor recreation area shortly 

before Cunningham requested a voluntary statement form from the deputies. (State’s Ex. 

3 at 8). 

On the morning of the second day of the trial, the State advised the trial court and 

Lopez’s counsel that as Deputy Killian was leading Lopez out of the courtroom following 

the prior day’s proceedings, the jurors also were leaving the courtroom “and some of 
7

them may have seen [Lopez] in handcuffs.” (Tr. 208). The State reported that Lopez 

then 

had an outburst and attempted to draw the fact that he was in handcuffs to 

the attention of more jurors by raising his hands up and . . . gesturing with 

the handcuffs and . . . saying words to the effect of: See. They’ve got me 

in handcuffs. See. They’ve got me in handcuffs. 

(Tr. 208-09). Deputy Killian hurried Lopez into an elevator and went straight to the first 

floor. Upon exiting the elevator, however, Lopez noticed that some of the jurors had 

reached the first floor, and he again “attempted to bring the fact that he was handcuffed to 

the attention of the jurors” before being “forcibly removed” from the courthouse by 

Deputy Killian. (Tr. 209).

Outside the presence of the jury and after consulting with Lopez, Lopez’s counsel 

advised the trial court that Lopez was merely upset because he was handcuffed despite

already being restrained by a knee brace. Lopez’s counsel then sought a mistrial “due to 

the fact that there was knowledge [Lopez] had a knee brace on. It was a restraining 

device used by the officers . . . [a]nd there was no need for the handcuffs . . . .” (Tr. 212-

12).

In order to determine whether there was any prejudice, the trial court voir dired the 

jurors regarding what they observed or heard after leaving the courtroom. Juror #1 saw 

nothing. Juror #2 “wasn’t paying attention” and did not know whether Lopez was 

handcuffed or not. (Tr. 221). Juror #3 did not see Lopez wearing handcuffs but heard 

Lopez say, “you’re not suppose [sic] to see me in handcuffs.” (Tr. 223). Juror #4 did 
8

observe Lopez wearing handcuffs but “assumed he would be in handcuffs going back and 

forth from [the courtroom] to the jail.” (Tr. 226). Juror #5 observed Lopez being placed 

in a police vehicle but “didn’t pay that much attention” to whether he was handcuffed. 

(Tr. 230). Juror #6 denied seeing Lopez in handcuffs. The alternate juror “didn’t pay 

attention” to Lopez as they were leaving the courtroom. (Tr. 236). All of the jurors 

indicated that they could be fair and impartial and nothing that they saw or heard would 

affect the presumption of innocence. The trial court therefore denied Lopez’s motion for 

mistrial.

The jury found Lopez guilty on both counts. At the sentencing hearing, the trial 

court merged Count 1 with Count 2 and imposed a 365-day sentence to be served in the 

Pike County Security Center. The trial court further ordered that the sentence run 

consecutively to the sentences imposed under three other cause numbers.

Lopez, pro se, filed a notice of appeal on January 24, 2012. On February 6, 2012, 

Lopez, by counsel, filed an amended notice of appeal. On April 5, 2012, the Court 

Reporter for the Pike Circuit Court (the “Court Reporter”) filed the trial transcript. 

On April 25, 2012, Lopez filed a motion for leave to file a belated motion to 

correct error pursuant to Indiana Post-Conviction Rule 2 after his appellate counsel 

discovered that State’s Exhibits 3 and 4 had not been “transcribed in the trial 

Transcript[.]” (App. 178). Specifically, Lopez sought “to hold an evidentiary hearing, in 

order to make a complete record for appeal; which hearing may likely consist of 
9

testimony from police officers present during the ‘handcuff’ incident, along with the 

seven (7) jurors . . . .” (App. 179).

On May 23, 2012, Lopez also filed a motion with this Court, seeking to stay and 

remand his appeal to the trial court, or in the alternative, for an extension of time to file 

his appellant’s brief. This Court ordered the Court Reporter to transcribe the two audio 

exhibits, to file a supplemental transcript, and to file an amended notice of completion of 

the transcript, thirty (30) days after which Lopez’s brief would be due. On May 18 and 

June 18, 2012, the Court Reporter filed notice of the filing of the transcript of State’s 

Exhibit 3 and State’s Exhibit 4, respectively. 

At some point, the trial court held a hearing on Lopez’s motion, and on June 18, 

2012, the trial court denied the motion. Specifically, the court explained that it denied the 

motion because Lopez’s direct appeal was pending in this Court. Lopez now appeals his 

conviction as well as the denial of his motion. 

DECISION

1. Sufficiency of the Evidence

Lopez asserts that the evidence is insufficient to support his conviction for dealing 

in marijuana. 

When reviewing the sufficiency of the evidence to support a 

conviction, appellate courts must consider only the probative evidence and 

reasonable inferences supporting the verdict. It is the fact-finder’s role, not 

that of appellate courts, to assess witness credibility and weigh the evidence 

to determine whether it is sufficient to support a conviction. To preserve 

this structure, when appellate courts are confronted with conflicting 

evidence, they must consider it most favorably to the trial court’s ruling. 
10

Appellate courts affirm the conviction unless no reasonable fact-finder 

could find the elements of the crime proven beyond a reasonable doubt. It 

is therefore not necessary that the evidence overcome every reasonable 

hypothesis of innocence. The evidence is sufficient if an inference may 

reasonably be drawn from it to support the verdict.

Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (quotations and citations omitted).

To convict Lopez of class A misdemeanor possession of marijuana with intent to 

deliver, the State was required to prove that he knowingly or intentionally possessed 

thirty (30) grams or less of marijuana with the intent to deliver it to another person. See

I.C. § 35-48-4-10.

This court has long recognized that a conviction for possession of 

contraband may be founded upon actual or constructive possession. 

Constructive possession is established by showing that the defendant has 

the intent and capability to maintain dominion and control over the 

contraband. 

In cases where the accused has exclusive possession of the premises 

on which the contraband is found, an inference is permitted that he or she 

knew of the presence of contraband and was capable of controlling it. 

However, when possession of the premises is non-exclusive, the inference 

is not permitted absent some additional circumstances indicating 

knowledge of the presence of the contraband and the ability to control it. 

Among the recognized “additional circumstances” are: (1) incriminating 

statements by the defendant; (2) attempted flight or furtive gestures; (3) a 

drug manufacturing setting; (4) proximity of the defendant to the 

contraband; (5) contraband is in plain view; and (6) location of the 

contraband is in close proximity to items owned by the defendant. 

Holmes v. State, 785 N.E.2d 658, 660-61 (Ind. Ct. App. 2003) (citations omitted). 

It is undisputed that Lopez did not exercise exclusive control of the vehicle. Thus, 

the State was required to present evidence of additional circumstances indicating his 

knowledge of the presence of the marijuana and his ability to control it.
11

In this regard, the State presented evidence that Lopez made several incriminating 

statements. Namely, he offered one-half ounce of marijuana to Deputy Boger in 

exchange for a ride to Indianapolis. Officers later found one-half ounce of marijuana in 

the truck. Lopez also made statements about the amount of marijuana found in the truck, 

stating that he only had a “small” amount. (Tr. 120, 121). 

The State also presented evidence that Lopez made furtive gestures after being 

stopped by the police. Officers testified that despite numerous commands to put up his 

hands, Lopez lowered them, out of the officers’ sight, as he leaned down and toward the 

center of the truck. Deputy Killian discovered the bag of marijuana in plain view on the 

floor of the truck, in the area where Lopez had made his furtive movements and in an 

area to which Lopez had access. Officers also discovered items belonging to Lopez in 

the cab of the truck.

Contrary to Lopez’s assertion, this case is not analogous to Brent v. State, 957 

N.E.2d 648 (Ind. Ct. App. 2011), trans. denied. In that case, this court found insufficient 

evidence of constructive possession of marijuana, where the suspicious behavior was 

attributable to the driver, not Brent, the passenger. Here, however, suspicious behavior 

was also attributable to passenger Lopez. 

Here, the State presented evidence to support Lopez’s conviction for possession of 

marijuana with the intent to deliver it to another person. Indiana Code § 35-48-1-11 

defines “delivery” as meaning the actual or constructive transfer of a controlled substance 

from one person to another. Because intent is a mental state, triers of fact generally must 
12

resort to the reasonable inferences arising from the surrounding circumstances to 

determine whether the requisite intent exists. Love v. State, 741 N.E.2d 789, 792 (Ind. 

Ct. App. 2001). Circumstantial evidence showing possession with intent to deliver may 

support a conviction. Id.

In this case, the State presented evidence that Lopez, believing he was speaking to 

Herald, offered Deputy Boger one-half ounce of marijuana in exchange for a ride to 

Indianapolis. Deputy Boger agreed and arranged to meet Lopez the next day. The 

following day, Lopez spoke with Deputy Boger on the phone, intending to meet him as 

arranged. When Deputy Killian searched the truck in which Lopez was riding, he 

discovered one-half ounce of marijuana in the truck. Given the evidence, the jury could 

reasonably infer that Lopez intended to deliver the marijuana to Deputy Boger. We 

decline Lopez’s invitation to reweigh the evidence or judge the credibility of the 

witnesses.

2. Admission of Evidence

Lopez also asserts that the trial court abused its discretion in admitting the 

recording of the telephone conversation between Lopez and Burns wherein Lopez briefly 

mentioned his parole three times, referred to his prior period of incarceration twice, and 

referred to his prior conviction once. Specifically, Lopez argues that the evidence was 

irrelevant; prejudicial; and prohibited by Evidence Rule 404(b), which provides that 

“[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a 

person in order to show action in conformity therewith.”
13

Generally, a trial court’s ruling on the admissibility of evidence is reviewed for an 

abuse of discretion. Hape v. State, 903 N.E.2d 977, 991 (Ind. Ct. App. 2009), trans. 

denied. We will reverse a trial court’s decision only if it clearly against the logic and 

effect of the facts and circumstances of the case. Id. Even if the decision was an abuse 

of discretion, we will not reverse if the admission of evidence constituted harmless error. 

Id. 

Here, we need not decide whether the trial court improperly admitted the 

conversation because we conclude any error to be harmless. 

No error in the admission of evidence is grounds for setting aside a 

conviction unless such erroneous admission appears inconsistent with 

substantial justice or affects the substantial rights of the parties. The 

improper admission of evidence is harmless error when the conviction is 

supported by such substantial independent evidence of guilt as to satisfy the 

reviewing court that there is no substantial likelihood that the questioned 

evidence contributed to the conviction. 

Lafayette v. State, 917 N.E.2d 660, 668 (Ind. 2009) (internal citations omitted). 

A reversal may be obtained only if the record as a whole discloses that the 

erroneously admitted evidence was likely to have had a prejudicial impact upon the mind 

of the average juror and thereby contributed to the verdict. Granger v. State, 946 N.E.2d 

1209, 1217 (Ind. Ct. App. 2011). Thus, the question is not whether there is sufficient 

evidence to support the conviction absent the erroneously admitted evidence, but whether 

the evidence was likely to have had a prejudicial impact on the jury. Shepherd v. State, 

902 N.E.2d 360, 364 (Ind. Ct. App. 2009), trans. denied.
14

Here, Deputy Boger testified that Lopez offered him one-half ounce of marijuana 

in exchange for a ride to Indianapolis. The State presented evidence that Lopez 

possessed one-half ounce of marijuana on the day and at the place that he and Deputy 

Boger had arranged to meet. The State also presented evidence that Lopez made 

incriminating statements. 

As to the recording, the jury heard approximately fifteen minutes of a telephone 

conversation between Lopez and Burns wherein Lopez offered money if Burns would 

telephone the prosecutor and the judge and tell them to release him because Cunningham 

admitted that the marijuana was in his possession. Also in the recording, Lopez briefly 

mentioned his parole three times, referred to his prior period of incarceration twice, and 

referred to his prior conviction once. As to the jury hearing “themselves characterized as, 

in essence and paraphrasing, ‘country redneck gringos,’” (Lopez’s Br. at 13), it was 

Burns, not Lopez, who stated that Lopez and Cunningham were in “redneck” and 

“gringo” territory. (State’s Ex. 4 at 10, 11).

In light of the evidence, particularly Lopez’s incriminating statements, we cannot 

say that admitting the recording had a prejudicial impact on the jury. We therefore find 

that any error in admitting the evidence must be disregarded as harmless.

3. Fundamental Error

During defense counsel’s cross examination of Deputy Boger, defense counsel 

implied that the State was behind schedule on discovery. The State objected and 

explained to the trial court that the State was under a time constraint because of the 
15

defendant’s assertion of his right to a speedy trial. Because Lopez did not object to the 

State’s reference to the assertion of his right to a speedy trial at trial, Lopez now contends 

that this reference constituted fundamental error.

Fundamental error is a substantial, blatant violation of basic principles of due 

process that render the trial unfair to the defendant. Stafford v. State, 736 N.E.2d 326, 

332 (Ind. Ct. App. 2000), trans. denied. The fundamental error doctrine is extremely 

narrow. Wooden v. State, 757 N.E.2d 212, 215 (Ind. Ct. App. 2000), trans. denied. In 

order to qualify as fundamental error, the error must be so prejudicial to the rights of the 

defendant as to make a fair trial impossible. Mitchell v. State, 726 N.E.2d 1228 (Ind. 

2000), abrogated on other grounds by Beattie v. State, 924 N.E.2d 643 (Ind. 2012).

Here, Lopez’s cursory one-page argument fails to allege how he was prejudiced by 

this comment and how it made a fair trial impossible. Further, our review of the 

transcript reveals no such prejudice. We find no fundamental error. 

4. Motion to Correct Error

Lopez contends that the trial court abused its discretion in denying his motion for 

leave to file a belated motion to correct error. Lopez argues that he should be allowed “to 

make a better record with respect to the juror examination conducted on th[e] issue” of 

whether he was prejudiced by being in the jurors’ presence while in handcuffs. Lopez’s 

Br. at 17.

Lopez’s argument fails for several reasons. First, the State correctly points out 

that this Court acquired jurisdiction when the notice of completion of clerk’s record was 
16

filed on February 6, 2012. See Ind. Appellate Rule 8. The appeal of a conviction has the 

effect of transferring jurisdiction of the case to the appellate court and suspending any 

further trial court jurisdiction over the action. Bradley v. State, 649 N.E.2d 100, 106 (Ind. 

1995). The trial court therefore lacked the authority to rule on Lopez’s motion and 

properly denied the motion on that basis.

Second, the State also correctly points out that Indiana Post-Conviction Relief 

Rule 2(2) is not the proper avenue of relief for Lopez to pursue. Specifically, pursuant to 

Rule 2(2), an eligible defendant who is entitled to relief on a belated motion to correct 

error is a defendant who, but for the defendant’s failure to do so timely, would have the 

right to challenge on direct appeal a conviction or sentence after a trial or plea of guilty 

by filing a notice of appeal. Here, however, Lopez timely filed a notice of appeal. He is 

therefore not eligible to proceed under this rule.

Lastly, even if the trial court had jurisdiction to rule on the motion, and Lopez was 

eligible to proceed under Rule 2(2), his argument would still fail. This Court reviews the 

denial of a belated motion to correct error for an abuse of discretion. Moshenek v. State, 

868 N.E.2d 419, 422 (Ind. 2007). Our review of the evidence reveals that the situation 

regarding the jurors seeing Lopez in handcuffs was promptly brought to the attention of 

the trial court, and the jurors were individually questioned about what they had seen. 

They were also asked whether what they had seen was in any way going to influence 

them to believe that Lopez’s guilt was a foregone conclusion, and whether they had 

formed at that point any conclusion as to Lopez’s guilt or innocence. All seven jurors 
17

stated they would be fair and impartial. Although Lopez had the opportunity to question 

officers about the incident, he failed to call them to the stand. Lopez provides no 

compelling reason for this Court to allow him to supplement the trial record with 

additional evidence. This is particularly true given that Lopez is, in part, responsible for 

calling jurors’ attention to the fact that he was handcuffed. See Wright v. State, 828 

N.E.2d 904 (Ind. 2005) (explaining that under the invited error doctrine, a party may not 

take advantage of an error that he commits, invites, or which is the natural consequence 

of his own neglect or misconduct). We find no error.

Affirmed.

FRIEDLANDER, J., and BROWN, J., concur.