MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Oct 21 2015, 7:48 am 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 Bruce W. Graham Gregory F. Zoeller Graham Law Firm P.C. Attorney General of Indiana Lafayette, Indiana Ian McLean Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Eric D. Lacy, October 21, 2015 Appellant-Defendant, Court of Appeals Case No. 79A05-1412-CR-590 v. Appeal from the Tippecanoe Superior Court State of Indiana, The Honorable Randy J. Williams, Appellee-Plaintiff. Judge Trial Court Cause No. 79D01-1310-FB-28
Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 79A05-1412-CR-590 | October 21, 2015 Page 1 of 25 [1] Eric D. Lacy was convicted after a jury trial of possession of
methamphetamine1 as a Class B felony, auto theft2 as a Class D felony, illegal
drug lab3 as a Class C felony, possession of a schedule IV controlled substance 4
as a Class C felony, possession of a syringe 5 as a Class D felony, possession of
paraphernalia6 as a Class A misdemeanor, conspiracy to commit burglary 7 as a
Class B felony, conspiracy to commit theft8 as a Class D felony, burglary9 as a
Class C felony, and two counts of theft,10 each as a Class D felony, and was
adjudicated a habitual offender.11 He appeals raising the following restated
issues for our review:
I. Whether the trial court abused its discretion in admitting evidence discovered in violation of the Fourth Amendment to the
1 See Ind. Code § 35-48-4-6.1. We note that, effective July 1, 2014, a new version of these criminal statutes was enacted. Because Lacy committed his crimes prior to July 1, 2014, we will apply the statutes in effect at the time he committed his crimes. 2 See Ind. Code § 35-43-4-2.5. 3 See Ind. Code § 35-48-4-14.5. 4 See Ind. Code § 35-48-4-7. 5 See Ind. Code § 16-42-19-18. 6 See Ind. Code § 35-48-4-8.3. 7 See Ind. Code §§ 35-41-5-2, 35-43-2-1. 8 See Ind. Code §§ 35-41-5-2, 35-43-4-2. 9 See Ind. Code § 35-43-2-1. 10 See Ind. Code § 35-43-4-2. 11 See Ind. Code § 35-50-2-8.
Court of Appeals of Indiana | Memorandum Decision 79A05-1412-CR-590 | October 21, 2015 Page 2 of 25 United States Constitution and Article 1, section 11 of the Indiana Constitution;
II. Whether the trial court abused its discretion when it denied Lacy’s motion to sever the charges for trial;
III. Whether sufficient evidence was presented to support Lacy’s conviction for possession of a syringe; and
IV. Whether the trial court erred in allowing the State to amend the habitual offender charging information.
[2] We affirm in part and reverse in part.
Facts and Procedural History [3] On October 7, 2013, Lafayette Police Department Officer John Wells (“Officer
Wells”) responded to a report of an auto theft at St. Elizabeth Hospital in
Lafayette, Indiana. Officer Wells spoke with Nancy Billue (“Billue”), who was
visiting her fiancé at the hospital and had driven his red Ford Focus and parked
it in the hospital parking garage. Billue had fallen asleep in the visiting area,
and when she woke up, she realized that her jacket and the car keys had been
taken. Billue went to the parking garage and discovered that the Ford Focus
had been stolen. After speaking with Billue, Officer Wells spoke with the
hospital security staff, who reviewed the video surveillance footage showing
two individuals, later identified as Lacy and Leslie Carr (“Carr”), entering the
hospital and checking the clothing of people who were sleeping in the hospital’s
common areas. With the assistance of hospital security, Officer Wells
Court of Appeals of Indiana | Memorandum Decision 79A05-1412-CR-590 | October 21, 2015 Page 3 of 25 recovered two bicycles that had been abandoned in the bushes near one of the
hospital’s entrances. Officer Wells entered information about the Ford Focus
into the computer databases as a stolen vehicle.
[4] A few days later, Lacy came into contact with Brian Williamson
(“Williamson”), whom Lacy had met when both men were incarcerated in the
Fountain County Jail. Lacy asked if he and Carr could stay in Williamson’s
apartment for a couple of days. The apartment was located at 1723 Greenbush
Street in Lafayette and was within 1,000 feet of St. Lawrence School, Linwood
Elementary School, and Linwood Park. Williamson rented the apartment from
ERE Lafayette, LLC (“ERE”) under a lease that prohibited him from allowing
other people to occupy the apartment or altering the premises. State’s Ex. 39.
Williamson had moved out of the apartment and told Lacy that he and Carr
could stay at the apartment for a couple of days.
[5] After allowing them to stay at his apartment, Williamson noticed that Lacy and
Carr were moving all of their property into the apartment and that they had
changed the locks on the apartment. At that point, Williamson wanted them to
leave, but did not know how to get them out of the apartment because they
appeared “dead set on them not leaving.” Tr. at 225. Although Williamson
was no longer living in the apartment primarily, he continued to keep some
personal property there, including a moped, a television, a dresser, and some
tools. Williamson also visited the apartment while Lacy and Carr were living
there to smoke methamphetamine. Williamson observed Lacy and Carr
driving a red Ford Focus and rode with Lacy occasionally.
Court of Appeals of Indiana | Memorandum Decision 79A05-1412-CR-590 | October 21, 2015 Page 4 of 25 [6] Both Lacy and Carr were methamphetamine users and manufacturers. They
used the Ford Focus to drive to stores to obtain the ingredients and supplies
needed to manufacture methamphetamine, and they also drove the car to rural
locations in Tippecanoe County to manufacture methamphetamine outdoors.
Lacy and Carr needed money to buy methamphetamine or the ingredients and
supplies necessary to manufacture it.
[7] In the beginning of October, Carr contacted Jason Martin (“Martin”), with
whom she had previously lived for several years in his home on Stair Road in
Tippecanoe County. Although they had separated in 2007, Martin still had the
same employment and work schedule as when he lived with Carr. On October
10, 2013, Martin returned home from work and found his shed had been broken
into by cutting the lock Martin kept on the door. Several tools were stolen from
the shed, including a router, router bits, a jigsaw, and a circular saw; a
generator was also stolen from the shed. Martin contacted the Tippecanoe
County Sheriff’s Department, and a deputy came to take a report of the
burglary.
[8] On October 15, 2013, Martin returned home from work and found his home
had been broken into by shoving the door with such force that the door frame
was dislodged. The home was ransacked inside, and many items were stolen,
including two guitars, amplifiers, a television, two computers, and jewelry.
Martin noticed that some photographs had been pulled out of a cabinet,
particularly photographs of a cat that had been purchased when he and Carr
were living together. Martin reported this burglary to the Sheriff’s Department,
Court of Appeals of Indiana | Memorandum Decision 79A05-1412-CR-590 | October 21, 2015 Page 5 of 25 and based on the photographs, he told the police that he suspected Carr of being
involved in the burglary.
[9] On the morning of October 18, 2013, Lafayette Police Department Officer
Thomas Davidson (“Officer Davidson”) was on routine patrol when he
received a dispatch of an anonymous report that Lacy and Carr were driving a
stolen red Ford Focus in the area of 18th Avenue and Greenbush Street in
Lafayette. Officer Davidson and several other officers went to the location.
There, Officer Davidson saw a female in a red Ford Focus at 1723 Greenbush
Street. Officer Davidson observed that the female’s appearance matched the
description of Carr in the computer system. Carr had parked the Ford Focus
and turned off the motor. Officer Davidson approached the car and asked Carr
for her name. After Carr identified herself by name and date of birth, Officer
Davidson had her step out of the car. When she did so, Officer Davidson
noticed Carr had a glass pipe between her legs. Officer Davidson then
performed a pat down on Carr and handcuffed her. He also took the keys in
Carr’s possession.
[10] Although the license plate number listed for the Ford Focus did not match the
plate number on the car, the vehicle identification number matched that of the
Ford Focus stolen from Billue on October 7. Officer Davidson observed that
the car was filled with several items including a television and several guitars.
Officer Thomas Bordenet (“Officer Bordenet”) and Officer Stephen Pierce
(“Officer Pierce”) of the Lafayette Police Department also arrived at the scene
and determined that the vehicle registration for the car was registered to Billue’s
Court of Appeals of Indiana | Memorandum Decision 79A05-1412-CR-590 | October 21, 2015 Page 6 of 25 fiancé, Richard Snyder. Carr told the officers that she and Lacy lived in
Apartment 1 at 1723 Greenbush Street and that Lacy was asleep inside the
apartment. Officer Pierce knocked on the door of the apartment, but there was
no answer.
[11] About an hour and a half after the police encountered Carr in the Ford Focus, a
neighbor called Karrie Moore (“Moore”), the property manager for ERE, and
informed her that the police were at the Greenbush Street apartments. Moore
took the master keys to the apartments and drove over to the address. When
she arrived, she saw the officers standing near the Ford Focus behind the
apartment. Moore approached the officers, introduced herself as the property
manager, and informed the officers that Williamson was the tenant of
Apartment 1 and not Lacy and Carr. The officers had Moore look at Carr to
see if Moore could recognize her as the tenant, but Moore could not. Moore
called the owner of the building, and he told Moore that he wanted Lacy and
Carr escorted out of the apartment as they were not on the lease. Moore told
Officer Pierce that Carr’s key to the apartment should be turned over to Moore
since Carr was not on the lease, and the officer retrieved the key and gave it to
Moore.
[12] Moore asked the officers what she could do to remove Lacy and Carr from the
apartment. They told her they could not enter the apartment without a
warrant, but that, as the property manager, she could enter the apartment.
Moore, accompanied by Officers Davidson, Bordenet, and Pierce, went to the
apartment’s door and knocked and shouted “management.” Tr. at 248. She
Court of Appeals of Indiana | Memorandum Decision 79A05-1412-CR-590 | October 21, 2015 Page 7 of 25 tried to enter with the master key, but it did not work, so she tried the key she
had received from Officer Pierce that had been taken from Carr. Moore was
able to unlock the door with this key, and after opening the door, she took one
or two steps into the apartment and shouted, “management.” Id. The officers
stayed outside on the porch and did not enter the apartment. Moore heard
someone moving around who said that he would be there in a minute. Moore
stepped back outside the apartment at that time.
[13] Lacy came to the door and exited the apartment. Williamson was called to the
apartment and arrived shortly thereafter. Officer Bordenet presented
Williamson with a consent to search form and requested permission to search
the apartment. Williamson signed the form and gave his consent to search the
apartment. Lacy was also presented with a consent to search form, which he
also signed and gave his consent to search the apartment. Inside the apartment,
officers found lithium batteries, a digital scale, coffee filters, organic solvents,
glass mason jars, and lighter fluid, which are all used in the manufacture of
methamphetamine. They also found a pill grinder, drain cleaner containing lye
or sodium hydroxide, more lye and sulfuric acid, cold packs containing
ammonium nitrite, and plastic tubing consistent with use in an HCL generator,
all of which are also used in the manufacture of methamphetamine. After
conducting a search of the Ford Focus, the officers found, inside the car, a
respirator and lithium batteries.
[14] The State initially charged Lacy with Count I, Class B felony possession of
methamphetamine and Count II, Class D felony auto theft. The State later
Court of Appeals of Indiana | Memorandum Decision 79A05-1412-CR-590 | October 21, 2015 Page 8 of 25 added Count III, Class C felony illegal drug lab, Count IV, Class C felony
possession of a schedule IV controlled substance, Count V, Class D felony
possession of a syringe, Count VI, Class A misdemeanor possession of
paraphernalia, Count VII, Class B felony conspiracy to commit burglary, Count
VIII, Class D felony conspiracy to commit theft, Count IX, Class C felony
burglary, Count X, Class D felony theft, Count XI, Class B felony burglary, and
Count XII, Class D felony theft. The State later filed Count XIII, alleging Lacy
to be a habitual offender.
[15] The State amended the habitual offender count on two separate occasions.
Lacy filed a motion to suppress and a request for severance of the offenses, and
the trial court denied both motions. A jury found Lacy guilty of all the charges
except for burglary as a Class B felony. Lacy waived his right to a jury trial on
the habitual offender allegations, and the trial court found him to be a habitual
offender. The trial court imposed twenty-three years on the underlying offenses
and enhanced his sentence for the Class B felony conspiracy to commit burglary
being by ten years for the habitual offender finding, resulting in an aggregate
sentence of thirty-three years, of which twenty-eight were ordered served in the
Department of Correction, two years on community corrections, and three
years suspended to probation. Lacy now appeals.
Court of Appeals of Indiana | Memorandum Decision 79A05-1412-CR-590 | October 21, 2015 Page 9 of 25 Discussion and Decision
I. Admission of Evidence [16] Although Lacy originally challenged the admission of the evidence through a
pre-trial motion to suppress, he appeals following a completed jury trial and
thus challenges the admission of such evidence at trial. The admission or
exclusion of evidence is entrusted to the discretion of the trial court. Collins v.
State, 966 N.E.2d 96, 104 (Ind. Ct. App. 2012) (citing Farris v. State, 818 N.E.2d
63, 67 (Ind. Ct. App. 2004), trans. denied). We will reverse a trial court’s
decision only for an abuse of discretion. Id. We will consider the conflicting
evidence most favorable to the trial court’s ruling and any uncontested evidence
favorable to the defendant. Id. (citing Taylor v. State, 891 N.E.2d 155, 158 (Ind.
Ct. App. 2008), trans. denied, cert. denied 555 U.S. 1142 (2009)). An abuse of
discretion occurs when the trial court’s decision is clearly against the logic and
effect of the facts and circumstances before the court or it misinterprets the law.
Id.
[17] Lacy argues that the trial court abused its discretion when it admitted evidence
found inside the apartment without a warrant. He contends that the evidence
was discovered in violation of the Fourth Amendment because his consent to
search the apartment was not validly obtained. Lacy specifically asserts that,
when Moore entered into the apartment, she was acting as an agent of the
police and this illegal entry invalidated his consent. Lacy also claims that the
evidence was found in violation of Article 1, section 11 of the Indiana
Constitution because the actions of the police sending in an agent to do their Court of Appeals of Indiana | Memorandum Decision 79A05-1412-CR-590 | October 21, 2015 Page 10 of 25 business imposed an unreasonable degree of intrusion. This, when balanced
against the suspicion of the police that Lacy was involved in an auto theft and
the insufficiently-demonstrated law enforcement needs when a warrant could
have been sought, show that the actions of the police were unreasonable under
the Indiana Constitution.
[18] The Fourth Amendment to the United States Constitution protects an
individual’s privacy and possessory interests by prohibiting unreasonable
searches and seizures. Sugg v. State, 991 N.E.2d 601, 607 (Ind. Ct. App. 2013)
(citing Washington v. State, 922 N.E.2d 109, 111 (Ind. Ct. App. 2010)), trans.
denied. Generally, a search warrant is a prerequisite to a constitutionally proper
search and seizure. Id. When a search is conducted without a warrant, the
State has the burden of proving that an exception to the warrant requirement
existed at the time of the search. Id. The propriety of a warrantless search is
subject to de novo review. Montgomery v. State, 904 N.E.2d 374, 378 (Ind. Ct.
App. 2009) (citing Engram v. State, 893 N.E.2d 744, 748 (Ind. Ct. App. 2008),
trans. denied), trans. denied.
[19] One recognized exception to the warrant requirement is a valid consent to
search. Bulthuis v. State, 17 N.E.3d 378, 383 (Ind. Ct. App. 2014), trans. denied.
“When an individual gives the State permission to search either his person or
property, the governmental intrusion is presumably reasonable.” Id. When
relying upon consent to justify a warrantless search, the State bears the burden
of proving that the consent was freely and voluntarily given. Id. The
voluntariness of the consent to search is to be determined by considering the
Court of Appeals of Indiana | Memorandum Decision 79A05-1412-CR-590 | October 21, 2015 Page 11 of 25 totality of the circumstances. Id. A consent to search is valid except where it is
procured by fraud, duress, fear, intimidation, or where it is merely a submission
to the supremacy of the law. Crocker v. State, 989 N.E.2d 812, 820 (Ind. Ct.
App. 2013), trans. denied.
The “totality of the circumstances” from which the voluntariness of a [defendant]’s consent is to be determined includes, but is not limited to, the following considerations: (1) whether the defendant was advised of his Miranda rights prior to the request to search; (2) the defendant’s degree of education and intelligence; (3) whether the defendant was advised of his right not to consent; (4) whether the detainee has previous encounters with law enforcement; (5) whether the officer made any express or implied claims of authority to search without consent; (6) whether the officer was engaged in any illegal action prior to the request; (7) whether the defendant was cooperative previously; and (8) whether the officer was deceptive as to his true identity or the purpose of the search.
[20] Id. at 820-21. “The determination of whether consent in this context was
voluntary is a question of fact, and a reviewing court is ill-equipped to make
factual determinations, especially where the evidence is conflicting.” Bulthuis,
17 N.E.3d at 383.
[21] In the present case, after Lacy exited the apartment, he was provided with a
written consent to search form, which was read to him by one of the officers.
The form advised Lacy that he had a Constitutional right: (1) not to have a
search conducted of the premises and vehicles under his control; (2) to refuse to
consent to such a search; (3) to have an attorney appointed for him if he could
not afford one; and (4) to consult with an attorney before deciding whether to Court of Appeals of Indiana | Memorandum Decision 79A05-1412-CR-590 | October 21, 2015 Page 12 of 25 consent to the search. State’s Ex. 28. After being read the consent form, Lacy
consented to a search of the apartment. Tr. at 261-62. At the time that Lacy
signed the consent form, there were several officers present in uniform and at
least one detective in plain clothes, and the officers were not deceptive as to
their identity or the purpose of the search. The reading and signing of the
consent form occurred on the front porch of the apartment in the early
afternoon at around 1:30 p.m. When the officers spoke to Lacy, they did not
make any express or implied claim of authority to search without Lacy’s
consent. Nothing in the record suggested that Lacy was unable to understand
the consent form, and the trial court was aware that Lacy had multiple prior
encounters with law enforcement as he was facing allegations of being a
habitual offender. We conclude that, based on the totality of the circumstances,
the trial court did not abuse its discretion in determining that Lacy voluntarily
consented to the search of the apartment.
[22] Further, Lacy alleges that, when Moore entered the apartment, her actions
constituted an illegal police entry. We disagree. “Two ‘critical factors’ in the
‘instrument or agent’ analysis are (1) whether the government knew of and
acquiesced in the intrusive conduct, and (2) whether the private party’s purpose
in conducting the search was to assist law enforcement agents or to further its
own ends.” Sweet v. State, 10 N.E.3d 10, 14 (Ind. Ct. App. 2014) (citing Bone v.
State, 771 N.E.2d 710, 714 (Ind. Ct. App. 2002)).
[23] Here, Moore’s objective in entering the apartment was to fulfill her employer’s
request to escort Lacy out of the apartment because he was a squatter and not a
Court of Appeals of Indiana | Memorandum Decision 79A05-1412-CR-590 | October 21, 2015 Page 13 of 25 signatory on the lease. Moore asked the officers what she could do to remove
Lacy and Carr from the apartment, and they informed her they could not enter
the apartment without a warrant, but that, as the property manager, she could
enter the apartment. Moore then entered the apartment to obey her employer’s
wishes, not to assist the police. Additionally, the police did not hand Carr’s key
to Moore unprompted to allow her entry to assist them. Moore had already
previously told Officer Pierce that Carr’s key to the apartment should be turned
over to Moore since Carr was not on the lease, and the police were complying
with that request. Although the police knew and acquiesced in Moore’s entry
into the apartment, the evidence failed to show that her purpose in entering the
apartment was to assist law enforcement in their endeavors. Moore’s entry into
the apartment did not invalidate Lacy’s consent to search the apartment. The
trial court did not abuse its discretion in overruling Lacy’s objection to the
admission of the evidence based upon the Fourth Amendment.
[24] Lacy also argues that the trial court abused its discretion in admitting the
evidence because the officers’ actions violated the Indiana Constitution. Article
I, Section 11 of the Indiana Constitution provides that “[t]he right of the people
to be secure in their persons, houses, papers, and effects, against unreasonable
search or seizure, shall not be violated . . . .” Although virtually identical to the
wording of the search and seizure provision in the federal constitution,
Indiana’s search and seizure clause is independently interpreted and applied.
Danner v. State, 931 N.E.2d 421, 431 (Ind. Ct. App. 2010), trans. denied. Under
the Indiana Constitution, the legality of a governmental search turns on an
Court of Appeals of Indiana | Memorandum Decision 79A05-1412-CR-590 | October 21, 2015 Page 14 of 25 evaluation of the reasonableness of the police conduct under the totality of the
circumstances. Id. (citing Myers v. State, 839 N.E.2d 1146, 1153 (Ind. 2005)).
The burden is on the State to show that under the totality of the circumstances,
the intrusion was reasonable. Id. (citing State v. Bulington, 802 N.E.2d 435, 438
(Ind. 2004)). Generally, the reasonableness of a search or seizure under the
Indiana Constitution turns on the balance of: (1) the degree of concern,
suspicion, or knowledge that a violation has occurred; (2) the degree of
intrusion the method of the search or seizure imposes on the citizen’s ordinary
activities; and (3) the extent of law enforcement needs. Id. (citing Litchfield v.
State, 824 N.E.2d 356, 361 (Ind. 2005)).
[25] Lacy’s argues that the police violated the Indiana Constitution by “massing” on
the porch of the apartment and, “sending in an agent of the State to conduct
their business,” which tainted his consent. Appellant’s Br. at 16. However, as
we have previously discussed, Moore was not acting as an agent of the State
when she entered the apartment; she was acting on the request of her employer
to remove Lacy from the apartment. Therefore, Moore’s entry into the
apartment did not constitute an illegal entry that tainted Lacy’s later valid
consent to search. Searches do not violate the Indiana Constitution if voluntary
consent to search is given. Harper v. State, 963 N.E.2d 653, 658 (Ind. Ct. App.
2012), clarified on reh’g, 968 N.E.2d 843 (Ind. Ct. App. 2012), trans. denied. The
trial court did not abuse its discretion in overruling Lacy’s objection to the
admission of the evidence based upon Article 1, section 11 of the Indiana
Constitution.
Court of Appeals of Indiana | Memorandum Decision 79A05-1412-CR-590 | October 21, 2015 Page 15 of 25 II. Severance of Offenses [26] Lacy contends that the trial court abused its discretion when it denied his
motion to sever the offenses for trial because he claims the offenses did not
constitute a single scheme or plan and could not be joined. Indiana Code
section 35-34-1-9(a) is the basis for joining these offenses and provides:
Two (2) or more offenses may be joined in the same indictment or information, with each offense stated in a separate count, when the offenses:
(1) are of the same or similar character, even if not part of a single scheme or plan; or
(2) are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan.
However, Indiana Code section 35-34-1-11(a) provides for a right to severance
of offenses that are joined solely on the ground that they are of the same or
similar character:
Whenever two (2) or more offenses have been joined for trial in the same indictment or information solely on the ground that they are of the same or similar character, the defendant shall have a right to a severance of the offenses. In all other cases the court, upon motion of the defendant or the prosecutor, shall grant a severance of offenses whenever the court determines that severance is appropriate to promote a fair determination of the defendant’s guilt or innocence of each offense considering:
(1) the number of offenses charged;
Court of Appeals of Indiana | Memorandum Decision 79A05-1412-CR-590 | October 21, 2015 Page 16 of 25 (2) the complexity of the evidence to be offered; and
(3) whether the trier of fact will be able to distinguish the evidence and apply the law intelligently as to each offense.
“Accordingly, severance is required as a matter of right . . . only when the
offenses are joined solely because they are of the same or similar character.”
Heinzman v. State, 895 N.E.2d 716, 720 (Ind. Ct. App. 2008), trans. denied.
Where the offenses have been joined because the defendant’s underlying acts
are connected together or constitute parts of a single scheme or plan, we review
the trial court’s decision on severance for an abuse of discretion. Pierce v. State,
29 N.E.3d 1258, 1264 (Ind. 2015).
[27] Lacy does not argue that he was entitled to severance as a matter of right on the
basis that the charged offenses were joined together solely on the ground that
they were of the same of similar character, and the issue is whether the charges
were properly joined under Indiana Code section 35-34-1-9(a)(2) because they
were based on the same conduct or on a series of acts connected together or
constituting parts of a single scheme or plan. “To determine whether offenses
warrant joinder under subsection 9(a)(2), we ask whether the operative facts
establish a pattern of activity beyond mere satisfaction of the statutory
elements.” Pierce, 29 N.E.3d at 1266.
[28] Here, the evidence showed that Lacy and Carr were methamphetamine users
and manufacturers, who stole a car, and used that car to further their habit and
to manufacture the drug. They drove the car to obtain the ingredients and
Court of Appeals of Indiana | Memorandum Decision 79A05-1412-CR-590 | October 21, 2015 Page 17 of 25 supplies necessary to make methamphetamine and to rural locations in
Tippecanoe County to manufacture the drug. They also used the car to commit
two burglaries at Martin’s residence to steal items that they could sell to obtain
money to make and buy more methamphetamine. Additionally, when Lacy
and Carr were arrested, ingredients and supplies to manufacture
methamphetamine and the drug itself were found in the car and the apartment
where they were living. The common motive of making and buying
methamphetamine and the continual use of the stolen vehicle to achieve this
motive connected the crimes together and constituted a single scheme. The fact
that Lacy’s crimes were committed with Carr as a co-defendant is an additional
fact linking the crimes. We conclude that Lacy was not entitled to severance as
a matter of right because his crimes were properly joined because they were
based on a series of acts connected together or constituting parts of a single
scheme or plan.
[29] Lacy contends that the trial court abused its discretion when it denied his
motion to sever because severance was necessary to promote a fair
determination of his guilt or innocence for each offense. In looking at the
factors set out in Indiana Code section 35-34-1-11(a), we note that there were
twelve offenses charged in this case. However, the evidence to be offered at
trial was not complex and consisted of the testimony of the victims of the auto
theft and burglaries, surveillance footage of the hospital showing Lacy and Carr
checking the belongings of people, testimony of the actions and behaviors of
Lacy and Carr near the time of the crimes, and the identification of items found
Court of Appeals of Indiana | Memorandum Decision 79A05-1412-CR-590 | October 21, 2015 Page 18 of 25 in the stolen car and the apartment where they were staying, including items
stolen from Martin and items used in the manufacture and use of
methamphetamine. Although Lacy was charged with several offenses, the jury
was able to distinguish the evidence and apply the law to each offense. Indeed,
the jury acquitted him of the Class B felony burglary charge. We do not find
that the trial court abused its discretion when it denied Lacy’s motion to sever
his offenses for trial.
III. Possession of a Syringe [30] Lacy also argues that insufficient evidence was presented to support his
conviction for Class D felony possession of a syringe under Indiana Code
section 16-42-19-18. He contends that the statute prohibits the possession of a
hypodermic needle or syringe with the intent to violate the Legend Drug Act
and that there was no evidence presented that he intended to violate the Legend
Drug Act in his possession of the syringe. Lacy asserts that the statute pertains
only to legend drugs and not to controlled substances and methamphetamine in
particular.
[31] The deferential standard of review for sufficiency claims is well settled. This
court will neither reweigh the evidence nor assess the credibility of witnesses.
Tooley v. State, 911 N.E.2d 721, 724 (Ind. Ct. App. 2009), trans. denied; Elisea v.
State, 777 N.E.2d 46, 48 (Ind. Ct. App. 2002). Rather, we will consider only
the evidence and reasonable inferences most favorable to the trial court’s ruling.
Elisea, 777 N.E.2d at 48. We will affirm unless no reasonable fact-finder could
Court of Appeals of Indiana | Memorandum Decision 79A05-1412-CR-590 | October 21, 2015 Page 19 of 25 find the elements of the crime proven beyond a reasonable doubt. Tooley, 911
N.E.2d at 724-25. Thus, if there is sufficient evidence of probative value to
support the conclusion of the trier of fact, then the verdict will not be disturbed.
Trimble v. State, 848 N.E.2d 278, 279 (Ind. 2006).
[32] Under Indiana Code section 16-42-19-18, which is entitled “legend drug
injection devices,” “[a] person may not possess or have under control with
intent to violate this chapter a hypodermic syringe or needle or an instrument
adapted for the use of a legend drug by injection in a human being.” In order to
be convicted under this statute, a defendant must possess a syringe with the
intent to violate chapter 19, the Legend Drug Act, which is the chapter in which
Indiana Code section 16-42-19-18 is included. Therefore, the requisite intent to
be convicted under the statute is not expressed as the intent to inject any drug,
but to violate the Act itself.
[33] In Bookwalter v. State, 22 N.E.3d 735 (Ind. Ct. App. 2014), trans. denied, a panel
of this court construed this statute to determine whether possessing a syringe
with the intent to inject heroin satisfied the intent element of Indiana Code
section 16-42-19-18. Id. at 740. In that case, the defendant was found to
possess a syringe and admitted that he intended to use it to inject heroin, but he
argued that heroin was not a legend drug and that there was insufficient
evidence to show he possessed the syringe with the intent to violate the Legend
Drug Act. Id. at 739. This court found that the statute was ambiguous as to
whether possession of a syringe with the intent to inject “any substance that is
not also a legend drug, insulin, or anabolic steroid” was a criminal act under
Court of Appeals of Indiana | Memorandum Decision 79A05-1412-CR-590 | October 21, 2015 Page 20 of 25 Indiana Code section 16-42-19-18.12 Id. at 741. Due to this ambiguity, this
court applied the rule of lenity and construed the statute in favor of the
defendant, concluding that intent to inject heroin was not covered by the
Legend Drug Act’s definition of the offense of possession of a syringe. Id.
[34] Applying this reasoning to the present case, we conclude that the evidence did
not support Lacy’s conviction for possession of a syringe. The only evidence
presented regarding the use of drugs with the syringe was associated with
methamphetamine. Methamphetamine is a schedule II controlled substance.
Ind. Code § 35-48-2-6(d). A legend drug is defined as a drug listed in the
“Prescription Drug Product List” as published and revised in “United Stated
Department of Health and Human Services Approved Drug Products with
Therapeutic Equivalence Evaluations” and its supplement. Ind. Code § 16-18-
2-199. No evidence was presented that methamphetamine was a legend drug or
that Lacy possessed the syringe with the intent to use a legend drug. We,
therefore, hold that the evidence did not establish that Lacy possessed a syringe
with the intent to violate the Legend Drug Act, and his conviction for
possession of a syringe as a Class D felony must be reversed. Given that Lacy’s
sentence for his possession of a syringe conviction was ordered to be served
12 We note that this ambiguity has been remedied by a change in the statutory language. Effective July 1, 2015, Indiana Code section 16-42-19-18 was amended and now states, “A person may not possess with intent to: (1) violate this chapter; or (2) commit an offense described in IC 35-48-4; a hypodermic syringe or needle or an instrument adapted for the use of a controlled substance or legend drug by injection in a human being.” Ind. Code § 16-42-19-18(a). Indiana Code chapter 35-48-4 is entitled “Offenses Relating to Controlled Substances.” The statute is, therefore, no longer ambiguous as to its application to the possession of a syringe with the intent to inject a controlled substance.
Court of Appeals of Indiana | Memorandum Decision 79A05-1412-CR-590 | October 21, 2015 Page 21 of 25 concurrent with his six-year sentence for illegal drug lab and his one-year
sentence for possession of paraphernalia, our decision to reverse his conviction
does not affect his aggregate sentence. See Appellant’s App. at 27-28.
IV. Amendment of Charging Information [35] Lacy asserts that the trial court erred in allowing the State to amend the
habitual offender information on the day of the trial to reinstate the habitual
offender count to its original form. He argues that the State did not show good
cause for the late amendment, and the trial court abused its discretion in
allowing it. Lacy further contends that he was prejudiced by the late
amendment of the habitual offender information because his counsel “had to
scramble at the last minute to review additional supporting documentation, and
make decisions about whether or not Lacy could, or should[,] testify.”
Appellant’s Br. at 25.
[36] Initially, we note that Lacy failed to request a continuance when the
amendment was granted by the trial court. This court has held “a defendant’s
failure to request a continuance after a trial court allows a pre-trial substantive
amendment to the charging information over defendant’s objection results in
waiver.” Wilson v. State, 931 N.E.2d 914, 918 (Ind. Ct. App. 2010), trans.
denied. Lacy had the opportunity to request a continuance of his trial for the
purpose of allowing him the chance to prepare his defense after the trial court
allowed the State to amend the charging information over his objection, but
chose not to do so. “‘A party may not sit idly by and permit the court to act in
Court of Appeals of Indiana | Memorandum Decision 79A05-1412-CR-590 | October 21, 2015 Page 22 of 25 a claimed erroneous matter and then attempt to take advantage of the alleged
error at a later time.’” White v. State, 963 N.E.2d 511, 518 (Ind. 2012) (quoting
Hensley v. State, 251 Ind. 633, 639, 244 N.E.2d 225, 228 (1969)). Lacy has,
therefore, waived this issue for appellate review.
[37] Waiver notwithstanding, Lacy’s contention fails on the merits. Although he
cites to Indiana Code section 35-41-1-5(e) and claims the State was required to
show good cause before it could amend the habitual offender information, that
subsection only applies when the State moves to amend the charging
information to include or add a habitual offender charge; it does not apply
when the State wishes to amend an existing habitual offender charge. Williams
v. State, 735 N.E2d 785, 789 n.5 (Ind. 2000) (holding that it was erroneous for
defendant to rely on Indiana Code section 35-34-1-5(e) where the State was
requesting to amend the already existing habitual offender information);
Haymaker v. State, 667 N.E.2d 1113, 1114 (Ind. 1996) (finding defendant’s
reliance on Indiana Code section 35-34-1-5(e) was in error when the State was
not seeking to add a habitual offender charge, but merely seeking to amend an
existing charge). We, therefore, find Lacy’s contentions in the present case that
the State was required to show good cause to amend the already existing
habitual offender charge to be misplaced.
[38] Indiana Code section 35-34-1-5 governs amendments to criminal indictments or
informations and permits amendments to both form and substance at any time
prior to the commencement of trial as long as the defendant’s substantial rights
are not prejudiced by the amendment. Ind. Code § 35-34-1-5(a), (b). A
Court of Appeals of Indiana | Memorandum Decision 79A05-1412-CR-590 | October 21, 2015 Page 23 of 25 defendant’s substantial rights include a right to sufficient notice and an
opportunity to be heard regarding the charge. Hurst v. State, 890 N.E.2d 88, 95
(Ind. Ct. App. 2008), trans. denied. Our Supreme Court has stated that the
question is ultimately whether the defendant had a reasonable opportunity to
prepare for and defend against the charges. Id.
[39] Here, the State filed its notice of intent to file a habitual offender enhancement
on October 23, 2013 at the same time it filed the initial charges against Lacy.
Thereafter, on January 9, 2014, filed Count XIII, alleging Lacy to be a habitual
offender. This charge alleged that Lacy had a 2005 conviction for nonsupport
of a dependent under Cause Number 23C01-0502-FC-114 (“Cause 114”), a
2001 conviction for residential entry under Cause Number 79E02-0007-DF-340
(“Cause 340”), and convictions in 1992 for two counts of theft under Cause
Number 23C01-9111-CF-388 (“Cause 388”). Appellant’s App. at 50. The State
moved to amend the habitual offender count on September 17, 2014 as to the
conviction in Cause 114 by changing the dates of the offense and as to Cause
388 by removing the allegation of theft convictions. Id. at 67. The trial court
granted this motion. On October 6, 2014, the day before the trial began, the
State moved to amend the habitual offender count with respect to Cause 388 in
order to restore the previously-removed theft convictions.
[40] Based on these facts, Lacy was aware that the State intended to seek a habitual
offender finding against him as of October 23, 2013. He was on notice that the
State intended to prove this status by his prior convictions under Cause 114,
Cause 340, and Cause 388 from the date of the filing of the habitual offender
Court of Appeals of Indiana | Memorandum Decision 79A05-1412-CR-590 | October 21, 2015 Page 24 of 25 charge on January 9, 2014 until the State’s first amendment on September 17,
2014. During this period of time, the case was set for trial five times, as the trial
court noted during a hearing on the State’s motion to amend. Then, for a short
period of time from September 17 until October 7, 2014, when the trial court
granted the second amendment, the State removed Cause 388 from the
allegations until its motion to reinstate the identical habitual offender
information that had been alleged for over eight months prior to the
amendment on September 17. At the time the trial court granted the State’s
motion to amend the habitual offender charge, Lacy did not raise any
complaints regarding a scramble to review additional documentation or allege
prejudice resulting from a decision as to whether he should testify. We
conclude that Lacy had a reasonable opportunity to prepare for and defend
against the habitual offender charge, and the trial court did not abuse its
discretion in allowing the State to amend the habitual offender charge.
[41] Affirmed in part and reversed in part.
Najam, J., and Barnes, J., concur.
Court of Appeals of Indiana | Memorandum Decision 79A05-1412-CR-590 | October 21, 2015 Page 25 of 25