MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Aug 04 2017, 8:54 am court except for the purpose of establishing the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE James C. Spencer Curtis T. Hill, Jr. Dattilo Law Office Attorney General of Indiana Madison, Indiana Larry D. Allen Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Bruce Ashby, August 4, 2017 Appellant-Defendant, Court of Appeals Case No. 39A01-1610-CR-2341 v. Appeal from the Jefferson Circuit Court State of Indiana, The Honorable Steven M. Fleece, Appellee-Plaintiff. Senior Judge Trial Court Cause No. 39C01-1508-F2-773
Barnes, Judge.
Court of Appeals of Indiana | Memorandum Decision 39A01-1610-CR-2341 | August 4, 2017 Page 1 of 14 Case Summary [1] Bruce Ashby appeals his conviction by bench trial of attempted dealing in a
narcotic drug as a Level 2 felony. We affirm.
Issues [2] Ashby presents three issues:
I. whether the trial court erred in considering a prior ruling on a motion to suppress to be res judicata;
II. whether the trial court abused its discretion in admitting certain evidence; and
III. whether there was sufficient evidence to sustain his conviction.
Facts [3] On August 6, 2015, Harry Mercer voluntarily went to the Madison Police
Department and met with Detectives Jonathon Simpson and Kurt Wallace.
Mercer informed the detectives that he had been approached on multiple
occasions at a local bar by someone named Bruce, who wanted to sell him
prescription pills. Mercer did not know Bruce’s last name. However, Mercer
told Detective Simpson that Bruce lived on Lincoln Avenue in Madison, wore
an ankle monitor, and was on house arrest for selling prescription pills. From
this information, Detective Simpson recognized Bruce as Bruce Ashby.
Detective Simpson showed Mercer a photograph of Ashby, and Mercer
identified him as the man he knew as Bruce. Mercer was not a confidential Court of Appeals of Indiana | Memorandum Decision 39A01-1610-CR-2341 | August 4, 2017 Page 2 of 14 informant and was referred to by the detectives as a “concerned citizen” or a
“source of information.” Tr. p. 136. Mercer received no favorable treatment in
exchange for working with the detectives.
[4] While in the detectives’ presence, Mercer sent a text message to Ashby that
read, “Did you say they were Perks? If so [I] will take 20 of them and how
much each so [I] can stop and get the cash out of the bank [sic] please text me 1 back and let me know [sic] do I need to come to your house or [the bar]?”
State’s Ex. 3. Approximately five minutes later, Ashby replied by text message,
“Five my house.” State’s Ex. 19. Mercer was no longer in the presence of the
detectives when the reply was sent, as he and the detectives parted ways shortly
after Mercer sent the text message to Ashby.
[5] Detective Simpson and Detective Wallace travelled to the area where Ashby
lived. In route, they used a software system that allowed them to place a third-
party call to Ashby’s cell phone, making it appear as if the call originated from 2 Mercer’s cell phone. Once the call connected, Mercer asked Ashby to meet
him at a corner near Ashby’s house in twenty to thirty minutes because Mercer
1 “Perks” is street terminology for Percocet, a controlled substance that contains oxycodone and acetaminophen. Tr. pp. 14-15, 70, 152. 2 The software system, called Callyo, is a law enforcement telephone communication system. It allowed the detectives to create a three-way phone call between themselves, Mercer, and Ashby. Even though the detectives initiated the call, the software made it appear that Mercer placed the call to Ashby, and the caller I.D. on Ashby’s phone displayed Mercer’s phone number – not that of the detectives. Once the call connected, the software allowed the detectives to listen into the conversation between Mercer and Ashby without being detected, and the software automatically recorded and downloaded the call to a server for future access. See Tr. pp. 82-84.
Court of Appeals of Indiana | Memorandum Decision 39A01-1610-CR-2341 | August 4, 2017 Page 3 of 14 had “somebody with [him]” and he did not want to show that person where
Ashby lived. State’s Ex. 4. Mercer also relayed the information in text
messages. Once the detectives arrived in the area where Ashby lived, a second
call was made using the same system. Mercer told Ashby he would be at the
prearranged location in five minutes. Ashby replied, “I’m running around up
here on the street.” State’s Ex. 5. Both phone calls were monitored and
recorded by the detectives. Although Mercer was not in the physical presence
of the detectives when the calls were made, Detective Simpson recognized
Ashby’s and Mercer’s voices on the calls.
[6] The detectives saw Ashby standing in the street where he agreed to meet
Mercer. Ashby was leaning into a vehicle, conversing with someone inside.
After the vehicle drove away, the detectives got out of their unmarked vehicle
and approached Ashby. The detectives recorded the interaction with Ashby
using an audio recording device.
[7] Detective Simpson asked Ashby if he was on house arrest, and Ashby answered
in the affirmative. Detective Wallace then dialed Ashby’s cell phone number,
and Ashby’s phone rang in the presence of the detectives. Detective Simpson
told Ashby that he and Detective Wallace had information that Ashby was
going to “sell pills to somebody.” State’s Ex. 6. Detective Simpson then asked
Ashby if he had any pills on his person, and Ashby replied that he did not.
Detective Simpson then searched Ashby. A pack of cigarettes that contained
nineteen round white pills was found in Ashby’s left back pocket. Ashby was
Mirandized and then questioned about the pills and who he was to meet. He
Court of Appeals of Indiana | Memorandum Decision 39A01-1610-CR-2341 | August 4, 2017 Page 4 of 14 stated that he was helping a friend who had cancer, that he had nineteen pills,
and that he was selling the pills for five dollars each.
[8] The detectives removed Ashby’s cell phone. Ashby exercised his Pirtle rights
and did not consent to a search of his phone. Ashby was handcuffed and
eventually transported to jail. His phone later was searched after a search
warrant was obtained, and records of the text messages and phone calls that
were sent and received on the day of the incident were found.
[9] Ashby was charged with attempted dealing in a narcotic drug and dealing in a
narcotic drug, both as Level 2 felonies. Ashby filed a motion to suppress,
alleging that the evidence seized by the detectives was unlawfully obtained
because the detectives did not have a search warrant or justification for a
warrantless search. After a hearing, the trial court denied the motion.
[10] Ashby then filed a motion to certify the denial of the motion for interlocutory
appeal, which the trial court granted. This court, however, declined to accept
jurisdiction over the interlocutory appeal.
[11] A bench trial was held August 1, 2017, following which Ashby was found guilty
as charged. The trial court merged the convictions and sentenced Ashby to
twenty years executed for his conviction of Level 2 felony attempted dealing in
a narcotic drug. Ashby now appeals.
Court of Appeals of Indiana | Memorandum Decision 39A01-1610-CR-2341 | August 4, 2017 Page 5 of 14 Analysis I. Res Judicata
[12] Ashby maintains that the trial court erred when it determined that further
consideration of his motion to suppress was precluded because the matter was
res judicata. At the start of Ashby’s bench trial, the trial court noted that
Ashby’s motion to suppress had been denied and that this court had declined to
accept jurisdiction over Ashby’s interlocutory appeal of the denial. After the
bench trial began, Ashby renewed his objection to the admission of the
evidence in question. The trial court responded:
And that position is, of course, consistent with what you stated before and with your prior motion to suppress that we’ve reference to. I have examined the briefs in support of the motion to suppress and the briefs opposed to it. I also consider that under these circumstances uh – issues with regard to suppression are res judicata, although the Court of Appeals has not spoken either way on that, and I will certainly show a continuing motion and objection to these things, but I would at this time deny the motion.
Tr. p. 47.
[13] The trial court erred in determining that further consideration of Ashby’s
motion to suppress was precluded by res judicata. It is well-settled that a
pretrial ruling on a motion to suppress is not a final judgment for res judicata
purposes and that such a ruling may be modified by the court that issued the
ruling or another court being asked to reconsider the ruling. See Joyner v. State,
678 N.E.2d 386, 393 (Ind. 1997); see also Gasaway v. State, 249 Ind. 241, 243,
Court of Appeals of Indiana | Memorandum Decision 39A01-1610-CR-2341 | August 4, 2017 Page 6 of 14 231 N.E.2d 513, 514 (1967) (holding that pretrial ruling on motion to suppress
was “in no sense a final judgment” for res judicata purposes). However, we
find the error to be harmless. See Ind. Trial Rule 61 (court at every stage of
proceeding must disregard any error or defect in proceeding which does not
affect substantial rights of party). Here, after the trial court denied Ashby’s
motion to suppress, Ashby renewed his objection to the admission of the
evidence, and his challenge to the admission of the evidence was properly
preserved for this court’s review. We fail to see, and Ashby has not shown,
how he was harmed by the trial court’s error or how the error affected his
substantial rights. Reversal is not warranted.
II. Admissibility of Evidence
[14] Ashby next argues that the warrantless search of his person violated the Fourth 3 Amendment to the United States Constitution. Although Ashby originally
challenged the admission of the evidence through a motion to suppress, he now
challenges the admission of that evidence at trial. Therefore, the issue is
appropriately framed as whether the trial court abused its discretion in
admitting the evidence. See Carpenter v. State, 18 N.E.3d 998, 1001 (Ind. 2014).
[15] The trial court has broad discretion to rule on the admissibility of evidence.
Clark v. State, 994 N.E.2d 252, 259-60 (Ind. 2013). We review its rulings “for
3 Although Ashby asserts that this search also violated his rights under Article I, Section 11 of the Indiana Constitution, he presents no separate argument and analysis with respect to the state constitution. Thus, any separate state constitutional claim is waived because of his failure to make a cogent argument under that provision. See Davis v. State, 907 N.E.2d 1043, 1048 n.10 (Ind. Ct. App. 2009).
Court of Appeals of Indiana | Memorandum Decision 39A01-1610-CR-2341 | August 4, 2017 Page 7 of 14 abuse of that discretion and reverse only when admission is clearly against the
logic and effect of the facts and circumstances and the error affects a party’s
substantial rights.” Id. at 260. But when an appellant’s challenge to such a
ruling is predicated on an argument that impugns the constitutionality of the
search or seizure of the evidence, it raises a question of law, and we consider
that question de novo. Kelly v. State, 997 N.E.2d 1045, 1050 (Ind. 2013).
[16] The Fourth Amendment to the United States Constitution protects persons
from unreasonable search and seizure by prohibiting, as a general rule, searches
and seizures conducted without a warrant supported by probable cause. U.S.
Const. amend. IV.
As a deterrent mechanism, evidence obtained in violation of this rule is generally not admissible in a prosecution against the victim of the unlawful search or seizure absent evidence of a recognized exception. Mapp v. Ohio, 367 U.S. 643, 649-55, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961) (extending exclusionary rule to state court proceedings). It is the State’s burden to prove that one of these well-delineated exceptions is satisfied. [Berry v. State, 704 N.E.2d 462, 465 (Ind. 1998)].
Clark, 994 N.E.2d at 260.
[17] A search incident to a lawful arrest is an exception to the warrant requirement
under the Fourth Amendment. Fentress v. State, 863 N.E.2d 420, 423 (Ind. Ct.
App. 2007). A suspect is considered under arrest when a police officer
interrupts his freedom and restricts his liberty of movement. Id. The fact that a
police officer does not inform a defendant he is under arrest prior to a search
Court of Appeals of Indiana | Memorandum Decision 39A01-1610-CR-2341 | August 4, 2017 Page 8 of 14 does not invalidate the search incident to arrest exception as long as there is
probable cause to make an arrest. Id. Probable cause for an arrest exists if at
the time of the arrest the officer has knowledge of facts and circumstances
which would warrant a man of reasonable caution to believe that the suspect
has committed the criminal act in question. Id. A police officer’s subjective
belief concerning whether he had probable cause to arrest a defendant has no
legal effect. Id. An arrest is lawful if it is supported by probable cause. Id. A
search incident to lawful arrest allows the arresting officer to conduct a
warrantless search of the arrestee’s person and the area within his immediate
control. Id. at 423-24. A search incident to a valid arrest is lawful regardless of
what it reveals. Garcia v. State, 47 N.E.3d 1196, 1200 (Ind. 2016).
[18] Ashby maintains that the detectives lacked probable cause to arrest him, prior
to searching him and seizing the cigarette package that contained the
prescription pills, because Ashby did not make any statements that he intended
to sell the pills to Mercer, and because the detectives first needed to find the
pills before they could establish probable cause for the arrest. We disagree.
[19] Mercer, a concerned citizen, voluntarily travelled to the Madison Police
Department to report that Ashby was trying to sell him prescription pills that
contained oxycodone, a narcotic drug. Mercer provided details about Ashby
that the detectives knew to be true. The detectives presented Mercer with a
picture of Ashby, and Mercer confirmed that the person in the picture was the
individual attempting to sell him the prescription pills. In the presence of two
police detectives, and at the detectives’ direction, Mercer sent a text message to
Court of Appeals of Indiana | Memorandum Decision 39A01-1610-CR-2341 | August 4, 2017 Page 9 of 14 Ashby indicating a desire to purchase prescription pills. Ashby provided
Mercer with a price per pill and a location where the transaction would take
place.
[20] The detectives then travelled to the designated location and discovered Ashby
standing there. Before approaching Ashby, the detectives twice used a third-
party calling device to confirm that Ashby was the individual Mercer had
contacted about purchasing the pills. From the calls, the detectives confirmed
that Ashby was waiting for Mercer. After approaching Ashby, one of the
detectives placed a call to Ashby’s cell phone, using the number obtained from
Mercer, to further confirm that Ashby was the individual who had agreed to sell
Mercer prescription pills.
[21] Based upon the information provided by Mercer, the phone calls between
Ashby and Mercer, and the detectives’ observations, probable cause existed to
arrest Ashby for attempted dealing in a narcotic drug. The detectives were not
required to inform Ashby that he was under arrest. See Fentress, 863 N.E.2d at
423. The fact that Ashby was not formally placed under arrest at the time he
was searched did not invalidate the search. See id. Because there was probable
cause to arrest Ashby at the time the search took place, this was a valid search
incident to arrest; the prescription pills were properly seized; the detectives’
Court of Appeals of Indiana | Memorandum Decision 39A01-1610-CR-2341 | August 4, 2017 Page 10 of 14 search and seizure did not violate the Fourth Amendment; and the trial court 4 did not abuse its discretion in admitting the pills into evidence at trial.
III. Sufficiency of the Evidence
[22] Ashby contends that the evidence is insufficient to sustain his conviction
because the State failed to prove that he possessed at least ten grams of
oxycodone, which was required to convict him of Level 2 felony attempted
dealing in a narcotic drug. At trial, Brandy Cline, an Indiana State Police
Laboratory forensic scientist, testified that she performed three examinations of
one of the pills seized from Ashby and determined that the pill contained the
controlled substance oxycodone, as well as acetaminophen, a non-controlled
substance. She determined that the one pill weighed 0.56 grams.
[23] Cline then performed a visual examination of the remaining pills, referring to a
desk-reference manual used to identify medications. She determined that the
remaining pills “could contain oxycodone and acetaminophen” because they
were identical to the tested pill; “they were all visually consistent as far as the
markings, color and size and shape of [pills that could contain oxycodone and
acetaminophen].” Tr. pp. 153, 154. Cline did not confirm the actual contents
4 Because we conclude that the detectives’ search and seizure did not violate the Fourth Amendment to the United States Constitution, we need not address Ashby’s argument that his statements to the detectives and the evidence found on his cell phone should not have been admitted at trial under the fruit of the poisonous tree doctrine.
Court of Appeals of Indiana | Memorandum Decision 39A01-1610-CR-2341 | August 4, 2017 Page 11 of 14 of the remaining pills, but found the total weight of the remaining pills to be
10.02 grams.
[24] According to Ashby, the State failed to prove he possessed at least ten grams of
oxycodone because “the State failed to prove . . . that all 19 tablets contained
oxycodone and accordingly that the total weight of the oxycodone tablets (pure
or adulterated) exceeded 10 grams.” Appellant’s Brief p. 19. Ashby maintains
that “[a]t most, the State proved [he] was in possession of one tablet containing
oxycodone, weighing 0.56 grams.” Id. We are unpersuaded by Ashby’s
argument and find that the evidence was sufficient to prove Ashby attempted to
deliver at least ten grams of a narcotic drug.
[25] When we review the sufficiency of the evidence to support a criminal
conviction, we consider only the probative evidence and reasonable inferences
supporting the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We
neither reweigh the evidence nor assess witness credibility. Id. Unless no
reasonable factfinder could conclude the elements of the crime were proven
beyond a reasonable doubt, we will affirm the conviction. Id. That is, we will
hold the evidence sufficient if an inference may reasonably be drawn from it to
support the verdict. Id. at 147.
[26] Indiana Code Section 35-48-4-1(a)(2)(C) provides that a person who possesses
with intent to deliver a narcotic drug, pure or adulterated, classified in schedule
I or II commits dealing in a narcotic drug, a Level 5 felony. However, the
offense is a Level 2 felony if “the amount of the drug involved is at least ten (10)
Court of Appeals of Indiana | Memorandum Decision 39A01-1610-CR-2341 | August 4, 2017 Page 12 of 14 grams.” I.C. § 35-48-4-1(e)(1). “A person attempts to commit a crime when,
acting with the culpability required for commission of the crime, the person
engages in conduct that constitutes a substantial step toward commission of the
crime.” I.C. § 35-41-5-1(a). “An attempt to commit a crime is a felony or
misdemeanor of the same level or class as the crime attempted.” Id. The
weight of a controlled substance may be proven by either evidence of its actual,
measured weight or by demonstrating that the quantity is so large as to permit a
reasonable inference that the element of weight has been established. Boggs v.
State, 928 N.E.2d 855, 866 (Ind. Ct. App. 2010), trans. denied.
[27] Here, Ashby agreed to sell Mercer twenty “perks” – that is, pills that contained
oxycodone, a narcotic drug classified in schedule II. Ashby went to the
location where he and Mercer agreed to meet. Nineteen pills were found on
Ashby’s person, seized, and submitted to the State Police laboratory. Cline
testified that during her tenure with the laboratory, she had analyzed
approximately 6,000 drug samples. She tested one of the pills seized from
Ashby and determined that it contained oxycodone. Using a desk-reference
manual, she identified the other pills as being identical to the pill that she tested.
She found that one pill weighed 0.56 grams, that the remaining eighteen pills
together weighed 10.02 grams, and that the total weight of the nineteen pills
was 10.58 grams. Based on the foregoing, we find that sufficient evidence was
presented to prove Ashby possessed at least ten grams of a narcotic drug.
Court of Appeals of Indiana | Memorandum Decision 39A01-1610-CR-2341 | August 4, 2017 Page 13 of 14 Conclusion [28] The trial court’s error in determining that further consideration of Ashby’s
motion to suppress was precluded by res judicata was harmless, and the trial
court properly admitted evidence discovered during a search of Ashby at the
time of his arrest. The State presented sufficient evidence to sustain Ashby’s
conviction for Level 2 felony attempted dealing in a narcotic drug. The
judgment of the trial court is affirmed.
[29] Affirmed.
Baker, J., and Crone, J., concur.
Court of Appeals of Indiana | Memorandum Decision 39A01-1610-CR-2341 | August 4, 2017 Page 14 of 14